[J-94-2020] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: B.W. : No. 14 WAP 2020
Appeal from the Order of the
APPEAL OF: BLAIR COUNTY Superior Court entered November 1,
DEPARTMENT OF HUMAN SERVICES 2019 at No. 289 WDA 2019,
reversing the Order of the Court of
Common Pleas of Blair County
entered February 13, 2019 at No.
2018 GN 2882, and remanding.
: ARGUED: October 22, 2020
CONCURRING AND DISSENTING OPINION
JUSTICE TODD DECIDED: MAY 18, 2021
In construing the sufficiency of proofs under Section 301(b)(1) of the Mental Health
Procedures Act supporting acommitment under Section 302 —that "the person has made
threats of harm and has committed acts in furtherance of the threat to commit harm," 50
P. S. §7301(b)(1) — Iagree with the majority that, in addition to proof of athreat to commit
harm, proof of an act committed in furtherance of that threat is also required. Thus, Ijoin
that portion of the Majority Opinion. See Majority Opinion at 14-18. However, Idisagree
that there was sufficient proof that such an act was committed here. Accordingly, on that
point, Idissent.
To medical professionals, B.W. threatened to kill his coworker, adding that he
would strangle the coworker the next time he saw him. Obviously, these words
constituted a threat to commit harm. Apart from uttering these words, albeit with their
implication that B.W. had, to some degree, mentally planned the killing, no evidence was
offered that B.W. took any action related to this threat. Nonetheless, the majority
concludes that B.W.'s "articulation of a specific plan to harm an identified target" was
sufficient to prove he committed acts in furtherance of his threat. Majority Opinion at 19.
1cannot agree.
As the majority concludes, aSection 302 commitment of the type at issue in this
case requires proof of both a threat and an act in furtherance of that threat. This
formulation is used three times in Section 301, the first of which is implicated here. See
50 P.S. § 7301(b)(1) ("the person has made threats of harm and has committed acts in
furtherance of the threat to commit harm"); id. § 7301(b)(2)(ii) ("the person has made
threats to commit suicide and has committed acts which are in furtherance of the threat
to commit suicide"), id. § 7301(b)(2)(iii) ("the person has made threats to commit
mutilation and has committed acts which are in furtherance of the threat to commit
mutilation"). In each case, the threat —of harm to others /to commit suicide /to mutilate
oneself —must be accompanied by the commitment of acts in furtherance of that threat.
Given this language, Iam unable to conclude that the expression of thoughts to
medical professionals proves a threat and that those self-same expressions constitute
"acts in furtherance of the threat. In my view, the legislature's use of the phrase
"committed acts in furtherance of the threat" requires some action beyond the expression
of the threat itself. Indeed, critically, the committed acts must be "in furtherance of the
threat.
"Furtherance" is defined as 1t]he fact of being helped forward," "the action of
helping forward," or "advancement, aid, assistance." The New Shorter Oxford English
Dictionary 1046 (4th ed. 1993). Thus, acts committed "in furtherance of a threat must
advance the threat, help move it forward. In my opinion, this qualifying language requires
an individual to advance the threat via action beyond the threatening expression itself,
something akin to an "overt act". See Black's Law Dictionary (11th ed. 2019) (defining
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"overt act" as "[a]n outward, physical manifestation of the will"). Indeed, while the majority
eschews the conclusion that Section 301(b) requires an overt act, see Majority Opinion
at 21, it overlooks caselaw from this Court and the Superior Court holding precisely that.
In Com. ex rel. Gibson v. DiGiacinto, 439 A.2d 105 (Pa. 1981), we addressed a
challenge to an involuntary commitment under Section 304. After quoting the three clear-
and-present-danger formulations of Section 301(b) discussed above,' we held that "if
appellant is to be found aclear and present danger to himself or others, it is necessary to
show an overt act involving attempted suicide or self-mutilation or the infliction or threat
of serious bodily harm to others to support the finding. In the absence of such an overt
act, actions indicating inability to satisfy his own need for nourishment, personal or
medical care, shelter, or self-protection and safety [under Section 301(b)(2)] must be
shown." Id. at 107 (emphasis added). The Superior Court has held likewise. See In re
S.B., 777 A.2d 454, 457-59 (Pa. Super. 2000) (in contrast to commitment under Section
301(b)(1), finding no "overt act" required for unable-to-care-for-oneself commitment under
Section 301(b)(2)); Corn. v. Jackson, 62 A.3d 433, 440 (Pa. Super. 2013) (in case
challenging sufficiency of Section 302 warrant, necessity of "overt act" in further of threat
satisfied by appellant removing baton and smashing car window, as well as kicking
dashboard, thrusting seat back, and turning off car in traffic); In re Woodside, 699 A.2d
1293, 1297 (Pa. Super. 1997) (although trial court did not make factual finding regarding
timing of appellant's purchase of rifle scope, finding appellant's habit of carrying and
displaying guns in the presence of wife constituted sufficient overt act in furtherance of
the threat to shoot her); In re S.C., 421 A.2d 853, 857 (Pa. Super. 1980) (discussing
necessity of "overt act" under Section 301(b)-based commitments).
'Like Section 302, a commitment under Section 304 is based on the definitions of
persons in need of treatment in Section 301.
[J-94-2020] [MO: Mundy, J.] -3
Indeed, except for Appeal of H.D., 698 A.2d 90 (Pa. Super. 1997), which Idiscuss
below, the cases the majority relies on for its conclusion that the expression of mental
planning is sufficient manifestly involve overt acts, acts taken in addition to the making of
a threat. See In re R.F., 914 A.2d 907 (Pa. Super. 2006) (searching internet for
information on "How to commit suicide," and calling a suicide hotline for information on
the topic); Commonwealth v. Smerconish, 112 A.3d 1260 (Pa. Super. 2015) (sending 12
instant messages to sister threatening suicide).
Further, the majority's reliance on Appeal of H.D. is misplaced. Critically, that case
principally addressed challenges to Section 303 commitments for alleged breaches of
technical, procedural requirements of the Mental Health Procedures Act. 2 See id.
(alleging, inter alia, county failed to timely serve necessary Section 303 certification, and
that certification was defective). Perhaps as aresult, the underlying facts leading to the
commitments were not discussed. Nevertheless, the majority finds support in a two-
sentence footnote, which states in toto:
H.D. also alleges that her initial commitment under §302 was
improper because her statements to emergency personnel
about hearing sounds in her head and planning to jump off a
bridge were merely suicidal "ideas" and did not establish
suicidal intent. After a thorough review of the record, we
refuse to second-guess the conclusion of the emergency
medical and mental health professionals that H.D. presented
aclear and present danger of harm to herself.
Appeal of H.D., 698 A.2d at 94 n.4. Notably, contrary to the majority's suggestions 3,the
court in Appeal of H.D. does not cite, quote, or discuss the language of Section 301(b) at
2 Two unrelated challenges were consolidated.
3 See Majority Opinion at 19 (discussing Appeal of H.D. in support of contention that "a
person who has developed acomplete plan, or taken steps to develop aplan, to commit
suicide 'has committed acts which are in furtherance of the threat to commit suicide[.]"');
id. at 20 (stating that, in Appeal of H.D., "the court held aplan to jump off abridge was an
act in furtherance").
[J-94-2020] [MO: Mundy, J.] -4
issue in the instant case. Moreover, in the portion of the opinion quoted above, the court
merely addressed the appellant's charge therein that her "suicidal intent" was not
established, a term which is not found in Section 301, nor consonant with "committing
acts in furtherance." Given this brief, misdirected analysis, in my opinion, Appeal of H.D.
is not helpful, and certainly not persuasive, in answering the question before us.
In short, whether it would be good public policy to allow the commitment of
individuals who verbalize threats of harm to medical professionals, without more, is not
this Court's place to say. Regardless, the legislature has unmistakably required more:
before commitment is permitted, the legislature has required those individuals who have
uttered threats also to act, to some degree, to advance those threats. While it is clear
that B.W., in front of medical professionals, threatened his coworker, stating roughly what
he planned, no evidence was offered that he took any action apart from uttering these
expressions of his mental state. Accordingly, Iconclude his commitment under Section
302 was infirm. 4 On that basis, Idissent.
Justice Saylor joins this concurring and dissenting opinion.
4 1also reject the majority's suggestion that the physicians' assessment of B.W.'s
credibility affects our sufficiency analysis, see Majority Opinion at 21 ("Significantly, the
three physicians who treated B.W. found his threats credible and determined he was in
need of immediate treatment."), or that we defer to such assessments for purposes of
that sufficiency analysis, see id. As the majority otherwise recognizes, see id. at 10, the
sufficiency question before us is aquestion of law. See In re Vencil, 152 A.3d 235, 246
(Pa. 2017). Presuming the physicians found B.W. credible, the evidence was
nonetheless insufficient, for the reasons Ihave discussed.
[J-94-2020] [MO: Mundy, J.] -5