In Re: P.G.

J-S39037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: P.G. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: P.G. :

:

:

:

:

: No. 692 MDA 2022

Appeal from the Order Entered April 13, 2022

In the Court of Common Pleas of Berks County Civil Division at No(s):

115 2020 MH

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 2, 2023

Appellant P.G. appeals from the order extending his involuntary

commitment for psychiatric treatment with the Wernersville State Hospital

(Hospital). Appellant challenges the sufficiency of the evidence for his

commitment pursuant to 50 P.S. § 7305 of the Mental Health Procedures Act1

(MHPA). We affirm.

The trial court summarized the procedural history as follows:

Appellant, P.G., is an adult individual currently residing in

Wernersville State Hospital and has been residing there since

November 4, 2019. On April 1, 2022, a hearing was held pursuant

to 50 P.S. § [7]303, regarding [Hospital’s] petition for court-

ordered [continued] involuntary treatment. At that hearing,

Mental Health Review Officer [(MHRO)] Robin Levingood, Esquire,

issued a certification finding that [Appellant] was severely

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1 50 P.S. §§ 7101-7503.

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mentally disabled and in need of continued inpatient treatment for

a period of time not to exceed one hundred eighty (180) days.

Trial Ct. Op., 6/28/22, at 1 (unpaginated).

We add that at the hearing, Dr. Stephen Burkholder, a staff psychiatrist,

was Hospital’s sole witness. MHRO Hr’g, 4/1/22, at 00:41-06:35, 11:00-

11:12.2 Dr. Burkholder testified that Appellant had been diagnosed with

schizophrenia and that he suffers from “fixed false beliefs” causing him to

“develop romantic ideas about people” in his circle, and that challenging these

false beliefs results in “angry outbursts” from Appellant. Id. at 00:59-01:06,

01:24-01:46, 06:10-06:35. Dr. Burkholder noted that Appellant had not

harmed himself or threatened others since the last review period. Id. at

04:24-04:29.

Dr. Burkholder opined that Appellant was not a suitable candidate for

outpatient treatment at this time. Id. at 03:41-03:50. Dr. Burkholder further

testified that that his colleague Dr. Graves,3 a specialist in sexual disorders,

evaluated Appellant. Id. at 01:47-01:59. Dr. Graves concluded that

Appellant would be at a “high risk of re-offense if he were in a less restrictive

setting [than Hospital]” and that placement in the community is not

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2 The April 1, 2022 hearing before the MHRO was not transcribed, but as stated

above, the audio of the hearing was recorded. See 50 P.S. § 7304(e)(5)

(stating that “[a] stenographic or other sufficient record [of the hearing] shall

be made”). The trial court included the audio recording of the April 1, 2022

MHRO hearing in a supplemental certified record. We therefore cite to the

testimony by timecode.

3 The record does not contain Dr. Graves’ first name.

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appropriate for Appellant because of Appellant’s “psychotic content, limited

insight, and chronic non-adherence in the community.” Id. at 02:00-02:09,

11:00-11:38. Dr. Burkholder explained that additional treatment was

necessary to adjust Appellant’s medication and for additional therapy,

particularly individual therapy with Dr. Graves. Id. at 03:14-03:23, 03:51-

04:18, 04:45-05:26.

Appellant testified at the MHRO hearing. Id. at 07:00-10:59. Appellant

stated that he that wants his “future to be bright,” and he desires connecting

with people that are “magical to [his] true life.” Id. at 07:15-07:25. Appellant

described having conversations with a girlfriend, who told him that she is a

virgin, but he has difficulty keeping in contact with her. Id. at 07:28-08:12.

Appellant testified that he believes therapy is good for him, and he voluntarily

started therapy as a teenager when his mother died of cancer. Id. at 08:40-

09:03. He also stated that he takes his medication and informs his doctors if

he experiences any side effects. Id. at 09:05-09:15.

The trial court described the subsequent procedural history as follows:

[Appellant], through counsel, has petitioned for review of this

certification pursuant to 50 P.S. § 7303(g), and further requested

this matter be decided upon review of the [audio recording of the]

April 1, 2022, hearing regarding the petition for involuntary

treatment in lieu of formal testimony. After careful consideration

of the audio record[ing] of issues presented at the hearing, this

court entered an order on April 13, 2022, granting the petition for

review and affirming the certification for extended involuntary

commitment for up to one hundred eighty (180) days.

Trial Ct. Op. at 1 (unpaginated) (some formatting altered).

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Appellant timely appealed4 and filed a court-ordered Pa.R.A.P. 1925(b)

statement, as well as an amended statement. The trial court filed a Rule

1925(a) opinion addressing Appellant’s claim.

On appeal, Appellant raises the following issue for our review:

Did [H]ospital fail[] to present sufficient evidence to support the

involuntary commitment of [Appellant] where their sole witness’s

conclusory testimony did not clearly and convincingly establish

that Appellant posed a danger to himself or others, as there were

no allegations of specific threats of physical harm or specific kinds

of serious physical debilitation of which he was at risk?

Appellant’s Brief at 4 (formatting altered).5

Appellant argues that Hospital failed to establish by clear and convincing

evidence that, Appellant either acted in a manner that established a

reasonable probability that serious bodily injury would ensue within thirty days

or that he had made threats of harm or committed acts in furtherance of a

threat to commit harm within the thirty days preceding the hearing. Id. at 8-

9 (citing 50 P.S. § 7301(b)(1), (2)(i)). Appellant notes that Dr. Burkholder

testified that Appellant had not engaged in self-injury and that he did not

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4 In proceedings under the MHPA, a post-trial motion is not required to

preserve issues for appeal after the trial court reviews and confirms the

MHRO’s determination. See In re K.L.S., 934 A.2d 1244, 1249 (Pa. 2007).

5 We add that even if Appellant has been released from the involuntary 180-

day treatment period, this appeal is not moot. See In re S.M., 176 A.3d 927,

930 n.3 (Pa. Super. 2017) (explaining that even if the patient’s period of

involuntary commitment had ended, the issues raised on appeal “are not moot

since they are capable of repetition and may evade review” (citations omitted

and formatting altered)).

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display any physical aggression towards others. Id. at 10. Appellant

acknowledged that Dr. Burkholder stated that Appellant “had a history of

‘acting out’ on ‘false beliefs,’” and referenced ‘psychotic content[,]” but

contends that aside from past “angry outbursts[,]” Dr. Burkholder failed to

refer to any specific harmful behavior or any danger that Appellant posed to

the community. Id. (citations omitted). Appellant claims Dr. Burkholder’s

opinion6 that he was at “high risk of re-offending” was not supported by any

specific examples. Id. at 11-12.

This Court reviews determinations pursuant to the MHPA to “determine

whether there is evidence in the record to justify the [hearing] court’s

findings.” S.M., 176 A.3d at 935 (citation omitted). This Court is “not bound

by the hearing court’s legal conclusions and must reverse if the evidence does

not justify the hearing court’s decision.” Commonwealth ex rel. Gibson v.

DiGiacinto, 439 A.2d 105, 107 (Pa. 1981) (Gibson) (citations omitted).

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6 We note that Appellant filed a petition for the trial court to review the MHRO’s

certification pursuant to 50 P.S. § 7303(g). In that petition, Appellant

specifically requested that the trial court review the audio recording of the

MHRO hearing in lieu of formal testimony. See Appellant’s Pet. for Review,

4/12/22, at ¶7. For the first time on appeal, Appellant contends that Dr.

Burkholder’s testimony regarding the opinion of Dr. Graves was hearsay.

Appellant’s Brief at 10. Appellant did not object to this testimony; therefore,

this claim is waived. See Pa.R.E. 103(a)(1)(A) (a timely objection to the

admission of evidence is required to preserve a claim of error); Pa.R.A.P.

302(a) (stating that “[i]ssues not raised in the trial court are waived and

cannot be raised for the first time on appeal”).

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The S.M. Court explained:

The MHPA provides for involuntary emergency examination and

treatment of persons who are “severally mentally disabled and in

need of immediate treatment.” 50 P.S. § 7301(a). It then

authorizes increasingly long periods of commitment for such

persons, balanced by increasing due process protections in

recognition of the significant deprivations of liberty at stake.

Accordingly, in applying the MHPA, we must take a balanced

approach and remain mindful of the patient’s due process and

liberty interests, while at the same time permitting the mental

health system to provide proper treatment to those involuntarily

committed to its care.

S.M., 176 A.3d at 930-31 (some citations omitted and formatting altered).

If the judge or MHRO finds by

clear and convincing evidence that the person is severely

mentally disabled and in need of treatment and subject to

subsection (a), an order shall be entered directing treatment

of the person in an approved facility as an inpatient or an

outpatient, or a combination of such treatment as the

director of the facility shall from time to time determine.

Id. at 933 (quoting 50 P.S. § 7304(f)(1)); see also Commonwealth v.

Helms, 506 A.2d 1384, 1388 (Pa. Super. 1986) (stating that “the petitioner

in an involuntary commitment proceeding must prove the requisite statutory

grounds by clear and convincing evidence” (citations omitted)).

The S.M. Court further explained:

Our Supreme Court has defined clear and convincing evidence as

testimony that is so clear, direct, weighty, and convincing as to

enable the trier of fact to come to a clear conviction, without

hesitation, of the truth of the precise facts in issue. The clear and

convincing evidence test has been described as an intermediate

test, which is more exacting than a preponderance of the evidence

test, but less exacting than proof beyond a reasonable doubt.

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S.M., 176 A.3d at 937 (citations omitted and formatting altered).

Section 7301(a) describes the circumstances under which a mentally

disabled person may be subject to involuntary treatment:

Whenever a person is severely mentally disabled and in need of

immediate treatment, he may be made subject to involuntary

emergency examination and treatment. A person is severely

mentally disabled when, as a result of mental illness, his capacity

to exercise self-control, judgment and discretion in the conduct of

his affairs and social relations or to care for his own personal needs

is so lessened that he poses a clear and present danger of harm

to others or to himself, as defined in [50 P.S. § 7301(b)].

50 P.S. § 7301(a).

Section 7301(b)(1) defines clear and present danger of harm to others,

and Section 7301(b)(2) defines clear and present danger of harm to himself,

in relevant part, as follows:

(1) . . . . For the purpose of this section, a clear and present

danger of harm to others may be demonstrated by proof that the

person has made threats of harm and has committed acts in

furtherance of the threat to commit harm.

(2) Clear and present danger to himself shall be shown by

establishing that within the past 30 days:

(i) the person has acted in such manner as to evidence that he

would be unable, without care, supervision and the continued

assistance of others, to satisfy his need for nourishment,

personal or medical care, shelter, or self-protection and safety,

and that there is a reasonable probability that death, serious

bodily injury or serious physical debilitation would ensue within

30 days unless adequate treatment were afforded under this

act; . . . .

50 P.S. § 7301(b)(1), (2)(i).

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This Court has explained the procedure for ordering an extension of a

period of involuntary treatment as follows:

Section 7305 provides that, at the expiration of a period of court-

ordered involuntary treatment, the court may order treatment for

an additional period. This order must be entered upon a hearing

on the findings required by [50 P.S.] § 7304(a) and (b) and on

the “further finding of a need for continuing involuntary treatment

as shown by conduct during the person’s most recent period of

court-ordered treatment.” 50 [P.S.] § 7305(a).

Commonwealth v. Romett, 538 A.2d 1339, 1341 (Pa. Super. 1988). The

extended period of treatment shall not exceed 180 days. 50 P.S. § 7305(a).

Section 7304 states, in relevant part:

Where a petition is filed for a person already subject to involuntary

treatment, it shall be sufficient to represent, and upon hearing to

reestablish, that the conduct originally required by section

[7]301(b) in fact occurred, and that his condition continues to

evidence a clear and present danger to himself or others, or that

the conduct originally required by section [7]301(c) in fact

occurred and that his condition continues to evidence a need for

assisted outpatient treatment. In such event, it shall not be

necessary to show the reoccurrence of dangerous conduct,

either harmful or debilitating, within the past 30 days.

50 P.S. § 7304(a)(2) (emphasis added).

The Romett Court further explained that

in order for a person to be recommitted for an additional period of

treatment [under Sections 7304 and 7305], it need not be

established that the person has inflicted or attempted to inflict

serious bodily harm upon another within the past thirty days, as

required for the original commitment [under Section 7301]. The

[MHPA] specifically states that on recommitment it is not

necessary to show that the patient committed an overt act within

30 days of the hearing. It is necessary however for the court to

find that within the patient’s most recent period of

institutionalization, the patient’s conduct demonstrated the need

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for continuing involuntary treatment, [50 P.S. §] 7305(a); i.e. his

condition continues to evidence a clear and present danger to

himself or others[. 50 P.S. §] 7304(a).

Thus, under the [MHPA], in order to assess the patient’s condition,

a patient’s overall conduct, diagnosis and prognosis may be

considered. Recommitment does not require that the patient do

specific acts within 30 days of the hearing that show he was a

danger to himself or to others. The [MHPA] specifically provides,

“it shall not be necessary to show the reoccurrence of dangerous

conduct . . . .” [50 P.S. §] 7304(a). The proper question is not

whether appellant’s recent assaults involved an attempt to inflict

serious bodily harm. The proper question which the trial court did

address was whether [the] appellant’s condition continued to

evidence clear and present danger that such acts could occur.

The [MPHA] also requires that upon recommitment it “shall be

sufficient to represent, and upon hearing to reestablish, that the

conduct originally required [by] Section [7301—initial

commitment] in fact occurred.” [50 P.S. §] 7304(a). We do not

read this provision as requiring that the grounds for the original

commitment must be relitigated at each recommitment hearing.

Such a requirement would be an enormous waste of resources and

would create redundancy. We find that this provision is satisfied

as long as the patient’s commitment history shows that the

requisite behavior occurred in the past, unless on recommitment

the patient affirmatively challenges the original commitment. In

that event, the burden is on the patient to show that the original

commitment was improper.

Romett, 538 A.2d at 1341-42 (some citations omitted, emphasis in original);

see also S.M., 176 A.3d at 936 (the same).

In sum, a Section 7305 petitioner, instantly, Hospital, requesting an

additional period of involuntary treatment for a patient already subject to

involuntary treatment, such as Appellant, must prove two factors. First, the

petitioner, at a hearing, must “reestablish” the patient’s prior conduct, which

qualified as a clear and present danger to himself, to others, or both, “in fact

occurred[,]” and second, the petitioner must establish the patient’s condition

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continues to evidence a clear and present danger to himself or others. See

50 P.S. §§ 7301(b)(1)-(2), 7304(a)(2), 7305(a); see also S.M., 176 A.3d at

936; Romett, 538 A.2d at 1341-42. However, “it shall not be necessary to

show the reoccurrence of dangerous conduct, either harmful or debilitating,

within the past 30 days.” 50 P.S. § 7304(a)(2); see also Romett, 538 A.2d

at 1341-42.

Here the trial court explained:

The staff psychiatrist, Dr. Stephen Burkholder, testified that he

has met with [Appellant] after reviewing his chart and it was the

recommendation of the Hospital that [Appellant] remain in

treatment for at least another one hundred eighty days. The

doctor further testified that [Appellant] has been diagnosed with

schizophrenia and suffers from fixed false beliefs causing him to

“develop[] romantic ideas about [people]” in his circle, and that

challenging these false beliefs results in “angry outbursts” from

[Appellant]. Dr. Burkholder also stated that his colleague, Dr.

Graves, who is a specialist on “sexual disorders”, evaluated

[Appellant] and Dr. Graves determined that [Appellant] was not

appropriate for less restrictive placement because of his

“psychotic content, limited insight and [chronic] non-adherence in

the community”. Dr. Graves also concluded that [Appellant]

would be at a “high risk of re-offense if he were in a less restrictive

setting.” Though [Appellant] is “polite” and compliant with his

medications, Dr. Burkholder said “his insight and judgment are

still [fairly] poor,” and the Hospital is “still titrating [medication]

and [trying to] adjust[] [the] medications in order to provide [the

most] relief [of his] symptoms”. This process must be completed

before [Appellant] is allowed to leave and is so critical to his care

that the Hospital has not formulated a treatment plan beyond

medication adjustments and routine group and individual therapy.

Moreover, this court found [Appellant’s] testimony at the hearing

quite disturbing as he rambled about wanting to “connect with

people [that] are magical to my true life” and recounted “having

a room-to-room conversation with a girlfriend [of mine] . . . she

tells me she is a virgin . . . I[’ve been] waiting to communicate

with her . . . but it’s kinda hard when I [don’t] have her contact

information.” [Appellant’s] testimony evidenced a clear break

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from objective reality and supported the fixedness of this belief

noted by Dr. Burkholder in his testimony and the “psychotic

content” described by Dr. Graves. Additionally, [Appellant’s]

family is, according to both Dr. Burkholder and [Appellant]

himself, only minimally or tangentially involved and not a

meaningful support resource.

This court found the testimony of Dr. Burkholder credible and

convincing regarding the potential danger posed by such delusions

as evidenced by [Appellant’s] own testimony at the hearing, and

found the necessity of the initial involuntary commitment to be

amply supported by the record.

Trial Ct. Op. at 2-3 (unpaginated) (some formatting altered).

Appellant’s reliance on Section 7301(b) is misplaced. As stated above,

an extension of a period of involuntary treatment under Sections 7304 and

7305 does not require a showing that Appellant acted in such manner that

established that he was a clear and present danger to himself or others within

the previous thirty days. See 50 P.S. §§ 7304(a)(2), 7305(a); Romett, 538

A.2d at 1341-42. Rather, a petitioner requesting an extension of treatment

for a patient who has already been committed has the burden to show that

the patient’s “condition continues to evidence a clear and present danger to

himself or others.”7 50 P.S. § 7304(a)(2); see also 50 P.S. § 7305(a); S.M.,

176 A.3d at 936; Romett, 538 A.2d at 1342.

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7 Appellant does not contest the first element under Section 7304, that his

prior conduct, which qualified as a clear and present danger to himself, to

others, or both, occurred. See 50 P.S. § 7304(a)(2). Therefore, any

challenge to sufficiency of the evidence supporting this element is waived.

See, e.g., In re Estate of S.G.L., 885 A.2d 73, 73 n.1 (Pa. Super. 2005)

(noting that a claim that the patient did not argue in her brief was waived).

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Based on our review of the record, we agree with the trial court’s

conclusions. As noted by the trial court, Dr. Burkholder testified that

Appellant’s condition results in him developing false beliefs and romantic ideas

about others around him, and that Appellant has angry outbursts when others

challenge those ideas. See MHRO Hr’g, 4/1/22, at 00:59-01:06, 01:24-

01:46, 06:10-06:35. Appellant testified about having a girlfriend, but he

could not contact her. See id. at 07:28-08:12. Dr. Burkholder testified that

Appellant was at a “high risk of re-offense if he were in a less restrictive setting

[than Hospital]” and Appellant suffered from “psychotic content, limited

insight, and non-adherence in the community.” See id. at 02:00-02:09,

11:00-11:38.

On this record, we agree with the trial court that there is sufficient

evidence in the record to justify its findings that that Appellant’s condition

continues to evidence a clear and present danger to himself or others. See

Trial Ct. Op. at 2-3; see also S.M., 176 A.3d at 935-36; Romett, 538 A.2d

at 1342; 50 P.S. §§ 7304(a)(2), 7305(a). Therefore, we affirm the order

extending Appellant’s commitment.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/02/2023

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