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COMMONWEALTH PENNSYLVANIA EX REL. RUSSELL GIBSON v. ATTILLIO DIGIACINTO (12/14/78)

decided: December 14, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. RUSSELL GIBSON
v.
ATTILLIO DIGIACINTO, WARDEN OF NORTHAMPTON COUNTY PRISON. APPEAL OF RUSSELL GIBSON



No. 8 October Term, 1978, Appeal from Order of the Court of Common Pleas, Civil Division, Law of Northampton County, No. 56 January Term, 1977.

COUNSEL

Margaret H. Poswistilo, Easton, for appellant.

Edward G. Ruyak, Bethlehem, for appellee, Northampton County.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. The above case was decided prior to the retirement of Hoffman, J. Hoffman, J., files a dissenting opinion, in which Spaeth, J., joins.

Author: Hester

[ 261 Pa. Super. Page 55]

This is an appeal from the lower court's order certifying Appellant's involuntary commitment to a mental hospital under date of August 26, 1977 by the Court of Common Pleas of Northampton County, Civil Division. In essence, the instant appeal is analogous with a Petition for a Writ of Habeas Corpus.

The complex set of operative facts in this matter are as follows:

On January 14, 1977, Appellant was admitted to Easton Hospital pursuant to Section 302 of the Mental Health Procedures Act of 1976*fn1 for a period not to exceed seventy-two (72) hours. The cause for Appellant's admission to Easton was Appellant's disruptive and threatening behavior at a youth home. The following day (January 15, 1977) Appellant eloped from Easton Hospital.

On January 19, 1977, Appellant was admitted to Allentown State Hospital pursuant to the terms of the original commitment order of January 14 for a continued in-patient examination under Section 303 of the Mental Health Procedures Act for a period not to exceed twenty (20) days. Appellant remained at Allentown until February 3, 1977 as an involuntary committee, at which time his attending physician recommended that Appellant be treated as an out-patient at the Mental Health Clinic in Easton, Pennsylvania. Throughout the aforementioned proceedings, jurisdiction over Appellant rightfully was maintained by the Court of Common Pleas of Northampton County, Civil Division.

[ 261 Pa. Super. Page 56]

On March 21, 1977, Appellant was arrested and charged in a Criminal Complaint with Attempted Arson,*fn2 Burglary,*fn3 and Criminal Mischief.*fn4 On June 28, 1977, Appellant entered into a negotiated plea bargain to the criminal charges of Criminal Mischief and Criminal Trespass (The Commonwealth having previously reduced the Criminal Burglary to Criminal Mischief and dismissed the charge of Attempted Arson). Following Appellant's plea and prior to sentencing, and because of Appellant's prior mental history, the Criminal Court Judge ordered a complete psychiatric and psychological evaluation to aid the Court in its disposition as part of Appellant's presentencing report. In doing so, the Criminal Court invoked Article IV of the Mental Health Procedures Act which is broadly titled "Determinations affecting those charged with crime under sentence"; specifically, Section 7405, which provides:

7405. Examination of person charged with crime as aid in sentencing.

Examination Before Imposition of Sentence. Whenever a person who has been criminally charged is to be sentenced, the court may defer sentence and order him to be examined for mental illness to aid it in the determination of disposition. This action may be taken on the court's initiative or on the application of the attorney for the Commonwealth, the person charged, his counsel, or any other person acting in his interest. If at the time of sentencing the person is not in detention, examination shall be on an outpatient basis unless inpatient examination for this purpose is ordered pursuant to the civil commitment provisions of Article 111.

1976 July 9, P.L. 817, No. 143, Sec. 405, effective in 60 days.

[ 261 Pa. Super. Page 57]

Accordingly, Appellant was remanded to the Northampton County Prison, at which place he was examined by Dr. Donald Oh, a court-appointed psychiatrist who, coincidentally, also had examined Appellant in January while Appellant was under the jurisdiction of the Court of Common Pleas of Northampton County, Civil Division, while at Easton Hospital in mid-January. During this period, Appellant was also examined by Dr. Stephen Barrett, also a psychiatrist. According to the report filed by Dr. Oh, Appellant was "severely mentally disabled and in need of continuous treatment."

In accordance therewith, the Appellee in the instant case, filed a Petition for Appellant's involuntary commitment pursuant to the applicable terms of Section 304 of the Mental Health Procedures Act. Said applicable provisions are as follows:

(c) Procedures for Initiating Court-ordered Involuntary Treatment for Persons not in Involuntary Treatment. -- (1) Any responsible party may file a petition in the court of common pleas requesting court-ordered involuntary treatment for any person not already in involuntary treatment for whom application could be made under subsection (a). (a) Persons for Whom Application May be Made. -- (1) A person who is severely mentally disabled and in need of treatment, as defined in section 301(a), may be made subject to court-ordered involuntary treatment upon a determination of clear and present danger under section 301(b)(1) (serious bodily harm to others), or section 301(b)(2)(i) (inability to care for himself, creating a danger of death or serious harm to himself), or 301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self mutilation).

ARTICLE III. INVOLUNTARY EXAMINATION AND TREATMENT.

7301. Persons who may be subject to involuntary emergency examination and treatment.

(a) Persons Subject. -- 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

[ 261 Pa. Super. Page 58]

    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.

(b) Determination of Clear and Present Danger. -- (1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated. . . .

(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.

Following the 304(c) hearing before the Northampton County Mental Health Review Officer on August 2, 1977, Appellant petitioned for a hearing de novo before a civil division judge.*fn5 Appellant's petition was granted and a hearing was held before Judge Alfred T. Williams, Jr. on August 25, 1977.

[ 261 Pa. Super. Page 59]

At hearing, five (5) persons testified: Donald Flyte, correction officer, Northampton County Prison, Ludwig Grucela, Supervisor, Northampton County Prison, and three (3) psychiatrists, Drs. Donald Oh, Marjorie G. Morrison, and Stephen J. Barrett.

Mr. Flyte testified that on July 15, 1977:

"A. As I opened the cell, there was smoke in the cell. Russell stamped out the fire. At that time, he picked up a newspaper which was folded up and was approximately burned one-quarter of the way. I told Russell he had to go down to the cage. Russell then proceeded to pick up the newspaper. He took it in his -- We went down the steps leading down to the cage area and Russell deposited the newspaper that was burned and stamped out, he deposited it into a wastepaper can.

Q. Was the paper actually burning?

A. It wasn't burning when he put it in the can. It was burned as I opened the cell, was put out.

Q. Were there any other cellmates in the area?

A. No, there was no one in Russell's cell at that time." (T. pp. 5-6)

Next, Mr. Grucela testified:

"On July 25th, I was supervisor when Officer Dean brought a handmade weapon, made out of a coat hanger -- . . ."

"Handmade weapon, which was fashioned something like a pronged knife, which I reported to Mr. Olander. Put it on my reports. On August 11th, Mr. Gibson approached me -- I was in the mess hall, in the dining room -- and he asked me why I was trying to send him to Fairview. I said, "Russell, I'm not trying to send you to Fairview." He then said -- I explained to him that my testimony at the prior hearing was only to try to help him and I testified to incidents that happened. He said, "Well, somebody sent me to Fairview. You're going to pay." At that, he walked away. Prior to July 15th I had

[ 261 Pa. Super. Page 60]

    problems with him taking his medicine, medication . . .

Q. From your observations of him, Superintendent, are you of the opinion that he needs further confinement?

A. Yes. There was an incident where he was -- I was called to his cell. He was in G48, I think -- and he was knocking furniture around, and I went up and entered his cell. I sat down and I tried to calm him, talk to him, and he related to me -- I asked him what was wrong. He related that voodoo spirits were bothering him, people on the street were putting voodoo on him, naked women were coming in and trying to rape him, and stuff like this. It was really nonsense stuff. I spent about 15, 20 minutes with him that night and finally calmed him down. He was very, very, emotionally disturbed.

Q. Are you of the opinion, from his behavior pattern, that he probably needs mental health treatment?

A. Definitely.

Q. Did you consider what he said in August a threat to you?

A. Yes, I did.

Q. The items that you related -- this burning of fire and people chasing him and the coat hanger episode -- are they the normal activities of prisoners?

A. No, they're not." (T. pp. 11-12)

And, on cross-examination:

"Q. Mr. Crucela, with regard to this hanger that was fashioned into an implement of some kind, did you say it resembled a knife, a pronged knife?

A. Yes. It's a coat hanger that's screwed into the wall. It was bent out with the screw end out and the back part made so you could grip it. It would be a very, very vicious weapon if you got it in the belly or stomach." (T. p. 14)

Finally, on direct:

[ 261 Pa. Super. Page ...


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