In Re: D.S. ( 2019 )

J-A06005-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
:
:
:
: No. 917 MDA 2018
Appeal from the Order Entered May 3, 2018
In the Court of Common Pleas of Berks County
Civil Division at No(s): 192-15-MH
BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI*, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 26, 2019
D.S. appeals pro se from the order entered May 3, 2018, in the Court of
Common Pleas of Berks County, that denied his petition seeking restoration
of firearm rights pursuant to 18 Pa.C.S. § 6105(f)(1) and expungement of
mental health records pursuant to 18 Pa.C.S. § 6111.1(g)(2). D.S. claims the
trial court “erred in the initial hearing and further hearings by denying the
relief sought without reasonable evidence to support the initial commitment
[pursuant to the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7302], or
validate the time spent in the facility.” D.S.’s Brief at 4. Based upon the
following, we affirm.
The trial court summarized the procedural history of this case as follows:
On October 17, 2017, this Court conducted a hearing upon
[D.S.’s] Petition to Remove Firearm Disability Pursuant to 18
Pa.C.S.A 6105 et seq. After hearing held, this Court issued its
Order of October 19, 2017 denying the Petition. On March 8,
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A06005-19
2018, [D.S.] filed his Petition for Restoration of Firearm Rights
Pursuant to 18 Pa.C.S.A. Section 6105(f)(1) and Petition for
Review By Court Pursuant to 18 Pa.C.S.A Section 6111.1(g)(2),
which are the subject of the instant appeal.
****
… On May 27, 2015 [D.S] had filed a Petition for Restoration of
Firearm Rights Pursuant to 18 Pa.C.S.A. § 6105(f)(1) and Petition
for Review by Court Pursuant to 18 Pa.C.S.A. § 6111.1(g)(2).
[D.S.] sought expungement of his 302 Commitment pursuant to
18 [Pa.C.S.A.] § 6111.1(g)(2). On September 8, 2015, the
Honorable Madelyn S. Fudeman convened a hearing whereby
[D.S.] fully and fairly litigated the issue of whether his 302
Commitment was appropriate. By order of September 8, 2015[,]
Judge Fudeman denied [D.S.’s] request for expungement of his
302 Commitment pursuant to 18 Pa.C.S.A. § 6111.1(g)(2). [D.S.]
did not appeal that 2015 decision[.]
Trial Court Opinion, 12/21/2018, at 2-3 (emphasis added). On May 3, 2018,
the trial court denied D.S.’s petition seeking restoration of firearms rights and
expungement of mental health records, and this pro se appeal followed.
Initially, it is important to note that D.S. did not comply with the trial
court’s Pa.R.A.P. 1925(b) order, entered June 5, 2018, to file and serve upon
the court a statement of errors complained of on appeal no later than 21 days
after the date of the order.1, 2 Consequently, on July 12, 2018, the trial court
____________________________________________
1 While the Rule 1925(b) order is dated June 1, 2018, hand-written notations
on the order, which is included in the certified record, reflect that copies of
the order were mailed to the parties on June 5, 2018. Therefore, the entry
date of the Rule 1925(b) order is June 5, 2018. See Pa.R.A.P. 108; Greater
Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 226
(Pa. Super. 2014).
2The June 5, 2018 order complied with the content requirements set out in
Pa.R.A.P. 1925(b)(3). See Greater Erie Indus. Dev. Corp., 88 A.3d at 225-
226.
-2-
J-A06005-19
issued a Statement in Lieu of Opinion, requesting that D.S.’s appeal be denied
as no issues were preserved for appellate review, and citing Commonwealth
v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)
statement will be deemed waived.”). The certified record was received in this
Court on July 16, 2018. Three days later, on July 19, 2018, D.S. filed his
concise statement in the trial court. There is no indication on the copy of the
concise statement that it was served upon the trial judge or opposing counsel
as required by Pa.R.A.P. 1925(b).
On September 11, 2018, Appellee, Pennsylvania State Police (PSP),
respondent below, filed a motion to quash this appeal, arguing that due to
D.S.’s failure to file a timely concise statement, no appellate issues were
preserved for review. In his response to PSP’s motion to quash, filed
September 26, 2018, D.S. states that he did not receive the trial court’s June
5, 2018 order directing him to file a concise statement until on or about July
18, 2018, and he filed his concise statement the following day.
If directed by the trial court, an appellant must file a concise statement
in order to preserve issues for appeal. Failure to timely file of record and
serve on the trial judge the requisite concise statement will result in waiver of
issues on appeal. Pa.R.A.P. 1925(b)(4)(vii); Greater Erie Indus. Dev. Corp.
v. Presque Isle Downs, Inc., 88 A.3d 222, 223 (Pa. Super. 2014), citing
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Our Supreme
Court has adopted a bright-line rule recognizing that “‘failure to comply with
-3-
J-A06005-19
the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver
of the issues raised.’” Greater Erie Indus. Dev. Corp., 88 A.3d at 224, citing
Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005)). However, an
appellant may seek relief in the form of a concise statement nunc pro tunc.
See Pa.R.A.P. 1925(b)(2) (“Upon application of the appellant and for good
cause shown, the judge may enlarge the time period initially specified or
permit an amended or supplemental Statement to be filed. … In extraordinary
circumstances, the judge may allow for the filing of a Statement or amended
or supplemental Statement nunc pro tunc.”); Pa.R.A.P. 1925(c)(2) (“Upon
application of the appellant and for good cause shown, an appellate court may
remand in a civil case for the filing nunc pro tunc of a Statement …."). Here,
D.S. has not sought relief in the trial court or this Court to file a concise
statement nunc pro tunc.
On November 8, 2018, this Court granted PSP’s motion to quash. See
Order, 11/8/2018. However, on November 19, 2018, this Court vacated its
order of November 8, 2018, and reinstated the appeal sua sponte. This matter
is now before us for review.
Initially, we point out that when an appellant has failed to preserve
issues for appeal, the appropriate disposition is not to quash the appeal, but
rather to affirm the underlying order. See generally, In the Interest of
K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007). “An appeal is ‘quashed’ when
the court lacks jurisdiction over the appeal in the first instance.” Id. Here,
-4-
J-A06005-19
D.S.’s appeal is properly before this Court but, because D.S. failed to comply
with the trial court’s Rule 1925(b) order, we conclude any issues he wishes to
raise in this appeal must be deemed waived. See 1925(b)(4)(vii). However,
even if we were to address D.S.’s claim, no relief would be due.
“Our well-settled standard of review in cases involving a motion for
expunction is whether the trial court abused its discretion.” Commonwealth
v. Smerconish, 112 A.3d 1260, 1263 (Pa. Super. 2015), quoting In re
Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013). However, questions of
evidentiary sufficiency “present pure questions of law, over which our
standard of review is de novo and our scope of review is plenary.” In re
Vencil, 152 A.3d 235, 241 (Pa. 2017), cert. denied, 137 S. Ct. 2298 (2017).
Pennsylvania law prohibits a person who has been involuntarily
committed pursuant to Section 302 of the MHPA “from possessing, using,
controlling, selling, transferring, manufacturing or obtaining a license to
possess a firearm.” 18 Pa.C.S. § 6105(c)(4). Pursuant Section 6111.1(g)(2)
of the Uniform Firearms Act:
A person who is involuntarily committed pursuant to section 302
of the Mental Health Procedures Act may petition the court to
review the sufficiency of the evidence upon which the commitment
was based. If the court determines that the evidence upon which
the involuntary commitment was based was insufficient, the court
shall order that the record of the commitment submitted to the
Pennsylvania State Police be expunged.
18 Pa.C.S. § 6111.1(g)(2). Furthermore, “even if the record of [a
petitioner’s] 302 commitment is not expunged, section 6105(f)(1) of the
-5-
J-A06005-19
Uniform Firearms Act provides another mechanism for [a petitioner] to obtain
reinstatement of [] firearms rights, requiring only that the trial court find that
[the petitioner] can possess a firearm without risk of harm to [himself or]
herself or another.” Vencil, supra, 152 A.3d at 246 n.10. Under Section
6105(f)(1), the court of common pleas “may grant such relief as it deems
appropriate if the court determines that the applicant may possess a firearm
without risk to the applicant or any other person.” 18 Pa.C.S. § 6105(f)(1).
Here, the trial court concluded:
...after review of the pleadings, review of the prior reports
submitted by Dr. Eimer and submitted by the petitioner, and
having been aware of no further evidence to support relief to be
granted under [S]ection 6105(f)(1), and also considering the
application under Section 6111 challenging the propriety and
evidence to support the commitment of petitioner under Section
302, the Court finds that that issue had been previously fully and
fairly litigated and decided at a previous proceeding by Judge
Fudeman and that request is also denied.
Order, 5/3/2018. In its opinion, the trial court explained that, on October 19,
2017, following a hearing on October 17, 2017, it had denied a request by
D.S. for restoration of firearm rights, which D.S. had not appealed, and, at
the hearing held on D.S.’s petition on April 26, 2018, D.S. had presented no
evidence, and “gave the court no grounds upon which to grant his Petition.”
Trial Court Opinion, 12/21/2018, at 3; see also id. at 2, citing N.T.,
-6-
J-A06005-19
4/26/2018, at 10.3 The trial court further explained that D.S. had sought
expungement of his 302 commitment pursuant to 18 Pa.C.S. § 6111.1(g)(2)
in 2015, which was denied and not appealed, and he was “therefore
collaterally estopped from challenging the sufficiency of any aspect of his 302
commitment at this time or in the future.” Trial Court Opinion, 4/26/2018, at
3.
In his pro se brief, D.S. argues the trial court “erred when it denied the
relief sought where the evidence supporting the validity of the initial
committed [sic] was not substantial nor was the evidence supporting the
necessity for the continuance of the restriction substantial either.” D.S.’s Brief
at 7.
D.S. draws attention to two separate psychological evaluations
performed upon him by Bruce Eimer, Ph.D., ABPP, dated January 14, 2015,
and April 18, 2017, to support his position the trial court erred in denying his
petition.4 D.S. also “make[s] note of the case of Commonwealth v.
Smerconish, 112 A.3d 1260 (Pa. Super. 2015),” but provides no further
discussion regarding this case. Finally, D.S. states that his request for the
____________________________________________
3 The transcript of the April 26, 2018, hearing is not included in the certified
record. The certified record reflects that a transcript of the April 26, 2018,
was requested by the trial judge “for court use only.” Request for Transcript,
11/28/2018.
4 These evaluations are attached to D.S.’s March 8, 2018 petition.
-7-
J-A06005-19
stenographer’s transcript regarding the testimony of Rita J. Belletti, “who is
the authorizer of the initial 302,” was denied by the trial court, and in its place
he submits the trial court’s denial order.5 See D.S.’s Brief at 7-9 and Exhibits.
PSP responds that D.S.’s petition is barred by collateral estoppel. D.S. does
not address the doctrine of collateral estoppel, either in his appellate brief or
in his reply brief.
The doctrine of collateral estoppel applies
if (1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment
on the merits; (3) the party against whom the plea is
asserted was a party or in privity with a party in the prior
case; (4) the party or person privy to the party against
whom the doctrine is asserted had a full and fair
opportunity to litigate the issue in the prior proceeding and
(5) the determination in the prior proceeding was essential
to the judgment.
Collateral estoppel is also referred to as issue preclusion. It is a
broader concept than res judicata and operates to prevent a
question of law or issue of fact which has once been litigated and
fully determined in a court of competent jurisdiction from being
relitigated in a subsequent suit.
Vignola v. Vignola, 39 A.3d 390, 393 (Pa. Super. 2012) (citations omitted).
Mindful of this legal principle, we turn to examine the record in this case.
On May 27, 2015, D.S. filed a counseled “petition for restoration of
firearm rights pursuant to 18 Pa.C.S.A. Section 6105(f(1) and petition for
____________________________________________
5 D.S.’s Brief at 9. Rita J. Belletti is D.S.’s mother. While D.S. made a
transcript request for the prior hearing that took place on October 17, 2017,
he only requested the testimony of Rita J. Belletti, and, as he correctly states,
the request was denied.
-8-
J-A06005-19
review by Court pursuant to 18 Pa.C.S.A. Section 6111.1(g)(2).” D.S.
attached to the petition a copy of the psychological evaluation of Dr. Eimer,
dated January 14, 2015. A hearing was held on September 8, 2015, before
the Honorable Madelyn Fudeman. D.S. testified and Dr. Eimer’s January 14,
2015 psychological evaluation, CV, and D.S.’s medical records were admitted
into evidence.6 By order entered on September 9, 2015, Judge Fudeman
denied relief under Sections 6105(f)(1) and 6111.1(g)(2). No appeal was
filed.
Thereafter, on July 19, 2017, D.S. filed a counseled “petition to remove
firearm disability pursuant to 18 Pa.C.S.A. 6105 et seq.” D.S. attached a copy
of Dr. Eimer’s CV, the January 14, 2015, psychological evaluation, and a
second psychological evaluation by Dr. Eimer, dated April 18, 2017. Following
a hearing on October 17, 2017, the trial judge, the Honorable James M. Lillis,
denied the petition on October 19, 2017.7 No appeal was filed.
On March 8, 2018, D.S. filed a pro se “petition for restoration of firearm
rights pursuant to 18 Pa.C.S.A. Section 6105(f)(1) and petition for review by
court pursuant to 18 Pa.C.S.A. Section 6111.1(g)(2).” To this petition, D.S.
____________________________________________
6 A copy of the September 8, 2015 hearing is included in the certified record.
7 The transcript of the October 17, 2017 hearing is not included in the certified
record. As mentioned above, D.S.’s request for the October 17, 2017,
testimony of Rita J. Belletti was denied by the trial court. See Order,
5/14/2018.
-9-
J-A06005-19
attached copies of Dr. Eimer’s CV, and the January 14, 2015, and April 18,
2017 psychological evaluations. Judge Lillis convened a hearing on April 26,
2018, and entered the order at issue in this appeal.
As we have already noted, there are no transcript in the certified record
for the April 26, 2017, hearing. See Footnote 3, supra. “It is the appellant’s
duty to request and insure transcripts of the hearings are prepared and
transmitted to this Court. See Pa.R.A.P. 1911(a).” In re Estate of Miller,
18 A.3d 1163, 1171 (Pa. Super. 2011). “Documents not included in the record
technically do not exist.” id.; Pa.R.A.P. 1911(d) (“If the appellant fails to take
the action required by these rules and the Pennsylvania Rules of Judicial
Administration for the preparation of the transcript, the appellate court may
take such action as it deems appropriate, which may include dismissal of the
appeal.”).
Given the absence of the transcript for the April 26, 2018, hearing on
the underlying petition, we find D.S.’s claim on appeal is subject to waiver and
dismissal, pursuant to Rule 1911(d). Moreover, we agree with the trial court’s
application of the doctrine of collateral estoppel. Accordingly, we conclude
that, even if D.S. had filed a timely concise statement, the arguments
presented in this appeal would warrant no relief.
Order affirmed.
- 10 -
J-A06005-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/26/2019
- 11 -