In Re: Sylvester, D., Appeal of: Sylvester, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: DANIEL T. SYLVESTER, III IN THE SUPERIOR COURT
OF PENNSYLVANIA
v.
APPEAL OF: DANIEL T. SYLVESTER, III
No. 3447 EDA 2019
Appeal from the Order Entered October 28, 2019
In the Court of Common Pleas of Lehigh County
Civil Division at No: 2019-C-0436
BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 8, 2021
Appellant, Daniel T. Sylvester, III, appeals from the order denying his
petition for restoration of his right to possess a firearm. We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On April 1, 2013, when Appellant was 22 years old,
Appellant’s [great] aunt, Therese M. Gillette, signed an application
for a warrant for a Section 302 emergency examination pursuant
to the Mental Health Procedures Act, 50 P.S. § 7302. Appellant
was involuntarily committed to Behavioral Health Science Center
at Lehigh Valley Hospital—Muhlenberg in Bethlehem, Lehigh
County, Pennsylvania. He was examined by Dr. Michael Stanley,
who determined that Appellant was severely mentally disabled
and admitted Appellant for a period of time not to exceed 120
hours.
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* Retired Senior Judge assigned to the Superior Court.
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During his commitment, further medical evaluations
reflected a diagnosis of bipolar disorder, manic with psychotic
features. While hospitalized, Appellant was cooperative but
expressed that he would not comply upon discharge, which led to
a concern by his physician that he had an increased risk of relapse.
Licensed Clinical Social Worker Stacey Spadt testified that she
informed Appellant of his rights under the MHPA and gave him a
copy of Form MH784A. She noted on the form that she observed
that Appellant understood his rights. Following a hearing on April
4, 2013, his commitment was extended for an additional 20 days
pursuant to Section 303 of the Mental Health Procedures Act, 50
P.S. § 7303.
Appellant was subsequently discharged without a further
commitment. Since April of 2013, there was not any evidence
that Appellant had any additional adverse episodes regarding his
mental health. Appellant voluntarily admitted himself into a
mental health facility in 2014. However, there was not any
evidence that Appellant was involuntarily committed since 2013.
In early 2019, Appellant attempted to purchase a firearm
and discovered that he was legally prohibited from doing so. He
initially filed a petition on February 11, 2019 seeking
expungement of his Section 302 commitment. On March 11,
2019, Appellant filed an amended petition seeking expungement
of both the Section 302 commitment and the subsequent
extension under Section 303, or, alternatively, reinstatement of
[Appellant’s] right to possess a firearm under the Uniform
Firearms Act.
At the hearing on September 10, 2019, [Appellant] testified
and acknowledged that he had several mental health issues
surrounding his bipolar disorder. He is currently seeing a
therapist, licensed clinical social worker John D. Weaver. […] The
court also received testimony from [Appellant’s] aunt who
confirmed that [Appellant] has not had any additional episodes
which raised concern about his own safety or that of others.
[Appellant’s] paramour also testified and verified that she has not
witnessed any examples of a deterioration in [Appellant’s] mental
health after the April 2013 commitment.
[…]
While the improvements [Appellant] has made to his life
over the intervening five years are admirable, the Court must also
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remain cognizant of any potential risks posed by reinstating
[Appellant’s] right to carry firearms. [Appellant] explained that
his main reason for pursuing the instant action is to be able to
utilize an industrial shotgun that weighs approximately 70 or 80
pounds at work. The gun is used to clear out choke points or clogs
in a production system at the company at which he works. In
order for [Appellant] to be able to get a promotion at work, he has
to fill out a Bureau of Alcohol, Tobacco, and Firearms
questionnaire, and his firearm prohibition stemming from his
Section 302 and 303 commitments would likely prohibit him from
being able to operate the shotgun. However, [Appellant] also
acknowledged that his employer has not informed him that he
would be ineligible for any promotion to a position which requires
use of this industrial shotgun, and it is not clear the industrial
shotgun qualifies as a ‘firearm’ under either federal or state law.[1]
As a result, one could conclude the petition for reinstatement of
the right to possess a ‘firearm’ is premature and [Appellant’s]
rationale that he needs his rights reinstated in order to secure a
better paying job is speculative at this time.
Trial Court Opinion, 10/28/19, at 2-4, 13.
In the order on appeal, the trial court denied Appellant’s petition for
expungement of his commitments under §§ 302 and 303 of the Mental Health
Procedures Act (“MHPA”).2 Appellant has not pursued that issue on appeal.
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1 Title 18 defines a firearm as follows:
“Firearm.” Any pistol or revolver with a barrel length less than
15 inches, any shotgun with a barrel length less than 18 inches or
any rifle with a barrel length less than 16 inches, or any pistol,
revolver, rifle or shotgun with an overall length of less than 26
inches. The barrel length of a firearm shall be determined by
measuring from the muzzle of the barrel to the face of the closed
action, bolt or cylinder, whichever is applicable.
18 Pa.C.S.A. § 6102.
2 50 P.S. §§ 7101-7503.
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Appellant’s February 11, 2019 petition also sought reinstatement of his right
to possess a firearm under 18 Pa.C.S.A. § 6105(f)(1):
Upon application to the court of common pleas under this
subsection by an applicant subject to the prohibitions under
subsection (c)(4), the court 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.A. § 6105(f)(1).
The trial court found that Appellant could not possess a firearm without
risk to himself or others. That decision is the sole issue on appeal, and we
review it for abuse of discretion:
[T]he language in Section 6105(f)(1) plainly leaves the
decision of whether to restore the right to possess a firearm within
the discretion of the trial court. In that regard, we bear in mind
that an abuse of discretion is not merely an error in judgment.
[A]n abuse of discretion occurs when the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record. Moreover, it is well-settled that a [ ]
finder of fact is free to believe all, part or none of a witness’
testimony.
E.G.G. v. Pennsylvania State Police, 219 A.3d 679, 683 (2019) (citations
and internal quotation marks omitted).
In E.G.G., the petitioner had two involuntary commitments, one in 2003
and another in 2005, based on suicidal ideations, hallucinations, a history of
violence, and possible addiction to painkillers. Id. at 681. At the hearing in
2017, the petitioner and his wife both testified that the petitioner had stopped
taking pain medication in 2005, and had not had any significant issues since.
Id. at 681-82. Likewise, the petitioner submitted a written psychological
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evaluation stating that he was not a risk to himself or others. Id. at 682. At
a second hearing, the petitioner testified that he continued to take two
antianxiety medications, and antidepressant, and a sleep aid. Id. at 682. The
trial court denied the petition, noting its concern about the petitioner’s
continuing need for psychoactive medications and psychotherapy, as well as
history of confrontational behavior, which on several occasions required police
intervention. Id. at 683.
In affirming, this Court concluded that the trial court was within its
discretion to deny a petition based on lingering concerns about the petitioner’s
mental health. This was so even though the petitioner no longer exhibited
problems with misusing medications. Id. at 683-84. Further,
A present clean bill of mental health is no guarantee that a
relapse is not possible. Given the extreme potential harm
attendant to the possession of deadly weapons by [a person with
a mental illness], and the risk of relapse, we see an important
government interest in controlling the availability of firearms for
those who have ever been adjudicated [mentally disabled] or have
ever been committed to a mental institution but are now deemed
to be cured. Although appellant has been pronounced cured of his
depression, we see a legitimate government interest in still
limiting the availability of firearms to him.
Id. at 684 (quoting In re Keyes, 83 A.3d 1016, 1027 (Pa. Super. 2013),
appeal denied, 101 A.3d 104 (Pa. 2014)).
Appellant argues that the trial court abused its discretion because all of
the evidence produced at the September 10, 2019 hearing supported
reinstatement of his right to possess a firearm. In particular, Appellant notes
the passage of time between his involuntary commitment in 2013, voluntary
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commitment and DUI in 2014, and his 2019 petition. Relying on the expert
testimony of John D. Weaver, the licensed clinical social worker from whom
Appellant receives treatment for bipolar disorder, Appellant claims he has
turned his life around. Appellant now has stable employment and a loving
relationship with his paramour, with whom he has a daughter and shares a
home. He manages his bipolar by taking Zoloft and Buspar as prescribed, and
has had no further hallucinations. We note, however, that Appellant’s decision
to manage his condition with medication was recent, within months of the
hearing. N.T. 9/10/19, at 41, 48. From 2014 until just months before the
hearing, Appellant remained un-medicated. Id. at 48. Weaver opined that
Appellant would not pose a risk to himself or others if his right to possess a
firearm were to be reinstated. Appellant also notes that he does not have a
history of gun violence. He describes the evidence in favor of restoration of
his rights as “overwhelming.” Appellant’s Brief at 28.
We find Appellant’s argument unpersuasive and the similarities between
this case and E.G.G. very instructive. In E.G.G., the petitioner’s involuntary
commitments preceded his § 6105 hearing by more than a decade. Thus, the
trial court acted within its permissible discretion in finding that the lesser
period of elapsed time between Appellant’s commitments and his petition in
this case is not dispositive.
Further, the petitioner in E.G.G. had several past incidents in which he
harassed store clerks to the point where police had to be summoned. The
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instant record reveals that Appellant’s 2013 involuntary commitment
stemmed from an incident in which Appellant claimed to see people who were
not there. Appellant’s great aunt, with whom he lived, called police and
ambulance and signed an application for his emergency examination. N.T.
Hearing, 9/10/19, at 101-03 and Exhibit P1. Appellant attributed the episode
to his improper mixing of mental health medications. Id. at 14. The next
year, in 2014, Appellant voluntarily committed himself after becoming
intoxicated and getting in an argument with his roommate, during which he
broke a door with a baseball bat. Id. at 30. In connection with the 2014
incident, Appellant was convicted of driving under the influence (“DUI”) and
successfully completed an Alternative Rehabilitation Disposition Program.
Thus, Appellant, like the petitioner in E.G.G., has exhibited volatile behavior
that required police intervention. While the record supports Appellant’s
argument that he has no history of gun violence, the incident with the baseball
bat demonstrates that he committed a violent and destructive act while
intoxicated.
Finally, the psychologist’s report supporting restoration of the
petitioner’s gun rights in E.G.G. was not dispositive, inasmuch as the trial
court had discretion to discredit the report or weigh other evidence more
heavily. E.G.G., 219 A.3d at 684. Similarly, in this case, the trial court had
discretion to disregard or discredit Weaver’s expert opinion. See also In re
E.H., 233 A.3d 820, 823-24 (Pa. Super. 2020) (holding that the trial court
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acted within its discretion to disregard an expert opinion supporting
restoration of the petitioner’s firearms rights). Given the similarities between
this case and E.G.G., we discern no abuse of discretion in the trial court’s
decision to deny reinstatement of Appellant’s firearms rights.
We also reject Appellant’s argument that the trial court’s reliance on
several unpublished memoranda tainted its decision. In Simpson v.
Sessions, 2017 WL 1910141 (E.D.Pa. 2017), the petitioner, who had been
committed under § 302, challenged the constitutionality of 18 U.S.C.A.
§ 922(g)(4), which prohibits possession of a firearm under federal law by
anyone “who has been adjudicated as a mental defective or who has been
committed to a mental institution[.]” 18 U.S.C.A. § 922(g)(4). As the trial
court noted, we may rely on federal jurisprudence for persuasive value.
Zaleppa v. Seiwell, 9 A.3d 632, 638 n.8 (Pa. Super. 2010). In dismissing
the petitioner’s complaint, the Court noted that the Second Amendment right
to bear arms does not protect felons and the mentally ill. Id. at *4 (citing
United States v. Marzzarella, 614 A.3d 85 (3d Cir. 2010), cert. denied,
562 U.S. 1158 (2011)). Further, the Court concluded that the passage of time
and the alleged positive changes in the petitioner’s life were not grounds for
removing his federal firearms ban, as federal courts have rejected the claim
that passage of time and evidence of rehabilitation restore Second
Amendment rights. Id. at *6. In essence, the analysis in Simpson is
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consistent with this Court’s analysis in E.G.G. We discern no error in the trial
court’s decision to rely on Simpson as persuasive authority.
Likewise, Appellant argues the trial court erred in relying on
Commonwealth v. Current, 2016 WL 71298 (Pa. Super. January 5, 2016),
in which this Court affirmed the denial of expunction under § 6111.1(g) and
the denial of restoration of firearms rights under § 6105f (f). In Current, the
petitioner’s threats of suicide and his threats of violence toward others, while
he was intoxicated, led to his involuntary commitment. Id. at *3. In affirming
denial of his petition, this Court (incorporating the trial court opinion),
explained that the petitioner simply tried to dispute the veracity of the
allegations that led to his commitment. Id. at *6. The petitioner’s evidence
in his favor was “inconsistent and unconvincing.” Id. Likewise, the
petitioner’s expert’s report was “unpersuasive” and “internally inconsistent.”
Id. at 6-7. Further, the petitioner disregarded the discharge instructions he
received at the conclusion of his treatment and failed to amend his life. Id.
To distinguish this case from Current, Appellant notes the comparative
strength of his evidence, including the positive changes he has made in his
life, and the absence of any history of threats of suicide or harm to others.
We acknowledge that the facts of Current are distinct from those before us,
but weaknesses in the petitioner’s evidence in that case do not translate to
strengths in this one. As we explained above, Appellant still requires therapy
and medication to manage his mental health. In fact, he began use of
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recommended medications only months before the hearing. Further, he
exhibited destructive behavior during one of his prior episodes. E.G.G.
teaches that a trial court is within its discretion in denying reinstatement of
firearms rights when these circumstances are present. Thus, while Current
is distinguishable and not precedential, the trial court’s reliance on it is not a
basis for reversal.
Finally, we address Appellant’s argument that the trial court improperly
considered Appellant’s motivation for seeking reinstatement of his firearm
rights. Appellant bases this argument on a footnote appearing on the last
page of the trial court’s fourteen-page opinion, in which the court wrote:
With respect to [Appellant’s] employment and the industrial
shotgun about which the court received testimony, as discussed
above, there is not sufficient evidence at this time from which the
court can determine that the firearm disability either prohibits
[Appellant] from utilizing the industrial shotgun or limits any
opportunity for career advancement. The court would be willing
to entertain a limited exemption on the firearm disability for a
work-related basis in the context of a reconsideration motion if
there is any evidence to demonstrate that such an exemption
would be necessary.
Trial Court Opinion, 10/28/19, at 14 n.1.
Appellant argues the outcome would have been different if he presented
the court with additional evidence of his need to operate a gun in order to
further his career. Appellant’s Brief at 22. In examining his motive for owning
a firearm, Appellant argues, the trial court ignored the substantive question
under § 6105(f).
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The record belies Appellant’s contention. The trial court gave separate
consideration to his fitness for reinstatement under § 6105(f)(1) and his
potential need for a workplace exemption for the industrial firearm.3 In its
opinion, the trial court noted Appellant’s ongoing need for medication 4 and
treatment of his bipolar disorder, the troubling circumstances leading to his
2013 involuntary commitment, and the intoxicated, violent outburst that led
to his 2014 voluntary commitment. Trial Court Opinion, 10/28/19, at 13-14.
Pursuant to E.G.G., the trial court acted within its permissible discretion in
finding that Appellant failed to establish that he could possess a firearm
without risk to himself or others. Thus, the court conducted the proper inquiry
under § 6105(f)(1). The trial court’s opinion treated Appellant’s need to
operate an industrial shotgun at his workplace as a separate issue for which
it lacked sufficient evidence to proceed.5
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3 We express no opinion on the exemption the trial court discussed.
4 The record does not support the trial court’s statement that Appellant had
yet to begin taking the prescribed medications. For the reasons explained in
the main text, however, this error does not affect our result.
5 Furthermore, we observe that Appellant’s argument is somewhat
disingenuous. At the hearing, Appellant testified that his coworkers spawned
his interest in owning a gun: “[E]verybody I work with is diehard guns, so it’s
like yeah, I guess I’ll go check them out. And then they ran the thing, and it
came up no, I can’t.” N.T. 9/10/19, at 66. When asked directly why he would
like his rights restored, Appellant said it was because of the ATF questionnaire
he had to fill out in connection with the industrial shotgun. Id. at 39-40.
Appellant was therefore worried that his commitments under §§ 302 and 303
would hinder his ability to advance within his company. Id. at 60-63, 67.
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For all of the foregoing reasons, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/21
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Moreover, Appellant expressly disavowed any interest in owning a personal
firearm: “I have no real interest to actually owning a firearm. I’m pretty left.
I’m a Bernie supporter, so I’m pro-gun control.” Id. at 43. Thus, in footnote
one of its opinion, the trial court offered to attempt to accommodate Appellant
to the extent necessary to permit him to operate the industrial shotgun at
work, in accordance with Appellant’s express wishes. Nothing in the record or
the trial court’s opinion supports Appellant’s argument that the court would
have granted full restoration under § 6105(f)(1) if only Appellant had
submitted more evidence on the industrial shotgun and Appellant’s use of it.
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