J-S24022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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. 

____________________________________________

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 medication4 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 

____________________________________________

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

____________________________________________

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.