J-A06001-20


                                  2020 PA Super 126

    IN RE: E.H.                                       IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA




    APPEAL OF: E.H.

                                                        No. 2419 EDA 2019


                   Appeal from the Order Entered July 18, 2019
              In the Court of Common Pleas of Montgomery County
                        Civil Division at No: 2019-01453

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                                   FILED MAY 28, 2020

        Appellant, E.H., appeals from an order denying his petition for

restoration of firearm rights pursuant to 18 Pa.C.S.A. § 6105(f)(1). We affirm.

        On January 24, 2019, Appellant filed a petition to restore his firearm

rights. On July 8, 2019, the trial court held an evidentiary hearing concerning

Appellant’s petition. The court summarized the relevant evidence as follows:

        [Appellant], a twenty-four year old man, testified . . . that he was
        currently unemployed and living with his parents. On July 24,
        2016, he was taken to a hospital “because they deemed [he] was
        a threat.” After the initial evaluation, he was released and then
        taken to Montgomery County Emergency Services, after his father
        filed a petition for involuntary commitment “due to an incident at
        home.” [Appellant] had made a threat to take his own life using
        a gun, or to have the police hurt him with their firearms. At that
        time, he had recently purchased two handguns. [Appellant]
        testified that he has a “panic disorder” for which he takes


____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A06001-20


     medication and performs “coping mechanisms.”          This disorder
     leads to him having “panic attacks.”

     [Appellant] stayed at Montgomery County Emergency Services
     until July 28, 2016, where he received treatment, medication and
     counseling. He was diagnosed with an “adjustment disorder.”
     Following his release, [Appellant] underwent out-patient
     counseling once a week for four months.          He then saw a
     psychiatrist every other week for six months, and at the same
     time met with a counselor. He continued to receive mental health
     treatment for three years.      Throughout this time, he was
     prescribed medication for his panic disorder. In August of 2017,
     he stopped taking this medication because he did not like the way
     it made him feel, and he also stopped going to counseling at that
     time.     [Appellant]’s family doctor prescribed another drug,
     amitriptyline (an anti-depressant) to help him sleep.

     [Appellant]’s attorney referred [Appellant] to Dr. Dattilio, whom
     he saw twice in 2018. Dr. Dattilio told [Appellant] to stop taking
     illegal drugs, and he testified that he complied with this advice in
     October of 2018. [Appellant] testified that he continued to have
     panic attacks up to “a few months” before the hearing. He takes
     no medication to prevent these attacks. His treating doctor
     advised him to refrain from drinking alcohol.

     [Appellant] testified that in November of 2016, he and his father
     were involved in a physical altercation. His mother called the
     police. [Appellant] left the house and was tracked down by the
     police. [Appellant] said he did not remember the circumstances
     of the altercation, based this lack of memory on the drugs he was
     taking at the time. He also has a “fuzzy” memory about a
     subsequent incident in August of 2017 in which he locked his
     mother in the basement of their house. Police were again called
     at that time. [Appellant’s] doctor had recommended that he stop
     drinking alcohol and continue to take amitriptyline. [Appellant]
     has not complied with these recommendations.           [Appellant]
     testified that his last “panic attack” occurred approximately five
     months prior to the date of the hearing. He also had an attack
     about two or three months prior to that attack.

     Appellant’s father, [H.H.], testified that near the time his son
     bought two guns, [Appellant] told his father he had “thought of
     killing himself and his girlfriend.” [H.H.] described an incident
     when [Appellant] got on his motorcycle and said he was going to

                                    -2-
J-A06001-20


      buy a BB gun and aim it at a police officer. After [Appellant]
      barricaded his mother in the basement in August of 2017, [H.H.]
      and [Appellant] got into a physical altercation. The police were
      called and [Appellant] was taken to the hospital.

Trial Ct. Op., 9/25/19, at 2-3. The court continued:

      This court carefully observed [Appellant] and his witnesses at the
      hearing. When testifying, apparently in favor of his son’s guns
      being returned, [H.H.] sweated profusely and looked with
      apprehension at his son. When [Appellant] testified, he appeared
      nervous and had a strange gaze in his eyes.

Id. at 4-5.

      Appellant submitted to the court Dr. Dattilio’s November 2, 2018 expert

report, which concluded that Appellant “is worthy of having his record

expunged and does not pose a future risk for violence to himself or to

anyone else at this juncture.” Ex. P-3.

      On July 28, 2019, the trial court entered an order denying Appellant’s

petition for restoration of firearm rights. Appellant filed this timely appeal,

and both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant

raises a single issue in this appeal: “Did the learned trial judge err in refusing

to grant [Appellant’s] Petition for Restoration of Firearm Rights pursuant to 18

Pa. C.S.A. Section 6105(f)(1)?” Appellant’s Brief at 3.

      18 Pa.C.S.A. § 6105(f)(1) prescribes, “Upon application to the court of

common pleas under this subsection by an applicant subject to the




                                      -3-
J-A06001-20


prohibitions under subsection (c)(4),1 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.” 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.”       E.G.G. v. Pennsylvania State

Police, 219 A.3d 679, 683 (Pa. Super. 2019). An abuse of discretion “is not

merely an error in judgment . . . [It] 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.” Id. Moreover, “it is well-settled that a [] finder of fact is free to

believe all, part or none of a witness' testimony” and therefore may

“discount[] the testimony of Appellant’s psychiatric expert.” Id.

       The trial court gave the following explanation for denying Appellant’s

petition:

       When considering the events leading up to [Appellant’s] outbursts
       and threats to kill himself (by police) and his girlfriend, his actions
       towards his father and mother which required police intervention,
       the extensive and fairly recent psychiatric and psychological
       treatment, the repeated panic attacks, and admitted use of illegal
       drugs (marijuana) and of alcohol against his doctor’s orders, it is
       quite clear to this court that [Appellant] would present a great risk
       to himself, to his family and to society in general, were he [to] be
       permitted to own guns.
____________________________________________


1 18 Pa.C.S.A. § 6105(c)(4) prohibits any person from possessing or using a
firearm “who has been involuntarily committed to a mental institution for
inpatient care and treatment under section 302, 303 or 304 of the provisions
of the act of July 9, 1976 (P.L. 817, No. 143), known as the Mental Health
Procedures Act.” There is no dispute that Appellant is subject to this provision.

                                           -4-
J-A06001-20



Trial Ct. Op. at 5. Having reviewed the record, we agree with this analysis.

      Appellant relies heavily on Dr. Dattilio’s expert opinion that Appellant

does not pose a future risk for violence to himself or anyone else. Appellant’s

argument reduces to the proposition that if his condition satisfied Dr. Dattilio,

it should have satisfied the court as well.

      Our recent decision in E.G.G., another firearm restoration case,

demonstrates that it was within the trial court’s discretion to disregard Dr.

Dattilio’s opinion.   The petitioner in E.G.G. was involuntarily committed in

2003 for suicidal ideations and again in 2005 for hallucinatory and agitated

behavior. In 2017, the petitioner moved for restoration of his firearm rights.

He argued that the cause of his troubles was addiction to medications, but he

stopped taking them in 2005 and did not have any problems thereafter. He

submitted an expert report from a psychologist that he was not a risk to others

and that reinstatement of his gun permit would not increase the risk. The trial

court denied reinstatement, and we affirmed, stating:

      [I]t is well-settled that a [] finder of fact is free to believe all, part
      or none of a witness’ testimony.” J.C.B. v. Pennsylvania State
      Police, 35 A.3d 792, 797 (Pa. Super. 2012) (finding “the trial
      court, as the fact finder, acted within its discretion in[,]” inter alia,
      “discounting the testimony of Appellant's psychiatric expert.”).

      In this case, the trial court, while cognizant of the evaluator’s
      findings, ultimately concluded that lingering concerns about
      Appellant’s mental health and his interactions with police
      prevented Appellant from meeting his burden of proving that his
      firearm rights should be restored. We decline to disturb this
      discretionary finding.


                                        -5-
J-A06001-20


Id. at 683-84.

      The same logic applies here. The trial court took Dr. Dattalio’s report

into account, but it ultimately decided that its concerns about Appellant’s

involuntary commitment, psychiatric history and strange in-court demeanor

made it too risky to restore his firearm license. This balancing of interests

was well within the court’s discretion.

      It also was within the trial court’s discretion to factor H.H.’s in-court

behavior into its decision. As the factfinder, the trial court had the right to

assess the witnesses’ credibility not only by their spoken words but also by

their demeanor. While H.H. verbally professed to support reinstatement of

Appellant’s firearm rights, his sweating and nervous glances indicated that he

feared and distrusted Appellant. The trial court had the discretion to perceive

H.H.’s demeanor as a sign that Appellant was unfit to possess firearms. As

an appellate court, we must pay proper deference to this credibility

determination.   Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 88 (Pa.

Super. 2006) (“[a]s long as sufficient evidence exists in the record to support

the finding found by the trial court, as factfinder, we are precluded from

overturning that finding and must affirm, thereby paying the proper deference

due to the factfinder who heard the witnesses testify and was in the sole

position to observe the demeanor of the witnesses and assess their

credibility”).




                                     -6-
J-A06001-20


      In short, based upon the record before us, we cannot conclude that the

trial court “ignored or misapplied the law, exercised its judgment for reasons

of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” E.G.G., 219 A.3d at 684. We decline to disturb the trial court’s

order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/28/20




                                       -7-
