CASE REVIEW: Commonwealth v. Smerconish, 2015 PA Super 59.

In Smerconish, the Appellant had been involuntarily committed because he was suicidal. He attempted to have his firearm rights restored. In order to have his rights restored, he needed to have his involuntary commitment expunged. Appellants expungement was denied. He appealed.

For purposed of this case review there are two issues:

  • What are the requirements to have a mental health expungement?
  • Why does a person need a mental health expungement to possess a firearm?

Mental Health Expungement

To have an involuntary commitment expungement, the person seeking the expungement must show the involuntary commitment was not medically necessary. The petitioner may offer expert witness testimony at a hearing to show the involuntary commitment was not medically necessary. Also, evidence that an unrelated party called to have someone involuntarily committed and the basis of the call was false will also be considered. For example, if your ex-wife calls and says that you threatened to kill yourself and at your expungement hearing you show that as soon as you arrived at the mental health hospital for your involuntary commitment, you were immediately discharged because the staff recognized the allegations were fake, your expungement should be granted.

The relevant portion of the statute follows:

18 PACS § 6111.1. Pennsylvania State Police
(g) Review by court
(1) Upon receipt of a copy of the order of a court of competent jurisdiction which vacates a final order or an involuntary certification issued by a mental health review officer, the Pennsylvania State Police shall, after disclosing relevant records under subsection (f)(3), expunge all records of the involuntary treatment received under subsection (f).

(2) 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. A petition filed under this subsection shall toll the 60-day period set forth under section 6105(a)(2).

(3) The Pennsylvania State Police, after disclosing relevant records under subsection (f)(3), shall expunge all records of an involuntary commitment of an individual who is discharged from a mental health facility based upon the initial review by the physician occurring within two hours of arrival under section 302(b) of the Mental Health Procedures Act and the physician’s determination that no severe mental disability existed pursuant to section 302(b) of the Mental Health Procedures Act. The physician shall provide signed confirmation of the determination of the lack of severe mental disability following the initial examination under section 302(b) of the Mental Health Procedures Act to the Pennsylvania State Police.

Obtaining a Firearm

Under 6105, many people are listed who cannot own a firearm. One such group are people with involuntarily mental health commitments. However, an exception to that rule is if the involuntary commitment is expunged under 6111.1 above. The reason this is so important is because we are not talking about a citizens ability to get a license to carry a concealed firearm, we are talking about whether a citizen can even live in a house where there is a gun. Once the expungement of the involuntary commitment is granted and the record expunged, the citizen will no longer be in violation of 6105(c)(4), and can regain their right to possess a firearm under 6105(f)(1).

The relevant statutes follow:

18 PACS § 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms.

(c) Other persons.–In addition to any person who has been convicted of any offense listed under subsection (b), the following persons shall be subject to the prohibition of subsection (a):

(4) A person who has been adjudicated as an incompetent or 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. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.


(f) Other exemptions and proceedings.–

(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.

In Smerconish, his involuntary commitment was help to be necessary and he was denied the right to have a firearm. However, the case gives great explanations on how this portion of the law operations in Pennsylvania.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.