Com. v. Mesa, J. ( 2016 )

J-S90025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOE LINCEN MESA
Appellant No. 970 EDA 2016
Appeal from the Judgment of Sentence Dated March 15, 2016
In the Court of Common Pleas of Carbon County
Criminal Division at No(s): CP-13-CR-0000706-2009
BEFORE: OTT, J., SOLANO, J., and JENKINS, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 05, 2016
Appellant, Joe Lincen Mesa, appeals from the judgment of sentence of
18 to 36 months’ incarceration, imposed by the trial court after a jury
convicted Appellant of two counts of arson.1 On appeal, Appellant
challenges the trial court’s determination that he was competent to be
sentenced. We affirm.
The trial court recited the protracted background of this case as
follows:
On August 8, 2011, [Appellant] was convicted of two
counts of arson with respect to the incendiary destruction of his
home and automobile on February 27, 2009. That [Appellant]
had committed these offenses was evident from the evidence
presented at trial by the Commonwealth[.] . . .
____________________________________________
1
18 Pa.C.S. § 3301(a)(1)(i)(arson endangering persons) and (c)(3)(arson
endangering property with intent to collect insurance).
J-S90025-16
[Appellant] was originally scheduled for sentencing on
October 17, 2011, and a presentence investigation report and
mental health evaluation were ordered. Sentencing was
continued several times until March 27, 2012, at which time
[Appellant] presented Dr. Raja S. Abbas, a board-certified
psychiatrist, who testified that [Appellant] appeared to have a
cognitive disorder which rendered him incompetent to be
sentenced, but that a detailed neuropsychological evaluation was
necessary “to determine the extent or presence of any cognitive
issues.” In consequence, [Appellant’s] sentencing was continued
multiple times, until July 29, 2014.
On March 24, 2014, David S. Glosser testified to the
results of a neuropsychological assessment he performed on
June 27, 2012. Dr. Glosser is a neuropsychologist; he is neither
a medical doctor nor a psychiatrist. Dr. Glosser testified that
[Appellant] exhibited significant signs of cognitive dysfunction
and that as a result of this dysfunction and the medications he
was taking, his judgment was compromised. Dr. Glosser also
testified that due to [Appellant’s] poor mastery of the English
language, [Appellant’s] case was a difficult one to evaluate.
Unfortunately, due to the delay between when Dr. Glosser’s
examination was performed and his testimony presented, at the
time Dr. Glosser testified, he did not know the current state of
[Appellant’s] cognitive functions.
To update his assessment, Dr. Glosser re-examined
[Appellant] on April 14, 2014. Following this re-examination, Dr.
Glosser testified on July 29, 2014, that [Appellant] was able to
understand the nature of the charges against him, that he had
been convicted, the he needed to be sentenced and what
sentencing is, and that he was at risk of being punished, which
he dreaded. Dr. Glosser further noted that [Appellant] had the
capacity and ability to participate in sentencing and to provide
information to the court, but that he had a tendency to wander
in his responses.
With the results of the neuropsychological assessment
which Dr. Abbas had earlier recommended now available, Dr.
Abbas performed an updated psychiatric evaluation on July 18,
2015. On September 18, 2015, Dr. Abbas testified that
[Appellant] was not competent to be sentenced. In explaining
this conclusion, Dr. Abbas stated that [Appellant] was paranoid,
that he believed the proceedings were a sham and everyone was
an imposter, and that the facts upon which he was prosecuted
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J-S90025-16
were made up. At this hearing, at the request of the court,
[Appellant] testified for the first time, and the court had the
opportunity to hear [Appellant’s] responses to questions and to
observe [Appellant’s] demeanor. [Appellant] appeared to
understand the questions asked and was responsive, however,
at times, as predicted by Dr. Glosser, [Appellant] wandered in
his responses. By order dated December 29, 2015, we found
[Appellant] to be competent to be sentenced.
[Appellant] was scheduled for sentencing on February 23,
2016. At that time, both [Appellant] and his counsel appeared
in court, and [Appellant] was questioned and given an
opportunity to present evidence to the court for sentencing
purposes. The court also had available to it the presentence
investigation report previously prepared by the Carbon County
Adult Probation Office and dated March 22, 2012. Unfortunately,
before [Appellant’s] sentence was pronounced, [Appellant]
collapsed and sentencing was deferred to March 15, 2016. On
March 15, 2016, [Appellant] was sentenced to a period of
imprisonment of no less than eighteen months nor more than
three years in a state correctional institution, to be followed by
two years state probation, on Count 1, . . . and a concurrent
sentence of one to two years on Count 2.
Trial Ct. Op., 5/17/16, at 2-6 (footnotes and citations omitted).
Appellant filed this timely appeal, and presents a single issue for our
review:
Whether the Trial Court erred in finding [Appellant] competent to
proceed in this matter when the undisputed testimony of two
mental health professionals established that [Appellant] suffered
from several mental health conditions that cause him to lack a
rational understanding of these proceedings and to lack the
ability to consult with his lawyer with a reasonable degree of
rational understanding?
Appellant’s Brief at 5.
Appellant argues that he was incompetent to proceed with sentencing
because, he “possesses a factual understanding of the legal proceedings but
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J-S90025-16
lacks a rational understanding of the proceedings because of various mental
health issues, most notably a delusion that the proceedings were a
conspiracy against him.” Appellant’s Brief at 12. The Commonwealth
responds that, to the contrary, Appellant failed to overcome the presumption
of competency by a preponderance of credible evidence. Commonwealth’s
Brief at 5.
In reviewing Appellant’s claim, we are mindful of the following:
A defendant is presumed competent and it is his burden to
show otherwise, the determination of which is within the sound
discretion of the trial court. Commonwealth v. Sanchez, 589
Pa. 43, 64, 907 A.2d 477, 490 (2006) (citing Commonwealth
v. Sam, 535 Pa. 350, 357, 635 A.2d 603, 606 (1993);
Commonwealth v. Chopak, 532 Pa. 227, 235, 615 A.2d 696,
700 (1992)). When a competency hearing takes place,
incompetency may be established by a preponderance of the
evidence. 50 P.S. § 7402(d). The sensitive nature of
competency determinations requires the appellate courts to
afford great deference to the conclusions of the trial court, which
has had the opportunity to observe the defendant personally.
Id. (citing Chopak, supra). When the record supports the trial
court’s determination, we will not disturb it. Id. at 65, 907 A.2d
at 490.
Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013),
appeal denied, 80 A.3d 777 (Pa. 2013) (table).
Regarding the role of the trial court, our Supreme Court has stated:
Where there is reason to doubt a defendant’s competency,
the trial court is required to conduct a competency hearing.
Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 88
(2004). Competency is measured according to whether the
defendant has sufficient ability at the pertinent time to consult
with counsel with a reasonable degree of rational understanding,
and to have a rational as well as a factual understanding of the
-4-
J-S90025-16
proceedings. Id. (citing Commonwealth v. Appel, 547 Pa.
171, 689 A.2d 891, 899 (1997), and 50 P.S. § 7402).
Commonwealth v. Davido, 106 A.3d 611, 639 (Pa. 2014) (per curiam).
Consonant of the foregoing, we have reviewed the record and discern
no abuse of discretion by the trial court. Moreover, the Honorable Roger N.
Nanovic, sitting as the trial court, has authored an opinion which
comprehensively and ably addresses Appellant’s appellate argument, and
ultimately concludes:
Expert opinions are intended to assist in understanding the
evidence or determining a fact in issue. Pa.R.E. 702(b). They
are not to be followed blindly without examining the facts on
which they are based, nor are the conclusions reached to be
accepted notwithstanding what the credible evidence clearly
proves to be true. This is particularly true when the subject
matter of the opinion concerns matters which we indirectly deal
with on a daily basis and in our interactions with others in
evaluating the validity of what we are told, and in evaluating
their understanding of what we say and do.
[Appellant] claims he was incompetent to be sentenced:
that he did not have the capacity to understand what sentencing
is, or to participate and assist his counsel at sentencing. This is
contrary to our observations and evaluation of [Appellant’s]
testimony over numerous hearings and [Appellant’s] actual
participation at sentencing. This is contrary to specific testimony
given by Dr. Glosser concerning [Appellant’s] capacity to be
sentenced. This is contrary to [Appellant’s] acute awareness of
the effect sentencing could have on him and his dread of that
sentence. Simply stated, [Appellant] did not overcome the
presumption of competency by a preponderance of the evidence.
Trial Ct. Op., 5/17/16, at 17-18.
Prior to reaching his conclusion, Judge Nanovic engaged in a thorough
analysis, citing prevailing legal authority and the notes of testimony, in
-5-
J-S90025-16
support of his determination that Appellant was competent to be sentenced.
Because the record substantiates the trial court’s conclusions, we will not
disturb the trial court’s exercise of its discretion. See Stevenson, 64 A.3d
at 720. We adopt and incorporate the trial court’s May 17, 2016 opinion, in
its entirety, in disposing of this appeal. The parties shall attach a copy of
that opinion to this one in the event of future proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
-6-
J-S90025-16
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Circulated 11/21/2016 02:28 PM
SC, ooi5-tG
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
~.- .. . . .
COMMONWEALTH OF PENNSYLVANIA .. . . •.. . ...
.·-"· !.:.• : ..
VS. ,
.··.....'. ~-····. .
JOE 1'..INCEN MESA, :;~ >``: . .
,
:!:!
Defendant j"T"• ;- -· 1
Michaels. Greek, Esquire Counsel for Commonwealth
Assistant District Attorney
Matthew J. Mottola, Esquire. Counsel for Defendant
MEMORANDUM OPINION
Nanovic, P.J.-- May 17, 2016
Joe Lincen Mesa, the Defendant in these criminal
proceedings, raises one issue on direct appeal from his
conviction of arson, that he was incompetent at the time of
sentencing and, therefore, incapable of being sentenced.
Because the commonweal th chose not to have Defendant Is
competency evaluated, notwithstanding Defendant's examination by
two defense experts one of whom concluded Defendant was
incompetent to be sentenced, our decision to sentence Defendant
requires careful review of the evidence presented on this issue,
including wh'at; Defendant had to say and the significance of the
evidentiary presumption that a defendant is competent.
( FN-07-16]
1
FACTUAL AND PROCEDURAL BACKGROUND
On August
.
8, 2011, Defendant was convicted of two counts of
;
arson1 with respect to the incendiary destruction of his home and
automobile od February 27, 2009. That Defendant had committed
these offenses was evident from the evidence presented at trial
by the Commonwea I th: (1) the fire which destroyed Defendant's
property had: three separate _points of origin - in the kitchen
and a rear bedroom of the home, and in Defendant's automobile,
which was parked outside in front of the home; (2) the cause of
the fire at . each location was consistent with the use of an
inflarnmatory1 liquid rubbing alcohol; (3) all reasonable
accidental causes were eliminated; (4) Defendant was home at the
time the fires began; ( 5} the home was recently posted and was
scheduled for sheriff's sale on March 3, 2009; and {6) Defendant
admitted set~ing the fires.
Defendant was originally scheduled for sentencing on
October 17, : 2011, and a presentence investigation report and
mental health evaluation were ordered. Sentencing was continued
several times until t,.,]arch 27, 2012, at which time Defendant
presented Dr. Raja S. Abbas, a board-certified psychiatrist, who
testified that Defendant appeared to have a cognitive disorder
which rendered him incompetent to be sentenced, but that a
1 18 Pa, C, S .• ~. § 3301 (a) {l) (il · ( ar son endanqe ring per sons) and 3301 (cl (3}
(ar son endange'riog property with intent t.o colleH·;t ln'su.cance).
[FN-07-16]
2
detailed neufopsychological evaluation was necessary "to
determine thefextent or presence of any cognitive issues.n (N.T.
3/27/12, pp.9_.:.10, 12, 19, 22, 27-29, 37, 43).2 In consequence,
Defendant's sentencing date was continued multiple times, until
J'uly 29, 2014 .'
On March 24, 2014, David S. Glosser testified to the
results of a ; neuropsychological assessment he performed on June
27, 2012.3 Dr. Glosser is a clinical neuropsychologist; he is
neither a medical doctor nor a psychiatrist. (N.T. 3/24/14, p.9;
N.T. 7 /29/14'( p.21}. Dr. Glosser testified that Defendant
exhibited significant signs of cognitive dysfunction and that as
a result of this dysfunction and the medications he was taking,
his judgment was compromised. (N.T. 3/24/14, pp.16-17), Dr.
2
Sue!~ testing·;; according to Dr. Abbas, would Lnvo.Lve detailed base testing of
Defenoant' s me~oz:y and cogl'lition to determine his ability to take in and
process information and make lo9ical declsions. (1'1.T. 3/27/12, pp.24-25).
Dr.. Abbas further te3tifiad cnat; this testing would a s s Ls t, in as se s s.i.nq
whe t he r any medications Defendant 1,1?-s t::.king were affecting his thought
process and whether Dc;ifeudant' s ·difficulties wei:e genuine or exaggerated.
(t-1.T. 3/27/12, ,pp.25-26).
or. Abbas fi~st met Defenctant a few .,.,eeks orior.· to his t e s c amonv on t~arch
27, 2012, (N:T. 3/27/12, p.9). Def~ndant -had been admitted to-the older
adu Lt unit at /the Palmerton H<."IS.pital for depression and nightmares. (N.'!',
3/27/12, p.9) .; Dr.. Abbe s was the medical director: of this unit. (N.'f.
3/27/12, pp.4':'5). J.>.t the time of ha s testimony, Dr. Abbas explained t hat; he
had been a practicing psychiatrist fo:,; only four years and only once be to re
had t~valuatecl:tha ll:!gal competence of a defendant to stand tr:i.e1L {N.T.
3/27/12, pp.5-'6J. Given these circumstances, 0:?:. Abbas testitied tha-c his
cliagnosis of Defl.':ndant was t ent at Ive . (N. ·~·- 3/2-, /12, p , 9). ,!!.::: a t,;,n.tative
diagncsis, Dr'. Abba~ testHled Defendant suffered from major depress.ive
disorder with: osvchotic fP.:atu.rt;is, chronic pain disorcier, and ,, possible
cognitive diso'rde.c. (N.'.l.', 3/27/12, pp.9, 18-19, 27-28).
3 As exp La i ned by Dr. Glos~er, because di ffer:ent az eers o r regicns of the bral!1
per:fotm diffe'.rent <1t1d discrete functions, cne tests he perfor.n\ed were
de sj.qrred to measure different cognitive funct Lcns in order. to cva.t uat e the
funcc.ioni.nq and r~J.ative intactness uf t he var Lous a r ea s <.l"f. Daic:ndant' s
br,-.iin. (N~T. :3/24/H, pp. 11-12).
[fN-07-16]
3
Glosser also testified that due to Defendant's poor mastery of
r
the English I'anqu aqe , Defendant's case was a difficult one to
evaluate. (w;r. 3/24/14, p.13). Unfortunately, due to the delay
between when Dr. Glosser' s examination was· performed and his
testimony presented, at the time Dr. Glosser testified, he did
not know the: "cu r r errt, status of Defendant's cognitive functions.
(N.T. 3/24/14~ pp.21, 27-29).
•ro update his assessment, Dr. Glosser. re-examined Defendant
on April 14,, 2014. Following this re-examination, Dr. Glosser
testified on July 29, 2014, that Defendant was able to
understand the nature of the charges against him, that he had
been convic~ed, that he needed to be sentenced and what
sentencing is, and that he was at risk Of being punished, which
he dreaded. : (N.T. 7/29/14., pp Ll.,
i 16-17). Dr. Glosser further
noted that ``fendant had the capacity and ability to participate
in sentencin~ and to provids information to the court, but that
he had a tendency to wander in his responses. (N.T. 7/29/14,
pp .17-18) .
With the ~esults of the neuropsychological assessment which
'
Dr. tl..bbas had earlier recommended now available, Dr. Abbas
performed an updated psychiatric evaluation on July 18, 2015.
(N.T. 9/18/~5, p,6). On September 18, 2015; Dr. Abbas testified
that Defendant was not competent to be sentenced. (N,T.
I
9/18/15, pp.13-15). In explaining this conclusion Dr. Abbas
[FN-07-16}
4
stated that · l Defendant was paranoid, that he believed the
'
proceedings w¢re a sham and everyone was an imposter, and that
the facts upon which he was prosecuted were made up. (N. T.
9/18/15, pp.13-16), At this hearing, at the request of the
court, Defend~nt testified for the first time, and the court had
the oppor t un.i't y to hea r Defendant's responses to questions and
to observe Defendant'$ demeanor. (N. T. 9/18/15, p.41).
Defendant appeared to understand the questions asked and was
responsive, however, at times, as predicted by Dr. Glosser,
Defendant wandered in his responses. {N.T. ,9/18/15, pp.30, 46-
47, 66). Bi order dated December 29, 2015, .,,e found Defendant
I
to be competent to be sentenced .
. '
Defendarit was scheduled for sentencing .on February 23,
2016. At th~t time, both Defendant and his coun$el appeared in
court, and Defendant was questioned and given an opportunity to
present evidence to the court for sentencing purposes. The court
also had available to it the presentence investigation report·
previously prepared by the carbon County Adult Probation Office
and dated March 22, 2012. Unfortunately, before Defendant's
sentence was pronounced, Defendant collapsed and sentencing was
. I
deferred until March 15, 2016. (N.T. 2/23/16, p.29) .4 On March
15, 2016, D~fendant was sentenced to a period of imprisonment of
4 At h.is continued sentencing on Mc1n~J,. 15, 2016, Def.endant explained that due
to the str.·ess: of the procee(lin<), his blood pressure m:!flt "sky M.gh" and lie
[aintcd. (N.T~ 3/15/16, p.3).
[FN-07-16]
5
no less than ' eighteen months nor more than three years in a
state correc~ional institution, to be followed by two years
s t a t.e probation, on Count 1, 18 Pa.C.S.A. § 330l(a) (1) (i) (arson
endangering pez-sons ) , and a concurrent sentence of one to two
years on Count 2, 18 Pa.C.S.A. § 3301(c) (3) (arson endangering
property) ,
On March 21, 2016, Defendant timely appealed from the
judgment of sentence. In this appeal Defendant raises one
issue, that we "erred in finding Joe Mesa competent to proceed
in this rnatter when the undt sput.ed testimony of two mental
health professionals established that Mr. 'Mesa suffered from
several ment~l health conditions that cause him to lack a
rational und~rstanding of these proceedings and to lack the
ability to consult with his lawyer with a reasonable degree of
rational understanding.'' See Defendant's Concise Statement of
Errors Complained of on Appeal.
DISCUSSION
A cr i.mi.naL defendant is presumed to be competent to stand
trial and to: be sentenced. Commonwealth v, Smith, 17 A.3d 873,
899 (Pa. zma i , cert. denied sub ncm . Smith v. Pennsylvania, 133
S. Ct. 24 (U;S. 20l2). To prove otherwise,. the defendant must
establish by a preponderance of the evidence that he was either
"substantiaily unable to understand the nature or object of the
proceedings : against him or to pa r t Lc.i.p a t a and assist in his
(FN-07-16 l
6
defense.N 5~ P.S. S 7402(a); Smith, 17 A.3d at 899-900; Medina
v. Californi~, 505 U.S. 437, 448 (1992) • Stated differently,
the relevant :question in a competency determination is "whether.
the defendant: ; has sufficient ability at the· pertinent time to
consult with counsel with a reasonable degree of rational
understanding, antj to have a rational as well as a factual
understanding of the proceedings." Commonweal th V'. Davide, 106
A.3d 611, 639 (Pa. 2014) (per curiam) (citations omitted); Dusky
v. United States, 362 U.S. 402 (1960) (per curiam).
Defendarit claims on appeal that we erred because we did not
accept the ``ndisputed testimonyu of his mental health experts
that Defend~nt lacked a "rational undeistanding of these
proceedings";and the "ability to consult with his lawyer with a
reasonable degree of rational understanding. 11 In addressing
this issue,; it is important to first emphasize that the
proceeding ~t issue is Defendant's sentencing. Defendant was
'
: ~
tried before a jury and convicted on August 8, 2011.
Defendant Is competency to be tried has never been challenged.
;
The first time competency was raised as an issue was in March
2012, after !oefendant's conviction. {N.T. 3/21/12, p.41). This
1
;
is, coincidentally, at the same time when Defendant's
presentence [investigation report was comp Le t ed , In that report,
an aggregat;e period of imprisonment in a state correctional
facility of; not less than three years nor more than six years
[FN-07-16)
7
was recommerided. In that report, substantial information
pertinent to 'sentencing was obtained directly from Defendant and
his wife, none of which was disputed at the time of sentencing
5
on March 15, :2016.
Secondly, Defendant's characterization of Dr. Glosser's
-:
testimony as; an expert determination that Defendant lacked a
rational understanding of these proceedings or the ability to
consult with' his lawyer with a reasonable degree of rational
understanding is not supported by the record. Dr. Glosser is
neither a psychiatrist or a medical doctor; he is a clinical
'
neuropsychologist. There is no evidence that Dr. Glosser has
any training or expertise in forensic psychiatry or in
evaluating an individual1s legal competency to be tried or
sentenced; i~stead, Dr. Glosser freely admitted that he did not
•
know the legal standard by which to judge legal competency.
t
I
(N.·r. 3/24/1.:4, p.26). Further, while Dr. Glosser opined that
Defendant was "cognitively and psychologically incapable of
fully understanding what was going on" and "how to make
decisions ih his own best interest," the extent of this
limitation ~as never delineated. (N.T. 7/29/14( p.11). l'his
is significa'.nt given Pr. Glosser' s acknowledgment that Defendant
'
5 At sentenc~ng, only three cor:r:ections or updat ea were requested by
Oefenc::lant.: that h.is change of addxes s be nol~ed; that at th<;! time cf
sent.enci.ng, oe'.t:\~ndanl:. and his wi.:'1: ``ere no longer separated, they were ,.:igain
1 i.vi!",g tog1=theh and lbat Defendant was no longer dipgnosed as having a tumor
on his brain, but \-Ii.th white mat t ar disease. (N.T. 2/23/16, pp.3-:,).
i (fN-07-16J
8
understood the[ nature of his criminal charges; knew he had been
tried and convicted; knew that he needed to be sentenced and
that this involved likely punishment which he dreaded a
. of anyone facing sentencing; , ond that Defendant
natural response
possessed the 'capacity and ability to participate in sentencing
and to provide relevant information to the court. (N.T. 7/29/14,
pp.11, 16-18) ~ Dr. Glosser never opined that Defendant was
incompetent t~ be sentenced.
With respect to Dr. Abbas1s testimony, in response to
defense counsel's question, Dr. Abbas denied that Defendant was
substantiallyfunable to understand the nature and object of the
criminal proceedings, but believed Defendant did not understand
the exact nature of the proceedings. (N.T. 9/18/15, p.13). In
explaining fu~ther, Dr. Abbas testified that Defendant believed
the proceedin,gs were manufactured as a means to deport him and
that the court and the lawyers were imposters, that they were
;
acting the r9le of real officials. (N.T. 9/18/15, pp.13-14).
When questioned directly, Defendant admitted to knowing who the
judge was, ttjat defense counsel was his counsel representing him
in this matt~r, and that -the Assistant District Attorney who was
. !
present at the proceeding was the attorney prosecuting the case.
(N.T. 9/18/15, pp. 54-55, 58·-59) . When asked whether Defendant
was substantiallv ' w
unable to participate in his defense and 'to
assist defense counsel in defending him, and responding yes, Dr.
[FN-O~l-16)
9
Abbas ex.plained that because of Def endant ' s paranoia and his
irrational be'lief that e'iTeryt_hing had been made up against him,
he, for this reason, was unable to defend himself. (N.T.
9/18/15, pp.14-15, 27-28),
At the· heaz Lnq on September 18, 2015, Dr. Abbas testified
that he had made two diagnoses of Defendant: (1) major
depressi11e disorder with psychosis, and (2} dementia, not
otherwise specified. (N. T. 9/18 /15, p. 6) • While opining that
Defendant experienced major depressive disorder with psychosis
his entire life, Dr. Abbas acknowledged that this would. not
prevent him· 'from maintaining employment, raising a family, and
living a productive life. (N.'I'. 9/18/15, pp.25, 36-39). Dr.
Abbas further acknowledged that the neuropsychological
evaluations performed by Dr. Glosser did not confirm the extent
of depressi6n, psychosis, and cognitive issues he thought
existed (N. Tl. 9/18/15, pp.12-13), and that the tests performed
by Dr. Glosser were a better measure of Defendant's cognition
than those he had performed (N.T. 9/18/15, p.19), which
evidenced on l.y moderate derrientia and no significant change in
the level o ~ Defendant's dementia between 2012 and 2015. (N .T.
;
9/18/15, pp.9-10, 19). Dr. Abbas also admitted that because
Defendant was born in Colombia, South America, and did not
immigrate to this country until he was twenty-three yea:r:s old,
there was a noticeable language barrier which complicated
(FN-07-16]
10
accurate testipg of Defendant1s cognition and: understanding, and
that because of Defendant's deep-seated paranoia, he was unable
to determine whet he r many of the things Defendant told him in
fact happened, or were imagined, (N • T • 9 I 18 I 15 I PP . 201 3 9- 4 0 ) .
This, of course, begs the question: Did they, in fact, happen?
No proof was presented to the contrary.
Underlyiqg the issue
~
Defendant
.
intends to present on appeal
is the implied premise that .the testimony of Dr. Abbas and Dr.
;
Glosser is co~clusive, that in our role as factfinder we are not
permitted tol weigh the strength of this evidence or its
credibility, ;and that in ruling on Defendant's competence we
'
cannot take · .Lnt;o account our observations of Defendant, his
demeanor, and his testimony. But see, Commonweal th v. McGill,
'
680 }L 2d 1131, 1135 (Pa, 1996) (trial court's observations of
I
defendant during colloquies and throughout trial supported the
conclusion that defendant was competent to stand trial) . In
addition, Defendant's statement of the issue to be raised on
appeal appears to ignore the difference between an undisputed
fact on which no contrary evidence exists and an opinion, which
by its very .natur e is an evaluation of factual information and
which, in ·this case, seeks to evaluate objectively the
subjective thought processes and understanding of the Defendant.
Defendant's ~tatement of the question on a~peal further appears
to ignore t he significance of the presumption of competency and
;
· ( FN - 0 7 -16]
11
its role in evaluating whether Defendant is competent to be
sentenced. CommonW'ealth v. duPont, 681 A.2d 1328, 1330 (Pa.
1996) (because a · criminal defendant is presumed competent, the
burden of proving otherwise is upon the defendant).
The threshold for competency is not high. Obviously, a
criminal defendant need not have a law degree, be trained in the
law, or have. ~ detailed understanding of the law to be competent
to be tried 'or sentenced. It is sufficient in this case if
Defendant had the capacity to understand what sentencing is and
to participate and assist his counsel in sentencing. Cf.
Commonwealth :v. Banks, 521 A.2d 1 (Pa. 1987) (a defendant's
;
ability to cooperate and not whether he actually cooperated is
essential to : the determination of his legal competency to stand
trial). Because the presumption favors competency, it was
incumbent upon Defendant to prove that he is substantially
unable to dJ so. See 50 l?. S. § 7 402 (d) (providing that "a
determination of incompetency shall be made by the court where
incompetency .· is established by a preponderance of the
evidence").
following Defendant1 s conviction on August 8,
Defendant appeared in court on s even separate occasions: March
27, 2012; March 24, 2014; .July 29, 2014; September 18, 2015;
February 23, 2016; March 15, 2016; and March 18, 2016. On each
of these ctaies Defendant was polite, respectful and dressed for
[ FN-07-16]
12
the occasion.: (N.T. 2/23/16, p.23; N.T. 9/18/15, p,30). On the
last four dat.e s , Defendant was asked questions and t.e s t.Lf.i.ad ,
During these times, Defendant listened attentively and an swer ed
appxop r.i.at.e Ly . In order to avoid the effects of medication on
his thought processes, Defendant avoided taking certain
medications, such as morphine. and fentanyl for pain, which might
otherwise cloud his thinking when he was in court. (N. T.
9/18/15, pp.67-68; N.·r. 2/23/16, pp.23-24; N.T. 3/18/16, pp.7-
8) •
At times Defendant had difficulty expressing himself, but
this appeared to be more because English is his second language
than because :of any difficulty in understanding or deficiency in
thought. ( N . T. 2 / 2 3 / 16, p . 19 ; N.T. 3 / 15 I 16, pp . 11-12 ) . At
times Defendant rambled or strayed from a question, but this
more often than not was when he wanted to make a point.
Defendant ~uestioned the thoroughness of the police
investigation (N.T. 9/18/15, p.52}, claimed his trial counsel
had not p re serrt ed evidence he felt should be presented (N. T.
9/18/15, p.56; N.T. 3/15/16, p.11), and ,identified a third
party, an insurance agent, who Defendant maintained was behind
many of his'. problems because the agent had committed insurance
fraud and Defendant threatened to expose him. (N.·r. 9/18/15,
pp.50-51, 74-75; N.T. 2/23/16, pp.19-20; N.T. 3/18/16, pp.29,
53-54). Defendant also at one point claimed that stomach cancer
[FN-O~l-l6]
13
he had in the! past may have returned, and he no longer wanted to
go through chemotherapy again (N.T. 9/18/15, pp.49, 69-71); and
'
that his wife was ill and dependent; on him for support. (N.T.
3/18/16, pp.21-22, 46-47).
None of : this points to Defendant's incompetency. To the
contrary, Defendant at all times maintained his innocence and
denied his g?il t. !t was therefore natural and expected for
Defendant to do this and also to present evidence which could be
considered in mitigation of any sentence imposed. Such evidence
also support~ Defendant's awareness of the proceedings and their
purpose.
When Difendant testified about events in the past he
appeared to have no difficulty in recalling what had occurred.
Dr. Abbas testified that Defendant's long-term memory about the
fire was intact (N.T. 3/27/12, p.34); and Defendant did not deny
,·
having rubbing alcohol in his home at the time of the fire, but
testified that he always kept this in supply and used it
frequently due to his health. (N. T. 9/18/15, pp.85-86).
Defendant r eca Ll.ed when the jury returned with its verdict and
questioned why the jury had not been polled, a question which
revealed an. insight which many laypersons do not possess
[FN-07-16]
14
concerning court proceedings. (N.T. 9/18/15, p.84) . .; Following
f
the verdict, in 2012 Defendant and his wife separated for more
than a year,: and Defendant lived by himself and cared for
himself. {N.T. 3/27/12t pp.32, 35; N.T. 9/18/15, pp.43-44; N.T.
3/18/16, p. 6) ;. 7 Since the jury's verdict, Defendant maintained
his driver's· ;license, frequently drove himself to court and to
go shopping, and had been specially evaluated at the request of
his family doctor to ensure. his ability to dz i ve safely, and
passed that !evaluation. {N.T. 9/18/15, p .. 67; N.T. 3/18/16,
pp.39-40).
Defendant testified at a bail hearing on March 18, 2016,
that he was no longer seeing Or. ,l\bbas, that the last time he
had seen Dr. • Abbas was in March 2015, that · he used to see Dr.
Abbas every other month, and that when he did see Dr. Abbas, it
was only fol:'. a short period, approximately five minutes each
tirne. (N'.T.: 9/18/15, p.69; N.T. 3/18/16, pp.9, 25). Defendant
further indicated that part of the reason he had seen Dr. Abbas
' .
was at the s~ggestion of his attorney as a way of staying out of
jail. (N.T. 3/15/16, p.9). Defense counsel never presented
any evidence\ that any of the foregoing information provided by
6 In his testi~ony, Defendant did net; use the term "pol.ling," but described
'the process of polling. Mo~eover, Defendant's recollectiou in this regard
.was in fa..::t correct, the jury 'l'/cjS not polled. (N.'l'. • 8/8/11, p.116).
1 Notw.ithscan