Com. v. Lombardo, J.

J-A34040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH T. LOMBARDO
Appellant No. 815 MDA 2014
Appeal from the Judgment of Sentence entered March 28, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0001107-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 24, 2015
Joseph Lombardo was convicted of having sexual contact with an adult
female who lacked the ability to consent because of a mental disability. On
appeal, Lombardo challenges the sufficiency and weight of evidence of the
victim’s mental defect, as well as his awareness of it. We affirm.
J.K., the victim, is a 49-year-old woman who suffers from a mild
mental disability. She graduated from John Paul II Center for Special
Learning, a special-needs school in 1985, and worked for four years in a
sheltered workshop to gain the skills necessary to hold a job. J.K. is able to
cook for herself and use a computer. She also works as a cashier at a fast-
food restaurant. J.K., however, has never lived alone, and cannot drive.
J.K. has been active in the Special Olympics her whole life, and bowls
with a group of individuals with mental disabilities on Saturdays. Initially,
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J.K.’s mother drove her to bowling, but eventually the mother hired
Appellant and paid him $20.00 per week to transport J.K. Appellant
transported J.K. and other persons with mental disabilities every Saturday
from 2001 until he was charged in this case.
On one Saturday when he was transporting J.K. to bowling, Appellant
allowed J.K. to use his bathroom at his house. Appellant called J.K. into the
upstairs bathroom and when J.K. went in, Appellant’s pants were down and
his penis was exposed. N.T. Trial, 11/19-20/13, at 95-96. Appellant asked
J.K. to perform oral sex on him. J.K. told Appellant it “really wasn’t the time”
to do that because they had to go bowling. Id. at 97-98. Appellant
persisted in asking J.K. to perform oral sex, which she did until he
ejaculated. Id.
On another Saturday before bowling, Appellant had J.K. perform oral
sex on him while they were in his car. Id. at 101-03. Appellant whispered
to J.K. not to tell anyone. Id.
On September 8, 2012, J.K. and her mother were traveling through
West Reading. Id. at 103-04, 131. J.K. pointed out where Appellant lived,
and told her mother that Appellant had placed his penis in her mouth inside
his home. Id. at 131. J.K.’s mother explained that this action is called oral
sex, id., and she later contacted police, who arranged for J.K. to participate
in a forensic interview. Police interviewed Appellant, too. During his
interview, Appellant stated he worked for Prospectus Berco, an organization
that provides services for the mentally disabled, and he transported people
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to Special Olympics on the side. Id. at 152-53, 171. When Detective
Michael Fick told Appellant he was investigating a sexual assault, Appellant
claimed any contact was consensual. Id. at 153-54. Appellant admitted
that J.K. performed oral sex on him twice, but denied having any other
sexual contact with her. Id. He told the Detective that he “always thought
he wanted to have a relationship with a special needs person.” Id. at 154.
At the end of the interview, Detective Fick arrested Appellant. Id. at 161-
62.
Based on the above evidence, the Commonwealth charged Appellant
with rape, involuntary deviate sexual intercourse (IDSI), and indecent
assault (all with a person who cannot consent because of a mental
disability), and indecent exposure.1
At trial, the Commonwealth presented the testimony of Dr. Alison Hill,
a licensed psychologist and counselor. Her experience includes conducting
psychological, psychosexual, and emotional evaluations. N.T. Trial, 11/19-
20/13, at 166-72. However, Dr. Hill is not a clinical or forensic psychologist,
and she had never before performed a competency evaluation for use in a
court case. Id. at 175-78. Dr. Hill opined that J.K. cannot consent to sex.
Id. at 180. Dr. Hill explained that, according to the Diagnostic and
Statistical Manual IV (DSM-IV), J.K.’s Intelligence Quotient (IQ) of 64 places
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1
18 Pa.C.S.A. §§ 3121(a)(5), 3123(a)(5), 3126(a)(6), and 3127(a),
respectively.
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her in the “mild mental disability” range. Id. at 184-85. Dr. Hill interviewed
J.K. for 90 minutes and used the Wechsler Abbreviated Scale of Intelligence
(WASI) test and the Wide Range Achievement Test to measure her
functioning. Id. at 184-85, 195. On cross-examination, Dr. Hill conceded
that she did not use the most recent version (version IV) of the full Wechsler
Adult Intelligence Scale (WAIS-IV), which includes fifteen subtests instead of
the WASI’s four. Id. at 192, 209. Dr. Hill did not want to fatigue J.K. by
using the longer test. Id. Dr. Hill also did not use the most recent version
of the Wide Range Achievement Test, but claimed this did not affect her
conclusion. Id. Dr. Hill noted that J.K. cannot live alone, cannot drive,
takes paratransit to work, and needed four years of training to learn how to
be a cashier. Id. at 186-87. Finally, Dr. Hill noted that J.K. cannot
understand certain things that are apparent to persons of normal
intelligence. For example, J.K. was unable to connect the menstrual cycle to
pregnancy. Id. at 198-99. Further, she did not understand that a woman
cannot become pregnant from oral sex. Id. at 198-99.
Appellant’s expert, Dr. Frank M. Dattilio, offered a contrasting opinion.
Dr. Dattilio is a certified clinical and forensic psychologist, and has many
years of experience evaluating mentally disabled and mentally ill individuals.
Id. at 225-27. He has also testified hundreds of times as an expert. Id.
Dr. Dattilio interviewed J.K. for four hours, and reviewed her forensic
interview prepared for this case and other documents. Id. at 232-35.
Dr. Dattilio used the WAIS-IV, which he characterized as “the most
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frequently and commonly used assessment of intelligence throughout the
world.” Id. at 238-39. According to Dr. Dattilio’s testing, J.K.’s IQ is 68,
which places her closer to borderline intelligence than an IQ of 64, which is
in the mildly mentally disabled range. Id. at 239-40. Dr. Dattilio disagreed
with Dr. Hill’s claim that her tested IQ of 64 was within the margin of error,
because she used an obsolete, stale test. Id. at 262. In sum, Dr. Dattilio
opined that J.K. is not incapacitated to the point that she did not know that
she had a right to refuse Appellant’s requests for oral sex. Id. at 244-45.
After weighing the above testimony, the jury convicted Appellant of all
charges. On March 27, 2014, the trial court sentenced Appellant to 4 to 8
years in prison, followed by 12 years of probation. Appellant timely filed2 a
post-sentence motion challenging the weight and sufficiency of the evidence.
The trial court denied the motion, and this appeal followed.
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2
Post-sentence motions must be filed within ten days of “imposition of
sentence.” Pa.R.Crim.P. 720(A). The trial court imposed sentence in this
case on March 27, 2014, even though the clerk of courts did not docket the
written sentencing order until the next day. See Commonwealth v.
Green, 862 A.2d 613, 617-18 (Pa. Super. 2004) (en banc) (holding
imposition of sentence occurs when it is announced in open court, not when
the written sentencing order is docketed). Appellant filed his post-sentence
motion on April 7, 2014, eleven days after imposition of sentence. The
motion was nevertheless timely, because April 6, 2014 was a Sunday. See
Pa.R.Crim.P. 101(C); 1 Pa.C.S.A. § 1908.
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On appeal, Appellant challenges the sufficiency of the evidence of
rape, and the weight of the evidence of rape and IDSI.3 Appellant correctly
acknowledges that challenges to evidentiary sufficiency and weight are
distinct claims requiring distinct analyses. For his sufficiency challenge,
Appellant contends the Commonwealth failed to provide sufficient evidence
that (1) J.K. could not consent to sex, and (2) Appellant recklessly
disregarded the fact that J.K. could not consent to sex. In his challenge to
the weight of the evidence, Appellant argues the greater weight of the
evidence shows J.K. was able to consent to sex. For ease of discussion, we
will address the sufficiency challenge first.
A challenge to the sufficiency of the evidence is a question of law, for
which “our standard of review is de novo.” Commonwealth v. Rushing,
99 A.3d 416, 420 (Pa. 2014). “However, our scope of review is limited to
considering the evidence of record, and all reasonable inferences arising
therefrom, viewed in the light most favorable to the Commonwealth as the
verdict winner.” Id. at 420-21.
Our Supreme Court has instructed: [T]he facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
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3
Appellant does not challenge the sufficiency of evidence of IDSI. See
Appellant’s Brief at 6. Nor does he challenge his conviction of indecent
exposure.
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circumstances. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while passing upon
the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Orie, 88 A.3d 983, 1014 (Pa. Super. 2014) (quoting
Commonwealth v. Williams, 73 A.3d 609, 617 (Pa. Super. 2013)).
As charged in this case, a person commits rape when “the person
engages in sexual intercourse with a complainant . . . [w]ho suffers from a
mental disability which renders the complainant incapable of consent.” 18
Pa.C.S.A. § 3121(a)(5). Sexual intercourse, “[i]n addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration
however slight; emission is not required. Id. § 3101.
Section 3121(a)(5) does not state whether a defendant must know
that the victim has a mental disability rendering him or her incapable of
consent. The Commonwealth nevertheless must prove mens rea.
Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa. Super. 1996). The
victim’s mental state is a material element of the crimes. Therefore, under
§ 302 of the Crimes Code, the Commonwealth must prove, at a minimum,
the defendant recklessly disregarded the existence of the victim’s mental
disability. Id. (quoting Commonwealth v. Carter, 418 A.2d 537, 539 (Pa.
Super. 1980)). In other words, the Commonwealth must prove the
defendant disregarded a substantial and unjustifiable risk that the victim
suffers from a mental disability rendering him or her incapable of consenting
to sexual intercourse. See id.; 18 Pa.C.S.A. § 302(b)(3).
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Applying the above standard, we reject Appellant’s sufficiency
challenge. First, Dr. Hill testified J.K. cannot consent to sex because of her
mild mental disability. She tested J.K.’s IQ at 64. J.K. cannot live alone or
drive. Appellant argues his expert, Dr. Dattilio, was more credible, and that
Dr. Hill used outdated or obsolete tests to measure J.K.’s functioning. Those
arguments concern the weight of the evidence—not its sufficiency. In a
sufficiency challenge, we must accept all evidence as true and view it in a
light most favorable to the Commonwealth. See Orie, 88 A.3d at 1014.
Thus, we must accept as true Dr. Hill’s testimony, and we cannot consider
Appellant’s arguments regarding the efficacy of testing of J.K. or
Dr. Dattilio’s opinion that J.K. could refuse to consent to sex.
Second, the Commonwealth presented sufficient evidence that
Appellant recklessly disregarded the fact that, because of her mental
disability, J.K. cannot consent to sex. Appellant drove J.K. to bowling for
Special Olympics every week. Tellingly, he told Detective Fick he always
wanted to have a relationship with a special needs person. These facts are
sufficient to show, at minimum, Appellant recklessly disregarded J.K.’s
inability to consent to sex. Viewed in a light most favorable to the
Commonwealth, Appellant’s concession to Detective Fick shows Appellant
was aware that he was dealing with special needs people, i.e., persons with
mental disabilities. Appellant’s statement reflects at least a reckless
disregard that J.K. suffers from a mental disability rendering her incapable of
consenting. We again reject Appellant’s reliance on evidence favorable to
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him. Such an argument concerns the weight of the evidence, not its
sufficiency. See id.
We now turn to Appellant’s contention that the guilty verdicts for rape
and IDSI are against the weight of the evidence. “A weight of the evidence
claim concedes that the evidence is sufficient to sustain the verdict, but
seeks a new trial on the ground that the evidence was so one-sided or so
weighted in favor of acquittal that a guilty verdict shocks one’s sense of
justice.” Id. (quoting Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa.
2013)).
A new trial should not be granted because of a mere conflict in
the testimony or because the judge on the same facts would
have arrived at a different conclusion. Rather, the role of the
trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
....
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court[.] Appellate review of a weight
claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the
weight of the evidence.
Id. (quoting Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013)
(emphasis in original)).
In its opinion, the trial court explained its reasoning for denying a new
trial as follows:
After reviewing the record, the verdict of the jury does not come
as a shock to this [c]ourt. [Appellant] claims Dr. Hill’s
evaluations are substantially compromised by her failure to
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adhere to [forensic psychology] guidelines in a manner
consistent with the standard practices, focusing specifically on
the fact that Dr. Hill’s tests are outdated and obsolete.
However, the evidence presented at trial was not contrary to the
verdicts of the jury. It appears that Dr. Hill based her testimony
upon accepted counseling psychology concepts concerning the
victim’s ability to consent. Moreover, the IQ assessed by Dr. Hill
and the IQ assessed by Dr. Dattilio were within the same margin
of error. Dr. Hill explained at trial why she chose to use the
original version of the Wechsler test[4] and the Wide Range
Achievement Test. Although a newer version of the Wechsler
test is available, Dr. Hill prefers in her practice to utilize shorter
tests so as to avoid tiring the victim. Furthermore, Dr. Hill
utilized the original reading section of the Wide Range
Achievement Test merely for screening purposes and nothing
more. Although [Appellant] claims Dr. Hill made no attempt to
utilize the Vineland Adaptive Behavior Scales, it was confirmed
at trial that Dr. Dattilio was unable to administer the Vineland
Adaptive Behavior Scales.
The jury was free to accept or reject Dr. Hill’s testimony relating
to the victim’s mental disability and inability to consent.
Although the testimony offered by the [Appellant’s] expert
(Dr. Dattilio) may have been sufficient to establish the victim
was capable of consent, this testimony must be weighed with the
differing testimony offered by the Commonwealth’s expert
witness (Dr. Hill). And when so considered[,] it became a
matter of credibility for the trier of the facts to resolve. . . .
Based on the evidence provided at trial, this [c]ourt is bound by
findings that result from resolutions of credibility and conflicting
[psychological] testimony. The jury found Dr. Hill’s testimony to
be more credible[,] and the mere fact that Dr. Hill’s testimony
was contradicted will not take the question of its credibility from
the jury. Based on the totality of the credible evidence
presented at trial by Dr. Hill, this [c]ourt is well within its
discretion to reject the [Appellant’s] argument that the victim
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4
The trial court is mistaken. Dr. Hill testified she used that the Wechsler
Abbreviated Scale of Intelligence test, not the original version of the full
Wechsler Adult Intelligence Scale test. See N.T. Trial, 11/19-20/13, at 179-
80.
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was capable of consent. Thus, the verdicts of this [c]ourt were
not contrary to the weight of the evidence presented at trial.
Trial Court Rule 1925(a) Opinion, 1/16/14, at 7-8.
The trial court did not abuse its discretion in denying a new trial.
Here, the jury had the opportunity to hear the two experts’ testimony. 5
After weighing and evaluating the evidence, the trial court determined a new
trial was not warranted. Appellant cannot show that this decision was
manifestly unreasonable; a misapplication of the law; or the result of bias,
ill-will, or prejudice. Therefore, his second claim fails.
Having rejected Appellant’s assignments of error, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2015
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5
On appeal, Appellant also argues the trial court abused its discretion in
allowing Dr. Hill to testify as an expert. Appellant’s Brief at 9-10. This
argument is waived for several reasons. Appellant failed to object at trial,
thus not preserving the issue. See Pa.R.E.103(a). Appellant did not include
this claim in his concise statement of errors complained of on appeal, or as a
separate question presented or argument in his brief. See Pa.R.A.P. 1925,
2116(a), 2119(a).
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