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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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.




____________________________________________


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
____________________________________________


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
____________________________________________


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

____________________________________________


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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