J-A08015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MICHAEL T. DEGILIO,

                        Appellant                  No. 1422 EDA 2015


        Appeal from the Judgment of Sentence November 17, 2014
             In the Court of Common Pleas of Carbon County
           Criminal Division at No(s): CP-13-CR-0000232-2010



BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 29, 2016

     Michael T. Degilio appeals the judgment of sentence of an aggregate

term of four to eight years incarceration followed by two years of probation

imposed after a jury convicted him of involuntary deviate sexual intercourse

(“IDSI”), indecent assault, and indecent exposure. We affirm.

     On February 24, 2009, Appellant sexually assaulted a patient that he

was treating for severe depression and anxiety. The assault occurred during

the patient’s second appointment with Appellant. On the previous occasion,

Appellant asked the victim sexually suggestive questions. Although she was

perturbed by Appellant’s behavior, the victim elected to continue her

treatment with Appellant.



* Retired Senior Judge assigned to the Superior Court.
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       During the second session, Appellant directed the victim to sit beside

him on the couch in his therapy room.       He kissed the victim, both on the

lips, and after pulling down her shirt and bra, upon her right breast.

Appellant then stood facing the victim as she remained seated.          Appellant

lowered his pants, took the victim’s right hand, and placed it on his penis.

He then drew her head towards his penis, and directed her to perform oral

sex.   Within an hour of the assault, the victim informed her friend of the

incident, and subsequently reported it to the police.

       In addition to setting forth the foregoing facts, the victim testified

during a jury trial that a few days before her ordeal with Appellant, she

received a prescription for Klonopin in connection with her voluntary

admission to the Behavioral Health Unit (“BHU”) of Gnaden Huetten

Memorial Hospital.        She stated that she informed Appellant that the

medication made her feel confused and “zoned out.” N.T. Trial, 5/12/14, at

39, 60-61; Affidavit of Probable Cause, 7/6/09, at unnumbered 1.

       The Commonwealth also proffered testimony from Dr. Ilan Levison, a

board-certified psychiatrist.   He testified that the victim’s daily dosage of

eight milligrams of Klonopin was excessive and would have caused her to

have    symptoms     of   extreme   confusion,   delirium,   fatigue,   and   gait

impairment. N.T. Trial, 5/13/14, at 28, 30, 52. In addition, he explained

that, when people suffering from depression take a high dosage of Klonopin,

they are extremely vulnerable and susceptible to manipulation by others.

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Id. at 31-32.   The jury convicted Appellant of IDSI, indecent assault, and

indecent exposure, and the trial court imposed the above-referenced

sentence. This timely appeal followed.

      Appellant raises a single contention for our review, “Was the evidence

sufficient to support [Appellant’s] convictions?”   Appellant’s brief at 4.   He

divides his argument into multiple parts.    First, Appellant asserts that the

evidence does not establish the forcible compulsion element of his

convictions for IDSI and indecent assault.          As it relates to indecent

exposure, he argues that his conduct was not likely to offend, affront, or

alarm the victim.

      We have previously held that the standard we apply in reviewing the

sufficiency of the evidence is

      whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      the fact-finder.     In addition, we note that the 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
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          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.

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Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)

(citation omitted).

      IDSI occurs when a person engages in deviate sexual intercourse with

another by forcible compulsion. 18 Pa.C.S. § 3123(a)(1). A person is guilty

of indecent assault if he has indecent contact or causes a person to have

indecent contact with him by forcible compulsion. 18 Pa.C.S. § 3126(a)(2).

As Appellant asserts that the Commonwealth failed to establish forcible

compulsion in relation to either offense, we address that shared element at

the outset.

      The Crimes Code defines forcible compulsion as the “use of physical,

intellectual, moral, emotional or psychological force, either express or

implied.”   18 Pa.C.S. § 3101.       In order to prove the “forcible compulsion”

component of IDSI and indecent assault, the Commonwealth is “required to

establish beyond a reasonable doubt that appellant used either physical

force, a threat of physical force, or psychological coercion, since the mere

showing     of   a   lack   of   consent    does   not   support   a   conviction[.]”

Commonwealth v. Brown, 727 A.2d 541, 544 (Pa. 1999) (citation

omitted). Such coercion must “compel a person to engage in sexual

intercourse” against her will. Commonwealth v. Rhodes, 510 A.2d 1217,

1226 (Pa. 1986).




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      The degree of influence required to demonstrate forcible compulsion is

based upon the totality of the circumstances.     In Rhodes, our Supreme

Court identified the following factors to be weighed in this determination: 1)

the respective ages of the victim and the accused; 2) the respective mental

and physical conditions of the victim and the accused; 3) the atmosphere

and physical setting in which the incident was alleged to have taken place;

4) the extent to which the accused may have been in a position of authority,

domination or custodial control over the victim; and 5) whether the victim

was under duress. Id.

      Appellant’s argument is multifaceted.    First, he contends that, since

he made sexual advances toward the victim during her first appointment,

the victim’s decision to return for a second session of treatment, and her

failure to protest during the assault, establish her consent to the contact.

Appellant’s brief at 11.   He asserts that the victim’s consent disproves

forcible compulsion. Even absent consent, Appellant continues, the evidence

of record does not substantiate a showing of force, but rather, only that

Appellant persuaded the victim into engaging in a sexual act. Id. at 15.

      Our decision in Commonwealth v. Frank, 577 A.2d 609 (Pa.Super.

1990) is instructive. In Frank, a therapist was found guilty of rape and IDSI

by forcible compulsion of an adolescent boy entrusted to his care by his

adoptive mother.    Id. at 612.   Throughout the course of treatment, the

therapist became increasingly more intimate with the victim, culminating in

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anal intercourse. Id. In sustaining the convictions, this Court determined

that the therapist had used forcible compulsion based on the evidence that

he threatened to sabotage the child’s adoption or hurt someone close to him

if he revealed the encounters. Id. at 619. We emphasized the therapist’s

position of authority over the child.            Id.    Ultimately, the Frank court

concluded, “While the force used to overcome the will of the victim in this

case was to a large extent subtle and psychological, it nonetheless satisfies

the element of forcible compulsion[.]” Id. at 619 (quoting Commonwealth

v. Dorman, 547 A.2d 757, 762 (Pa.Super. 1988)).

       Appellant attempts to distinguish the instant case from Frank based

on the fact that both parties were adults.                 Appellant’s brief at 13.

Furthermore, he argues that the victim was more familiar with the

therapeutic process than the adolescent in Frank, and there was no

evidence that Appellant threatened her.           Id.    He insists that his behavior

could not have amounted to a threat since, although the victim was aware

that it was unusual, it did not impair her freedom of will. Id. at 13. Finally,

Appellant claims that his status as her putative therapist is insufficient to

establish forcible compulsion.1 Id. at 13-14. Appellant’s contention that he

did not act with forcible compulsion is unpersuasive.

____________________________________________


1
  Appellant avers he could not have been in a position of authority over the
victim because she never signed a consent to treat form, and therefore, no
(Footnote Continued Next Page)


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      Reviewing        the   evidence     in     the   light   most   favorable   to   the

Commonwealth, we find that the totality of the circumstances demonstrates

beyond a reasonable doubt that Appellant caused the victim to engage in

oral sex by psychological coercion.              While Appellant and the victim were

adults at the time of the occurrence, the victim sought out Appellant for the

purposes of psychological treatment for ongoing severe depression and

anxiety.

      Appellant was aware of the victim’s severe depression as well as her

use of Klonopin to treat her anxiety. N.T. Trial, 5/12/14, at 54. He had a

copy of the victim’s medical records, and as a trained psychologist, Appellant

was cognizant of the effects this medication may have on a patient. N.T.

Trial, 5/13/14, at 106; N.T. Trial, 5/14/14, at 78-80. While alone within the

private confines of his therapy room, Appellant exploited the victim’s

confused and weakened state under the guise that he was “going to help

[her],” forced her to perform fellatio, and then inquired whether she felt

better.    N.T. Trial, 5/12/14, at 75, 81.             These mental health conditions,

paired with her heavily medicated state, made her susceptible to being


                       _______________________
(Footnote Continued)

formal therapist/patient relationship existed. Appellant’s brief at 14-15; N.T.
Trial, 5/14/14, at 34-35. The evidence adduced at trial indicates that the
victim believed Appellant could help her treat her depression and anxiety,
and she trusted him to do so. Thus, Appellant was placed in a position of
authority.



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influenced, especially from an individual ostensibly acting in her interest

from a position of authority.

      Moreover, during trial the victim confirmed that she did not consent to

Appellant’s behavior, but rather, allowed him to assault her because she was

“confused” and “thought he was helping [her].”       Id. at 73-75.   We agree

that the victim’s submission to Appellant’s demands, in light of the

circumstances, did not amount to consent.       There is sufficient evidence to

prove beyond a reasonable doubt that Appellant used psychological coercion

in exploiting the victim’s vulnerable state.      See Frank, supra at 619

(evidence of subtle psychological force used to overcome victim’s will

sufficient to satisfy element of forcible compulsion).

      Finally, Appellant maintains that the Commonwealth did not proffer

sufficient evidence that his behavior "offend[ed], affront[ed], or alarm[ed]”

the victim, a necessary element to find him guilty of indecent exposure.

Appellant’s brief at 18. We disagree.

      Indecent exposure is committed where a “person exposes his or her

genitals in any public place or in any place where there are present other

persons under circumstances in which he or she knows or should know that

this conduct is likely to offend, affront, or alarm.” 18 Pa.C.S. § 3127(a).

      Here, Appellant exposed his genitals to the victim during the course of

a therapeutic session.     Id. at 76-77.      As a professional psychologist,

Appellant should have known that this obscene behavior would likely offend,

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affront, or alarm the victim.   We have no doubt that, when viewed in the

light most favorable to the Commonwealth, the evidence established beyond

a reasonable doubt that Appellant committed indecent exposure.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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