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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                   -2-
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


                                     -3-
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




              -7-
                                                                                                 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<lj.'rig   Dr. Abb.,.~' s testimony th.it over the Las c ye.ir Defendant hod
n01: been t.aking care of himself               and in recent vi s i.t s was dishev~led, dit"tY
and nad body odor I r he sam0 date nr. Abbas test,.ified,                  Defend.mt 1·1fis it1 court;
d.rc::P,eci in a 'svic and tie,          111ith no 'indication of tJeing unclean.               (l'l.T.
9/18/15,     pp.29~30}.                                    .
                                              .(FN-07-16]
                                                                15
Defendant.           wasit inaccurate.                       Nor did            defense     counsel         present       any
                                   '
specific evidence                            to explain in what way Defendant was unable to
assist         his     counsel                 or   how his           representation of                   Defendant       for
                                   ;

sentencing purposes                            was impaired.

          It     is            hot           our    intent· to             suggest         or    our       belief        that

Defendant            hai no physical, mental or medical, issues.                                                 Defendant
                               f
has an extensive                          :medical history                 as illustrated by his medical
records.              He: has                 been treated           for cancer in               the      past      and has

chronic pain                           syndrome       attributable               to   a    variety         of      physical

conditions f~r which he is prescribed morphi~e and fentanyl.                                                               He
                           i
is now sixty-feight years of age and been dia~nosed with moderate
                           I



dementia,            which may or may not be common for someone of his age.

He   has        been                   diagnosed         with        major         depressive          disorder          with

psychosis, -~nd                          he    likely is paranoid and_ misinterprets                                     what
           . '
people do arid                         say     in   light      of        this     paranoia.            (N.T.       3/15/16(

p. 13).         Nevertheless,                       other         than      conclusory statements                      by Dr.

P...bbas in          i·e~ponse                to    defense         counsel's         questions            reciting the

statutory             definition                    of      incompetency              in      the      Mental          Health
                       '
                       ;
Procedures Att (see 50 P.S.                                   §    7402(a)), Def~ndant                    has failed to

establish            that                he    is     substantially               unable        to     understand         the

nature         or object of sentencing or to participate                                               and assist         his
counsel at            the time of sentencing,                                   particularly         in    light       of the

presentence            :- investigation                     report        prepared         ~y the · Carbon             County

Adult          Probation                     office      which           contains         extensive            input     from
                                                             [FN-07-16)
                                                                     16
Defendant       and: his                  wife,     none     of     which was d i spu't ed as being

inaccurate        when                presented,            the       updated         medical            information
                            l


defense     couni~l placed in the                           record      at     the ti~e of sentencing,

our observations of                          Defendant        (N.T.      3/15/16,          pp.7-9,            11},     and
                            r
Defendant's                 :actual           participation              at          sentencing.8                      See

Commonwealth                :V'.      Smith,       324 · A.2d          483,         489 · (Pa Supe r .
                                                                                                i                    1974)

 (holding      that; medical                      opinions about              a     defendant's            condition

should be only one of the factors relevant to an incompetency
determination( ; and                      admonishing         courts          not     to      surrender              their
                        i
careful,       independent                    judgment       of       a defendant's             competency              in
                        !
                        i
deference to ponclusory                           psychiatric         testimony by those untrained
                   'i
and unfamiliar                     with legal       proceedings);                 Commonwealth v.                Jones,

683 .A.2d     1181:,               1190    (Pa.    1996)     {''The     determination               of competency

to    stand     trial                rests        in the      sound discretion                      of    the        trial

court.").
                                                     CONCLUSION
                '
        Expert opinions are intended to assist                                        in undexstanding the

evidence or determining a fact in issue.                                            Pa.R.E.         702(b}.           They

are not to tie followed                           blindly         without examining                  the facts on

which     they ·are                 based,        nor are the conclusions                      reached to be


II
     or. Abbas testifi.e:d      that De:cndant dreaded sentencing.             Thi:. is ci natu·cal
:rcr:actiori of any criminal defendant. about t.o be !;entenced and, j.f dnything                                        I

evidenc1:1.:~ Oefendanr,'::;      unde ra t anctl nq of th-= 9ro<:E:cdings.        (N.T.   3/27ii2,
p. 23),       Nor oo ·· we believe it. urifai;c to note at t hI.s point that Dct:end.:m.: has
been able to ,manipulate              the     system for more than foui· years            to delay
sent<::m::ing, .os: 1 co s t at e that io 2005 Defendant 'Nol.$• convicted          of i'orc~e?:y, oi
,.~.d1r1t::n talsi :,:ffense.    (N.T. 7./23/16, p.21; N.T.    3/15/16,     p,13).
                   .                                  (FN-07-16)
                                                           17
accepted       not\,/ithstanding           what     the        credible        :evidence               clearly

proves to be ~rue.                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       th~ validity of what we are told, ~nd in evaluating

their understanding of what we say and do.
      Defendant 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     Defendantrs

testimony        over       numerous          hearings           and        Defendant's                 actual

participation at                sentencing.             This    is     contrary        to            specific

testimony given            by    Dr.   Glosser concerning                   defendant's              capacity

to   be    sentenced.               This      is   contrary            to     Defendant's                  acute

awareness of -. the         effect         sentencing could             have on him and his
dread     of    th~t       sentence.           Simply      stated,           Defendant               did           not

overcome the:presuroption              of competency by a preponderance                                 of the

credible evidence.

                                                BY THE: COURT:


                                                                                           -··:
                                                                                                           !?_:,   :J.
                                                                                                             ::· .. ,




                                                                                                           I'-.)
                                                                                         ... '(-~--.
                                                                                             -:.;)
                                              [FN-07-16)
                                                   18
