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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :           No. 556 MDA 2015
                                        :
PAUL WOYCHIO                            :


             Appeal from the Order Entered February 17, 2015,
              in the Court of Common Pleas of Luzerne County
             Criminal Division at Nos. CP-40-CR-0001030-2014,
            CP-40-CR-0001331-2014, CP-40-CR-0002323-2013,
            CP-40-CR-0002466-2013, CP-40-CR-0002744-2014,
            CP-40-CR-0002766-2013, CP-40-CR-0003338-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 09, 2016

     The Commonwealth appeals from the February 17, 2015 order entered

by the Court of Common Pleas of Luzerne County adjudging Paul Woychio

incompetent to proceed to trial. We affirm.

     The trial court set forth the following procedural history:

                 From on or about May 20, 2013, through
           November 2014, the Defendant was charged with
           numerous violations of the Crimes Code.[Footnote 1]
           At a point in time thereafter, the Defendant was
           lodged in the Luzerne County Correctional Facility
           (LCCF) in lieu of bail pending a competency hearing,
           which initially was requested by the Commonwealth
           on June 2, 2014. This Court issued an Order on
           June 4, 2014, and a hearing was ultimately held on
           Jan. 27, 2015, after multiple continuance requests,
           in part, to complete the professional evaluations.



* Former Justice specially assigned to the Superior Court.
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                On February 17, 2015, after a comprehensive
          hearing with evidence presented by experts for the
          Commonwealth[Footnote 2] and Defendant, this
          Court ruled that the Defendant was incompetent to
          proceed to trial and issued an Order consistent with
          our holding.

                 Subsequently, a timely notice of appeal was
          filed on March 18, 2015, and upon receipt of same
          we directed the Commonwealth to file a concise
          statement of errors complained of on appeal
          pursuant to PA.R.A.P. 1925(b). The Commonwealth
          filed the required statement on April 21, 2015,
          alleging the following error: “The Court abused its
          discretion when it found the Defendant incompetent
          to stand trial in light of evidence that showed he did
          have an ability to recall past events, including but
          not limited to, the name of his attorney, that he has
          been found incompetent, his date of birth, his receipt
          of Social Security benefits and his daily routine.”

               [Footnote 1] By way of example, the
               crimes alleged consisted of retail theft,
               defiant trespass, use /possession of drug
               paraphernalia, and a summary charge for
               trespass.

               [Footnote 2] The Commonwealth also
               presented the lay testimony of a Wilkes-
               Barre City Police Officer regarding his
               observations and interaction with the
               Defendant. We do not believe that the
               time frame of the officer’s observations
               and interactions, in particular his
               conversations with the Defendant and his
               brother for approximately one hour four
               years previously, aids our determination
               of Defendant’s present capacity. Nor is
               Defendant’s ability to identify one of
               several attorneys representing him to
               police significant to our decision.   In
               addition, the issue is not whether the
               Defendant is mute, but rather whether



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                  he is legally competent to stand trial in
                  these cases.

                  For the reasons that follow we find the
            Commonwealth’s error complained of devoid of
            merit.

Trial court opinion, 6/22/15 at 1-2.

      The Commonwealth raises one issue for our review:

            1.    Whether the trial court abused its discretion
                  when it found the Defendant incompetent to
                  stand trial when the record shows the
                  Defendant has the ability to understand the
                  nature of the proceedings against him and can
                  participate in his own defense?

Commonwealth’s brief at 4.

                  A defendant is presumed to be competent to
            stand trial. Thus, the burden is on the defendant to
            prove, by a preponderance of the evidence, that he
            was incompetent to stand trial. In order to prove
            that he was incompetent, the defendant must
            establish that he was either unable to understand
            the nature of the proceedings against him or unable
            to participate in his own defense.

                  Stated otherwise, 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, and to have a rational as well as a
            factual understanding of the proceedings.

                  We extend great deference to the trial judge’s
            determination as to competency because he or she
            had the opportunity to observe directly a defendant’s
            behavior. Furthermore, we note that it is a proper
            exercise of the trial court’s discretion to accept one
            expert witness’s opinion over that of a conflicting
            opinion where the record adequately supports such a
            resolution.


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Commonwealth v. Flor, 998 A.2d 606, 617-618 (Pa. 2010) (citation

omitted).   The issue in a competency determination is whether the

defendant is able to cooperate with counsel, not whether he is actually

cooperating. Id. at 618 (citations omitted).

     Here, the trial court held a competency hearing prior to finding

appellee incompetent to proceed to trial. Two expert witnesses testified for

the defense: Michael Allan Church, Ph.D., who was admitted as an expert in

the field of psychology without objection; and Richard Fischbein, a board

certified forensic psychiatrist who was admitted as an expert in the field of

forensic psychiatry without objection. The Commonwealth called one expert

witness: John Sebastian O’Brien, III, a board-certified forensic psychiatrist

who was admitted as an expert in the field of psychiatry and forensic

psychiatry without objection. The Commonwealth also called a lay witness:

Officer Robert Collins of the Wilkes-Barre Police Department.

     The court set forth in detail its reasons for declining to accept the

opinion of the Commonwealth’s expert. The court concluded as follows:

                  While Dr. O’Brien was of the opinion that the
            Defendant was competent to stand trial, he
            nonetheless agreed with Dr. Fischbein’s diagnosis, in
            that the Defendant suffered from a neuro-cognitive
            impairment.[] Where the experts disagree is with
            respect to how limited the Defendant is.
            Dr. Fischbein opined the Defendant is significantly
            impaired.     In that regard, this Court finds
            Dr. Fischbein the more credible and persuasive
            witness.



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                  Dr. Fischbein provided other indicia of
           Defendant’s cognitive impairment to include noting
           the Defendant has a representative payee for
           purposes of administering his Social Security
           Disability benefit. He also stated that he did not
           believe the Defendant had the ability to feign his
           condition noting Dr. Saxton, Dr. Berger, and he were
           of a similar opinion as to his lack of competency.
           The doctor testified it would be difficult for Defendant
           over a period of time from 1998 to the present to be
           consistent in order to fool multiple psychiatrists and
           he did not believe the Defendant smart enough to
           fool all of the doctors that had been involved to date.

                  Based upon all of the aforementioned
           testimony[Footnote         12]    and    in     particular
           Dr. Fischbein’s reliance, in part, upon objective
           testing, we do not believe Defendant has “. . .
           sufficient ability at [this 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 proceedings[]” [citing to
           Commonwealth v. Pruitt, 951 A.2d 307, 316 (Pa.
           2008) (emphasis added by trial court).]

                 [Footnote 12] Our decision is in part
                 based upon this Court’s observations of
                 Defendant’s demeanor and bearing.

Trial court opinion, 6/22/15 at 6-7 (Footnote 11 omitted).

     Despite the trial court’s thorough analysis, the Commonwealth claims

that the trial court abused its discretion because it ignored the record as a

whole, especially the testimony of the lay witness that the Commonwealth

claims contradicted Dr. Fischbein’s conclusion that appellee has no long-term

recall. (Commonwealth’s brief at 10-11.) In essence, the Commonwealth

simply disagrees with the way that the trial court weighed the evidence as to

appellee’s incompetency and the court’s ultimate determination based on


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that evidence.    Accordingly, the Commonwealth requests this court to

reconsider the matter anew. That we will not do. Because the trial court

provided a well-articulated and compelling rationale for its incompetency

finding that is grounded in testimonial evidence and supported by the

record, we will not disturb its determination.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/2016




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