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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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