Com. v. Mesa, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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