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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

- 2 -

[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 
J-S90025-16

- 3 -

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 
J-S90025-16

- 4 -

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 
J-S90025-16

- 5 -

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 
J-S90025-16

- 6 -

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
J-S90025-16

- 7 -
( FN-07-16] 

1 

evidentiary presumption that a defendant is competent. 

including wh'at; Defendant had to say and the significance of the 

incompetent to be sentenced, our decision to sentence Defendant 

requires careful review of the evidence presented on this issue, 

two defense experts one of whom concluded Defendant was 

competency evaluated, notwithstanding Defendant's examination by 

Because the commonweal th chose not to have Defendant Is 

sentencing and, therefore, incapable of being sentenced. 

conviction of arson, that he was incompetent at the time of 

proceedings, raises one issue on direct appeal from his 

Joe Lincen Mesa, the Defendant in these criminal 

Nanovic, P.J.-- May 17, 2016 

MEMORANDUM OPINION 

Matthew J. Mottola, Esquire. Counsel for Defendant 

Michaels. Greek, Esquire Counsel for Commonwealth 

Assistant District Attorney 

JOE 1'..INCEN MESA, 

Defendant 

... · .. 

. ·· .. '. ~-··· . :;~ >~~: .. :!:! 

, . 

j"T"• ;- -· 1 

VS. , 

.. . . •... .. ... 

. ·-"· !.:.• : .. 

~.- . . . ... 

COMMONWEALTH OF PENNSYLVANIA 

CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA 

SC, ooi5-tG 

Circulated 11/21/2016 02:28 PM
· ( ar son endanqe ring per sons) and 3301 (cl (3} 

intent t.o colleH·;t ln'su.cance). 

[FN-07-16] 

2 

1 18 Pa, C, S .• ~. § 3301 (a) {l) (il 

(ar son endange'riog property with 

which rendered him incompetent to be sentenced, but that a 

testified that Defendant appeared to have a cognitive disorder 

presented Dr. Raja S. Abbas, a board-certified psychiatrist, who 

several times until t,.,]arch 27, 2012, at which time Defendant 

mental health evaluation were ordered. Sentencing was continued 

October 17, : 2011, and a presentence investigation report and 

Defendant was originally scheduled for sentencing on 

admitted set~ing the fires. 

scheduled for sheriff's sale on March 3, 2009; and {6) Defendant 

time the fires began; ( 5} the home was recently posted and was 

accidental causes were eliminated; (4) Defendant was home at the 

inflarnmatory1 liquid rubbing alcohol; (3) all reasonable 

the fire at . each location was consistent with the use of an 

which was parked outside in front of the home; (2) the cause of 

and a rear bedroom of the home, and in Defendant's automobile, 

property had: three separate _points of origin - in the kitchen 

by the Commonwea I th: (1) the fire which destroyed Defendant's 

these offenses was evident from the evidence presented at trial 

automobile od February 27, 2009. That Defendant had committed 

arson1 with respect to the incendiary destruction of his home and 

On August 8, 2011, Defendant was convicted of two counts of 

. ; 

FACTUAL AND PROCEDURAL BACKGROUND 
[fN-07-16] 

3 

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). 

his judgment was compromised. (N.T. 3/24/14, pp.16-17), Dr. 

a result of this dysfunction and the medications he was taking, 

exhibited significant signs of cognitive dysfunction and that as 

N.T. 7 /29/14'( p.21}. Dr. Glosser testified that Defendant 

neither a medical doctor nor a psychiatrist. (N.T. 3/24/14, p.9; 

27, 2012.3 Dr. Glosser is a clinical neuropsychologist; he is 

results of a ; neuropsychological assessment he performed on June 

On March 24, 2014, David S. Glosser testified to the 

J'uly 29, 2014 .' 

Defendant's sentencing date was continued multiple times, until 

3/27/12, pp.9_.:.10, 12, 19, 22, 27-29, 37, 43).2 In consequence, 

determine thefextent or presence of any cognitive issues.n (N.T. 

detailed neufopsychological evaluation was necessary "to 
I 

9/18/15, pp.13-15). In explaining this conclusion Dr. Abbas 

[FN-07-16} 

4 

that Defendant was not competent to be sentenced. (N,T. 

(N.T. 9/18/~5, p,6). On September 18, 2015; Dr. Abbas testified 

performed an updated psychiatric evaluation on July 18, 2015. 

' 

Dr. tl..bbas had earlier recommended now available, Dr. Abbas 

With the ~esults of the neuropsychological assessment which 

pp .17-18) . 

he had a tendency to wander in his responses. (N.T. 7/29/14, 

noted that ~~fendant had the capacity and ability to participate 

in sentencin~ and to provids information to the court, but that 

he dreaded. : (N.T. 7/29/14., pp i Ll., 16-17). Dr. Glosser further 

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 

on April 14,, 2014. Following this re-examination, Dr. Glosser 

•ro update his assessment, Dr. Glosser. re-examined Defendant 

(N.T. 3/24/14~ pp.21, 27-29). 

not know the: "cu r r errt, status of Defendant's cognitive functions. 

testimony presented, at the time Dr. Glosser testified, he did 

between when Dr. Glosser' s examination was· performed and his 

evaluate. (w;r. 3/24/14, p.13). Unfortunately, due to the delay 

r 

the English I'anqu aqe , Defendant's case was a difficult one to 

Glosser also testified that due to Defendant's poor mastery of 
[FN-07-16] 

5 

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). 

15, 2016, D~fendant was sentenced to a period of imprisonment of 

deferred until March 15, 2016. (N.T. 2/23/16, p.29) .4 On March 

. I 

sentence was pronounced, Defendant collapsed and sentencing was 

and dated March 22, 2012. Unfortunately, before Defendant's 

previously prepared by the carbon County Adult Probation Office 

also had available to it the presentence investigation report· 

present evidence to the court for sentencing purposes. The court 

court, and Defendant was questioned and given an opportunity to 

2016. At th~t time, both Defendant and his coun$el appeared in 

. ' 

Defendarit was scheduled for sentencing .on February 23, 

I to be competent to be sentenced . 

47, 66). Bi order dated December 29, 2015, .,,e found Defendant 

Defendant wandered in his responses. {N.T. ,9/18/15, pp.30, 46- 

responsive, however, at times, as predicted by Dr. Glosser, 

Defendant appeared to understand the questions asked and was 

to observe Defendant'$ demeanor. (N. T. 9/18/15, p.41). 

the oppor t un.i't y to hea r Defendant's responses to questions and 

court, Defend~nt testified for the first time, and the court had 

9/18/15, pp.13-16), At this hearing, at the request of the 

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. 
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 

S.Ct. 24 (U;S. 20l2). To prove otherwise,. the defendant must 

899 (Pa. zma i , cert. denied sub ncm . Smith v. Pennsylvania, 133 

trial and to: be sentenced. Commonwealth v, Smith, 17 A.3d 873, 

A cr i.mi.na L defendant is presumed to be competent to stand 

DISCUSSION 

Errors Complained of on Appeal. 

rational understanding.'' See Defendant's Concise Statement of 

ability to consult with his lawyer with a reasonable degree of 

rational und~rstanding of these proceedings and to lack the 

several ment~l health conditions that cause him to lack a 

health professionals established that Mr. 'Mesa suffered from 

in this rnatter when the undt sput.ed testimony of two mental 

issue, that we "erred in finding Joe Mesa competent to proceed 

judgment of sentence. In this appeal Defendant raises one 

On March 21, 2016, Defendant timely appealed from the 

property) , 

years on Count 2, 18 Pa.C.S.A. § 3301(c) (3) (arson endangering 

endangering pez-sons ) , and a concurrent sentence of one to two 

s t a t.e probation, on Count 1, 18 Pa.C.S.A. § 330l(a) (1) (i) (arson 

state correc~ional institution, to be followed by two years 

no less than ' eighteen months nor more than three years in a 
facility of; not less than three years nor more than six years 

[FN-07-16) 

7 

an aggregat;e period of imprisonment in a state correctional 

presentence [investigation report was comp Le t ed , In that report, 

time when Defendant's 

2012, after !oefendant's conviction. {N.T. 3/21/12, p.41). This 

1 

; 

is, coincidentally, at the same 

; 

The first time competency was raised as an issue was in March 

Defendant Is competency to be tried has never been challenged. 

tried before a jury and convicted on August 8, 2011. 

' 

: ~ 

proceeding ~t issue is Defendant's sentencing. Defendant was 

this issue,; it is important to first emphasize that the 

reasonable degree of rational understanding. In addressing 11 

proceedings";and the "ability to consult with his lawyer with a 

accept the ~~ndisputed testimonyu of his mental health experts 

that Defend~nt lacked a "rational undeistanding of these 

Defendarit claims on appeal that we erred because we did not 

A.3d 611, 639 (Pa. 2014) (per curiam) (citations omitted); Dusky 

v. United States, 362 U.S. 402 (1960) (per curiam). 

understanding of the proceedings." Commonweal th V'. Davide, 106 

understanding, antj to have a rational as well as a factual 

consult with counsel with a reasonable degree of rational 

the relevant :question in a competency determination is "whether. 

the defendant: has sufficient ability at the· pertinent time to 

; 

v. Californi~, 505 U.S. 437, 448 (1992) • Stated differently, 

defense.N 5~ P.S. S 7402(a); Smith, 17 A.3d at 899-900; Medina 
' 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 

is significa'.nt given Pr. Glosser' s acknowledgment that Defendant 

limitation ~as never delineated. (N.T. 7/29/14( p.11). l'his 

decisions ih his own best interest," the extent of this 

fully understanding what was going on" and "how to make 

Defendant was "cognitively and psychologically incapable of 

(N.·r. 3/24/1.:4, p.26). Further, while Dr. Glosser opined that 

• know the legal standard by which to judge legal competency. 

t 

I 

sentenced; i~stead, Dr. Glosser freely admitted that he did not 

evaluating an individual1s legal competency to be tried or 

any training or expertise in forensic psychiatry or in 

There is no evidence that Dr. Glosser has 

' 

neuropsychologist. 

neither a psychiatrist or a medical doctor; he is a clinical 

understanding is not supported by the record. Dr. Glosser is 

consult with' his lawyer with a reasonable degree of rational 

rational understanding of these proceedings or the ability to 

-: 

testimony as; an expert determination that Defendant lacked a 

Secondly, Defendant's characterization of Dr. Glosser's 

on March 15, :2016. 

5 

his wife, none of which was disputed at the time of sentencing 

pertinent to 'sentencing was obtained directly from Defendant and 

was recommerided. In that report, substantial information 
[FN-O~l-16) 

9 

assist defense counsel in defending him, and responding yes, Dr. 

was substantiallv unable to participate in his defense and 'to 

' w 

(N. T. 9/18/15, pp. 54-55, 58·-59) . When asked whether Defendant 

. ! 

present at the proceeding was the attorney prosecuting the case. 

judge was, ttjat defense counsel was his counsel representing him 

in this matt~r, and that -the Assistant District Attorney who was 

When questioned directly, Defendant admitted to knowing who the 

(N.T. 9/18/15, pp.13-14). 

; 

acting the r9le of real officials. 

that the court and the lawyers were imposters, that they were 

the proceedin,gs were manufactured as a means to deport him and 

explaining fu~ther, Dr. Abbas testified that Defendant believed 

the exact nature of the proceedings. (N.T. 9/18/15, p.13). In 

criminal proceedings, but believed Defendant did not understand 

substantiallyfunable to understand the nature and object of the 

defense counsel's question, Dr. Abbas denied that Defendant was 

incompetent t~ be sentenced. 

With respect to Dr. Abbas1s testimony, in response to 

pp.11, 16-18) ~ Dr. Glosser never opined that Defendant was 

and to provide relevant information to the court. (N.T. 7/29/14, 

possessed the 'capacity and ability to participate in sentencing 

natural response of anyone facing sentencing; ond that Defendant . , 

that this involved likely punishment which he dreaded a 

understood the[ nature of his criminal charges; knew he had been 

tried and convicted; knew that he needed to be sentenced and 
there was a noticeable language barrier which complicated 

(FN-07-16] 

10 

immigrate to this country until he was twenty-three yea:r:s old, 

Defendant was born in Colombia, South America, and did not 

9/18/15, pp.9-10, 19). Dr. Abbas also admitted that because 

the level o ~ Defendant's dementia between 2012 and 2015. (N .T. 

; 

evidenced on l.y moderate derrientia and no significant change in 

than those he had performed (N.T. 9/18/15, p.19), which 

by Dr. Glosser were a better measure of Defendant's cognition 

existed (N. Tl. 9/18/15, pp.12-13), and that the tests performed 

of depressi6n, psychosis, and cognitive issues he thought 

evaluations performed by Dr. Glosser did not confirm the extent 

Abbas further acknowledged that the neuropsychological 

living a productive life. (N.'I'. 9/18/15, pp.25, 36-39). Dr. 

prevent him· 'from maintaining employment, raising a family, and 

his entire life, Dr. Abbas acknowledged that this would. not 

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 

At the· heaz Lnq on September 18, 2015, Dr. Abbas testified 

9/18/15, pp.14-15, 27-28), 

he, for this reason, was unable to defend himself. (N.T. 

irrational be'lief that e'iTeryt_hing had been made up against him, 

Abbas ex.plained that because of Def endant ' s paranoia and his 
· ( FN - 0 7 -16] 

11 

to ignore t he significance of the presumption of competency and 

; 

subjective thought processes and understanding of the Defendant. 

Defendant's ~tatement of the question on a~peal further appears 

which, in ·this case, seeks to evaluate objectively the 

by its very .natur e is an evaluation of factual information and 

fact on which no contrary evidence exists and an opinion, which 

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 

I 

defendant during colloquies and throughout trial supported the 

680 }L 2d 1131, 1135 (Pa, 1996) (trial court's observations of 

and his testimony. But see, Commonweal th v. McGill, 

' 

demeanor, 

cannot take · .Lnt;o account our observations of Defendant, his 

credibility, ;and that in ruling on Defendant's competence we 

' 

; 

Glosser is co~clusive, that in our role as factfinder we are not 

permitted tol weigh the strength of this evidence or its 

is the implied premise that .the testimony of Dr. Abbas and Dr. 

~ . Underlyiqg the issue Defendant intends to present on appeal 

No proof was presented to the contrary. 

This, of course, begs the question: Did they, in fact, happen? 

fact happened, or were imagined, ( N • T • 9 I 18 I 15 I PP . 2 0 1 3 9- 4 0 ) . 

to determine whe t he r many of the things Defendant told him in 

that because of Defendant's deep-seated paranoia, he was unable 

accurate testipg of Defendant1s cognition and: understanding, and 
of these ctaies Defendant was polite, respectful and dressed for 

[ FN-07-16] 

12 

February 23, 2016; March 15, 2016; and March 18, 2016. On each 

27, 2012; March 24, 2014; .July 29, 2014; September 18, 2015; 

Defendant appeared in court on s even separate occasions: March 

following Defendant1 s conviction on August 8, 

evidence"). 

incompetency .· is established by a preponderance of the 

determination of incompetency shall be made by the court where 

unable to dJ so. See 50 l?. S. § 7 402 (d) (providing that "a 

incumbent upon Defendant to prove that he is substantially 

trial). Because the presumption favors competency, it was 

essential to : the determination of his legal competency to stand 

; 

ability to cooperate and not whether he actually cooperated is 

Commonwealth :v. Banks, 521 A.2d 1 (Pa. 1987) (a defendant's 

to participate and assist his counsel in sentencing. Cf. 

Defendant had the capacity to understand what sentencing is and 

to be tried 'or sentenced. It is sufficient in this case if 

criminal defendant need not have a law degree, be trained in the 

law, or have. ~ detailed understanding of the law to be competent 

The threshold for competency is not high. Obviously, a 

burden of proving otherwise is upon the defendant). 

1996) (because a · criminal defendant is presumed competent, the 

sentenced. CommonW'ealth v. duPont, 681 A.2d 1328, 1330 (Pa. 

its role in evaluating whether Defendant is competent to be 
53-54). Defendant also at one point claimed that stomach cancer 

[FN-O~l-l6] 

13 

pp.50-51, 74-75; N.T. 2/23/16, pp.19-20; N.T. 3/18/16, pp.29, 

fraud and Defendant threatened to expose him. (N.·r. 9/18/15, 

many of his'. problems because the agent had committed insurance 

party, an insurance agent, who Defendant maintained was behind 

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 

investigation (N.T. 9/18/15, p.52}, claimed his trial counsel 

Defendant ~uestioned the thoroughness of the police 

more often than not was when he wanted to make a point. 

times Defendant rambled or strayed from a question, but this 

thought. ( N . T . 2 / 2 3 / 16, p . 19 ; N . T . 3 / 15 I 16, pp . 11-12 ) . At 

than because :of any difficulty in understanding or deficiency in 

this appeared to be more because English is his second language 

At times Defendant had difficulty expressing himself, but 

8) • 

9/18/15, pp.67-68; N.·r. 2/23/16, pp.23-24; N.T. 3/18/16, pp.7- 

otherwise cloud his thinking when he was in court. (N. T. 

medications, such as morphine. and fentanyl for pain, which might 

his thought processes, Defendant avoided taking certain 

appxop r.i.at.e Ly . In order to avoid the effects of medication on 

During these times, Defendant listened attentively and an swe r ed 

last four dat.e s , Defendant was asked questions and t.e s t.Lf.i.ad , 

the occasion.: (N.T. 2/23/16, p.23; N.T. 9/18/15, p,30). On the 
[FN-07-16] 

14 

revealed an. insight which many laypersons do not possess 

Defendant r eca Ll.ed when the jury returned with its verdict and 

questioned why the jury had not been polled, a question which 

frequently due to his health. (N. T. 9/18/15, pp.85-86). 

testified that he always kept this in supply and used it 

,· 

having rubbing alcohol in his home at the time of the fire, but 

fire was intact (N.T. 3/27/12, p.34); and Defendant did not deny 

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 

purpose. 

also support~ Defendant's awareness of the proceedings and their 

considered in mitigation of any sentence imposed. Such evidence 

Defendant to do this and also to present evidence which could be 

denied his g?il t. !t was therefore natural and expected for 

contrary, Defendant at all times maintained his innocence and 

None of : this points to Defendant's incompetency. To the 

3/18/16, pp.21-22, 46-47). 

(N.T. 

' that his wife was ill and dependent; on him for support. 

go through chemotherapy again (N.T. 9/18/15, pp.49, 69-71); and 

he had in the! past may have returned, and he no longer wanted to 
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 

any evidence\ that any of the foregoing information provided by 

jail. (N.T. 3/15/16, p.9). Defense counsel never presented 

was at the s~ggestion of his attorney as a way of staying out of 

further indicated that part of the reason he had seen Dr. Abbas ' . 

tirne. (N'.T.: 9/18/15, p.69; N.T. 3/18/16, pp.9, 25). Defendant 

was only fol:'. a short period, approximately five minutes each 

Abbas every other month, and that when he did see Dr. Abbas, it 

had seen Dr. • Abbas was in March 2015, that · he used to see Dr. 

that he was no longer seeing Or. ,l\bbas, that the last time he 

Defendant testified at a bail hearing on March 18, 2016, 

pp.39-40). 

passed that !evaluation. {N.T. 9/18/15, p . 67; N.T. 3/18/16, 

his family doctor to ensure. his ability to dz i ve safely, and 

go shopping, and had been specially evaluated at the request of 

his driver's· ;license, frequently drove himself to court and to 

3/18/16, p. 6) ;. 

7 Since the jury's verdict, Defendant maintained 

himself. {N.T. 3/27/12t pp.32, 35; N.T. 9/18/15, pp.43-44; N.T. 

than a year,: and Defendant lived by himself and cared for 

the verdict, in 2012 Defendant and his wife separated for more 

concerning court proceedings. (N.T. 9/18/15, p.84) . .; Following 

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

Adult Probation office which contains extensive input from 

[FN-07-16) 

16 

counsel at the time of sentencing, particularly in light of the 

nature or object of sentencing or to participate and assist his 

establish that he is substantially unable to understand the 

; 

Procedures Att (see 50 P.S. § 7402(a)), Def~ndant has failed to 

definition of incompetency in the Mental Health 

' 

statutory 

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

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

(N.T. 3/15/16( 

. ' 

people do arid say in light of this paranoia. 

psychosis, -~nd he likely is paranoid and_ misinterprets what 

He has been diagnosed with major depressive disorder with 

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

is now sixty-feight years of age and been dia~nosed with moderate 

I 

conditions f~r which he is prescribed morphi~e and fentanyl. He 

i 

chronic pain syndrome attributable to a variety of physical 

records. He: has been treated for cancer in the past and has 

f 

has an extensive :medical history as illustrated by his medical 

Defendant hai no physical, mental or medical, issues. Defendant 

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

; 

sentencing purposes was impaired. 

assist his counsel or how his representation of Defendant for 

specific evidence to explain in what way Defendant was unable to 

Defendant. wasi inaccurate. Nor did defense counsel present any 

t 

' 
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 h I.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 

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

are not to tie followed blindly without examining the facts on 

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

' Expert opinions are intended to assist in undexstanding the 

CONCLUSION 

court."). 

to stand trial rests in the sound discretion of the trial 

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

Commonwealth v. Jones, 

'i 

and unfamiliar with legal proceedings); 

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 

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

should be only one of the factors relevant to an incompetency 

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

participation at sentencing.8 See 

r 

Defendant's :actual 

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 

inaccurate when presented, the updated medical information 

l 

Defendant and: his wife, none of which was d i spu't ed as being 
I'-.) 

... '(-~--. 

-:.;) 

[FN-07-16) 

18 

!?_:, :J. 

::· .. , 

-··: 

BY THE: COURT: 

credible evidence. 

overcome the:presuroption of competency by a preponderance of the 

dread of th~t sentence. Simply stated, Defendant did not 

awareness of -. the effect sentencing could have on him and his 

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

testimony given by Dr. Glosser concerning defendant's capacity 

participation at sentencing. This is contrary to specific 

testimony over numerous hearings and Defendant's actual 

contrary to: our observations and evaluation of Defendantrs 

or to participate and assist his counsel at sentencing. This is 

he did not have the capacity to understand what sentencing· is, 

Defendant claims he was· incompetent to be sentenced: that 

their understanding of what we say and do. 

evaluating th~ validity of what we are told, ~nd in evaluating 

with on a daily basis and in our interactions with others in 

matter of the: opinion concerns matters which we indirectly deal 

proves to be ~rue. This is particularly true:when the subject 

accepted not\,/ithstanding what the credible :evidence clearly