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Motion to quash sexual assault counts denied

Published July 13. 2011 05:01PM

A motion by a Penn Forest Township psychologist to quash sexual assault charges filed against him was denied by a Carbon County judge.

Michael T. Degilio, 42, filed a motion to have charges of involuntary deviate sexual intercourse, indecent assault and indecent exposure quashed claiming evidence presented at a preliminary hearing was insufficient to sustain the charges.

In a 10 page opinion President Judge Roger N. Nanovic II denied the omnibus pre-trial motion and ruled all the charges will continue for trial in the county court.

Degilio was charged with sexually assaulting a then 40-year-old woman, a patient, in his office. The charges were filed by Mahoning Township Officer Jeffrey Frace.

The charges were filed as the result of events that occurred in February 2009. It is alleged the victim was to receive outpatient psychological counseling from Degilio following hospitalization for depression and a nervous breakdown.

Police allege that during a second visit by the victim to the Degilio's office he forced her to perform oral sex on him.

Nanovic writes that in his motion Degilio does not dispute that the sexual act occurred, but that it was consenual.

Nanovic writes that "whether the charges should be dismissed we look only to see whether the Commonwealth was able to establish a prima facie case against the defendant. In making this decision, all evidence must be viewed in favor of the Commonwealth."

In denying the allegation that the act was consenual, Nanovic wrote, "No evidence was offered to show any physical force or threat of physical force occurred between the Defendant and the victim. What remains is whether the Defendant in his position as a counselor to a patient exercised psychological coercion over the victim who had come to him for help."

Nanovic adds, "While the defense argues that the encounter was consenual and that Defendant had not treated the victim long enough to have developed a relationship of authority over her, at this time we accept the evidence in the light most favorable to the Commonwealth. We accept the testimony of the victim that she was mentally coerced into the sexual encounter due to the Defendant's position of authority over her and assurances that he could help her with her mental condition. With this determination, the elements of the first two charges have been met and neither charge will be quashed."

Concering the third charge, indecent exposure, Nanovic notes the defendant did not dispute he did expose himself but claims it was not done in a public place as it occurred in his closed office.

Nanovic writes, "However, if the exposure occurred under circumstances likely to offend, or cause affont or alarm, even if in a non-public location, then the elements of indecent exposure have been met."

He also notes the testimony of the victim who said she was at the office for help for her mental condition and was an uniwlling participant in the act.

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