By DEN MCLAUGHLIN

dmclaughlin@tnonline.comA Carbon County psychologist's appeal of his conviction on sexual assault charges was denied by a county judge.President Judge Roger N. Nanovic II denied the appeal of Dr. Michael Degilio, 46, of Jim Thorpe, of his conviction in a 28-page opinion filed this week.On May 15, 2014, Degilio was convicted by a jury of involuntary deviate sexual intercourse, indecent assault and indecent exposure following a three-day trial.In November, Nanovic sentenced Degilio to serve four to eight years in a state correctional institution followed by two years of state probation.Degilio, on Dec. 1, filed an appeal, challenging the verdict.He posted bail of $100,000 straight cash as granted to him by Nanovic on petition of his legal counsel.Degilio was charged with having a then 40-year-old woman perform a sexual act during an office visit in February 2009. The charges were filed after the woman contacted Mahoning Township police.The woman testified that it was her second visit with Degilio after she had been released from the Blue Mountain Health System's Lehighton Campus Behavioral Health Unit.She said she was suffering from deep depression and was on medication.She said at her first visit that Degilio said he could help her.Degilio denied having any kind of sexual contact with the woman and at trial testified that the second meeting, when the woman claimed the sexual act took place, never occurred.The appealDegilio challenged the sufficiency of the evidence to establish forcible compulsion, a necessary element for conviction of involuntary deviate sexual intercourse and indecent assault. He also questioned the weight of the evidence to support the verdict.Degilio, for the first time, claims he was not competent to stand trial due to an ongoing medical condition. That claim was never brought to light during the trial.In addressing the contention of forcible compulsion was not established at trial, Nanovic quoted from a prior state Supreme Court ruling, which states in part, "forcible compulsion includes 'not only physical force or violence, but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person's will.'"The commonwealth had argued that the victim was in a fragile mental state when she saw Degilio and he took advantage of that state in forcing her to perform the sex act.Nanovic said Degilio argued that the victim consented to his advances, and that she allowed them to occur, and that she voluntarily participated, and asked the court to ignore why she was in his office.Nanovic wrote, "In testing the waters during his first appointment with (the victim) and then crossing the line in the second appointment, Defendant took advantage of (the victim) weakened condition and emotionally and psychologically compelled her to engage in acts against her will."Concerning the contention made of the weight of the evidence, after reviewing the testimony of the victim and witnesses, and that of the defendant, Nanovic wrote, "That the jury believed (the victim) over Defendant and accepted her version of what occurred on February 24, 2009, does not shock our sense of justice. That the jury found that Defendant's sexual assault of (the victim) was the result of forcible compulsion, that (the victim) was severely compromised at the time, that she believed Defendant when he told her the sexual relationship was therapeutic, and that Defendant exercised moral, psychological and intellectual force in taking advantage of (the victim) is supported by the evidence."Competency questionDegilio claims he never should have gone to trial in May 2014, because he was unable to effectively assist his counsel in his defense, and that, when he testified, he was "cognitively impaired."He claimed he had difficulty remembering facts, concentrating on what was being asked and articulating his responses, and at times contradicting testimony of other witnesses favorable to his defense.Degilio said in his appeal that the cause of this was hypothyroidism, which was not diagnosed until after the trial.Nanovic conducted a hearing in which medical experts were called by the defense and commonwealth.The defense called Dr. Megan Leary, a board-certified neurologist, who first saw Degilio on Nov. 7, 2013, when she assisted him in recovering from the effects of a stroke he suffered in May 2013. She testified she saw him again a week after the trial after he complained of problems he was having communicating with others.Leary testified "that confusion and poor concentration are known symptoms associated with hypothyroidism and that within one to two weeks of being given medication for his condition, Defendant reported improved concentration and ability to communicate," Nanovic wrote.Nanovic wrote that Leary, under cross-examination, "acknowledged that persons with hypothyroidism do not necessarily experience confusion and poor concentration, and that because the symptoms are subjective, their existence depends on reliable self-reporting."She said the condition "generally does not fluctuate from day to day."The commonwealth called Attorney John Waldron, of Allentown, who was Degilio's defense counsel at trial.Waldron testified that Degilio "exhibited no difficulty in responding to questions or recalling facts" when he reviewed his testimony with him the evening before he testified.Waldron added that Degilio's "ability while testifying at trial to recall in detail many and varied facts, and to regain his train of thought after some initial confusion, dictates against hypothyroidism as a cause of any shortcomings in Defendant's testimony."Nanovic wrote that Waldron testified Degilio was medically cleared for trial by Leary.Nanovic wrote that Degilio did not know the answers to certain questions at the trial, and at times contradicted the testimony of other defense witnesses.Nanovic wrote, "It is also true that more than five years had passed from the events on which Defendant's prosecution was based and that a natural lapse in memory could be expected, and that these contradictions occurred, Defendant may well have been more accurate than the witness whose testimony was contradicted.""As to being confused, this certainly was not the case throughout Defendant's entire testimony, and on several occasions when it did occur, Defendant demonstrated the ability to catch himself and get back on track. Even beyond this, at times Defendant sought to clarify statements he had given five years earlier which may have been confusing when made. In addition, as a general statement, Defendant had more difficulty answering questions on cross-examination than he did on direct, which is natural and to be expected of any witness," Nanovic said.At the competency hearing the commonwealth called Dr. Frank Dattilio, a board-certified psychologist.After reviewing Degilio's trial testimony, as well as Leary's medical records, and interviewing defense counsel, Dattilio said, "the circumstances did not support a finding that Defendant was 'substantially unable to understand the nature of object of the proceedings against him or to participate and assist in his defense.'"Nanovic said Dattilio was credible and concluded that Degilio was competent, because "he was able to prepare and participate effectively with his counsel in his defense and possessed a rational and factual understanding of the proceedings."The case was prosecuted by Assistant District Attorney Cynthia A. Dydra-Hatton.Degilio, a day before his first scheduled sentencing proceeding in August 2014, hired new legal counsel, attorneys David S. Nenner and Todd M. Mosser, of Philadelphia, who filed the appeal of the verdict.Degilio, who remains free on bail, has a right to appeal Nanovic's decision to the state Superior Court, which he is expected to do.