J-S41045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: M.G., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




                                                      No. 156 MDA 2015


                Appeal from the Order Entered January 13, 2015
                 in the Court of Common Pleas of Centre County
               Criminal Division at No.: CP-14-JV-0000071-2014

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 24, 2015

        The Commonwealth appeals from the trial court’s order precluding

witness testimony regarding Appellee, M.G.’s, alleged confession on the

basis of the corpus delicti rule.1 We affirm.

        We take the following facts from the trial court’s February 20, 2015

opinion and our independent review of the record. On September 22, 2014,

the Commonwealth filed a delinquency petition against the fourteen-year-




____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth has certified that the court’s order will terminate or
substantially handicap the prosecution. (See Notice of Appeal, 1/16/15, at
1); see also Pa.R.A.P. 311(d).
J-S41045-15


old2 Appellee. The petition alleged that Appellee committed rape, rape of a

child, involuntary deviate sexual intercourse (IDSI), IDSI with a child, and

statutory sexual assault.3

       On October 24, 2014, the court held an adjudication hearing.        The

Commonwealth presented two eyewitnesses, thirteen-year-old M.W., and

ten-year-old T.C.      M.W. and T.C. testified about a game of truth or dare in

which the Commonwealth alleges that Appellee committed the above

criminal acts4 against a then six-year old female game participant, C.M.

____________________________________________
2
  Appellee was thirteen at the time of the alleged crimes. (See Affidavit of
Probable Cause, 8/25/14, at 1).
3
  18 Pa.C.S.A. §§ 3121(a)(1), (c); 3123(a)(7), (b); and 3122.1(a)(1),
respectively.
4
  The Pennsylvania Crimes Code provides, in pertinent part, that: “A person
commits [rape] when the person engages in sexual intercourse with a
complainant . . . [b]y forcible compulsion[,]” and is guilty of rape of a child
when he “engages in sexual intercourse with a complainant who is less than
13 years of age.” 18 Pa.C.S.A. § 3121(a)(1), (c). “Sexual intercourse” is
defined in relevant part to include penis to mouth contact, “with some
penetration    however     slight;”  and    “forcible compulsion”     involves
“[c]ompulsion by use of physical, intellectual, moral, emotional or
psychological force, either express or implied.” 18 Pa.C.S.A. § 3101.

      An individual is guilty of IDSI “when the person engages in [oral sex]
with a complainant . . . who is less than 16 years of age and the person is
four or more years older than the complainant and the complainant and
person are not married to each other[,]” and engages in IDSI with a child if
the complainant is less than thirteen years of age.          18 Pa.C.S.A. §§
3123(a)(7), (b) and 3101. Finally, the Crimes Code defines statutory sexual
assault, in pertinent part, as: “engag[ing] in sexual intercourse with a
complainant to whom the person is not married who is under the age of 16
years and that person is . . . four years older but less than eight years older
than the complainant[.]” 18 Pa.C.S.A. § 3122.1(a)(1).



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        Specifically, M.W. testified that, during the game, an individual dared

C.M. to “suck [Appellee’s] penis.”         (N.T. Hearing, 10/24/14, at 12).   After

hearing the dare, M.W. shook her head at C.M. to suggest that she not

perform the act, but C.M. responded, “I’m not a P-U-S-S-Y[,]” and moved

within one or two feet of Appellee. (Id. at 13).         At that point, Appellee’s

pants were on, and M.W. turned away because she did not want to see the

dare performed.       Between three and five seconds later, M.W. turned back

around and Appellee’s pants were “[n]ot completely off, but down a little

bit.”    (Id. at 16).    M.W. “[c]ould [not] see [Appellee’s] private parts[.]”

(Id.). When the Commonwealth asked M.W. if Appellee talked about C.M.

“sucking his penis,” Appellee’s counsel objected on the basis of the corpus

delicti rule. (Id. at 18). The court sustained the objection and directed the

Commonwealth that it could “recall the witness later if [it] want[ed] to.”

(Id. at 19). T.C. corroborated M.W.’s version of events.

        After discussion with counsel, the court permitted them to submit

memoranda of law on the corpus delicti issue, and continued the hearing

pending its decision. The Commonwealth filed its memorandum on October

31, 2014.5 On December 23, 2014, the court entered an order denying the

Commonwealth’s delinquency petition on the basis that it had failed to meet

its burden under the corpus delicti rule. The Commonwealth filed a motion

for reconsideration on January 9, 2015.          On January 13, 2015, the court
____________________________________________
5
    Appellee did not file a memorandum and has not filed a brief in this appeal.



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rescinded the December 23, 2014 order and entered a new order finding

that the Commonwealth failed to meet its burden of proof under the corpus

delicti rule, and precluding it from offering testimony regarding Appellee’s

alleged confession.6 The Commonwealth timely appealed.7

       The Commonwealth raises one issue for this Court’s review: “Whether

the trial court erred in concluding that [it] failed to meet its burden of proof

under the corpus delicti rule, after [it] met its burden by introducing

sufficient    circumstantial      evidence       of   closely   related   crimes[?]”8

____________________________________________
6
  The trial court’s order arguably could potentially implicate double jeopardy
concerns. See In re Morrow, 583 A.2d 816, 818 (Pa. Super. 1990).
However, because Appellee did not raise this issue in the trial court, or file a
brief raising it in this Court, it is waived for our review. See Pa.R.A.P.
302(a); Commonwealth v. Colavita, 993 A.2d 874, 893 (Pa. 2010)
(holding that claim of ineffective assistance of counsel based on substantive
due process could not be raised sua sponte by the Superior Court); In re
J.M., 726 A.2d 1041, 1051 (Pa. 1999) (holding it was error for Superior
Court to raise and decide issue sua sponte when appellant had failed to raise
and preserve the issue).
7
  The Commonwealth filed a timely Rule 1925(b) statement on February 6,
2015 pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The trial
court entered its opinion on February 20, 2015. See Pa.R.A.P. 1925(a).
8
  The Commonwealth does not address the closely related crimes exception
to the corpus delicti rule in the argument section of his brief. (See
Commonwealth’s Brief, at 9-14). Its only reference to the doctrine is in the
summary of argument section. (See id. at 8). Therefore, it is waived. See
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (“By failing
to provide any discussion of the claim with citation to relevant authority,
Appellant has waived review of this claim.”) (citations omitted).

      Moreover, the Commonwealth misapprehends the exception when it
states that it “presented circumstantial evidence of a closely related crime of
indecent exposure or open lewdness to the crimes charged in the petition to
(Footnote Continued Next Page)


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(Commonwealth’s Brief, at 4). Specifically, the Commonwealth argues that

“the fact finder [could] at least infer that there was a crime committed[.]”

(Commonwealth’s Brief, at 13) (emphasis omitted). We disagree.

             The well-established corpus delicti rule provides that a
      criminal conviction may not stand merely on the out[-]of[-]court
      confession of one accused, and thus a case may not go to the
      fact[-]finder where independent evidence does not suggest that
      a crime has occurred. This rule is rooted in the hesitancy to
      convict a person of a crime solely on the basis of that person’s
      statements.

            The corpus delicti consists of two elements: (1) the
      occurrence of a loss or injury, and (2) some person’s criminal
      conduct as the source of that loss or injury. The corpus delicti
      may be proven by circumstantial evidence.

                   The crucial determination in applying the
             corpus delicti rule is whether, at the close of the
             case, the proof of the corpus delicti was sufficient to
             permit the fact finder to consider defendant’s
             admission or confession.

            The corpus delicti rule is two-tiered; it must first be
      considered as a rule of evidentiary admissibility using a prima
      facie standard, and later, under a beyond a reasonable doubt
      standard, as one of proof for the fact-finder’s consideration at the
      close of the case.


                       _______________________
(Footnote Continued)
which [Appellant] ultimately made admissions to committing . . . .”
(Commonwealth’s Brief, at 8).      Pursuant to the closely related crimes
exception, “where a defendant’s confession relates to separate crimes with
which he is charged, and where independent evidence establishes the corpus
delicti of only one of those crimes, the confession may be admissible as
evidence of the commission of the other crimes.” Commonwealth v.
Dupre, 866 A.2d 1089, 1099 (Pa. Super. 2005), appeal denied, 879 A.2d
1089 (Pa. 2005) (citation omitted). Here, the Commonwealth’s argument
would fail because it maintains that Appellee’s confession closely relates to
crimes with which he was not charged. (See Commonwealth’s Brief, at 8).



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J-S41045-15


Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations, quotation marks, and footnote

omitted).

            The corpus delicti rule is a rule of evidence. Our standard
      of review on appeals challenging an evidentiary ruling of the trial
      court is limited to a determination of whether the trial court
      abused its discretion.

In re T.B., 11 A.3d 500, 504 (Pa. Super. 2010), appeal denied, 24 A.3d 864

(Pa. 2011).

      Importantly:

                    . . . An abuse of discretion may not be found
              merely because an appellate court might have
              reached a different conclusion, but requires a result
              of   manifest     unreasonableness,       or   partiality,
              prejudice, bias, or ill-will, or such lack of support so
              as to be clearly erroneous.

           Our task . . . is one of review, not one of reweighing or
      assessing the evidence in the first instance.

Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (citations omitted).

      Here, the trial court found:

            . . . [T]the Commonwealth has failed to meet its burden in
      establishing a prima facie case of rape, rape of a child, [IDSI],
      [IDSI] with a child, and statutory sexual assault. The failure to
      meet this burden requires that the corpus delicti rule protect the
      confession of [Appellee] regarding the alleged incident.

(Order, 1/13/15, at 1; see also Trial Court Opinion, 2/20/15, at 3).        We

discern no abuse of discretion.




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     The total of the Commonwealth’s evidence at the adjudicatory hearing

was the testimony of two minor eyewitnesses who testified to participating

in a game of truth or dare in which an individual dared C.M. to perform oral

sex on Appellee. Testimony established that C.M. moved within one to two

feet of Appellee and stated that she was “not a P-U-S-S-Y[,]” (N.T. Hearing,

10/24/14, at 13), but the witnesses did not see C.M. perform the dare.

Witness C.W. stated that she looked away from Appellee and C.M. for three

to five seconds and, when she turned back around, Appellee’s pants were

not up all the way, but were not down either.      No part of his body was

exposed.

     Based on the foregoing facts, and the dearth of evidence from which

the court could infer the charged crimes, we conclude that its decision was

not the product of “manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.” Prendes,

supra at 356.   Accordingly, the court did not abuse its discretion when it

precluded the Commonwealth from providing testimony about Appellee’s

confession under the corpus delicti rule. See id.; Cuevas, supra at 295;

T.B., supra at 504. The Commonwealth’s issue does not merit relief.

     Order affirmed.




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J-S41045-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2015




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