J-S68014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TYRONE DINKINS

                            Appellant                 No. 2906 EDA 2013


         Appeal from the Judgment of Sentence September 23, 2013
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0006575-2012


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                      FILED NOVEMBER 14, 2014

       A jury found Tyrone Dinkins, a schoolteacher, guilty of two counts of

corruption of minors1. On each count, the court sentenced Dinkins to time

served to 12 months’ imprisonment followed by three years’ probation. The

sentences ran concurrently with one another. Dinkins filed a timely appeal,

and both Dinkins and the court complied with Pa.R.A.P. 1925.

       Dinkins contends in this appeal that (1) the trial court erred in denying

his motion to suppress statements he made to police officers during their

investigation into Dinkins’ conduct, and (2) the corruption of minors statute

is void for vagueness2. Finding no merit in either argument, we affirm.
____________________________________________


1
 18 Pa.C.S. § 6301.
2
 Dinkins raised a third issue in his Pa.R.A.P. 1925(b) statement that the trial
court abused its discretion by failing to sever the charges against him. He
has waived this issue by failing to argue it in his appellate brief.
(Footnote Continued Next Page)
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      Dinkins was employed at William Tennent High School as a music

teacher and choral director. He was the instructor for various courses and

singing groups, including chorus, chorale, digital music, and madrigals. He

also ran the school’s plays and musicals.

      Eight female students in the music program accused Dinkins of

engaging in inappropriate and sexual conduct during the 2011-12 school

year. His alleged misconduct including groping the complainants’ breasts or

buttocks, and hugging them or making comments filled with sexual

innuendo. To one female, S.S., he would silently mouth the phrases “olive

juice” and “I want to vacuum”. The former looked like “I love you”, and the

latter looked like “I want to fuck you.” N.T. 7/16/13, pp. 85, 97, 107.

      The school principal reported the students’ complaints to the police.

On the afternoon of June 28, 2012, Sergeant Carol Battistini and Detective

John Schlotter of the Warminster Township Police Department visited

Dinkins’ home to speak with him about the complaints. N.T. 7/15/13, pp.

32-33 (suppression hearing)3. There were no criminal charges filed on that

date. Charges were not filed until August 2012. N.T. 7/15/13, p. 55.

                       _______________________
(Footnote Continued)

Commonwealth v. Rykard, 55 A.3d 1177, 1190 (Pa. Super. 2012)
(appellant waived issue by neglecting to present appropriate argument and
citation on appeal).
3
  On July 15, 2013, the court held a suppression hearing and denied the
motion to suppress.      Citations below to “N.T. 7/15/13” relate to the
suppression hearing. Jury selection began on the afternoon of July 15 th. On
July 22, 2013, following a five-day trial, the jury rendered its verdict.



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        Dinkins was unaware that the officers were coming to his home. N.T.

7/15/13, p. 36.        They were dressed in plain clothes with their badges

displayed and their guns holstered in a visible location. N.T. 7/15/13, p. 33.

Sergeant Battistini knocked at the door, and Dinkins answered.                 N.T.

7/15/13, p. 34.       Dinkins appeared sober, understanding, communicative,

friendly, open, and willing to speak.            N.T. 7/15/13, pp. 38, 56.   When

Sergeant Battistini told Dinkins that the purpose of the visit was to interview

him about the complaints, he responded that he was aware of the

complaints and had an attorney for that.            N.T. 7/15/13, p. 34.   Sergeant

Battistini asked to come inside the house to speak with Dinkins. He declined

to permit the officers inside the house but instead led them to a grassy area

in a side yard outside his house. N.T. 7/15/13, p. 35. While standing on the

grass, Sergeant Battistini asked Dinkins about the complaints, and he

answered the questions and volunteered additional information.                 N.T.

7/15/13, p. 38. The conversation lasted between 45 minutes and one hour.

N.T. 7/15/13, p. 56. The officers did not give Dinkins Miranda4 warnings at

any time during the interview. N.T. 7/15/13, p. 29. The record does not

reflect the officers made any show of force at any time.

        At no point did Dinkins say that (1) he would not talk to the officers

without an attorney, (2) he wanted his attorney present, or (3) he did not


____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).



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want to talk any further.   N.T. 7/15/13, pp. 42-43, 49, 52, 53.       Midway

through the conversation, Dinkins’ wife ventured outside the house and

walked over to where Dinkins was speaking with the officers. Dinkins told

her to go back inside the house and added that the conversation would not

last much longer. N.T. 7/15/13, p. 45. Dinkins’ wife walked back inside the

house, and the conversation continued. N.T. 7/15/13, p. 45.

      During the conversation, Dinkins stated that he is flirtatious and either

jokes with his students or compliments them on their appearance to build up

their self-esteem. N.T. 7/17/13, pp. 29-30, 37. He admitted to mouthing

the phrases “olive juice” and “I want to vacuum” but said he just intended

them to be jokes.    N.T. 7/17/13, p. 31.     He admitted to demonstrating

unhooking S.S.’ bra but denied touching her breasts. N.T. 7/17/13, p. 33.

He acknowledged asking S.S. about going to the “dark side” but claimed it

was merely a reference to an African-American student who liked her. When

asked if he ever gave “purple nipples” or “titty twisters” (twisting someone’s

nipple), Dinkins told the officers that students sometimes gave them to him,

and that he only gave them as “payback”.       He also indicated that he had

only touched one female student’s nipples. N.T. 7/17/13, pp. 34-35. Dinkins

also admitted pinching students and touching one female student’s buttocks

but compared it to a coach slapping a player’s behind. N.T. 7/17/13, p. 31.

He acknowledged an incident with C.S. in which he told her he had a dream

about her and then hugged and kissed her on the neck. In describing it to

the officers, Dinkins teared up and said that the kiss had been a “mistake”.

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He denied purposely touching C.S.’ breasts during this incident, but

acknowledged that he may have touched them accidentally since they were

so large. N.T. 7/17/13, pp. 35-36, 46.

      After   Sergeant    Battistini   concluded   her   questioning,   Detective

Schlotter asked Dinkins to come to the police station to provide a written

statement.    N.T. 7/15/13, p. 54.        Dinkins indicated he would not be

comfortable going to the station without an attorney. N.T. 7/15/13, p. 54.

Detective Battistini “said to [Dinkins], well, he could write one here [in his

yard], and he declined.” N.T. 7/15/13, p. 54. Detective Schlotter asked to

see Dinkins’ cellphone.     Dinkins walked inside his house to retrieve the

phone but did not permit the detective to come inside with him.              N.T.

7/15/13, p. 54. When Dinkins returned with the phone, Sergeant Battistini

informed him that he was not being arrested today. N.T. 7/15/13, p. 55.

Sergeant Battistini and Detective Schlotter left Dinkins' home without

arresting Dinkins or bringing him to police headquarters. N.T. 7/15/13, p.

56.

      The court entered findings of fact and conclusions of law denying

Dinkins’ motion to suppress. At the conclusion of trial, the jury deliberated

on the following counts: two counts of unlawful contact with minors with

respect to S.S. and A.J.; four counts of corruption of a minor as to S.S., A.J.,

A.O., and A.S.; four counts of indecent assault as to S.S., A.J., C.S., and

K.T.; and six counts of harassment as to S.S., A.J., A.O., C.S., E.P., and A.P.



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The jury found Dinkins guilty of corruption of a minor as to S.S. and A.J.

The jury deadlocked on the indecent assault charge with respect to C.S. and

acquitted Dinkins on the remaining counts.

     As stated above, Dinkins’ first argument on appeal is that the trial

court erred in denying his motion to suppress.    Our standard of review in

addressing a challenge to the denial of a suppression motion is


           limited to determining whether the suppression
           court's factual findings are supported by the record
           and whether the legal conclusions drawn from those
           facts are correct. Because the Commonwealth
           prevailed before the suppression court, we may
           consider only the evidence of the Commonwealth
           and so much of the evidence for the defense as
           remains uncontradicted when read in the context of
           the record as a whole. Where the suppression court's
           factual findings are supported by the record, we are
           bound by these findings and may reverse only if the
           court's legal conclusions are erroneous. The
           suppression court's legal conclusions are not binding
           on an appellate court, whose duty it is to determine
           if the suppression court properly applied the law to
           the facts. Thus, the conclusions of law of the courts
           below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).

     Dinkins contends that his conversation with the police officers was a

custodial interrogation, and that his statements during this conversation

must be suppressed due to the officers’ failure to provide Miranda warnings.

We disagree. This Court recently observed:

           It is a fundamental precept enshrined in the United
           States Constitution that a suspect subject to a
           custodial interrogation by police must be warned that

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          he has the right to remain silent, that anything he
          says may be used against him in court, and that he
          is entitled to the presence of an attorney. Miranda,
          384 U.S. at 469, 86 S.Ct. 1602. If an individual is
          not advised of his Miranda rights prior to custodial
          interrogation by law enforcement officials, evidence
          obtained through the interrogation cannot be used
          against him. . .‘[I]n order to trigger the safeguards
          of Miranda, there must be both custody and
          interrogation. Statements not made in response to
          custodial interrogation are classified as gratuitous
          and are not subject to suppression for lack of
          Miranda warnings.’

          In deeming an interaction to be a custodial
          interrogation, ‘the police officer's subjective intent
          does not govern the determination but rather the
          reasonable     belief   of    the   individual   being
          interrogated.’ Commonwealth v. Zogby, 455
          Pa.Super. 621, 689 A.2d 280, 282 (1997).            In
          Zogby, we affirmed the trial court's decision to
          suppress incriminating oral statements made by the
          appellee to a police officer, at the appellee's home,
          before Miranda rights had been administered. We
          agreed with the trial court that, under the
          circumstances, the situation equated to a custodial
          interrogation. Appellant relies on Zogby to assert
          that the encounter at his home with the officers
          constituted a custodial interrogation.

          An individual is deemed to be in custody for
          Miranda purposes when he ‘is physically denied ...
          his freedom of action in any significant way or is
          placed in a situation in which he reasonably believes
          that his freedom of action or movement is restricted
          by the interrogation.’…The court must consider the
          totality of circumstances, including factors such as
          ‘the basis for the detention; the duration; the
          location; whether the suspect was transferred
          against his will, how far, and why; whether restraints
          were used; the show, threat or use of force; and the
          methods of investigation used to confirm or dispel
          suspicions.’


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Commonwealth v. Cruz, 71 A.3d 998, 1003-04 (Pa. Super. 2013) (internal

citations omitted).

      We conclude that the trial court properly denied Dinkins’ motion to

suppress, since he was not in custody during the interview.         The police

officers appeared at Dinkins’ home in plainclothes and with their weapons

holstered. The officers did not display any force during the conversation or

threaten or restrain Dinkins in any way. They asked Dinkins if he was willing

to speak, and he voluntarily agreed. He appeared sober, his demeanor was

open and friendly, and he volunteered information that the officers did not

specifically request. Significantly, the interview took place on his own terms.

He chose the location of the interview (the yard); he chose to exclude his

wife from the interview; he chose not to allow the officers into his house; he

declined the officers’ requests to provide a written statement while standing

in the yard; and he refused to accompany them to the station to provide a

written statement.    The interview was not overly long (45 minutes to one

hour), and the officers left without arresting him.       There was nothing

coercive about the location of the interview, its length, or the officers’

conduct during the conversation. In short, nothing about the circumstances

of the interview would lead a reasonable person to believe that Dinkins’

freedom was constrained in any way.          Indeed, in circumstances more

threatening than these, this Court has held that the defendant was not in

custody.   See Commonwealth v. Mannion, 725 A.2d 196, 202-03 (Pa.


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Super.   1999)   (defendant's   statements   inside   her   home   to   troopers

investigating alleged theft of $200,000 from business that employed

defendant as bookkeeper were not product of custodial interrogation, even

though troopers became suspicious during interview and one trooper stood

by defendant and stated in low voice that he thought defendant was lying,

where troopers asked for defendant's permission to speak with her,

defendant believed that troopers were neutral and could help explain

situation to employers, troopers informed defendant that she was not

required to speak with them and could ask troopers to leave at any time,

defendant offered troopers tea or coffee, defendant moved about freely as

she smoked cigarettes, defendant took telephone call during meeting,

troopers did not search or restrain defendant, and troopers made no show,

threat, or use of force).

      Nor were the officers required to stop speaking with Dinkins when he

indicated that he “had” an attorney in connection with the complaints

against him. This statement did not mean that he was unwilling to proceed

without his attorney present. Commonwealth v. Hubble, 504 A.2d 168,

175 (Pa. 1986) (every utterance of the word “lawyer” does not automatically

erect a “cone of silence” around the accused and insulate him from all

further police-initiated questioning and communication). Even if we construe

this statement as a demand for counsel, the right to counsel under the Fifth

Amendment only attaches if a suspect is in custody, which, as discussed


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above, Dinkins was not.          Commonwealth v. Sherwood, 982 A.2d 483,

500 (Pa. 2009) (“one cannot anticipatorily invoke the Fifth Amendment right

to counsel. . . Since Appellant was not in custody when he made his

statement about a lawyer, his alleged invocation of his right to counsel had

no Fifth Amendment effect and thus police had no obligation to provide him

with counsel, or to desist from interviewing him until they provided him with

counsel”).

       In his second argument on appeal, Dinkins asserts that the corruption

of minors statute, 18 Pa.C.S. § 6301, is void for vagueness.              Dinkins has

waived this issue by failing to raise it prior to trial, during trial or in post-

sentence motions. Commonwealth v. Diodoro, 970 A.2d 1100, 1104 n. 5

(Pa.   2009)     (defendant      waived        argument   that   possession   of   child

pornography statute was unconstitutionally vague by failing to raise this

issue in trial court).

       Even if Dinkins preserved this issue for appeal, he still would not

prevail. We held in Commonwealth v. Randall, 133 A.2d 276 (Pa. Super.

1957), that virtually identical language in 18 Pa.C.S. § 4532, the

predecessor statute to section 6301, was not void for vagueness5. Randall

held as follows:

____________________________________________


5
 Compare 18 P.S. § 4532 (“Whoever, being of the age of twenty-one years
and upwards, by any act corrupts or tends to corrupt the morals of any child
under the age of eighteen years…is guilty of a misdemeanor”) with 18
(Footnote Continued Next Page)


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      The comprehensive words of the statute, ‘whoever, being
      of the age of twenty-one years and upwards, by any act
      corrupts or tends to corrupt the morals of any child under
      the age of eighteen years' certainly convey concrete
      impressions to the ordinary person. The common sense of
      the community, as well as the sense of decency, propriety
      and the morality which most people entertain is sufficient
      to apply the statute to each particular case, and to
      individuate what particular conduct is rendered criminal by
      it.

      It is obvious that the mandates of the statute are salutary
      measures designed to protect children. ‘The ways and
      means by which the venal mind may corrupt and debauch
      the youth of our land, both male and female, are so
      multitudinous that to compel a complete enumeration in
      any statute designed for protection of the young before
      giving it validity would be to confess the inability of
      modern society to cope with the problem of juvenile
      delinquency.’…The general language of the statute,
      therefore, is not a valid objection to it on constitutional
      grounds. Unless words of such seeming generality as
      ‘moral’ and ‘immoral’ were valid in statutes, government
      itself would become impossible. Manifestly, there can be
      no objection to the use, in a statute, of words like ‘corrupt
      the morals' or ‘tends to corrupt the morals of any child,’
      which include many things, all of which are intended by
      the legislature to be covered; otherwise, there would be
      barred from statutory use such customary verbiage as
      ‘fraudulent,’ ‘due,’ ‘negligent,’ ‘arbitrary,’ ‘reasonable,’ etc.

      It is not a valid criticism that such general moral standards
      may vary slightly from generation to generation. Such
      variations are inevitable and do not affect the application
      of the principle at a particular period in time…The highest
      court in the land has recognized that the ‘use of common
                       _______________________
(Footnote Continued)

Pa.C.S. § 6301(a)(1) (“Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18 years of age…commits a
misdemeanor of the first degree”).



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       experience as a glossary is necessary to meet the practical
       demands of legislation’ and that the ‘requirement of
       reasonable certainty does not preclude the use of ordinary
       terms to express ideas which find adequate interpretation
       in common usage and understanding.’…

       The constitutionality of similar statutes defining crimes in
       general terms has been upheld by many courts where the
       general terms used in the particular statute get precision
       from common standards of morality prevalent in the
       community.

       The validity of statutes making it a crime to contribute to
       the delinquency of minors has been upheld in our own
       State and other jurisdictions...

       The term ‘moral turpitude’ has been held adequate to
       satisfy even the strict rule applicable to criminal statutes…
       The term ‘good moral character’ as used in the
       immigration and nationality laws has frequently been
       applied by the courts. The measure applied is the ‘common
       standard of morality’ prevalent in the community…or the
       ‘common conscience’ of the community...

       We are convinced that the statute here involved was
       couched in language sufficiently clear and definite to
       proscribe the conduct of defendant Randall.

Id.,   133   A.2d   at   280-81    (internal   citations   omitted).   Randall’s

pronouncement on this subject remains good law, and we would have

followed it had Dinkins preserved this issue for appeal.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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