J-S83037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
                   v.                       :
                                            :
SCOTT JOHN GRUBBS,                          :
                                            :
                   Appellant                :      No. 737 WDA 2016

              Appeal from the Judgment of Sentence April 19, 2016
             in the Court of Common Pleas of Westmoreland County,
               Criminal Division, at No(s): CP-65-CR-0001175-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, AND STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED JANUARY 03, 2017

        Scott John Grubbs (Appellant) appeals from the judgment of sentence

entered following his convictions for involuntary deviate sexual intercourse

(IDSI) – less than 13 years of age, aggravated indecent assault, corruption

of minors, and indecent assault. We affirm.

        The trial court summarized the pertinent factual history as follows.

               At the time of the crime, Victim C.N. was five years old.
        [M.N. and D.N. (Mother and Father)], Victim’s parents, and C.N.
        lived together in Yukon, Westmoreland County. [Mother and
        Father’s] older daughter, [S.], lived in an in-law apartment
        downstairs. [Mother] indicated that C.N. was only permitted in
        [S.’s] apartment with [S.] or her [M]other’s express permission.
        She stated that at the time of the crime, [Appellant] and [S.]
        had been dating for approximately one and one-half to two
        years. She further testified that [Appellant] was often in [S.’s]
        apartment, and would occasionally travel upstairs to borrow
        cigarettes or to eat dinner with the family. C.N. knew that

*
    Retired Senior Judge assigned to the Superior Court.
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     [Appellant] was [S.’s] boyfriend, and would be present on
     occasions when [Appellant] spent time with the family. Prior to
     that time however, C.N. had not been alone with [Appellant].

           On January 17, 2013, [Appellant] was present in the
     downstairs in-law apartment sleeping while [S.] was at work. At
     some point, [Appellant] travelled upstairs and [Appellant and
     Mother] smoked cigarettes together.        [Mother] then went
     upstairs to her bedroom for a short period, and when she
     returned, [Appellant] asked whether C.N. could go to [S.’s]
     apartment with him to see Luna, [S.’s] cat.        In response,
     [Mother] told him that she could go downstairs with him, but
     suggested that [Appellant] keep an eye on C.N. to ensure that
     she did not “get into” [S.’s] belongings. [Mother] stated that
     C.N. loved [S.’s] cat, and always wanted to pet and play with
     her. [Mother] testified that C.N. was in the basement with
     [Appellant] for approximately twenty minutes. After that time
     elapsed, she yelled downstairs to ensure that C.N. was not
     misbehaving. [Appellant] responded that C.N. was fine, and
     [Mother] requested that C.N. return upstairs soon. Five to ten
     minutes later, C.N. returned to her bedroom by herself.

           [Mother] testified that the next evening, January 18, 2013,
     as the family, [Appellant,] Nikki Peden and her husband were
     playing a board game, C.N. “blurted out” that [Appellant] had
     “touched her bum with his finger” and that he had “touched her
     va-jay-jay and that he had stuck his jay-jay tongue in her mouth
     and peed in her mouth.” As [Mother] attempted to question
     [C.N.] regarding the claims, [Mother] testified that [Appellant]
     began interrupting their conversation, stating that he did not do
     what C.N. was stating. She testified that to avoid making C.N.
     and her guests uncomfortable, they sat down to eat dinner.
     After the guests left and [S. and Appellant] went back
     downstairs, [Mother] called C.N.’s pediatrician, who directed her
     to bring C.N. to Children’s Hospital in Pittsburgh. C.N. told the
     doctor at Children’s Hospital that “[Appellant] put his finger in
     her bum and her jay jay and ... put his jay-jay tongue in her
     mouth and peed in her mouth.”

            Nikki Peden, a family friend [], testified that she was
     visiting the [] residence on the evening of January 18, 2013 for
     dinner and board games. Peden testified that during the course
     of the evening, C.N. stated to the group that “somebody had put
     his va-jay-jay tongue in [her] mouth.” She also indicated that

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     there had been a liquid in her mouth. [Mother] asked who had
     done that. C.N. responded by stating that it was [Appellant],
     and pointing to him. [Appellant] responded by denying the
     allegations. Peden testified that she left the residence roughly
     one half-hour later, as everyone felt uncomfortable about C.N.’s
     allegations.

           Doctor Mary Carrasco, Director of A Child’s Place, a unit
     that assesses potential victims of child abuse, performed a
     physical examination on C.N. on February 1, 2013. She stated
     that there were no physical findings of abuse, but testified that
     even where a child sexual abuse victim reports that penetration
     has occurred, physical findings are rare. Dr. Carrasco explained
     that only a very small percentage of children exhibit physical
     evidence of sexual abuse.

           Susan Nathan, a psychologist at A Child’s Place, also met
     with C.N. on February 1, 2013. Nathan recorded her
     conversation with C.N., and C.N.’s allegations were consistent
     with reports given to C.N.’s mother and Dr. Carrasco. The audio
     recording was played at trial.

           C.N. testified at trial that as she was sitting on [S.’s] bed
     looking for Luna the cat, [Appellant] “just grabbed my butt.”
     She also testified [Appellant] touched her private parts with his
     hands, and put his whole hand underneath her underwear. She
     stated that [Appellant] rubbed her “butt” that she used to “wipe
     with toilet paper.” She also stated that [Appellant] “put his
     penis in my mouth,” and that he “peed in my mouth ... down my
     throat,” and afterwards “she puked it back out.” She stated that
     after she went back upstairs, she hid under a blanket on her
     bed.

           Trooper Thomas Hartley testified that he was notified of
     the situation at [C.N’s] residence on January 19, 2013. On that
     date, Trooper Hartley traveled to their Yukon home to ensure
     that [Appellant] was not present. Thereafter, he spoke with
     [Mother] to gather information regarding the case. Trooper
     Hartley filed charges in the case on March 5, 2013.     Trooper
     Hartley served a warrant on [Appellant] on the same date.

            After serving the arrest warrant on [Appellant], Trooper
     Hartley and Trooper Timms transported him to Magistrate
     District Judge Moore’s office for arraignment. Trooper Hartley

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        testified that while transporting [Appellant], he seemed
        coherent, and the conversation flowed back and forth regarding
        unrelated topics. After the group arrived at Magistrate Moore’s
        office, Trooper Hartley read [Appellant] his Miranda[1] [r]ights,
        and [Appellant] signed a Miranda waiver and agreed to speak
        with the troopers.

              [Appellant] initially declared that he was innocent of the
        charges against him. After approximately 20 minutes, Trooper
        Hartley informed [Appellant] that he believed [Appellant] was
        lying to him. He stated at that point, he raised his voice at
        [Appellant], but did not scream. He stated: “I was not in his
        face, but I did elevate my voice to let him know that I was upset
        and I was done talking to him because I didn’t believe him.” At
        that point, Trooper Hartley left the room to determine whether
        Magistrate Moore was ready to arraign [Appellant].

              After approximately five minutes, Trooper Hartley returned
        to the room. At that point, Trooper Timms informed him that
        [Appellant] had confessed to the crimes. He further testified
        that [Appellant] was agitated, but not irate. Trooper Hartley
        then explained to [Appellant] that he would like to begin an
        audio recording of his confession. [Appellant] agreed to the
        recording. Trooper Hartley testified that at the time of the
        interview, he did not promise [Appellant] anything in exchange
        for a confession.       He testified that he did not threaten
        [Appellant] to elicit a confession. Trooper Hartley stated that at
        the time of the interview, all three individuals remained seated,
        and none of the officers loomed over [Appellant].

Trial Court Opinion, 6/29/2016, at 1-6.

        Prior to trial, Appellant filed a motion seeking to suppress statements

he made after he was taken to the magistrate and read his Miranda rights.

Appellant averred that when he made the statements he was suffering from

a mental health issue, rendering his confession unknowing and involuntary.




1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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N.T., 12/12/2014, at 3. Following a hearing, the suppression court denied

the motion.

        After a jury trial, Appellant was found guilty of the aforementioned

crimes. On April 19, 2016, Appellant was sentenced to an aggregate term of

10 to 20 years’ incarceration. This timely-filed appeal followed.2

        Appellant raises two issues for our review.

        I. Did the Commonwealth introduce sufficient evidence of
        “penetration, however slight” to sustain the convictions of
        involuntary deviate sexual intercourse and aggravated indecent
        assault?

        II. Did the suppression court abuse [its] discretion in denying
        [Appellant’s] motion to suppress his confession?

Appellant’s Brief at 6 (answers and unnecessary capitalization omitted).

        In his first question, Appellant challenges the sufficiency of the

evidence to sustain his IDSI and aggravated indecent assault convictions.

Appellant’s Brief at 9-12.

        However, before we address Appellant’s issues on the merits, we must

determine whether they have been preserved for our review.             It is well-

settled that issues not included in a 1925(b) statement are waived.          See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). See also Commonwealth

v. Poncala, 915 A.2d 97, 100 (Pa. Super. 2006) (“[A]s a general rule, the




2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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failure to raise an issue in an ordered Rule 1925(b) statement results in the

waiver of that issue on appeal.”).

      In his 1925(b) statement, Appellant raises only a sufficiency claim as

to his IDSI conviction.    Appellant’s Concise Statement, 6/27/2016.        On

appeal, Appellant challenges the sufficiency of the evidence to support his

convictions for both IDSI and aggravated indecent assault.             We find

Appellant’s challenge concerning his aggravated indecent assault conviction

waived for failure to preserve it properly in his 1925(b) statement.

      In reviewing Appellant’s remaining sufficiency-of-the-evidence claim,

this Court must view all evidence admitted in a light most favorable to

verdict winner. Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.

Super. 2015).    In his brief, Appellant states he “must concede that, if

believed, [C.N’s] testimony as to oral sex [] perpetrated upon [C.N.] by

[Appellant] establishes IDSI[.]”     Appellant’s Brief at 12.3   Thus, viewing

C.N’s testimony in a light most favorable to the Commonwealth as the

verdict winner, the evidence presented by the Commonwealth is sufficient to

support Appellant’s conviction for IDSI. Accordingly, no relief is due.

      Appellant’s final issue challenges the trial court’s denial of his motion

to suppress his confession. Appellant’s Brief at 12-15.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the

3
 Appellant goes on to argue that this conduct does not provide sufficient
evidence for his aggravated indecent assault conviction. However, as we
concluded, supra, that issue is waived.

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     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.
     Where ... the appeal of the determination of the suppression
     court turns on allegations of legal error, 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 court[]
     below are subject to our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

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

appellate courts are limited to reviewing only the evidence presented at the

suppression hearing when examining a ruling on a pre-trial motion to

suppress.”    Commonwealth v. Stilo, 138 A.3d 33, 35–36 (Pa. Super.

2016).

     The following principles guide our review if this matter.

     Although there is no single litmus-paper test for determining the
     voluntariness of a confession, it must be established that the
     decision to speak was a product of a free and unconstrained
     choice of its maker.... All attending circumstances surrounding
     the confession must be considered in this determination. These
     include: the duration and methods of the interrogation; the
     length of delay between arrest and arraignment; the conditions
     of detainment; the attitudes of police toward defendant; the
     defendant’s physical and psychological state; and all other
     conditions present which may serve to drain one’s power of
     [resistance] to suggestion or to undermine one’s self-
     determination.




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Commonwealth v. Hughes, 555 A.2d 1264, 1273 (Pa. 1989) quoting

Commonwealth v. Kichline, 361 A.2d 282 (Pa. 1976).

     Appellant argues his confession was not knowing or voluntary, and

was the product of coercion.    Appellant’s Brief at 8, 14-15.     Specifically,

Appellant avers that the state troopers employed a “good cop, bad cop”

technique to elicit his confession. Id. at 15. Appellant argues his testimony

at trial confirms “he was scared and emotional” when Trooper Hartley was

“yelling at him and slamming his fist on the table.” Id. at 14-15. Appellant

contends he has a mental health history and that his confession was “the

product of police tactics to elicit a confession from a citizen who did not

make a knowing and voluntary waiver of his Miranda rights.” Id. at 8.

     In its 1925(b) opinion, the trial court offered the following analysis:

            Trooper Hartley testified during a suppression hearing that
     on March 4, 2013, after [Appellant] and the trooper arrived at
     Magistrate Moore’s office, [Appellant] signed a waiver of
     Miranda [r]ights. He testified that [Appellant] stated that he
     understood everything in the waiver, that he understood what
     was happening, and he did not have any questions for the
     trooper. He stated that as they were discussing the allegations,
     [Appellant] was responding logically, and answered questions
     and acknowledged that he understood the facts that were being
     explained to him. After confessing to the charges, [Appellant]
     agreed to an audio recording of the confession. Trooper Hartley
     testified that he did not threaten [Appellant] or promise him
     anything in exchange for his confession. Although he initially
     denied that he was guilty of the charges against him, he stated
     to trooper that he was hesitant to confess because he was
     worried about his girlfriend’s reaction.

          Trooper Timms testified that there was no indication that
     [Appellant] was confused, or that he did not understand what
     was being said. Prior to signing the Miranda waiver form, he

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     stated that he understood what was going on and what was read
     to him. Trooper Timms testified that while Trooper Hartley
     stepped out of the room, he did not threaten him or promise him
     anything in exchange for his confession. Trooper Timms further
     testified that “through my total time with [Appellant] I was in full
     belief that he understood everything that was going on. He
     knew why we were there at his house, he knew why he was
     being transferred to Magistrate Moore’s and he knew what the
     conversation was inside Mr. Moore’s smaller office.” Trooper
     Timms stated that in total, [Appellant] was being interviewed by
     the troopers in Magistrate Moore’s office for approximately one
     hour.

           Under a totality of the circumstances, [Appellant’s]
     Miranda waiver and subsequent confession was knowing and
     voluntary and the [suppression court] did not abuse its
     discretion. The troopers had no reason to believe, and no
     evidence was introduced at the suppression hearing, to suggest
     that [Appellant] was not in full control of his faculties, or could
     not comprehend what was occurring. Although [Appellant]
     alleges that [Appellant’s] confession was “coercive,” nothing in
     the record exists to support that notion. Although Trooper
     Hartley admitted during the suppression hearing that he did
     raise his voice, he stressed that he did not scream, nor did either
     of the troopers “loom over” or threaten [Appellant. Appellant]
     was only being questioned by the troopers for approximately one
     hour, and there is nothing in the record to suggest any type of
     misconduct by the troopers.

           In terms of [Appellant’s] mental state at the time of the
     confession, [Appellant] was evaluated at Torrance State Hospital
     on April 16, 2013, and a report was filed on June 11, 2013. At
     that time, the report stated that “from the standpoint of
     competency, the patient has both a rational and factual
     understanding of his charges. He is aware of the role of the
     prosecution, defense, judge, and jury within the legal system.
     He is aware of the nature and logic of a plea bargain. He is
     capable of working with his attorney in preparing a defense and
     controlling his behavior in a courtroom setting.” Although the
     doctor could not make any conclusions regarding [Appellant’s]
     state of mind at the time of his confession, the doctor did not
     suggest that [Appellant] be prescribed any prescription drugs to
     treat any psychological conditions.



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             Again, no evidence was introduced at the suppression
      hearing that [Appellant] was at all suffering from any type of
      mental deficiency.     [W]ithout any evidence or testimony
      signifying any diminished capacity on the part of [Appellant], the
      [suppression court] had no basis on which to grant his
      suppression motion. Thus, the [court] was not in error.

Trial Court Opinion, 6/29/2016, at 9-11.

      We find the trial court’s analysis well-reasoned and in line with our

well-settled case law.    Based upon our review of the record and the trial

court’s findings, we conclude that the evidence does not support Appellant’s

contention that his confession was unknowingly made. Conversely, we find

Appellant has failed to prove his confession was the product of coercion.

      Thus, after a thorough review of the record and briefs in this case, we

are unconvinced that any of Appellant’s arguments entitles him to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/3/2017




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