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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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