Com. v. Grant, S.

J-A31017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SCOTT DAVID GRANT

Appellant No. 2101 MDA 2013

Appeal from the Judgment of Sentence July 30, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004066-2012

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED MARCH 18, 2015

Scott David Grant appeals from the judgment of sentence imposed on

July 30, 2013, in the Court of Common Pleas of Lancaster County, made

final by the denial of post-sentence motions on October 24, 2013. On March

13, 2013, a jury convicted Grant of involuntary deviate sexual intercourse

(“IDSI”) (unconscious or unaware person), corruption of minors, and

furnishing alcohol to minors.1 The court sentenced Grant and an aggregate

term of seven-and-a-half to 15 years’ imprisonment. On appeal, Grant

raises the following three issues: (1) the trial court erred by failing to

suppress certain statements made by Grant to the police because those

statements were given during a custodial detention; (2) there was
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1
18 Pa.C.S. §§ 3123(a)(3), 6301(a)(1)(ii), and 6310.1, respectively.
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insufficient evidence to support his IDSI and corruption of minors

convictions; and (3) the court erred in refusing to include Pennsylvania

Suggested Standard Jury Instruction 3.04(D) in its instructions to the jury

on voluntariness.2 After a thorough review of the submissions by the

parties, the certified record, and relevant law, we affirm the judgment of

sentence.

The facts and procedural history are as follows. On April 28, 2012,

Grant invited four teenagers over to his apartment, one male and three

females, including the female victim, M.M.3 He plied them with alcohol,

prescription drugs, and marijuana. While the teenage male left at some

point during the night, the girls all slept over at the apartment because they

were concerned about their level of intoxication. Subsequently, M.M. woke

up during the early morning hours and found Grant, shirtless and sweating,

positioned with his body over her body on the bed. N.T., 3/12/2013, at 152.

She testified she pushed him back, and asked “what was going on and what

he had done.” Id. at 153-154. M.M. stated that Grant said “he ate [her]

pussy.” Id. at 154. The victim also noticed that she was no longer wearing

____________________________________________

2
We have reordered the issues based on the nature of the claims.
3
We note that the full names of the minors appear in the certified record;
however, we will refer to these individuals by their initials in our discussion.
The male is B.E., and the two female friends are K.W. and M.P.

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a pair of sweatpants, which she recalled she had on when she went to sleep

in Grant’s bed that night. Id. at 151-152.

The victim subsequently reported the incident to police. On June 28,

2012, Detective Kenneth E. Lockhart, Jr., went to Grant’s apartment to

interview him. Grant gave a statement, pre-Miranda4 warnings, in which he

admitting to sexually assaulting M.M. The detective then decided to formally

document the interview. He read Grant his Miranda rights, which Grant

waived. The second interview, which was substantially similar to the first,

was audio-recorded, and Grant signed an authentication of the recorded

statement form, indicating that he willingly and voluntarily provided his

recorded statement to the police.

Grant was subsequently charged with numerous offenses related to

the incident. On December 19, 2012, he filed a pre-trial motion to suppress

the incriminating statements he made to Detective Lockhart. A hearing was

held on March 7, 2013. At that time, the court denied the motion.

The case proceeded to a jury trial on March 11, 2013. Grant’s defense

was that he never provided the teenagers with alcohol and drugs, and he

was merely joking when he made the comment about inappropriately

touching the victim. He also claimed that his Miranda waiver was

involuntary, and that he made the incriminating statements because he had

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

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just woke from a nap, was under the influence of prescription medications,

and he simply wanted the police to leave him alone. Two days later, the

jury found Grant guilty of IDSI, corruption of minors, and furnishing alcohol

to minors. Sentencing was deferred for the Sexual Offender Assessment

Board (“SOAB”) to complete an assessment of Grant, as well as for a

presentence investigation report to be completed. Subsequently, the SOAB

conducted an examination and determined that Grant did not meet the

criteria of a sexually violent predator.

On July 30, 2013, the court imposed a sentence of seven and half to

15 years’ incarceration for the IDSI conviction, and a concurrent term of six

months to seven years for the corruption of minors offense. The court also

imposed a concurrent term of one year of probation for the furnishing

alcohol to minors offense. Grant filed a post-sentence motion to modify his

sentence, which was denied on October 24, 2013. This appeal followed.5

In his first issue, Grant claims the court erred in failing to suppress

statements made by Grant to police because those statements were given

during a custodial detention, were not preceded by Miranda warnings, and

were not the product of a free, intelligent, and knowing waiver of his

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5
On November 26, 2013, the trial court ordered Grant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Grant filed a concise statement on December 17, 2013. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on April 9, 2014.

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privilege against self-incrimination and his right to consult with counsel prior

to the interrogation. Grant’s Brief at 34.

By way of background, Detective Lockhart was accompanied by a

uniformed officer, Officer Schott, who was new to the police department and

there “to see how to conduct an interview.” N.T., 3/12/2013, at 257. Grant

invited the officers inside his home and told Detective Lockhart where to

have a seat. Detective Lockhart stated: “The interview begins with me

advising Mr. Grant that I want to talk to him about an incident that occurred

on April 28 into the early morning hours of the 29th when [K.K, M.M., B.E.]

were at his apartment.” Id. at 259. Grant started talking about an

unrelated incident and the detective redirected him, testifying: “I explained

to [Grant] that I knew he told [M.M.], from [M.M.] telling me, that [M.M.]

woke up the night she was in his apartment, and he told her, when she

asked, what did you do to me. He said to her, I ate your pussy.” Id. at

260. Detective Lockhart stated Grant initially did not give a response but did

not deny the incident occurred. Id. Grant then provided the detective with

details, which lasted an hour, and he admitted “he licked her vagina” and

“they were all pretty messed up.” Id. at 260-261. Moreover, Detective

Lockhart stated that Grant told him the assault lasted approximately five

seconds and provided the following details:

[M.M.] was laying on the bed, on her back with her legs
flat on the floor. And [Grant] was over top of her, and he first
pulled her shirt up slightly, kissed her belly, and then slid down

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and licked her vagina, at which time she came to, put her hands
on the back of his head.

He slid out from behind that and then up over top of her,
and that is when [M.M.] would have asked, what are you doing
to me?

Id. at 262.

Detective Lockhart then explained to Grant that he wanted “to formally

document the interview.” Id. at 263. Grant agreed to have the interview

recorded with a digital voice recorder. Id. He indicated that he wanted to

smoke a cigarette first and he could not do so inside the apartment. Id. at

264. Grant, Detective Lockhart, and the observing officer went outside for

approximately ten minutes before returning to the residence. Id. Detective

Lockhart then read Grant his Miranda rights, to which he said that he

understood them and signed a written waiver indicated that he was willing to

make a statement. Id. at 265. The second interview, which was

substantially similar to the earlier questioning, was audio-recorded, and

Grant signed an authentication of the recorded statement form. Id. at 265-

268.

Grant now claims the police violated his Miranda rights during both

interviews. First, he points to the following circumstances, which he claims

established that he was subject to a custodial detention during the first

interview: (1) the detective was already convinced that Grant had assaulted

the victim when the detective decided to interrogate him; (2) the detective

intentionally decided not to administer Miranda warnings and subjected

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Grant to one hour of interrogation; (3) the detective posted a uniform

officer, who was visibly armed, to stand beside the wall that was six feet

from Grant; and (4) both officers followed him outside when he needed to

smoke a cigarette. Grant’s Brief at 39. Second, Grants asserts the second

interview was also improper pursuant to Missouri v. Seibert, 542 U.S. 600

(U.S. 2004) (plurality), on the basis that where police intentionally engage in

a technique of interrogation during the non-Mirandized portion of the

interview, the Miranda portion is suppressible as the fruits of a

constitutional violation. Grant’s Brief at 41. Lastly, Grant claims his

statements were unknowing and involuntary. Id. at 42-43.

“Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether the factual

findings are supported by the record and whether the legal conclusions

drawn from those facts are correct.” Commonwealth v. Jones, 874 A.2d

108, 115 (Pa. Super. 2005), quoting Commonwealth v. LaMonte, 859

A.2d 495, 499 (Pa. Super. 2004).

With respect to the initial interview between Grant and Officer

Lockhart, we note the following:

The standard for determining whether an encounter with the
police is deemed “custodial” or police have initiated a custodial
interrogation is an objective one based on a totality of the
circumstances, with due consideration given to the reasonable
impression conveyed to the person interrogated. Custodial
interrogation has been defined as “questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his [or her] freedom of action in any

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significant way.” “Interrogation” is police conduct “calculated to,
expected to, or likely to evoke admission.” When a person’s
inculpatory statement is not made in response to custodial
interrogation, the statement is classified as gratuitous, and is not
subject to suppression for lack of warnings.

The appropriate test for determining whether a situation involves
custodial interrogation is as follows:

The test for determining whether a suspect is being
subjected to custodial interrogation so as to necessitate
Miranda warnings is whether he is physically deprived of
his freedom 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 such interrogation.

Said another way, police detentions become custodial when,
under the totality of the circumstances, the conditions and/or
duration of the detention become so coercive as to constitute the
functional equivalent of arrest.

The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as
to constitute the functional equivalent of arrest include: the basis
for the detention; its length; its location; whether the suspect
was transported against his or her will, how far, and why;
whether restraints were used; whether the law enforcement
officer showed, threatened or used force; and the investigative
methods employed to confirm or dispel suspicions. The fact that
a police investigation has focused on a particular individual does
not automatically trigger “custody,” thus requiring Miranda
warnings.

Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011)

(internal citations and quotations omitted), aff’d, 78 A.3d 1044 (Pa. 2013),

quoting Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super.

1999).

Here, the trial court found the following:

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At the Suppression Hearing, the court determined that the
statements [Grant] made in his apartment, prior to the Miranda
warnings being read and waived by him before what was
essentially the second part of the interview, were not custodial
because “[the court does] not believe that the mere presence of
an officer in uniform is sufficient, in and of itself, to create a
custodial situation.” Further, testimony at the Suppression
Hearing indicated that [Grant] invited one of the officers
(Detective Kenneth E. Lockhart, Jr.) to sit down, and [Grant]
chose his own seat “in proximity to Detective Lockhart.”
Although the first part of the interview took place prior to the
reading of the Miranda warnings, it did not involve the assertion
of authority by the officers, raised voices, or threats for a failure
to cooperate with questioning. The detective questioning
[Grant] did not do so in a calculating manner after inhibiting or
limiting [Grant]’s freedom of action. [Grant] gave the relevant
inculpatory statements in his apartment before he was given the
Miranda warnings, and again after freely waiving his Miranda
rights in the second half of the interview. As the court stated at
the Suppression Hearing, “considering the totality of the
circumstances here, that confrontation [the initial interview with
police in [Grant]’s apartment] was not so overtly threatening as
to wear down [Grant], frighten him or reasonably bring him into
fear that if he did not answer questions or give certain answers
that he would suffer some adverse consequence.” It is for these
reasons that the court determined the initial questioning was
non-custodial and the statements given were admissible.

Trial Court Opinion, 4/9/2013, at 4 (record citations omitted). We agree.

Based on the totality of the circumstances, and using an objective

standard, one cannot conclude Grant was “physically deprived of his freedom

in any significant way or [] placed in a situation in which he reasonably

believe[d] that his freedom of action or movement [was] restricted by such

interrogation.” Baker, 24 A.3d 1006, 1019. As such, and contrary to

Grant’s assertions, he was not subject to a custodial interrogation when he

made his initial statement to Detective Lockhart. Other than the officers’

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mere presence, Grant does not demonstrate that there was any threat or

force used against him. Therefore, we do not find the initial interview was

improper.

Turning to Grant’s post-Miranda interview, we are guided by the

following:

A confession obtained during a custodial
interrogation is admissible where the accused’s right
to remain silent and right to counsel have been
explained and the accused has knowingly and
voluntarily waived those rights. The test for
determining the voluntariness of a confession and
whether an accused knowingly waived his or her
rights looks to the totality of the circumstances
surrounding the giving of the confession.

Commonwealth v. Jones, 546 Pa. 161, 170, 683 A.2d
1181, 1189 (1996) (citations omitted). ‘The
Commonwealth bears the burden of establishing whether a
defendant knowingly and voluntarily waived his Miranda
‘rights.’ Commonwealth v. Bronshtein, 547 Pa. 460,
464, 691 A.2d 907, 913 (1997) (citation omitted).

Commonwealth v. Davis, 2004 PA Super 409, 861 A.2d 310,
317 (Pa. Super. 2004), appeal denied, 582 Pa. 708, 872 A.2d
171 (2005).

When deciding a motion to suppress a confession, the
touchstone inquiry is whether the confession was
voluntary. Voluntariness is determined from the totality of
the circumstances surrounding the confession. The
question of voluntariness is not whether the defendant
would have confessed without interrogation, but whether
the interrogation was so manipulative or coercive that it
deprived the defendant of his ability to make a free and
unconstrained decision to confess. The Commonwealth
has the burden of proving by a preponderance of the
evidence that the defendant confessed voluntarily.

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Commonwealth v. Nester, 551 Pa. 157, 162-163, 709 A.2d
879, 882 (1998) (citations and footnote omitted).

When assessing voluntariness pursuant to the totality of
the circumstances, a court should look at the following
factors: the duration and means of the interrogation; the
physical and psychological state of the accused; the
conditions attendant to the detention; the attitude of the
interrogator; and any and all other factors that could drain
a person's ability to withstand suggestion and coercion.

Id. at 164, 709 A.2d at 882 (citations omitted). “The
determination of whether a confession is voluntary is a
conclusion of law and, as such, is subject to plenary review.”
Commonwealth v. Templin, 568 Pa. 306, 310, 795 A.2d 959,
961 (2002), citing Nester, supra.

Commonwealth v. Harrell, 65 A.3d 420, 433-434 (Pa. Super. 2013)

(footnote omitted), appeal denied, 101 A.3d 785 (Pa. 2014).

Here, the court found the following:

As for [Grant]’s subsequent waiver of his Miranda rights
after a proper warning, the court concluded at the Suppression
Hearing that the warning issued before the second half of the
interview

distill[ed] and clarify[ied] for [Grant] the scope and nature
of his rights and allow[ed] him to stop the interview
process, refuse within his rights to make any further
statement…. And the waiver seems … to be consistent
with all of the things [Grant] had done and his demeanor
up to that point.

(N.T. Suppression, 68: 22-25, 69: 1-7). Although [Grant]
raised his health issues and medications in furtherance of the
argument that his waiver was not knowing and voluntary, there
was no evidence that he was under the influence of any
medication or medical condition that would impair his ability to
understand his Miranda rights or to knowingly, voluntarily, and
intelligently waive them. (N.T. Suppression, 64: 3-16, 69: 8-25,
70:1-3).

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Trial Court Opinion, 4/9/2013, at 4-5.

We again agree with the trial court’s findings. Prior to taking the

second statement, Detective Lockhart advised Grant of his Miranda rights

and the waiver portion of the rights, both verbally and in writing, while at

Grant’s home. See Commonwealth Exhibit 9, Interview, 6/28/2012. Grant

acknowledged that he understood his rights and initialed the waiver form.

N.T., 3/7/2013, at 13-14. He denied being under the influence of drugs or

alcohol. See Commonwealth Exhibit 9, Interview, 6/28/2012, at 1. He

answered in the negative when asked if any member of the police

department had threatened him or promised him anything. Id. at 13.

Furthermore, when asked how Detective Lockhart and Officer Schott had

treated him that day, Grant responded, “Fine.” Id. As such, the evidence

contradicts his subsequent claims of any involuntariness.6

Moreover, Grant’s reliance on Seibert, supra, is misplaced as that

case was a plurality decision, not binding precedent. See Commonwealth

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6
Furthermore, any determinations as to credibility of Grant or the officers is
left to the trial judge at the suppression hearing and then, subsequently to
the jury sitting as the fact-finder, at trial. See Commonwealth v.
Johnson, 86 A.3d 182, 187 (Pa. 2014) (“If there is sufficient evidence of
record to support the suppression court's ruling and the court has not
misapplied the law, we will not substitute our credibility determinations for
those of the suppression court judge..”); (Commonwealth v. Kearney, 92
A.3d 51, 65 (Pa. Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014) (“It
was the province of the jury as fact-finder to weigh the evidence and believe
all, part or none of it. It was also the role of the jury to assess credibility”).

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v. Charleston, 16 A.3d 505, 525 (Pa. Super. 2011) (rejecting an argument

that Seibert established binding precedent). Moreover, Seibert is factually

distinguishable from the present matter. In that case, a plurality of the

United States Supreme Court concluded that Miranda warnings,

intentionally issued in the middle of the custodial interrogation and after a

defendant gave an unwarned confession, were ineffective. Seibert, 542

U.S. at 612-14. Here, Grant was not subject to a custodial interrogation

when he gave the initial statements to Detective Lockhart and there is no

indication the detective intentionally sought to withhold the proper Miranda

warnings prior to Grant giving the statement. Accordingly, Grant’s first

argument fails.

In his second issue, Grant complains there was insufficient evidence to

prove the offenses of IDSI and corruption of minors because the

Commonwealth failed to prove the corpus delecti beyond a reasonable doubt

that was independent of his extrajudicial inculpatory statements. Grant’s

Brief at 16. Specifically, he points to the following: (1) the four teenagers

all gave inconsistent accounts as what occurred on the night of the assault,

including whether all four teenagers were present simultaneously in Grant’s

apartment, the precise point in time when M.P. arrived and the manner of

her arrival, and the nature and destination of certain trips taken during the

night via Grant’s car; and (2) there were differences in the testimony of

M.M. and M.P. as they related the time frame during which Grant made a

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reference to performing cunnilingus on M.M. Id. at 16-21. Additionally, he

states during the entire interrogation by Detective Lockhart, he did not

admit to providing the teenagers with drugs and alcohol, and at trial, he

denied performing cunnilingus on M.M. Id. at 20-24. Furthermore, he

contends the Commonwealth failed to satisfy the corpus delicti rule because,

absent his inculpatory statement, there was no other evidence proving that

a crime had been committed, where there were no eyewitnesses to the act

or any physical evidence. Id. at 25-27. Moreover, Grant asserts the

“closely related crimes exception” to the corpus delicti rule does not apply

because he did not confess to all of the crimes, which is a requirement for

the applicability of the exception. Id. at 27-34. In other words, he states

that since he did not confess to furnishing alcohol to minors, and that was

the only offense whose corpus delicti was proven by independent evidence,

the “closely related crimes exception” does not apply. Grant further states

that one cannot not apply the rule to his in-court statements because they

were not judicial admissions; rather, he alleges he merely testified that he

was “joking” when he made the statements to the victim and was under a

form of duress when he speaking with Detective Lockhart. Id. at 34.

With respect to the various inconsistencies or other perceived

shortcomings regarding the testimony of the four teenagers as well as his

own testimony, this argument goes more to the weight of the evidence,

relating to credibility, rather than the sufficiency of the evidence.

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Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014).

Grant has not asserted a weight of the evidence claim on appeal. Moreover,

“[i]t was the province of the jury as fact-finder to weigh the evidence and

believe all, part or none of it. It was also the role of the jury to assess

credibility.” Kearney, 92 A.3d at 65. As such, we decline Grant’s “implicit

invitation to re-weigh the evidence.” Id.

Turning to Grant’s corpus delicti rule argument, we are guided by the

following:

Our standard of review for a challenge to the corpus delicti rule
is well-settled.

The corpus delicti rule is designed to guard against
the “hasty and unguarded character which is often
attached to confessions and admissions and the
consequent danger of a conviction where no crime has in
fact been committed.” 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. The corpus delicti rule places the burden on the
prosecution to establish that a crime has actually occurred
before a confession or admission of the accused connecting
him to the crime can be admitted. The corpus delicti is
literally the body of the crime; it consists of proof that a
loss or injury has occurred as a result of the criminal
conduct of someone. The criminal responsibility of the
accused for the loss or injury is not a component of the
rule. The historical purpose of the rule is to prevent a
conviction based solely upon a confession or admission,
where in fact no crime has been committed. The corpus
delicti may be established by circumstantial evidence.
Establishing the corpus delicti in Pennsylvania is a two-step
process. The first step concerns the trial judge’s admission
of the accused’s statements and the second step concerns
the fact finder’s consideration of those statements. In
order for the statement to be admitted, the

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Commonwealth must prove the corpus delicti by a
preponderance of the evidence. In order for the statement
to be considered by the fact finder, the Commonwealth
must establish the corpus delicti beyond a reasonable
doubt.

Commonwealth v. Young, 2006 PA Super 193, 904 A.2d 947,
956 (Pa. Super. 2006), appeal denied, 591 Pa. 664, 916 A.2d
633 (Pa. 2006), (quoting Commonwealth v. Rivera, 2003 PA
Super 238, 828 A.2d 1094, 1103-04, n.10 (Pa. Super. 2003)
appeal denied, 577 Pa. 672, 842 A.2d 406 (Pa. 2004)) (internal
quotation marks omitted) (emphasis in original).

Additionally,

[t]he corpus delicti rule is an evidentiary one. On a
challenge to a trial court’s evidentiary ruling, our standard
of review is one of deference.

The admissibility of evidence is solely within the discretion
of the trial court and will be reversed only if the trial court
has abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment
that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of
record.

Commonwealth v. Herb, 2004 PA Super 215, 852 A.2d 356,
363 (Pa. Super. 2004) (citations omitted).

Commonwealth v. Hernandez, 39 A.3d 406, 410-411 (Pa. Super. 2012),

appeal denied, 63 A.3d 1244 (Pa. 2013).

However, there is a “closely related crimes” exception to the rule:

Where the relationship between the crimes to which the
defendant has confessed is close and the policy underlying the
corpus delicti rule - to avoid convictions for crimes that did not

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occur - is not violated, the exception renders the confession
admissible for all closely related crimes.

Commonwealth v. Taylor, 831 A.2d 587, 596 (Pa. 2003).7

Here, the trial court found the following:

In [Grant]’s case, the Commonwealth established through
independent evidence the crime of Furnishing Alcohol to Minors.
Because the victim was unconscious from the alcohol provided
by [Grant] at the time of the assault, the Furnishing Alcohol to
Minors charge related closely to the charges of IDSI and
Corruption of Minors. It follows logically that where the
Commonwealth charges a defendant with Furnishing Alcohol to
Minors and the facts support the claim that the minor became
unconscious as a result of consuming the alcohol, and there are
further allegations of sexual misconduct with the unconscious
minor by the same defendant who furnished the alcohol, the
offenses go hand-in-hand. It does not appear to the court that
the scenario here offends the rule in Pennsylvania requiring
proof of corpus delicti. To the contrary, the facts presented in
this case appear to fall within the exception carved out by Taylor
and Tessel.

Trial Court Opinion, 4/9/2013, at 6.

We agree with the trial court’s well-reasoned analysis. Moreover,

Grant’s argument, that a defendant must confess to all crimes, including the

offense for which the corpus delicti was proved by independent evidence, in

order for the exception to be applicable, is misplaced. As is evident in

Taylor, “where independent evidence establishes the corpus delicti of only
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7
“The purpose behind the corpus delicti rule is the ultimate consideration in
determining whether two crimes are closely related so as to implicate the
exception.” Taylor, 831 A.2d at 595-596. It merits mention that in Taylor,
the Supreme Court discontinued a “common element” requirement that had
been previously articulated in Commonwealth v. Verticelli, 706 A.2d 820
(Pa. 1998). See Taylor, 831 A.2d at 595.

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one of those crimes, the confession may be admissible as evidence of the

commission of the other crime.” Taylor, 831 A.2d at 592 (emphasis

added). Even though Grant did not confess to all of the crimes, the

relationship between the IDSI and furnishing alcohol to minors acts was

sufficiently close where the four teenagers testified that Grant provided them

with drugs and alcohol at his apartment and the victim stated that she

became intoxicated to the point where she and M.P. fell asleep on Grant’s

bed. Moreover, she testified that when she came to, Grant was over top of

her on the bed and when she asked him what he was doing, Grant told her

he had committed the act of cunnilingus. N.T., 3/12/2013, at 153-154.

M.P. corroborated the victim’s testimony, stating that she saw Grant on top

of the victim and heard him admit that he had licked the victim’s vagina.

Id. at 230-231. Therefore, we conclude the confession and independent

evidence presented by the Commonwealth were sufficient in establishing the

“closely related crimes” exception and consequently, the corpus delicti rule

was not violated.8 Accordingly, Grant’s second argument fails.

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8
See also Tessel, supra (concluded that relationship between a theft and
a burglary was sufficiently close to allow the court, upon evidence of the
corpus delicti of the theft, to admit the defendant’s confession as evidence
that appellant had committed not only the theft but also the burglary where
the defendant gave police a statement in which he admitted that he had
surreptitiously entered a motel room, removed the television set from that
room, and left); Commonwealth v. Bardo, 709 A.2d 871, 874 (Pa. 1998)
(held that the confession applied to two crimes, where the defendant
confessed to strangling his three-year-old niece to death while he was
(Footnote Continued Next Page)

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With respect to Grant’s final claim, he argues the court erred in

refusing to include Pennsylvania Suggested Standard Jury Instruction

3.04(D) (Criminal) in its instructions to the jury on voluntariness and by

refusing to let defense counsel incorporate the points of law contained in

that instruction in his closing argument. Grant’s Brief at 44. He relies on

Commonwealth v. Motley, 372 A.2d 764 (Pa. 1977), for the principle that

it was essential for the jury to be instructed to consider the absence of

Miranda warnings in assessing the voluntariness of his extrajudicial

admissions. Grant’s Brief at 48. He also states that Commonwealth v.

Baker, supra, does not apply to the present matter because it constitutes

dicta and is contrary to Motley.

Our standard of review for a trial court's instructions to the jury is well

established.

When reviewing a challenge to a part of a jury instruction, the
Court must review the jury charge as a whole to determine if it
is fair and complete. A trial court has broad discretion in
phrasing its charge and can choose its own wording so long as
the law is clearly, adequately, and accurately presented to the
jury for its consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is there
reversible error.

Commonwealth v. Collins, 810 A.2d 698, 700 (Pa. Super. 2002).
_______________________
(Footnote Continued)

sexually molested her but the Commonwealth did not present independent
evidence of aggravated indecent assault before introducing the defendant’s
confession because “the relationship between the two crimes [was] close
and the policy underlying the corpus delicti rule ha[d] not been violated.”),
cert. denied, 525 U.S. 936 (1998).

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Instruction 3.04D of the Pennsylvania Suggested Standard Criminal

Jury Instructions provides:

CONFESSION OR ADMISSION: VOLUNTARINESS--PROOF;
MIRANDA

1. In determining voluntariness you should also consider
whether there was any violation of the U.S. Supreme Court case
of Miranda v. Arizona. Miranda requires that the police, before
questioning a suspect in custody, give him or her the Miranda
warning. The essence of the warning is that a suspect has a
right to remain silent, that anything he or she says can be used
against him or her; and that he or she has a right to the advice
and presence of his or her own or a free attorney. The police are
not to question a suspect unless he or she understands the
warning and knowingly, intelligently, freely, and voluntarily gives
up his or her rights to silence and an attorney.

2. Whether or not there was a violation of Miranda requirements
may be an important factor for you in determining whether a
standard meets the basic test of voluntariness. The importance
of any Miranda violation depends upon the nature, seriousness,
and reasons for the violation and whether it affected the
defendant at the time [he] [she] made the statement.

Pa. SSJI (Crim) 3.04D.

Here, the court noted it did not give instruction 3.04D, but it did give

Pennsylvania Suggested Standard Criminal Jury Instructions 3.01, 3.01A,

3.04A, 3.04B, 3.04C, and 3.05. See Trial Court Opinion, 4/9/2013, at 7;

see also N.T. 3/13/2013, at 448-451. The court stated it “provided these

instructions to ensure that the jury was properly instructed in the law and

that voluntariness was addressed in accordance with the proper legal

standards[.]” Trial Court Opinion, 4/9/2013, at 8. We agree with the

court’s rationale.

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Moreover, we find Grant’s reliance on Motley is misplaced. In

Motley, on the day following the defendant’s arrest, prior to his

arraignment, he made a detailed statement to the police implicating himself

in a robbery and murder. His statement “constituted the heart of the

Commonwealth’s case” against him as there was no independent evidence

linking him to the crime. Motley, 372 A.2d at 767. “[F]ollowing his arrest,

and throughout his lengthy interrogation, he was never advised of his

constitutional right to remain silent and of his right to retained or appointed

counsel.” Id. The trial court refused his request “that the jury be instructed

that the failure of the police to advise him of these rights was a ‘significant

factor’ in determining whether the statement was voluntary.” Id. (footnote

omitted). The Pennsylvania Supreme Court reversed, concluding the

defendant “was entitled to an appropriate instruction informing the jury that

the absence of warnings or advice as to his constitutional rights was a

relevant factor in determining the voluntariness of his admissions.” Id. at

767. Motley is factually distinguishable from the present matter because,

as we stated before, Grant was not placed in a custodial detention or arrest

when he gave the pre-Miranda statement to Detective Lockhart.

In Baker, supra, the defendant challenged the same issue with

respect to the court’s refusal to give instruction 3.04D. A panel of this Court

found that the defendant technically waived the issue because he did not

object subsequently to the instructions given to the jury. Baker, 24 A.3d at

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1024. Nevertheless, the panel determined the trial court’s instructions were

appropriate, and that the refusal to give instruction 3.04D was not in error

because the trial court had ruled the defendant’s statement did not require

suppression due to the fact that he was not in custody, requiring Miranda

warnings. Therefore, the panel stated the defendant could not present

evidence at trial challenging the admissibility of the statements he made to

police but he could raise the issue of the voluntariness of the statements

to the jury. Id. at 1024-1025. This Court concluded:

Having raised the issue of the voluntariness of his statements,
[the defendant] was entitled to jury instructions on that issue,
and, in fact, received such instructions. Because those
instructions given, as a whole, “clearly, adequately, and
accurately” presented the law to the jury for its consideration,
we find no abuse of discretion or error of law[.]

Id. at 1025.

Although the discussion in Baker may technically be dicta based on

waiver, we find the reasoning persuasive and reject Grant’s argument. In

accordance with Baker, Grant cannot challenge the admissibility of his

statements to police because the trial court denied his request to suppress

them, but he was permitted to challenge the voluntariness of those

statements, which he did through cross-examination of Detective Lockhart

and his own testimony. Moreover, a review of the court’s instructions

reveals that as a whole, they “‘clearly, adequately, and accurately"

presented the law to the jury for its consideration[.]” Baker, 24 A.3d

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at1025. As such, we find no abuse of discretion or error of law on the part

of the trial court. Accordingly, Grant’s third and final claim fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2015

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