J-S83037-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

SCOTT JOHN GRUBBS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 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 wellsettled 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 selfdetermination.
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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