J-S26045-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DENZEL SALADEEN NICHOLS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 360 MDA 2022

Appeal from the Judgment of Sentence Entered January 4, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0005099-2020

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 30, 2022

Appellant, Denzel Nichols, appeals from the judgment of sentence 

entered by the Court of Common Pleas of Lancaster County after a jury 

convicted him of multiple sex offenses, including rape of an unconscious 

victim, statutory sexual assault, and aggravated indecent assault on a person 

less than 16 years of age. See infra. Herein, Appellant contends the trial 

court erroneously denied his motion for mistrial and deemed admissible his 

inculpatory statements in violation of the corpus delicti rule. We affirm.

In the summer of 2017, then-21 year-old Appellant had been spending 

time with several fourteen year-old middle school students, including one boy, 

J.Y., and two girls, A.A. and the eventual victim in this case, O.J. N.T. at 89-

91, 133. One evening, O.J. was planning to sleep over A.A.’s house, when 

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* Former Justice specially assigned to the Superior Court.
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the two texted J.Y. and asked if he and Appellant wanted to get together. N.T. 

at 92. Appellant picked up J.Y. and drove over to A.A.’s house, where the girls 

entered Appellant’s car. 

Appellant supplied marijuana for everyone to smoke, and he later 

stopped at his apartment to get money to purchase alcohol, but he returned 

saying he was unable to find his cash. N.T. at 72. He drove back to J.Y’s 

parent’s house, however, and J.Y. was able to secret a half-full bottle of vodka 

to the car. The four drove to a nearby park, where O.J., A.A., and Appellant 

drank from the bottle while sitting underneath a walking bridge in the park. 

N.T. at 95.

The girls quickly became inebriated. N.T. at 95. Appellant and O.J. 

began to kiss, and A.A. attempted unsuccessfully to stop them, with O.J. 

telling her to “chill out.” N.T. at 135. The group eventually decided to leave 

the park and drive to A.A.’s house since A.A.’s mother would be at her place 

of employment all night. J.Y. noted that O.J. needed help walking back to 

Appellant’s car because she was already “drunk.” N.T. at 75.

According to the three middle school friends, O.J. sat in the front seat 

during the drive back to A.A.’s house, and they all recalled Appellant reaching 

over to O.J. and placing his hand between her thighs. N.T. at 76, 97-98, 136-

37. Specifically, A.A. testified that O.J. asked Appellant to place his hand 

down her pants, N.T. at 137, while O.J. remembered only that Appellant had 

done so and went so far as to insert his finger inside her vagina. N.T. at 98.
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Once back at A.A.’s house, an inebriated O.J. became “erratic,” speaking 

loudly and, at one point, returning to the living room completely “unclothed.” 

N.T. at 77, 140. A.A. recalled that Appellant and O.J. had gone into A.A.’s 

bedroom while she went to the bathroom. When A.A. exited the bathroom, 

she saw J.Y. standing in front of the bedroom door, and she tried to no avail 

to gain entry. N.T. at 137. During that time, she heard Appellant yell 

directions to J.Y. to keep A.A. out of the bedroom. N.T. at 137-38.

Sometime later, Appellant emerged from the bedroom and said to J.Y., 

“She’s waiting for you.” N.T. at 79. J.Y. went to the room and saw O.J. 

undressed, lying on the bed, either asleep or passed out. N.T. at 80. J.Y. 

asked Appellant for a ride home, and the two left A.A.’s house, with Appellant 

appearing in a good mood. N.T. at 80.

A.A. entered her bedroom and found O.J. passed out on the bed. N.T. 

at 138. The next morning, she confronted O.J. about her episode with 

Appellant, but O.J. denied having sex. N.T. at 138.

O.J. testified that she remembered nothing about the night at A.A.’s 

house. N.T. at 99. Her ability to recall was limited to when she awoke the 

next morning lying in A.A.’s bed wearing only a bra. N.T. at 99.

Three years would elapse before O.J. discussed these events again. 

Specifically, in March 2020, she was undergoing hospitalization for mental 

health treatments when she shared the details of her encounter with 

Appellant. After agreeing to speak with police, she consented to a wiretap of 
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a cellphone conversation with Appellant. N.T. at 101. Before the wiretap was 

arranged, however, Appellant contacted O.J. through Instagram. Their next 

communication, which was wiretapped, occurred through Facetime. During 

this conversation, Appellant admitted that he had sex with O.J. in the 

bedroom.1

By criminal information, Appellant was charged with one count of rape 

of an unconscious victim, 18 Pa.C.S. § 3122.1(a)(1), one count of aggravated 

indecent assault on person less than 16 years of age, 18 Pa.C.S. § 3125(a)(8), 

two counts of corruption of minors, 18 Pa.C.S. § 6301(a)(1)(i) and (ii), and 

one count of indecent assault on person less than 16 years of age, 18 Pa.C.S. 

§ 3126(a)(8). 

Before trial began on June 28, 2021, the trial court held an on-therecord conference regarding, inter alia, defense counsel’s concern that the 

prosecution may attempt to introduce inculpatory statements made by 

Appellant before it established that a crime, in fact, had occurred, in violation 

of the corpus delicti rule. N.T. (Trial), 6/28/21, at 34. The trial court 

determined that the issue would be addressed if it presented itself during the 

course of trial. N.T. at 35, 37. 

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1 The text conversation included O.J.’s lament to Appellant that he was old 

enough to know how drunk she was, that she was not in the right state of 

mind that night, and that he took advantage of her. When she stated, “That 

was my virginity that you took from me,” Appellant replied, “I feel bad as well 

because I was informed you was a virgin. How you think I feel about that?” 

N.T. at 108.
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During opening statements, the Commonwealth made the following 

statement, “[a]nd I imagine at some point they are going to come up here 

and provide you with their story.” N.T. at 59. In response to that statement, 

the defense moved for a mistrial. N.T. at 60. The trial court denied the motion 

for mistrial, but gave a curative instruction to the jury. N.T. at 61.

Shortly after, the Commonwealth called the victim as a witness and the 

following exchange occurred:

Commonwealth: And at some point did you have a 

conversation with the defendant?

Witness: Yes.

Commonwealth: Was that – how was that[?] telephone, 

Facetime, something else?

Witness: Facetime.

N.T. at 101.

At that time, the call was marked as Commonwealth’s Exhibit 1, and a 

side bar was had in anticipation of the Commonwealth introducing portions of 

the recording of the Facetime call in question. N.T. at 102. The defense again 

voiced concern that inculpatory statements made by Appellant were on the 

recording and would be heard by the jury before evidence of a rape had been 

introduced, in violation of corpus delicti. Id. 

The Commonwealth argued it was not required to prove beyond a 

reasonable doubt that a crime occurred before it could gain admission of the 

recording into evidence, but, rather, needed only to support its admission with 
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proof by a preponderance of the evidence to meet the exception to the corpus 

delicti rule. Id. To that extent, the Commonwealth argued it had already 

presented such evidence relative to the charges of aggravated indecent 

assault occurring during the early part of the August 2017 evening in question, 

which would thus entitle it to reveal the recordings to the jury, as they

contained Appellant’s admission of both crimes. Id. The trial court agreed 

that Appellant’s recorded statements contemplated both crimes and that both 

crimes were, particularly under the facts, closely related given the continuous 

course of action in which they both occurred. Accordingly, the trial court 

deemed the recordings of Appellant’s statements admissible. N.T. at 103.

At the conclusion of trial, a jury found Appellant guilty on all counts. 

See Sentencing Order, 6/29/2021. At Appellant’s January 4, 2022 

sentencing, a Sexually Violent Predator hearing was held wherein the trial 

court determined that the Appellant fit the criteria to be classified as a sexually 

violent predator. N.T. (Sentencing), 1/4/22, at 38. Immediately afterward, 

Appellant’s sentencing hearing commenced, and he was ultimately sentenced 

to an aggregate sentence of seven to fifteen years’ incarceration. N.T. at 50-

51.

On February 3, 2022, Appellant timely filed a Notice of Appeal, and the 

trial court issued a Pa.R.A.P. 1925 order advising Appellant that he must serve 

a statement of matters complained of on appeal within 30 days on February 

4, 2022. Appellant filed a statement of matters complained on March 7, 2022, 
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alleging (1) that the court erred in denying [Appellant’s] request for a mistrial 

when the Commonwealth told the jury in their opening statement that the 

defense would provide the jury with its own story, in violation of Appellant’s 

Fifth Amendment right against self-incrimination; and (2) that the court 

abused its discretion by admitting Appellant’s inculpatory statements in 

violation of the corpus delecti rule where the exception to the rule was not 

met. Def’s Concise Statement of Errors Complained of on Appeal, 3/7/22.

In his appellate brief, Appellant presents the issues raised previously in 

his timely Rule 1925(b) statement:

1. Did the trial court err in denying Mr. Nichol’s request for a 

mistrial where the Assistant District Attorney, in her opening 

[remarks], told the jury that the defense was going to provide 

the jury with its own story as to what happened in violation of 

Mr. Nichol’s 5th Amendment right against self-incrimination?

2. Did the trial court abuse its discretion in admitting Mr. Nichol’s 

inculpatory statements in violation of the corpus delicti rule 

where the “closely related crimes” exception was not met?

Brief for Appellant, at 6.

In his first issue, Appellant claims that the trial court abused its 

discretion when it denied Appellants motion for a mistrial. He argues that the 

Commonwealth’s opening statement, which indicated to the jury that she 

imagined the defense would come up before the jury and tell its story, 

although she did not know what its version of events would be, was prejudicial 

because it violated Appellant’s Fifth Amendment right against incrimination 

and denied him a fair trial.
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“The purpose of an opening statement is to apprise the jury of how the 

case will develop, its background, and what will be attempted to be proved[.]” 

Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007). Opening 

statements or arguments are not evidence, however, and courts generally 

“afford[ counsel] reasonable latitude in presenting opening arguments to the 

jury.” Id. 

It follows that courts regularly instruct juries that they are to consider 

only the evidence presented at trial to reach their verdicts. See Pa. Suggested 

Standard Civil Jury Instructions § 1.107 (5th. Ed. 2020) (emphasizing that the 

purpose of an opening statement is to give counsel the opportunity to present 

“a summary of what the lawyer expects the evidence will show [and highlight] 

the disagreements and factual differences between the parties in order to help 

[the factfinder] judge the significance of the evidence when it is presented.”)

Our rules of criminal procedure, meanwhile, provide that a court may 

declare a mistrial “only for reasons of manifest necessity.” Pa.R.Crim.P. 

605(B). When reviewing a trial court's denial of a motion for a mistrial, 

particularly in the context of a prosecutor's comments 

during opening statements, we assess whether the trial court abused its 

discretion. Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016). In 

determining whether a prosecutor committed misconduct during opening 

statements such as to justify the grant of a mistrial, our Supreme Court has 

stated:
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It is within the discretion of the trial court to determine whether a 

defendant has been prejudiced by misconduct or impropriety to 

the extent that a mistrial is warranted. Comments by a 

prosecutor do not constitute reversible error unless the 

unavoidable effect of such comments would be to prejudice the 

jury, forming in their minds a fixed bias and hostility toward the 

defendant such that they could not weigh the evidence objectively 

and render a true verdict. In considering appellant's claims of 

prosecutorial misconduct, we note that a prosecutor's comments 

are not evidence.... Opening statements must be fair deductions 

from the evidence which the prosecutor expects will be presented 

at trial.

Commonwealth v. Bronshtein, 691 A.2d 907, 917-18 (Pa. 1997) (citations 

and paragraph breaks omitted).

The portion of the prosecutor’s opening statement to which Appellant 

objected is as follows:

Commonwealth: And I imagine at some point Ms. Monson 

[defense counsel] is going to come up here and provide you with 

their story. I don’t know what that’s going to be. Maybe it’s we 

never had sex and I never put my finger in her vagina. Maybe it’s 

going to be, yeah, we had sex but I thought she was 16 or I 

thought she was 17 or I didn’t know how old she was and she was 

awake and she wanted it, she was begging me for it. 

N.T., 4/6/22, at 59-60.

As noted above, defense counsel requested a sidebar discussion, at 

which she argued, “The DA just told the jury that we’re going to present our 

side of the story and that my client knows what happened and he’s going to 

present that that’s—”, to which the trial court ruled that the request for 

mistrial denied and informed counsel it would give an appropriate instruction.

At the conclusion of sidebar, the trial court instructed the jury, as 

follows:
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Trial Court: Next [defense] counsel will give their opening 

statement now. But I want to reiterate for you, like I’ve already 

told you before, and you’ll hear again, there’s no requirement on 

the defendant to prove anything. They don’t have to testify. They 

don’t have to present evidence. 

It’s solely the burden of the Commonwealth to prove this case to 

you beyond a reasonable doubt. And if they don’t, you must return 

a not guilty verdict. If they do, then you must return a guilty 

verdict. There’s no burden on the defense to present you 

anything.

N.T. at 61.

Here, the prosecutor’s opening statement commentary that she could 

not imagine what story the defense would present was brief, and the trial 

court, in immediate response to defense counsel’s sidebar objection, delivered 

to the jury a complete curative instruction informing it that the defense was 

not required to present anything during trial as it was the Commonwealth’s 

burden, alone, to prove its case beyond a reasonable doubt. “When the trial 

court provides cautionary instructions to the jury in the event the defense 

raises a motion for a mistrial, [t]he law presumes that the jury will follow the 

instructions of the court..” Commonwealth v. Parker, 957 A.2d 311, 319 

(Pa. Super. 2008). We conclude, therefore, that the trial court did not abuse 

its discretion in denying Appellant’s motion for mistrial. 

In Appellant’s second issue, he argues that his inculpatory statements 

made during both a wire recorded conversation and an Instagram text 

message exchange between the victim and him were improperly admitted in 

violation of the corpus delicti rule. Specifically, he contends that although 

other evidence presented by the Commonwealth admittedly established that 
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he committed an aggravated indecent assault against the victim during the 

earlier part of the evening in question, it was too attenuated to the rape 

alleged to have occurred later that evening for it to gain admission into 

evidence under the “closely related crimes” principle described in the corpus 

delicti rule. We disagree.

The corpus delicti rule concerns the admissibility of 

evidence—specifically, a defendant’s inculpatory statement—

which we review for an abuse of discretion. Commonwealth v.

Murray, 174 A.3d 1147, 1154 (Pa. Super. 2017). “The purpose 

of the rule is to prevent a conviction based solely upon a 

confession where no crime has in fact been committed.” 

Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52, 67 (2003). 

Thus:

The corpus delicti rule requires the Commonwealth to 

present evidence that: (1) a loss has occurred; and 

(2) the loss occurred as a result of a criminal agency. 

Only then can “the Commonwealth ... rely upon 

statements and declarations of the accused” to prove 

that the accused was, in fact, the criminal agent 

responsible for the loss.

Commonwealth v. Taylor, 574 Pa. 390, 831 A.2d 587, 590 

(2003) (citation omitted). In application, the rule requires a trial 

court to consider the admissibility of a defendant's statement in 

two phases:

(1) “In the first phase, the court determines whether 

the Commonwealth has proven the corpus delicti of 

the crimes charged by a preponderance of the 

evidence. If so, the confession [or extrajudicial 

statement] of the defendant is admissible[;]” (2) “In 

the second phase, the rule requires that the 

Commonwealth prove the corpus delicti to the 

factfinder’s satisfaction beyond a reasonable doubt 

before the factfinder is permitted to consider the 

confession [or extrajudicial statement] in assessing 

the defendant’s innocence or guilt.”
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Commonwealth v. Bullock, 170 A.3d 1109, 1118 (Pa. Super. 

2017) (citation omitted). Furthermore, it is well-settled that:

[W]here a defendant's confession relates to two 

separate crimes with which he is charged, and where 

independent evidence establishes the corpus delicti of 

only one of those crimes, the confession may be 

admissible as evidence of the commission of the other 

crime. This will be the case only where the

relationship between the two crimes is sufficiently 

close to ensure that the policies underlying 

the corpus delicti rule are not violated.

Commonwealth v. McMullen, 545 Pa. 361, 681 A.2d 717, 723 

(1996).

Commonwealth v. Dula, 262 A.3d 609, 637-638 (Pa. Super. 2021).

As noted above, the Commonwealth presented evidence that 21-yearold Appellant engaged a 14 year-old O.J. in a night of smoking marijuana and 

drinking alcohol that led to sexual activity between them. N.T. at 73-138. 

What began with “touching” and kissing one another in the park progressed 

to Appellant placing his hand down the front of the victim’s pants and inserting 

his finger in her vagina while they were in Appellant’s car with two other 

juveniles, A.A. and J.Y, driving back to A.A.’s house. N.T. at 97-98. 

Over defense objection, the trial court thus ruled that Appellant’s 

inculpatory statements were admissible under the “closely related crimes” 

principle described in the corpus delicti rule, as the statements related to the 

entire evening at issue, and because the Commonwealth not only had 

presented ample evidence of Appellant’s aggravated sexual assault of an 

impaired O.J. while at the park and in the car ride back to A.A.’s house, it also 

had established a continuous “course of conduct” that soon placed Appellant 
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and the three minors inside A.A.’s house, where Appellant would usher a still 

intoxicated, erratic-behaving, completely undressed O.J. into a bedroom, 

close the door behind them, and direct the other two minors not to enter, until 

he walked out and bragged to the 14 year-old boy that O.J. was now waiting 

for him.

We discern no error with the trial court’s determination that such 

evidence, independent of Appellant’s subsequent inculpatory statements to 

the victim, established a continuing course of escalating, but closely related, 

sex crimes involving vaginal penetration perpetrated by Appellant against an 

intoxicated minor victim, and culminating with Appellant’s own words, spoken 

to the juveniles present, suggesting he had engaged in sexual intercourse. 

Such evidence thus established the necessary close nexus between the two 

crimes of aggravated sexual assault and rape charged in the present case to 

support the trial court’s ruling declaring Appellant’s inculpatory statements 

admissible under the corpus delicti rule. Accordingly, we find no merit to 

Appellant’s second issue.

Judgment of sentence Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/30/2022