J-S41045-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: M.G., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 156 MDA 2015

Appeal from the Order Entered January 13, 2015

in the Court of Common Pleas of Centre County

Criminal Division at No.: CP-14-JV-0000071-2014

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 24, 2015

The Commonwealth appeals from the trial court’s order precluding 

witness testimony regarding Appellee, M.G.’s, alleged confession on the 

basis of the corpus delicti rule.1 We affirm.

We take the following facts from the trial court’s February 20, 2015 

opinion and our independent review of the record. On September 22, 2014, 

the Commonwealth filed a delinquency petition against the fourteen-year-

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* Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has certified that the court’s order will terminate or 

substantially handicap the prosecution. (See Notice of Appeal, 1/16/15, at 

1); see also Pa.R.A.P. 311(d).
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old2 Appellee. The petition alleged that Appellee committed rape, rape of a 

child, involuntary deviate sexual intercourse (IDSI), IDSI with a child, and 

statutory sexual assault.3 

On October 24, 2014, the court held an adjudication hearing. The 

Commonwealth presented two eyewitnesses, thirteen-year-old M.W., and 

ten-year-old T.C. M.W. and T.C. testified about a game of truth or dare in 

which the Commonwealth alleges that Appellee committed the above 

criminal acts4against a then six-year old female game participant, C.M. 

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2 Appellee was thirteen at the time of the alleged crimes. (See Affidavit of 

Probable Cause, 8/25/14, at 1).

3 18 Pa.C.S.A. §§ 3121(a)(1), (c); 3123(a)(7), (b); and 3122.1(a)(1), 

respectively.

4 The Pennsylvania Crimes Code provides, in pertinent part, that: “A person 

commits [rape] when the person engages in sexual intercourse with a 

complainant . . . [b]y forcible compulsion[,]” and is guilty of rape of a child 

when he “engages in sexual intercourse with a complainant who is less than 

13 years of age.” 18 Pa.C.S.A. § 3121(a)(1), (c). “Sexual intercourse” is 

defined in relevant part to include penis to mouth contact, “with some 

penetration however slight;” and “forcible compulsion” involves 

“[c]ompulsion by use of physical, intellectual, moral, emotional or 

psychological force, either express or implied.” 18 Pa.C.S.A. § 3101. 

An individual is guilty of IDSI “when the person engages in [oral sex] 

with a complainant . . . who is less than 16 years of age and the person is 

four or more years older than the complainant and the complainant and 

person are not married to each other[,]” and engages in IDSI with a child if 

the complainant is less than thirteen years of age. 18 Pa.C.S.A. §§ 

3123(a)(7), (b) and 3101. Finally, the Crimes Code defines statutory sexual 

assault, in pertinent part, as: “engag[ing] in sexual intercourse with a 

complainant to whom the person is not married who is under the age of 16 

years and that person is . . . four years older but less than eight years older 

than the complainant[.]” 18 Pa.C.S.A. § 3122.1(a)(1).
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Specifically, M.W. testified that, during the game, an individual dared 

C.M. to “suck [Appellee’s] penis.” (N.T. Hearing, 10/24/14, at 12). After 

hearing the dare, M.W. shook her head at C.M. to suggest that she not 

perform the act, but C.M. responded, “I’m not a P-U-S-S-Y[,]” and moved 

within one or two feet of Appellee. (Id. at 13). At that point, Appellee’s 

pants were on, and M.W. turned away because she did not want to see the 

dare performed. Between three and five seconds later, M.W. turned back 

around and Appellee’s pants were “[n]ot completely off, but down a little 

bit.” (Id. at 16). M.W. “[c]ould [not] see [Appellee’s] private parts[.]” 

(Id.). When the Commonwealth asked M.W. if Appellee talked about C.M. 

“sucking his penis,” Appellee’s counsel objected on the basis of the corpus 

delicti rule. (Id. at 18). The court sustained the objection and directed the 

Commonwealth that it could “recall the witness later if [it] want[ed] to.” 

(Id. at 19). T.C. corroborated M.W.’s version of events.

After discussion with counsel, the court permitted them to submit 

memoranda of law on the corpus delicti issue, and continued the hearing 

pending its decision. The Commonwealth filed its memorandum on October 

31, 2014.5 On December 23, 2014, the court entered an order denying the 

Commonwealth’s delinquency petition on the basis that it had failed to meet 

its burden under the corpus delicti rule. The Commonwealth filed a motion 

for reconsideration on January 9, 2015. On January 13, 2015, the court 

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5 Appellee did not file a memorandum and has not filed a brief in this appeal.
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rescinded the December 23, 2014 order and entered a new order finding 

that the Commonwealth failed to meet its burden of proof under the corpus 

delicti rule, and precluding it from offering testimony regarding Appellee’s 

alleged confession.6 The Commonwealth timely appealed.7

The Commonwealth raises one issue for this Court’s review: “Whether 

the trial court erred in concluding that [it] failed to meet its burden of proof 

under the corpus delicti rule, after [it] met its burden by introducing 

sufficient circumstantial evidence of closely related crimes[?]”8 

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6 The trial court’s order arguably could potentially implicate double jeopardy 

concerns. See In re Morrow, 583 A.2d 816, 818 (Pa. Super. 1990). 

However, because Appellee did not raise this issue in the trial court, or file a 

brief raising it in this Court, it is waived for our review. See Pa.R.A.P. 

302(a); Commonwealth v. Colavita, 993 A.2d 874, 893 (Pa. 2010) 

(holding that claim of ineffective assistance of counsel based on substantive 

due process could not be raised sua sponte by the Superior Court); In re 

J.M., 726 A.2d 1041, 1051 (Pa. 1999) (holding it was error for Superior

Court to raise and decide issue sua sponte when appellant had failed to raise

and preserve the issue). 

7 The Commonwealth filed a timely Rule 1925(b) statement on February 6, 

2015 pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). The trial 

court entered its opinion on February 20, 2015. See Pa.R.A.P. 1925(a).

8 The Commonwealth does not address the closely related crimes exception 

to the corpus delicti rule in the argument section of his brief. (See

Commonwealth’s Brief, at 9-14). Its only reference to the doctrine is in the 

summary of argument section. (See id. at 8). Therefore, it is waived. See 

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (“By failing 

to provide any discussion of the claim with citation to relevant authority, 

Appellant has waived review of this claim.”) (citations omitted). 

Moreover, the Commonwealth misapprehends the exception when it 

states that it “presented circumstantial evidence of a closely related crime of 

indecent exposure or open lewdness to the crimes charged in the petition to 

(Footnote Continued Next Page)
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(Commonwealth’s Brief, at 4). Specifically, the Commonwealth argues that 

“the fact finder [could] at least infer that there was a crime committed[.]” 

(Commonwealth’s Brief, at 13) (emphasis omitted). We disagree.

The well-established corpus delicti rule provides that a 

criminal conviction may not stand merely on the out[-]of[-]court 

confession of one accused, and thus a case may not go to the 

fact[-]finder where independent evidence does not suggest that 

a crime has occurred. This rule is rooted in the hesitancy to 

convict a person of a crime solely on the basis of that person’s 

statements. 

The corpus delicti consists of two elements: (1) the 

occurrence of a loss or injury, and (2) some person’s criminal 

conduct as the source of that loss or injury. The corpus delicti

may be proven by circumstantial evidence. 

The crucial determination in applying the 

corpus delicti rule is whether, at the close of the 

case, the proof of the corpus delicti was sufficient to 

permit the fact finder to consider defendant’s 

admission or confession.

The corpus delicti rule is two-tiered; it must first be 

considered as a rule of evidentiary admissibility using a prima

facie standard, and later, under a beyond a reasonable doubt 

standard, as one of proof for the fact-finder’s consideration at the 

close of the case.

(Footnote Continued) _______________________

which [Appellant] ultimately made admissions to committing . . . .” 

(Commonwealth’s Brief, at 8). Pursuant to the closely related crimes 

exception, “where a defendant’s confession relates to 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 crimes.” Commonwealth v. 

Dupre, 866 A.2d 1089, 1099 (Pa. Super. 2005), appeal denied, 879 A.2d 

1089 (Pa. 2005) (citation omitted). Here, the Commonwealth’s argument 

would fail because it maintains that Appellee’s confession closely relates to 

crimes with which he was not charged. (See Commonwealth’s Brief, at 8).
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Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa. Super. 2013), appeal 

denied, 77 A.3d 1258 (Pa. 2013) (citations, quotation marks, and footnote 

omitted).

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.

In re T.B., 11 A.3d 500, 504 (Pa. Super. 2010), appeal denied, 24 A.3d 864 

(Pa. 2011).

Importantly:

. . . An abuse of discretion may not be found 

merely because an appellate court might have 

reached a different conclusion, but requires a result 

of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous. 

Our task . . . is one of review, not one of reweighing or 

assessing the evidence in the first instance.

Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super. 2014), appeal 

denied, 105 A.3d 736 (Pa. 2014) (citations omitted).

Here, the trial court found:

. . . [T]the Commonwealth has failed to meet its burden in 

establishing a prima facie case of rape, rape of a child, [IDSI], 

[IDSI] with a child, and statutory sexual assault. The failure to 

meet this burden requires that the corpus delicti rule protect the 

confession of [Appellee] regarding the alleged incident.

 

(Order, 1/13/15, at 1; see also Trial Court Opinion, 2/20/15, at 3). We 

discern no abuse of discretion.
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The total of the Commonwealth’s evidence at the adjudicatory hearing 

was the testimony of two minor eyewitnesses who testified to participating 

in a game of truth or dare in which an individual dared C.M. to perform oral 

sex on Appellee. Testimony established that C.M. moved within one to two 

feet of Appellee and stated that she was “not a P-U-S-S-Y[,]” (N.T. Hearing, 

10/24/14, at 13), but the witnesses did not see C.M. perform the dare. 

Witness C.W. stated that she looked away from Appellee and C.M. for three 

to five seconds and, when she turned back around, Appellee’s pants were 

not up all the way, but were not down either. No part of his body was 

exposed. 

Based on the foregoing facts, and the dearth of evidence from which 

the court could infer the charged crimes, we conclude that its decision was 

not the product of “manifest unreasonableness, or partiality, prejudice, bias, 

or ill-will, or such lack of support so as to be clearly erroneous.” Prendes, 

supra at 356. Accordingly, the court did not abuse its discretion when it 

precluded the Commonwealth from providing testimony about Appellee’s 

confession under the corpus delicti rule. See id.; Cuevas, supra at 295; 

T.B., supra at 504. The Commonwealth’s issue does not merit relief.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015