Com. v. Ambert, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTONIO AMBERT
Appellant No. 1619 MDA 2013
Appeal from the Judgment of Sentence of August 9, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No.: CP-36-CR-0005614-2012
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 22, 2014
Antonio Ambert appeals the August 9, 2013 judgment of sentence.
We affirm.
On September 13, 2012, Ambert was charged by criminal complaint
with indecent assault of a person less than thirteen years of age, corruption
of the morals of a minor, and unlawful contact with a minor.1 The charges
who was eleven years old at the time of the offense.
Prior to trial, the Commonwealth filed a petition to admit the testimony
of various witnesses who would testify to hearsay statements made to those
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3126(a)(7), 6301(a)(1)(ii), and 6318(a)(1),
respectively.
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individuals by S.K., pursuant to the tender years exception to the general
bar on hearsay evidence at trial.2 After various amendments to the
2013. Although multiple witnesses testified at the two-day hearing,
presently, Ambert challenges only the admissibility of the testimony of
Detective Sonja Stebbins of the Lancaster City Bureau of Police.3
In 2012, Det. Stebbins was assigned to the Special Investigations Unit,
which focused upon, inter alia, sex crimes perpetrated on children by adults.
In August of 2012, Det. Stebbins was informed by another police officer that
father and that the mother was concerned that the children were not going
to be returned to her. After some effort, Det. Stebbins was able to locate
and speak to the chi
not want to return the children to Lancaster, because he was upset that his
daughter had been touched inappropriately by someone who was working in
to return S.K. to her mother
because nothing had been done in terms of investigating and arresting the
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2
See 42 Pa.C.S.A. § 5985.1, discussed in more detail infra.
3
at the hearing to various statements that S.K. made to them regarding the
incident in question. However, as noted, Ambert does not challenge the
admissibility of the testimony of any of these witnesses before this Court.
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process that she would then follow to investigate the incident, now that she
had knowledge of it. She informed him that the process normally begain
with an interview of S.K.
incident to the police, told Det. Stebbins that she could talk directly to S.K.,
and he immediately handed S.K. the phone. Det. Stebbins immediately
recognized by voice that S.K. was a young girl. S.K. reported to Det.
Stebbins that, on the day in question, she was alone in her bedroom putting
on a pair of capri-style pants when she noticed that the button was broken.
At that point, a man, whom she later identified as Ambert, entered her room
and told her to approach him. S.K. stated that Ambert rubbed her above
her vagina and commented to S.K. about the fact that she had pubic hair.
At that point in the interview, S.K. got quiet and did not want to tell Det.
Stebbins any more about the incident.
hearsay statements proffered by Det. Stebbins were admissible under the
tender years exception.
From May 15 through May 17, 2013, Ambert was tried in front of a
jury on the aforementioned charges. What follows is a summary of the
evidence presented at trial.
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On a day in June of 2012, S.K. was in the attic bedroom in her house
in Lancaster, Pennsylvania folding clothes for her grandmother. At the time,
Ambert was in the home, as was often the case, to do carpentry work on
various parts of the house. Ambert entered the attic bedroom to tell S.K.
capri pants. Ambert attempted to fix the button, but to no avail. However,
r that he
liked her underwear, and that they were sexy. S.K. testified that Ambert
then pulled her underwear back, reached his hand into her underwear, and
rubbed the pubic hair near her vaginal area with his finger and his thumb
two or three times. S.K. testified that she walked away from him, but that
Ambert followed and rubbed her vaginal area another time.
Ambert followed her there and took pictures of him and her on his cellular
telephone. S.K. then went further downstairs and told her brother, G.K.,
what had happened. G.K. told her to report the incident to their mother.
Instead, S.K. told her aunt about the incident. S.K. also sent a text
message to her mother about the incident.
his bedroom when S.K. appeared looking shocked and surprised. G.K.
stated that S.K. told him that Ambert came into her room while she was
changing, and would not leave when S.K. instructed him to do so. S.K. told
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G.K. only that Ambert looked down into her panties, and then she ran away
from him. She did not tell G.K. that Ambert had touched her.
Shortly after the incident with Ambert, S.K. called her aunt and left a
message informing the aunt that they had to speak about something
important. The aunt testified that, on the message, S.K. sounded scared
, S.K. told her that Ambert
had put his hand in her pants after attempting to fix her button. S.K.
explained to the aunt that Ambert also commented on the presence of pubic
hair on such a young girl.
, she was at work
behavior. The mother completed her work day and then went home to
speak with S.K. S.K. initially acted embarrassed, and did not want to talk to
her mother. The mother testified that S.K. appeared to be very sad. S.K.
eventually told her mother that Ambert offered to help her fix the button on
her pants, but then proceeded to touch her inappropriately. Based upon
K. for further
details. The mother did not contact the police. In fact, the police were not
contacted until August, when the children were with their father.
Det. Stebbins also testified at trial. She testified substantially to the
same sequence of events as to which she had testified at the tender years
hearing, as detailed above.
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At the conclusion of the jury trial, Ambert was convicted of all of the
charges. On August 9, 2013, the trial court sentenced Ambert to an
aggregate sentence of one to
2013, Ambert filed a notice of appeal. On September 10, 2013, the trial
court directed Ambert to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On November 6, 2013, Ambert filed a
timely statement. On November 20, 2013, the Commonwealth filed a
issued an opinion pursuant to Pa.R.A.P. 1925(a).
statement did not provide sufficient indicia of reliability as required by 42
discretion and a ruling thereon will only be reversed upon a showing that the
trial court abused Commonwealth v. Malloy, 856 A.2d
because an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality, prejudice, bias,
or ill-
Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012) (citing
Commonwealth v. Brougher, 978 A.2d 373, 376 (Pa. Super. 2009)).
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Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement. Commonwealth v. Puksar, 740 A.2d
219, 225 (Pa. 1999). As a general rule, hearsay is inadmissible, because
such evidence lacks guarantees of trustworthiness fundamental to our
system of jurisprudence. Commonwealth v. Dargan, 897 A.2d 496, 500
(Pa. Super. 2006) (citations omitted). The rule against admitting hearsay
evidence stems from its presumed unreliability, because the declarant
cannot be challenged regarding the accuracy of the statement.
Commonwealth v. Rush, 605 A.2d 792, 795 (Pa. 1992). However, certain
have been fashioned to accommodate certain classes of hearsay
that are substantially more trustworthy than hearsay in general, and thus
Commonwealth v. Charlton, 902
A.2d 554, 559 (Pa. Super. 2006) (citing Commonwealth v. Bean, 677 A.2d
842, 844 (Pa. Super. 1996)).
rule in recognition of the fragile nature of the victims of childhood sexual
Commonwealth v. G.D.M., 926 A.2d 984, 988 (Pa. Super. 2007).
Section 5985.1, also known as the Tender Years Hearsay Act, see
Commonwealth v. Walter, 93 A.3d 442, 444-45 (Pa. 2014), provides, in
pertinent part, the following:
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
homicide), 27 (relating to assault), 29 (relating to kidnapping),
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31 (relating to sexual offenses), 35 (relating to burglary and
other criminal intrusion) and 37 (relating to robbery), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient
indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a) (emphasis added).4
the particularized guarantees of trustworthiness surrounding the
circumstances under which the statements were uttered to the person who
Commonwealth v. Delbridge, 855 A.2d 27, 45 (Pa. 2003).
statements, consistency in repetition, the mental state of the declarant, use
of terms unexpected in children of that age and the lack of a motive to
Id. at 46; see also Walter, 93 A.3d at 451; Commonwealth
v. Kriner, 915 A.2d 653, 657 n.3 (Pa. Super. 2007).
sufficient indicia of reliability to satisfy the tender years exception.
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4
It is undisputed that S.K. was under the age of 12, and that she
testified at trial.
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Specifically, Ambert points out that the version of events that S.K. reported
to G.K. differed from the version that she presented to Det. Stebbins.
for a possible kidnapping, which provided the father with a motive to
See Brief for Ambert at 13. Finally, Ambert maintains that, because the
conversation took place over the telephone, Det. Stebbins was not able
visually to observe the interaction between S.K. and her father to determine
whether the father was, in fact, pressuring S.K. into embellishing her story.
We disagree.
The above-recited legal standards require us to consider the
circumstances of the hearsay statement to determine whether sufficient
indicia of reliability surrounded the statement to render it trustworthy.
Considering the factors set forth in Delbridge, and adopted in Walter,
Barnett, and Kriner, we conclude that the statement was admissible.
explaining to the detective what Ambert had done to her. However, that the
statement was not spontaneous does not, ipso facto, mean that the
statement was pressured or compelled. The record is devoid of any
tive, and,
consequently, fails.
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differs from the story that she told to her brother, G.K. S.K. told Det.
Stebbins that Ambert placed his hand into her underwear, rubbed her
vaginal area with his fingers, and commented on the presence of pubic hair
in such a young girl. To G.K., S.K. stated only that Ambert had caught her
changing clothes, looked down her underwear, and would not leave when
S.K. asked him to do so. Although these two
to Det. Stebbins was consistent with what S.K. told everyone else involved
in the case, including her mother and her aunt. Thus, even though S.K. told
slightly different versions of the events, the version that she provided to
Det. Stebbins was consistent with all of the other versions, including that
version as to which S.K. testified at trial. We believe that the circumstances
evinced the reliability of the Stebbins version.
We also discern from the record no motive for S.K. to fabricate or
embellish a story against Ambert. Moreover, Ambert does not argue in his
brief that S.K. had any such motive. When speaking to Det. Stebbins, S.K.
did not use any words that we might fairly consider to be unexpected from
an eleven-year-old girl such that we might perceive them as indicia of
fabrication. Finally, we note that, although Det. Stebbins believed S.K. to be
upset and quiet, there was no evidence presented at trial or at the hearing
a diminished or confused condition that
her recitation of the facts to Det. Stebbins was untrustworthy or unreliable.
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statement to Det. Stebbins contained sufficient indicia of reliability to render
the statement admissible under the tender years exception to the hearsay
rule. Hence, we discern no abuse of discretion by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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