J-S24011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
            v.                           :
                                         :
ANTONIO AMBERT,                          :
                                         :
                  Appellant              :          No. 1861 MDA 2015

               Appeal from the PCRA Order September 22, 2015
              in the Court of Common Pleas of Lancaster County,
               Criminal Division, No(s): CP-36-CR-0005614-2012

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 08, 2016

      Antonio Ambert (“Ambert”) appeals from the Order denying his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).   See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      This Court set forth the following relevant underlying facts of the

incident:

      On a day in June of 2012, S.K.[, who was eleven years old,] 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. that dinner was ready, and noticed that S.K.’s button
      was broken on her capri pants. Ambert attempted to fix the
      button, but to no avail. However, while doing so, Ambert looked
      at S.K.’s underwear.       Ambert told her 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. Thereafter, S.K. went down a
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      flight of stairs to her mother’s bedroom. Ambert followed her
      there and took pictures of him and her on his cellular telephone.

Commonwealth v. Ambert, 106 A.3d 173 (Pa. Super. 2014) (unpublished

memorandum at 3).

      On September 13, 2012, Ambert was charged with various crimes

relating to inappropriate sexual contact with S.K. At the conclusion of the

jury trial, Ambert was convicted of indecent assault of a person less than

thirteen years of age, corruption of the morals of a minor, and unlawful

contact with a minor. On August 9, 2013, the trial court sentenced Ambert

to an aggregate prison sentence of one to five years. This Court affirmed

the judgment of sentence. See id.

      In October 2014, Ambert filed the instant PCRA Petition.    The PCRA

court appointed Ambert counsel, who filed an Amended Petition.        At the

hearing on the Amended Petition, the Commonwealth conceded that the jury

charge as to the corruption of minors charge was inappropriate. As a result,

the PCRA court vacated the corruption of minors conviction and sentence.

However, the PCRA court denied the remaining claims in the PCRA Petition.

Thereafter, Ambert filed a timely Notice of Appeal.

      On appeal, Ambert raises the following question for our review:

“Whether the PCRA court erred as a matter of law when it denied [Ambert’s]

claim regarding trial counsel’s failure to object to the lower court’s

inappropriate jury instruction given on the indecent assault charge?” Brief

for Appellant at viii (some capitalization omitted).


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             We review an order [denying] a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Here, Ambert raises an ineffective assistance of counsel claim with

regard to the jury charge given on the indecent assault charge. To succeed

on   such   an   ineffectiveness   claim,   he        must   demonstrate     by   the

preponderance of the evidence that

      (1) [the] underlying claim is of arguable merit; (2) the particular
      course of conduct pursued by counsel did not have some
      reasonable basis designed to effectuate his interests; and (3) but
      for counsel’s ineffectiveness, there is a reasonable probability
      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). “A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.”

Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014) (citation omitted).

Counsel is presumed to be effective, and the burden is on the appellant to

prove otherwise.      Commonwealth v. Watkins, 108 A.3d 692, 702 (Pa.

2014).

      “[W]hen reviewing jury instructions for error, the charge must be read

as   a   whole   to    determine   whether       it    was   fair   or   prejudicial.”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1141 (Pa. 2012). “[A] trial

court shall only instruct on an offense where the offense has been made an


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issue in the case and where the trial evidence reasonably would support

such a verdict....” Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa.

Super. 2007) (citation omitted). “Instructions regarding matters which are

not before the court or which are not supported by the evidence serve no

purpose other than to confuse the jury.” Id. (citation omitted). “The trial

court has broad discretion in phrasing its instructions, and may choose its

own wording so long as the law is clearly, adequately, and accurately

presented to the jury for its consideration.”   Sepulveda, 55 A.3d at 1141

(citation omitted).

      Ambert takes issue with the trial court’s jury instruction on the

indecent assault of a child charge, which stated the following:

      The first charge is indecent assault of a child. To find the
      defendant guilty of this offense, you must find that two elements
      have been proven beyond a reasonable doubt. First, that the
      defendant had indecent contact with [S.K.] To prove that the
      defendant had indecent contact with the alleged victim, the
      Commonwealth must prove that the defendant brought about a
      touching of the sexual or intimate parts of the body, of one of
      them by the other, and that the defendant did so for the purpose
      of arousing or gratifying his own or the victim’s sexual desire.
      Contact may be indecent even though the clothing of a
      defendant or a victim prevents their flesh from touching. The
      phrase, other intimate parts, does not refer solely to genitalia.
      Due to the nature of the offenses sought to be proscribed by the
      indecent assault statute and the range of conduct proscribed, the
      statutory language does not necessarily prohibit – does not
      specify each prohibited act. The buttocks, breasts, kissing
      on the mouth, using a person’s tongue and touching of the
      back of the legs from the ankle to just below the buttocks
      have all been legally sufficient to constitute either other
      intimate parts or to prove a touching of a person’s other
      intimate parts.      Also, the pulling on a child/victim’s



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      underwear can be sufficient to conclude that an indecent
      assault occurred.

      The bottom line is that you must find beyond a reasonable doubt
      that indecent contact occurred, and to find that it did, you must
      be satisfied beyond a reasonable doubt that the defendant
      brought about a touching of the sexual or other intimate parts of
      the body, of one of them by the other, and that the defendant
      did so for the purpose of arousing or gratifying his own or the
      victim’s sexual desire.

      The second element of this offense is that the victim, [S.K.], was
      less than 13 years of age at the time the incident occurred. It is
      no defense if the defendant did not know the age of the child or
      if the child lied about her age or if the defendant honestly
      believed that the child was 13 years or older or the defendant
      reasonably believed or honestly believed that the child was 16
      years or older.

      The testimony of [S.K.] standing alone, if believed by you, is
      sufficient proof upon which to find the defendant guilty of the
      charge of indecent assault of a child.

N.T., 5/17/13, at 319-20 (emphasis added); see also id. at 311 (wherein

the trial judge instructed the jury “not to conclude that any evidence which I

call to your attention … is the only evidence you must consider. It is your

responsibility to consider all of the evidence that you believe material in

deliberating upon your verdict.”); id. at 314-18 (instructing the jury that it

was their recollection of the facts that was controlling, and that it was solely

for them to determine the credibility and weight of the evidence).

      Ambert contends that trial counsel was ineffective for failing to object

to the trial court’s jury instruction with regard to the indecent assault

charge. Brief for Appellant at 28. Ambert argues that the two sentences in

the charge detailing examples of what constitutes indecent assault were not


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accurate, and resulted in jury confusion. Id. at 31-32, 38, 42; see also id.

at 34 (wherein Ambert claims that the conduct and body parts contained in

the jury instruction were not applicable to his case). Ambert further asserts

that Pennsylvania case law does not support or accurately convey the

examples given by the trial court. Id. at 33-36, 38. Ambert claims that the

evidence at trial indicated that there was only incidental contact, and S.K.

amplified the touching.          Id. at 36-38.        Ambert maintains that the trial

court’s instruction improperly ignored the context of the relevant allegations

and did not include any reference to the intent required to prove the

indecent assault conviction. Id. at 38, 40. Ambert points out that the trial

court, in response         to    a Commonwealth request regarding               the   jury

instruction, had previously conceded that the two sentences in question

were confusing.     Id. at 38-39.         Ambert acknowledges that while a jury

charge should be viewed as a whole, the specific portions of the charge

influenced   the   jury,    as    it   rendered   a    verdict   based   upon    a    false

understanding of the relevant law.          Id. at 40, 41-42. Ambert additionally

contends that there was no reasonable basis for counsel’s failure to object

and that he was prejudiced by counsel’s inaction. Id. at 42-46; see also id.

at 44-45 (noting that counsel’s failure to object impacted Ambert’s ability to

raise a claim regarding the jury charge on direct appeal); id. at 45-46

(stating that he would not have been convicted of the other charged crimes

had he not been convicted of indecent assault). Ambert also argues that the



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trial court’s failure to advise him of the jury charge prior to closing

arguments rendered his counsel’s summation ineffective. Id. at 40-41, 43-

44.

      Here, Ambert was charged with indecent assault of a person less than

thirteen years of age, based upon his actions of pulling S.K.’s underwear

back, reaching his hand into her underwear, and rubbing the pubic hair near

her vaginal area with his fingers multiple times. See Criminal Information,

12/12/12, at 1; see also PCRA Court Opinion, 9/22/15, at 3.             In its

instruction, because the indecent assault statute is silent as to what

constitutes a prohibited act, the trial court provided various examples,

including some that are not at issue in this case, as to what may establish

indecent assault.     N.T., 5/17/13, at 319-20.1        Directly before and

immediately following the examples, the trial court properly instructed the

jury that it must find beyond a reasonable doubt that Ambert touched

intimate parts of S.K.’s body for the purpose of sexual arousal where S.K.

was under the age of thirteen.        Id. at 320; see also 18 Pa.C.S.A.

1
  Ambert’s reliance on Commonwealth v. Vosburg, 574 A.2d 679 (Pa.
Super. 1990), to argue that pulling on a victim’s underwear was insufficient
to establish indecent assault, without other evidence demonstrating sexual
gratification, is misplaced. Brief for Appellant at 34-36. Indeed, the
Vosburg Court held that the Commonwealth presented sufficient evidence
to prove beyond a reasonable doubt that Vosburg committed indecent
assault on an eight-year-old victim by pulling on her underwear while she
lay in bed, and specifically rejected Vosburg’s contention that pulling on the
victim’s underwear was insufficient to establish that the act was for the
purpose of arousing sexual desire. Vosburg, 574 A.2d at 682. Moreover,
Ambert’s argument that the jury charge included other inaccurate
statements of Pennsylvania law is without merit.


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§ 3126(a)(7) (stating that a “person is guilty of indecent assault if the

person has indecent contact with the complainant, [or] causes the

complainant to have indecent contact with the person … for the purpose of

arousing sexual desire in the person or the complainant and … the

complainant is less than 13 years of age[.]”). The trial court, while adding

some    superfluous   language   regarding   examples   of   indecent   assault,

provided an accurate statement of the law.       See Sepulveda, 55 A.3d at

1142 (noting that “[a]n isolated misstatement does not necessarily taint the

charge, so long as the charge as a whole correctly informed the jury of the

law.”); Commonwealth v. Irwin, 431 A.2d 257, 260 (Pa. 1981) (stating

that we “consider the charge to the jury as a whole because prejudicial error

cannot be predicated on isolated excerpts of the charge. The general effect

of the charge controls.”).

       In reviewing the jury charge in its entirety, we conclude that the trial

court’s instruction on the indecent assault charge adequately and accurately

instructed the jury on the law, and Ambert’s ineffectiveness claims do not

have arguable merit.     See Sepulveda, 55 A.3d at 1143 (concluding that

where the trial court’s jury charge, taken as a whole, adequately conveyed

the relevant law to the jury in light of the evidence presented at trial,

counsel cannot be deemed ineffective for failing to object); see also

Commonwealth v. Hansley, 24 A.3d 410, 420 (Pa. Super. 2011) (stating

that “[a] faulty jury charge will require the grant of a new trial only where



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the charge permitted a finding of guilt without requiring the Commonwealth

to establish the critical elements of the crimes charged beyond a reasonable

doubt.” (citation omitted)).

      Ambert’s claim that had he known about the indecent assault jury

instruction, his closing argument would have been different, is also without

merit. Ambert’s trial counsel testified that he would not have changed his

closing argument despite the provided jury charge. See N.T., 3/12/15, at

22-24. Ambert’s counsel testified that their defense theory was that Ambert

was merely fixing S.K.’s pants, and that there was nothing sexual about his

actions. See id. at 22, 26; see also Brief for Appellant at 36-38 (wherein

Ambert acknowledges that counsel’s defense theory was a combination of

incidental contact and amplification by S.K.). Thus, because the jury charge

would not have changed his defense theory or closing argument, Ambert’s

claim is without merit.

      Based upon the foregoing, we conclude that Ambert’s ineffective

assistance of counsel claim is without merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2016




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