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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL A. KAMINSKY                        :
                                               :
                       Appellant               :   No. 631 EDA 2019

       Appeal from the Judgment of Sentence Entered February 12, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0000683-2018

BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.:                             FILED APRIL 13, 2020

        Michael A. Kaminsky (Appellant) appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury

convictions of involuntary deviate sexual intercourse with a child, sexual

assault, indecent assault of a person less than 13 years of age, and

endangering the welfare of a child.1 Appellant presents a sole issue relating

to hearsay testimony admitted under the tender years exception 2 to the

general rule against hearsay. We affirm.




____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3123(b), 3124.1, 3126(a)(7), 4304.

2   See 42 Pa.C.S. § 5985.1.
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      Appellant was charged with sexually abusing his minor child. Prior to

trial, the Commonwealth petitioned to admit out-of-court statements under

the tender years hearsay exception codified at 42 Pa.C.S. § 5985.1.           The

Commonwealth sought thereby to admit statements the child victim made to

family members and to a forensic interviewer. The trial court held a hearing

on March 1, 2018, and granted the Commonwealth’s petition on April 17th.

      The case proceeded to a jury trial on November 9, 2018. At the trial,

the young victim testified as to the abuse, as did the family members who

initially noticed his disturbing comments. The Commonwealth also showed

the jury the videotaped forensic interview in which the victim described his

sexual abuse, identified Appellant as the perpetrator, and described, and then

drew a picture of, Appellant’s penis. Trial Ct. Op., 7/2/19, at 3-5.

      The jury found Appellant guilty of the above-cited offenses. On February

12, 2019, Appellant was sentenced to an aggregate term of 156 to 480

months’ incarceration and a consecutive term of 10 years’ probation.

Appellant did not file a post-sentence motion, but took this timely appeal.

      Appellant raises a single issue for this Court’s review:

      Whether the lower court erred in admitting the out of court
      statements      (including  related     audio       recording    and
      contemporaneous writings) that the complainant allegedly
      supplied to his mother, grandmother and to a forensic interviewer
      since the time, content, and circumstances of those statements
      did not demonstrate sufficient indicia of reliability as required for
      the tender years exception to the hearsay rule?

Appellant’s Brief at 5.


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      Appellant argues that the Commonwealth did not establish sufficient

indicia of reliability to support admission of the contested statements under

the tender years exception. Appellant characterizes the statements as lacking

spontaneity, consistency, and reliability. Appellant claims that the statements

were elicited by adults and therefore were not spontaneous, that they differed

in key respects, and that the terminology used does not bolster the

statements’ reliability.   Appellant cites the child victim’s apparent lack of

distress when the statements were made in support of this argument.

      The Commonwealth argues that the trial court’s decision as to the

contested statements was consistent with our tender years hearsay statute,

42 Pa.C.S. § 5985.1.       The Commonwealth further avers the court was

reasonable in finding the statements to be spontaneous and reliable.

Commonwealth’s Brief at 2.

      “[Q]uestions concerning the admissibility of evidence lie within the

sound discretion of the trial court, and [a reviewing court] will not reverse the

court’s decision on such a question absent a clear abuse of discretion.”

Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (citation

omitted).   This Court applies the “abuse of discretion” standard when

reviewing admission of statements under the tender years exception.

Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006).

      “Generally, an out-of-court statement is inadmissible at trial unless it

falls into one of the exceptions to the hearsay rule.” Hunzer, 868 A.2d at


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510. See also Pa.R.E. 801(c)(1) (defining “hearsay” as statement that “(1)

the declarant does not make while testifying at the current trial or hearing;

and (2) a party offers in evidence to prove the truth of the matter asserted in

the statement”), 803 (“Hearsay is not admissible except as provided by these

rules, by other rules prescribed by the Pennsylvania Supreme Court, or by

statute.”).

      Our tender years hearsay statute provides:

      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 . . . , not
      otherwise admissible by statute or rule of evidence, is admissible
      in evidence in any criminal or civil proceeding if:

           (i) 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

              (ii) the child either:

                   (A) testifies at the proceeding; or

                   (B) is unavailable as a witness.

42 Pa.C.S. § 5985.1(1)(i)-(ii)(A)-(B). This Court has stated:

      The factors to be considered by a trial court in determining
      whether the child declarant was likely to be telling the truth when
      the statement was made include:

              (1) the spontaneity and consistent repetition of the
              statement(s); (2) the mental state of the declarant; (3)
              the use of terminology unexpected of a child of similar
              age; and (4) the lack of motive to fabricate.

Hunzer, 868 A.2d at 510 (citation omitted).




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      Here, the trial court related that the contested statements were made

by the youthful victim to another household child, his mother, his

grandmother, the police, and a forensic interviewer trained in eliciting

unprompted, open-ended statements about abuse from children. Trial Ct. Op.

at 7-8.   These disturbing statements, which described molestation in the

natural argot of a young child, initially arose in spontaneous fashion during

play with another household child. Id. at 1-2. When the suspected abuse

was reported, the victim was questioned by a trained forensic interviewer. Id.

at 2-3.

      There is no dispute as to the victim’s age and that Appellant’s charged

crimes were enumerated under the tender years statute.        See 42 Pa.C.S.

§ 5985.1(1). The victim was four years old at the time he was forensically

interviewed. The interview was videotaped. In it, the forensic interviewer

asked appropriately open-ended questions designed to elicit the child’s

narrative without suggestion. For instance, she asked him to label parts of a

person’s body on a drawing, starting with the head and hair. Trial Ct. Op. at

3. The victim then spontaneously identified the penis on the drawing. Id.

The victim’s statements during the interview were totally consistent with his

earlier spontaneous comments that disturbed his family. They established a

familiarity with oral sex, fondling, and other sexual topics generally outside

the imagining of such a young child. Id. at 3-4. The victim clearly described

Appellant’s penis, and identified him as the perpetrator of these acts. Id. at


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4. This was all conveyed in an innocent fashion, almost casually, displaying

the child victim’s natural ignorance of the deeper import of what had happened

to him.

      The child victim’s initial statements arose spontaneously in play, and

were most comprehensively explored in a forensic interview with a trained

interviewer who knows how to facilitate spontaneous statements from young

witnesses and victims without using leading questions or introducing concepts

outside of the child’s ken. Each statement was consistent with others made

by the child victim. The first factor outlined in Hunzer was amply established.

See Hunzer, 868 A.2d at 510.

      The child victim’s mental state seemed, in each instance, to be calm and

typical of such a young child when playing. The way he seemed to act out the

abuse with another child in the household, combined with the almost offhand

way he discussed the abusive acts both with his family and with the forensic

interviewer, were consistent with the innocence that one would expect to

characterize such a young person’s understanding of what had happened. His

statements showed no characteristics of having been coached or rehearsed.

      His use of terminology was consistent with the limitations of his age, but

showed a familiarity with oral sex, fondling, erections, and Appellant’s penis

that can lead to only one conclusion.

      Finally, the child victim himself cannot be said to have had any motive

to fabricate. Given the spontaneity of his statements and inappropriate play,


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coaching seems out of the question, and therefore only the child victim’s

possible motives are relevant. Even if such a young child could develop some

kind of motive to fabricate, the consistency of his statements is beyond the

mental fortitude of one so young to manufacture. All four factors are satisfied

here. See Hunzer, 868 A.2d at 510.

      Because the comments in question are exactly the type that the tender

years statute was intended for, the trial court correctly applied the statute and

admitted the statements. See Curley, 910 A.2d at 697; Hunzer, 868 A.2d

at 510. We therefore affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/20




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