J-S29022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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.


____________________________________________


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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