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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
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 Super. 2014) (unpublished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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