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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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