J-S82007-16

                                   2017 PA Super 45



COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ALEXANDER TORRES-KUILAN

                            Appellant                      No. 698 MDA 2016


            Appeal from the Judgment of Sentence January 20, 2016
                 In the Court of Common Pleas of Union County
              Criminal Division at No(s): CP-60-CR-0000197-2014


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

OPINION BY OTT, J.:                                   FILED FEBRUARY 27, 2017

        Alexander Torres-Kuilan appeals from the judgment of sentence

imposed on January 20, 2016, in the Court of Common Pleas of Union

County following his conviction by jury on charges of aggravated indecent

assault without consent, aggravated indecent assault complainant less than

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

indecent assault without consent.1             Torres-Kuilan received an aggregate

sentence of four to ten years’ incarceration followed by five years of

probation. In this timely appeal, Torres-Kuilan raises two issues. He claims


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*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S. §§ 3125(a)(1), 3125(a)(7), 3126(a)(7) and 3126(a)(1),
respectively.
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the trial court erred in: (1) conducting a portion of the Section 59852

hearing, to determine whether the child victim shall be allowed to testify

closed circuit television, outside of his presence, and (2) allowing the child to

testify via closed circuit video based upon improperly admitted evidence.

Following a thorough review of the submissions by the parties, relevant law,

and the certified record, we affirm.

       Torres-Kuilan was accused of molesting a four-year-old child, Torres-

Kuilan’s niece. The victim was seven years old at the time of trial. Because

of her age and circumstances of the crime, there were questions regarding

her competency to testify and her ability to testify in open court.          The

Commonwealth filed a motion in limine seeking to allow the victim to testify

via closed circuit television.      The trial court deferred ruling on the motion

until the time of trial. On the first day of trial, March 25, 2015, the child was

called to testify.    She was accompanied by Vicki Hackenburg.3         The child

began crying and refused to enter the courtroom. Pursuant to 42 Pa.C.S. §

5985 and the Commonwealth’s motion, an in camera hearing was held to

determine if the child would be allowed to testify other than in open court.

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2
 42 Pa.C.S. § 5985, regarding testimony by contemporaneous alternative
method.
3
  It is unclear if Hackenburg was employed by the trial court or the District
Attorney’s office. Her responsibility relevant to this trial appears to have
been to keep the child company until she testified. Torres-Kuilan’s brief
refers to Hackenburg as a “witness coordinator.”



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The trial court heard testimony from both the child and Hackenburg. Torres-

Kuilan was not present for either.

      In his first issue, Torres-Kuilan argues he was improperly kept from

being present during Hackenburg’s testimony. He maintains that although

pursuant to 42 Pa.C.S. § 5985 (a.2)(1) he was not allowed to be present

during the child victim’s testimony, pursuant to § 5985 (a.2)(2), he was

allowed to be present during Hackenburg’s testimony. While the statute did

give him the right to be present during Hackenburg’s testimony, no relevant

objection was raised at that time. Because the issue was not preserved with

a timely objection, it has been waived. See Commonwealth v. Spell, 28

A.3d 1274, 1280 (Pa. 2011) (failure to raise a timely objection waives

issue), and Pa.R.A.P. 302(a) (issues not raised in the lower court are waived

and cannot be raised for the first time on appeal).

      In Torres-Kuilan’s second issue, he claims the child victim should not

have been allowed to testify via closed circuit television in that the trial court

improperly relied upon Hackenburg’s testimony in making that ruling. This

argument is based upon Torres-Kuilan’s statutory interpretation of 42

Pa.C.S. § 5985, which states in relevant part:


      (a.1) Determination.-- Before the court orders the child victim
      or the child material witness to testify by a contemporaneous
      alternative method, the court must determine, based on
      evidence presented to it, that testifying either in an open forum
      in the presence and full view of the finder of fact or in the
      defendant's presence will result in the child victim or child
      material witness suffering serious emotional distress that would


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      substantially impair the child victim's or child material witness's
      ability  to    reasonably    communicate.       In  making     this
      determination, the court may do all of the following:

           (1) Observe and question the child victim or child material
           witness, either inside or outside the courtroom.

           (2) Hear testimony of a parent or custodian or any other
           person, such as a person who has dealt with the child
           victim or child material witness in a medical or therapeutic
           setting.

42 Pa.C.S. § 5985(a.1)(2).

      Our standard of review for questions of statutory interpretation is well-

settled:

      Statutory interpretation is a question of law, therefore our
      standard of review is de novo, and our scope of review is
      plenary. Commonwealth v. Hall, 622 Pa. 396, 80 A.3d 1204,
      1211 (2013). “In all matters involving statutory interpretation,
      we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et
      seq., which provides that the object of interpretation and
      construction of statutes is to ascertain and effectuate the
      intention of the General Assembly.”       Commonwealth v.
      McCoy, 599 Pa. 599, 962 A.2d 1160, 1166 (2009) (citation
      omitted).

      Generally, a statute’s plain language provides the best indication
      of legislative intent. Id. We will only look beyond the plain
      language of the statute when words are unclear or ambiguous,
      or the plain meaning would lead to “a result that is absurd,
      impossible of execution or unreasonable.” 1 Pa.C.S. § 1922(1).
      Therefore, when ascertaining the meaning of a statute, if the
      language is clear, we give the words their plain and ordinary
      meaning. Hall, 80 A.3d at 1211.

Commonwealth v. Popielarcheck, ___ A.3d ___, 2016 WL 7103930 at *2

(Pa. Super. 2015).

      Torres-Kuilan argues that Hackenburg was neither a parent or

custodian of the child. Therefore, the trial court could properly consider her

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testimony only if she qualified as “any other person, such as a person who

has dealt with the child victim or child material witness in a medical or

therapeutic setting.”   Specifically, Torres-Kuilan claims:

      The statute does indeed permit testimony from “any other
      person.” But 42 Pa.C.S.A. Section 5985, as noted, suggests that
      such other person should have dealt with the child in a medical
      or therapeutic setting. Here, the Witness Coordinator had no
      such dealings.

      If the language “such as a person who has dealt with the child
      victim or child material witness in a medical or therapeutic
      setting” is ignored in analyzing 42 Pa.C.S.A. Section
      5985(a.1)(2) and courts instead dwell simply on the “any other
      person” phrase, the result is preposterous. Courts could then
      consider testimony from literally anyone who had the briefest
      contact with an alleged child victim or witness in support of this
      crucial determination. The suggestion is unconstitutional and
      impermissible.

Torres-Kuilan’s Brief at 10.

      We disagree with Torres-Kuilan’s restrictive interpretation of Section

5985(a.1)(2).    There     are    few    cases    interpreting   this   statute.

Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006) is the only

case we have found that discusses subsection (a.1)(1) and (2).               In

Charlton, a psychotherapist testified the victim suffered from depression,

suicidal thoughts and post-traumatic stress, all of which would impact her

ability to testify effectively. Id. at 559. At issue in Charlton was the level

of trauma the victim would suffer.        However, we believe Charlton and

Section 5985 provide equal importance to the need to make sure the child




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has the reasonable ability to communicate with the jury.           To this end,

Hackenburg testified, in relevant part:

      A: When I got to the District Attorney’s office, she was watching
      a movie; and I explained that it was time to come in to testify.
      She got quiet and she looked down. Her father talked to her. I
      don’t know what he said. It was in Spanish.

      She came with me; and as soon as she got out of the door, she
      started getting upset and crying. Her father came out, walked
      her to the double doors there before you get into the hallway
      outside of the courtroom; and then I walked her the rest of the
      way, and she progressively got tenser. I could feel her –
      because I was kind of hugging her, I could feel her like tense up.

      The Court: So you had your arm around her?

      A: Yes, and I could feel her tense up. By the time we got to the
      door, I tried to explain to her what would happen; and she just
      kind of looked down, wouldn’t reply to me either way. And when
      I opened the door, I had to push her to even – she was planted.
      I couldn’t even get her to move. At that point I felt between the
      tears and her being so planted that I needed to come in and
      explain that I felt that she couldn’t come in without me
      physically forcing her inside.

N.T. Trial, 3/25/2015 at 43.
      Here, Hackenburg simply        related   how   the   child   broke   down

emotionally and refused to enter the courtroom.      Her testimony served to

confirm the trial judge’s own observations of the child.           Importantly,

pursuant to Section 5985 (a.1)(1), the trial judge’s observations alone can

be sufficient to make the ultimate determination of whether the child will be

allowed to testify via alternative method.

      The trial court had already had the opportunity to observe the

child, her demeanor and assess her state of mind. Subsequent to her

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testimony, the trial judge revealed that testimony supplemented his

own observations.

      The Court did have the opportunity to observe Ms.
      Hackenburg attempt to bring the child into the courtroom.
      The back doors in the courtroom have windows in them
      permitting the Court to see out into the lobby area, and
      the child stopped short of the doors and wouldn’t move.
      So Ms. Hackenburg’s testimony that the child would not
      even come into the courtroom is not only credible just
      accepting the word of Ms. Hackenburg, but it is also
      consistent with the Court’s own observations. If the child
      isn’t going to move into the courtroom, it’s kind of difficult to get
      her to say anything, especially considering that – was she
      crying?

      Hackenburg: Yes, Your Honor.

      The Court: Okay. So the Court has had an opportunity to
      observe [the child] before at prior proceedings where she’s
      extremely quiet and bashful and does take her a little time to
      warm up.

      Based on all of that, I think that – and considering her responses
      that the size of the courtroom and the fact that the Defendant’s
      presence would make it scary for her, and given her physical
      reactions to everything, the Court finds that being in the
      presence of the fact finder and the Defendant or either one of
      them would result in [the child] suffering serious emotional
      distress and that would substantially impair her ability to
      reasonably communicate as observed by the Court.

Id. at 46-47.

      The trial judge aptly realized there is no point to presenting a witness

who cannot communicate with the jury, and if the witness cannot even enter

the courtroom that witness cannot communicate with the jury. Accordingly,

based upon his own observations of the child victim and her inability to enter




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the courtroom, she would not be able to communicate with the jury unless

she was able to testify via closed circuit television.

       Torres-Kuilan has argued that if persons such as Hackenburg are

allowed to testify, then virtually anyone with the briefest contact can give

evidence in such a matter. We do not believe that Section 5985 should be

read to limit the trial judge’s ability to hear relevant evidence which aids in

the determination whether the child witness should be allowed to testify via

alternative method.4 This is true especially where the statute itself does not

contain such limiting language.                Accordingly, we find Torres-Kuilan’s

concerns to be misplaced and find no error in allowing Hackenburg to testify.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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4
  Evidence is relevant “if it has the tendency to make a fact more or less
probable than it would be without the evidence and the fact is of
consequence in determining the action.” See Pa.R.E. 401(a),(b). Under this
standard definition of relevant evidence, Hackenburg’s testimony was clearly
relevant.



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