J-A28042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ALEXANDER TORRES-KUILAN                 :
                                         :
                     Appellant           :   No. 915 MDA 2018

                  Appeal from the PCRA Order May 1, 2018
     In the Court of Common Pleas of Union County Criminal Division at
                      No(s): CP-60-CR-0000197-2014


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED DECEMBER 14, 2018

     Alexander Torres-Kuilan appeals from the order, entered in the Court of

Common Pleas of Union County, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.      Upon careful

review, we affirm.

     On March 26, 2015, Torres-Kuilan was convicted by a jury of two counts

each of aggravated indecent assault and indecent assault, arising from an

incident in which he molested his then-four-year-old cousin. On January 20,

2016, Torres-Kuilan was sentenced to an aggregate term of 4 to 10 years’

incarceration, followed by 5 years’ probation.   His sentence included two

mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9718.         Torres-

Kuilan filed a post-sentence motion, in which he asserted that his mandatory

minimum sentences were invalid pursuant to Alleyne v. United States, 570

U.S. 99 (2013) (holding any fact that increases mandatory minimum sentence
J-A28042-18



is element of crime that must be submitted to factfinder and found beyond

reasonable doubt). In its response to Torres-Kuilan’s post-sentence motions,

the Commonwealth agreed to resentencing, while not conceding the

unconstitutionality of Torres-Kuilan’s sentences.1 On March 24, 2016, the trial

court resentenced Torres-Kuilan to an aggregate term of 4 to 10 years’

incarceration, followed by 5 years’ probation, with credit for time served.

Torres-Kuilan timely appealed and, on February 27, 2017, this Court affirmed

his judgment of sentence. See Commonwealth v. Torres-Kuilan, 156 A.3d

1229 (Pa. Super. 2017).

       On February 26, 2018, Torres-Kuilan filed a timely counseled PCRA

petition in which he raised two claims of ineffectiveness of trial counsel. A

hearing was held on May 1, 2018, at which time the PCRA court heard

testimony from James Best, Esquire, Torres-Kuilan’s trial counsel. That same

day, the PCRA court issued an order dismissing Torres-Kuilan’s petition.

Torres-Kuilan filed a timely notice of appeal, as well as a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       On appeal, Torres-Kuilan raises the following issues for our review:



____________________________________________


1 At the time of Torres-Kuilan’s post-sentence motions proceedings, our
Supreme Court had granted allowance of appeal of this Court’s decision in
Commonwealth v. Wolfe, 106 A.2d 800 (Pa. Super. 2014), in which we
deemed unconstitutional, pursuant to Alleyne, mandatory minimum
sentences under 42 Pa.C.S.A. § 9718(a)(1). The Pennsylvania Supreme Court
subsequently affirmed the decision of this Court. See Commonwealth v.
Wolfe, 140 A.3d 651 (Pa. 2016).

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      1. Was it error to deny [Torres-Kuilan] post-conviction relief
      where he was not present for all [trial] proceedings?

      2. Was it error to deny [Torres-Kuilan] post-conviction relief
      where a child witness/victim was colloquied with the jury present?

Brief of Appellant, at 4.

      We begin by noting our standard of review in this matter:

      On appeal from the denial of PCRA relief, our standard of review
      calls for us to determine whether the ruling of the PCRA court is
      supported by the record and free of legal error. The PCRA court’s
      findings will not be disturbed unless there is no support for the
      findings in the certified record.     The PCRA court’s factual
      determinations are entitled to deference, but its legal
      determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations omitted).

      Both of Torres-Kuilan’s issues involve claims that trial counsel was

ineffective. “It is settled that the test for counsel ineffectiveness is the same

under both the Pennsylvania and Federal Constitutions: it is the performance

and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 []

(1984).” Commonwealth v. Gribble, 863 A.2d 455, 460 (Pa. 2004).

      [T]he constitutional ineffectiveness standard requires the
      defendant to rebut the presumption of professional competence
      by demonstrating that: (1) his 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. A failure to satisfy any prong of the test for
      ineffectiveness will require rejection of the claim.

Commonwealth v. Spotz, 870 A.2d 822, 829–30 (Pa. 2005) (internal

citations omitted). “If it is clear that Appellant has not demonstrated that

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counsel’s act or omission adversely affected the outcome of the proceedings,

the claim may be dismissed on that basis alone and the court need not first

determine     whether     the    first   and   second   prongs   have   been   met.”

Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998)

        Torres-Kuilan first claims that trial counsel was ineffective for not

objecting to Torres-Kuilan’s absence from the courtroom during the court’s

examination of Vicki Hackenburg, the witness coordinator for the child victim,

which occurred as part of the court’s determination as to whether the child

witness qualified to testify by alternative methods pursuant to 42 Pa.C.S.A. §

5985.2     At trial, Torres-Kuilan was properly sequestered during the child’s
____________________________________________


2   Section 5985 provides as follows:

        (a) Contemporaneous alternative method.--Subject to subsection
        (a.1), in any prosecution or adjudication involving a child victim
        . . . , the court may order that the testimony of the child victim
        . . . be taken under oath or affirmation in a room other than the
        courtroom and transmitted by a contemporaneous alternative
        method. Only the attorneys for the defendant and for the
        Commonwealth, the court reporter, the judge, persons necessary
        to operate the equipment and any person whose presence would
        contribute to the welfare and well-being of the child victim . . . ,
        including persons designated under section 5983 (relating to
        rights and services), may be present in the room with the child
        during his testimony. The court shall permit the defendant to
        observe and hear the testimony of the child victim . . . but shall
        ensure that the child cannot hear or see the defendant. The court
        shall make certain that the defendant and defense counsel have
        adequate opportunity to communicate for the purposes of
        providing an effective defense.         Examination and cross-
        examination of the child victim . . . shall proceed in the same
        manner as normally permitted.



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colloquy by the court, but was not returned to the courtroom for Hackenburg’s

testimony. Torres-Kuilan argues that his absence violated his constitutional

right to confrontation, as well as section 5985, and that he “could have

contributed to the questioning of the [w]itness [c]oordinator.”            Brief of

Appellant, at 8. He is entitled to no relief.

       Under both the United States Constitution and the Pennsylvania
       Constitution, the right to confrontation specifically guarantees a
       person accused of a crime the right “to be confronted with the
____________________________________________


       (a.1) Determination.--Before the court orders the child victim . . .
       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
       . . . suffering serious emotional distress that would substantially
       impair the child victim’s . . . ability to reasonably communicate.
       In making this determination, the court may do all of the
       following:

          (1) Observe and question the child victim . . ., 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
          . . . in a medical or therapeutic setting.

       (a.2) Counsel and confrontation.--

          (1) If the court observes or questions the child victim . . .
          under subsection (a.1)(1), the attorney for the defendant
          and the attorney for the Commonwealth have the right to
          be present, but the court shall not permit the defendant to
          be present.

          (2) If the court hears testimony under subsection (a.1)(2),
          the defendant, the attorney for the defendant and the
          attorney for the Commonwealth have the right to be
          present.

42 Pa.C.S.A. § 5985.

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J-A28042-18


      witnesses against him.”          United States Constitution, Sixth
      Amendment; Pennsylvania Constitution, Art. I, § 9. As the United
      States Supreme Court has explained, the right to confrontation is
      basically a trial right, and includes both the opportunity for cross-
      examination of the witnesses and the occasion for the jury to
      consider the demeanor of the witnesses. Barber v. Page, 390
      U.S. 719, 725[] (1968). “The central concern of the Confrontation
      Clause is to ensure the reliability of the evidence against a criminal
      defendant by subjecting it to rigorous testing in the context of an
      adversary proceeding before the trier of fact.” Maryland v.
      Craig, 497 U.S. 836, 845[] (1990).

Commonwealth v. Gordon Charles Williams, 84 A.3d 680, 684 (Pa. 2014).

      In addition,

      The United States Supreme Court has ruled that the Due Process
      Clause of the Fourteenth Amendment to the U.S. Constitution
      requires that an accused, “even in situations where the defendant
      is not actually confronting witnesses or evidence against him,” has
      a constitutional right “to be present in his own person whenever
      his presence has a relation, reasonably substantial, to the fullness
      of his opportunity to defend against the charge.” Snyder v.
      Massachusetts, 291 U.S. 97, 105–06 [] (1934), rev’d on other
      grounds, Malloy v. Hogan, 378 U.S. 1 [] (1964). Accordingly, “a
      defendant is guaranteed the right to be present at any stage of
      the criminal proceeding that is critical to its outcome if his
      presence would contribute to the fairness of the procedure.”
      Kentucky v. Stincer, 482 U.S. 730, 745 [] (1987). A co-
      extensive constitutional right exists under Article I, § 9 of the
      Pennsylvania Constitution. Commonwealth v. Hill, 737 A.2d
      255, 258 (Pa. Super. 1999); Commonwealth v. Carter, [] 281
      A.2d 75, 80 (Pa. Super. 1971) (adopting the Snyder “fullness of
      the opportunity” test).

Commonwealth v. Lucillious Williams, 959 A.2d 1272, 1281 (Pa. Super.

2008), aff'd, 9 A.3d 613 (Pa. 2010).

      In Gordon Charles Williams, supra, our Supreme Court held that a

section 5985 hearing is not a critical stage of a criminal proceeding and, thus,

a defendant’s right “to be confronted with the witnesses against him,” as


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guaranteed under the Sixth Amendment to the United States Constitution and

Article 1, Section 9 of the Pennsylvania Constitution, is not subject to

preservation or loss in a hearing to determine whether a child witness is

qualified to testify by alternative methods.      Id. at 686-87.    Accordingly,

Torres-Kuilan’ constitutional claims fail.

        Moreover, Torres-Kuilan has failed to demonstrate that he suffered any

prejudice as a result of his absence during Hackenburg’s testimony.           “To

demonstrate prejudice, [an] appellant must show there is a reasonable

probability that, but for counsel’s error, the outcome of the proceeding would

have been different.” Commonwealth v. Wright, 961 A.2d 119, 148 (Pa.

2008), citing Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

Here, Torres-Kuilan’s sole argument is that he “could have contributed to the

questioning of the [w]itness [c]oordinator.” Brief of Appellant, at 8. However,

he does not suggest what questions he might have instructed counsel to ask

or explain how the result of his trial would have been different. Indeed, the

PCRA court concluded that, even without the testimony of the witness

coordinator, it would have allowed the child to testify remotely.      See N.T.

PCRA Hearing, 5/1/18, at 5.3
____________________________________________


3   The court stated the following at the PCRA hearing:

        [B]efore permitting the child to testify, . . . the [c]ourt must
        determine that the child victim would suffer serious emotional
        distress that would substantially impair the child victim[’s] . . .
        ability to reasonably communicate. N[umber] 1 is to observe and



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       Because Torres-Kuilan is unable to establish that he was prejudiced by

his physical absence during Hackenburg’s testimony, his ineffectiveness claim

must fail. Wright, supra.

____________________________________________


       question the child victim either inside or outside the courtroom.
       Based on that alone, the [c]ourt was able to make its
       determination. So even if we totally struck everything Ms.
       Hackenb[u]rg said, the [c]ourt was able to make that
       determination by its own observations of the child.

N.T. PCRA Hearing, 5/1/18, at 4-5. In addition, immediately following the
section 5985 colloquy, the court noted the following:

       The [c]ourt 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 [c]ourt 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’s also consistent with
       the [c]ourt’s own observations.

                                           ...

       So the [c]ourt has had an opportunity to observe [the child victim]
       before at prior proceedings where she’s extremely quiet and
       bashful and does take her 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 [Torres-Kuilan’s]
       presence would make it scary for her, and given her physical
       reactions to everything, the [c]ourt finds that being in the
       presence of the fact finder and [Torres-Kuilan] or either one of
       them would result in [the child victim] suffering serious emotional
       distress and would substantially impair her ability to reasonably
       communicate[.]

N.T. Trial, 3/25/15, at 46-47.




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      Next, Torres-Kuilan claims that trial counsel was ineffective for not

objecting to the presence of the jury during the child victim’s competency

hearing.   Torres-Kuilan asserts that counsel’s failure to request the jury’s

removal “was not designed to further the interests of the defense” and that

“in a case with utterly no physical evidence, even the unwitting endorsement

of a victim/witness by the [t]rial [c]ourt could and did turn the tide to the

prosecution.” Brief of Appellant, at 10. Torres-Kuilan relies on our Supreme

Court’s decision in Commonwealth v. Washington, 772 A.2d 643 (Pa.

1998), which created a per se rule that competency hearings should be held

outside the presence of the jury. Torres-Kuilan is entitled to no relief.

      Although Washington did purport to establish a per se rule requiring

competency examinations to be held outside the jury’s presence, more than

ten years after its decision in Washington, the Court issued Commonwealth

v. Ali, 10 A.3d 282 (Pa. 2010), in which the facts were remarkably similar to

those of the case at bar. Ali was an appeal from the dismissal of a PCRA

petition in which the defendant had raised numerous claims of ineffectiveness,

including a layered claim regarding trial counsel’s failure to object to the trial

court conducting the competency examination of the murder victim’s minor

daughter in the presence of the jury. There, the court held a brief competency

hearing with the jury present. At the conclusion of counsel’s questioning of

the child witness, the court stated:        “I find that [the child witness] is

competent and she is capable of having the intelligence and understands the

obligation of telling the truth.” Id. at 298-99.

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       The Court began its analysis by discussing Washington,4 and noted

that “the fact that a child competency examination is conducted in front of the

jury is not inherently prejudicial—and certainly not in a heightened Strickland

sense.    The Washington Court recognized as much; its per se rule was

adopted as a prophylactic measure.” Id. at 299. The Court further observed

that the appellant did not “claim that there was anything particularly

prejudicial about the substance of the brief in-court competency examination

and ruling . . ., beyond the bare fact that both the examination, and the court’s

finding of competency, were placed before the jury.” Id. The Court then

reviewed the trial court’s on-the-record statement regarding competency,

observing that the court did not vouch for the credibility of the child. Rather,

       [T]the court’s ruling was stated in neutral terms: the court spoke
       only of the child being “capable of having the intelligence and
       understands the obligation of telling the truth.” This ruling did not
       suggest that the court believed that the child—who had not yet
       testified—would, in fact, accurately relate events and would tell
       the truth; rather, the court spoke narrowly of capacity and
       obligation. Although it is from the mouth of the judge, in
       substance, this is what adult witnesses convey when they take an
       oath—even if they intend to violate it.


____________________________________________


4 Ali’s trial occurred seven years before the Supreme Court issued its decision
in Washington. Thus, the Court noted that trial counsel could not have been
faulted for “failing to forward a request for the per se rule that the
Washington majority ultimately devised.” Ali, 10 A.3d at 298. On the other
hand, the Court conceded that “there was a basis in the law in 1991 for trial
counsel to request that the court, in its discretion, conduct the competency
examination outside the presence of the jury” and that “there was nothing to
prevent counsel from requesting an explanatory charge.” Id. Thus, for
purposes of its decision in Ali, the Court assumed arguable merit in the
underlying layered claim.

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Id. at 300.

      The Court further noted that defense counsel’s cross-examination of the

child, as well as questioning by the court, exposed inconsistencies in her

statements and her memory. Because her testimony occurred immediately

following the competency examination, the Court could not discern any

prejudice from the competency examination alone.          Moreover, on multiple

occasions, the trial court explicitly instructed the jury that it was the sole

arbiter of witness credibility. Finally, the Court noted that, while the child was

an important witness, her identification of the appellant as the killer and her

general account of the killing were echoed by adult witnesses. Thus, the Court

concluded that Ali had failed to establish a reasonable probability that, if only

the competency examination and ruling had occurred outside the presence of

the jury, the outcome of the trial would have been different.

      Similarly to Ali, here, Torres-Kuilan has not claimed that there was

anything prejudicial about the substance of the brief in-court competency

examination and ruling, aside from the fact that they both occurred in the

presence of the jury. The Honorable Michael H. Sholley engaged in a brief

competency examination of the child victim. Judge Sholley asked her age,

her birthday, and whether she knew the difference between telling the truth

and telling a lie. The court asked her if one of them is good and one of them

is bad. The court then provided an example of a lie and asked the victim to

identify whether it was a lie, and why. Judge Sholley asked her if she would

get in trouble for telling a lie or for telling the truth, and whether she knew

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what a promise was. After the child victim answered these questions, the

court concluded as follows:          “The [c]ourt finds [victim] is competent to

testify.” N.T. Trial, 3/25/15, at 55. This statement was even more neutral

than that made by the trial court in Ali.5

       In addition, as in Ali, the child testified immediately following her

competency exam and was subject to cross-examination, which exposed at

least one inconsistency in her recall of events.6 Judge Sholley also instructed

the jury, both before the competency examination and during the jury charge,

that it was the sole judge of credibility. Finally, as in Ali, although the child

victim   was    a   key    Commonwealth        witness,   multiple   adult   witnesses

corroborated her testimony. The child’s mother testified that, when she first

confronted Torres-Kuilan about the allegation, “he went pale and dropped his

cell phone.” N.T. Trial, 3/25/15, at 81. At a later date, following a church

service, Torres-Kuilan hugged her and said “Forgive me for what I did.” Id.

at 84. He again asked her for forgiveness when they subsequently ran into



____________________________________________


5 In fact, at the PCRA hearing, Torres-Kuilan’s counsel conceded that the trial
court’s statement affirming the child’s competency was entirely neutral,
stating “I don’t think that you could be more mild or diffuse it [sic] more than
what happened here, which was simply the [c]ourt finds [the victim] is
competent to testify.” N.T. PCRA Hearing, 5/1/18, at 9.

6On direct examination, the child indicated that the molestation had occurred
at Torres-Kuilan’s house, see N.T. Trial, 3/25/15, at 57, while on cross-
examination, she indicated that it had occurred at her house. See id. at 64.




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each other at a Walmart.7 Id. at 85. Pennsylvania State Police Troopers Jose

Monroig and James Nizinski both testified that, during their interview with

Torres-Kuilan, he admitted that he had slid the victim’s panties down and

inserted his finger inside her vagina. Id. at 104, 114.

          Based on the foregoing, Torres-Kuilan cannot establish that the outcome

of his trial would have been different had the competency examination of the

child victim been performed outside the presence of the jury.        Ali, supra.

Accordingly, he is entitled to no relief and the PCRA court properly denied

relief.

          Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2018




____________________________________________


7These statements by Torres-Kuilan were corroborated by two additional adult
witnesses, each of whom witnessed one of the interactions between Torres-
Kuilan and the victim’s mother.

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