Com. v. Torres-Kuilan, A. , 156 A.3d 1229 ( 2017 )

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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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