Commonwealth v. Torres-Kuilan, 698 MDA 2016
Citation | 156 A.3d 1229 |
Decision Date | 27 February 2017 |
Docket Number | No. 698 MDA 2016,698 MDA 2016 |
Parties | COMMONWEALTH of Pennsylvania, Appellee v. Alexander TORRES–KUILAN, Appellant |
Court | Pennsylvania Superior Court |
Brian W. Ulmer, Public Defender, Lewisburg, for appellant.
Martin R. Wilson, Assistant District Attorney, Lewisburg, for Commonwealth, appellee.
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 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. 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. SeeCommonwealth v. Spell , 611 Pa. 584, 28 A.3d 1274, 1280 (2011) ( ), and Pa.R.A.P. 302(a) ( ).
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:
42 Pa.C.S. § 5985(a.1)(2).
Our standard of review for questions of statutory interpretation is well-settled:
Commonwealth v. Popielarcheck , 151 A.3d 1088, 1091–92, 2016 WL 7103930 at *2 (Pa. Super. 2016).
Torres–Kuilan argues that Hackenburg was neither a parent or custodian of the child. Therefore, the trial court could properly consider her 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:
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 has the reasonable ability to communicate with the jury. To this end, Hackenburg testified, in relevant part:
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