Commonwealth v. Torres-Kuilan, 156 A.3d 1229

Defendant Alexander Torres-Kuilan was convicted by a jury of multiple sexual-assault offenses involving his then-four-year-old niece and sentenced to an aggregate of 4–10 years’ incarceration plus five years’ probation.
At trial the victim was seven years old; the Commonwealth sought to have her testify via closed-circuit television (CCTV) under 42 Pa.C.S. § 5985 due to competency and emotional-distress concerns.
On the first day of trial the child refused to enter the courtroom and cried; the court held an in camera Section 5985 hearing to determine whether alternative testimony was appropriate.
The court observed the child and also heard testimony from Vicki Hackenburg, a witness coordinator who accompanied the child and described the child’s behavior and agitation.
Torres-Kuilan was not present for Hackenburg’s testimony and objected on appeal that (1) he was improperly excluded from that portion of the hearing and (2) the court improperly relied on Hackenburg’s testimony to permit CCTV testimony.
The Superior Court affirmed, holding the exclusion issue waived for lack of timely objection and that Hackenburg’s testimony was relevant and properly considered along with the court’s own observations in applying § 5985.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Torres-Kuilan)	Held
Whether defendant was improperly excluded from hearing testimony of a non-parent witness (Hackenburg) during the § 5985 in camera proceeding	The court properly conducted the in camera hearing and procedural attendance limits apply under § 5985; any attendance objections should have been raised below	§ 5985(a.2)(2) permitted defendant to be present during testimony of a parent/custodian or other witness, so exclusion was improper	Waived: defendant failed to object at trial; issue not preserved for appeal
Whether the trial court erred by relying on Hackenburg’s testimony to find the child would suffer serious emotional distress and allow CCTV testimony under § 5985(a.1)	Testimony from a person who dealt with the child (or any relevant witness) is permissible and relevant; the court may also rely on its own observations under § 5985(a.1)(1)	Hackenburg was not a parent/custodian nor a medical/therapeutic provider; allowing such lay testimony creates risk of overly broad reliance on anyone with brief contact	Affirmed: Hackenburg’s testimony was relevant and supplemented the court’s independent observations; § 5985 does not limit the court to only parents/medical providers

Commonwealth v. Spell, 28 A.3d 1274 (Pa. 2011) (failure to raise timely objection waives issue)
Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013) (standard of review and approach to statutory interpretation)
Commonwealth v. McCoy, 962 A.2d 1160 (Pa. 2009) (apply Statutory Construction Act; plain meaning controls)
Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006) (discusses § 5985 considerations including trauma and ability to communicate)