J-S40044-23 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

MANISHKUMAR PATEL 

 Appellant 

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 1610 EDA 2023 

Appeal from the Judgment of Sentence Entered May 30, 2023 

In the Court of Common Pleas of Monroe County 

Criminal Division at No(s): CP-45-CR-0001772-2022 

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 17, 2024

 Manishkumar Patel appeals from the judgment of sentence that was 

imposed following a jury trial in which he was found guilty of indecent assault 

of a person less than thirteen, corruption of a minor, and unlawful contact with 

a minor.1 The lower court correspondingly sentenced Patel to a term of 

incarceration amounting to nine to twenty-four months, less one day, to be 

thereafter followed by three years of probation. Patel was further adjudicated 

a Tier III sex offender and subject to lifetime registration requirements. See 

42 Pa.C.S. § 9799.23. On appeal, Patel exclusively contests whether the court 

erred in permitting the child victim to testify against him via a 

contemporaneous alternative method. See 42 Pa.C.S. § 5985(a). Following 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 

1 See 18 Pa.C.S. § 3126(a)(7), 18 Pa.C.S. § 6301(a)(1)(i), and 18 Pa.C.S. § 

6318(a)(1), respectively. 
J-S40044-23 

- 2 - 

review, we remand this matter for the limited purpose of allowing the lower 

court to correct the sentencing order but affirm Patel’s judgment of sentence 

in all other respects. 

 Briefly, as gleaned from the record, Patel was a maintenance employee 

at a Staybridge Inn and Suites hotel. The victim, who was eleven years old at 

the time, was staying at this hotel with her grandmother. While on her way 

back from purchasing a soft drink from the hotel’s lobby, Patel grabbed the 

victim’s arm and kissed her on the mouth in the hotel’s stairwell. Patel then 

thanked the victim and indicated something to the effect that he would see 

her next time. After that, the victim proceeded to walk up the stairs and, 

distraught by the situation, conveyed to her grandmother what had happened. 

Ultimately, the grandmother called the police, who proceeded to conduct 

interviews and review the hotel video surveillance leading up to the incident. 

Although the video did not capture what had happened in the stairwell, it 

showed Patel looking at the victim, entering the stairwell just before her, and 

then a few minutes later, coming out of the stairwell by himself. 

 Prior to trial, the Commonwealth filed a motion that sought an in camera

hearing for the court to determine whether the victim could testify by 

contemporaneous alternative method. After extensive questioning of both the 

victim and the victim’s mother, the court granted the Commonwealth’s 

motion. Following a one-day trial in which the victim testified by way of video 

in another room, a jury convicted Patel of the three aforementioned crimes. 

 After sentencing, Patel filed a post-sentence motion, which resulted in a 
J-S40044-23 

- 3 - 

clarification, by further order of court, that his sentencing order was to include 

a total time credit of 210 days for pre-trial time he had spent incarcerated.2

Patel then filed a timely notice of appeal and, too, submitted a timely concise 

statement of errors complained of on appeal. 

 On appeal, Patel challenges the court’s allowance of testimony from the 

victim via a contemporaneous alternative method. See Appellant’s Brief, at 4. 

Patel believes that allowing this testimony was either an abuse of discretion 

or error of law. See id. 

 We begin by noting our well-settled standard of review: 

The admissibility of evidence is at the discretion of the trial court 

and only a showing of an abuse of that discretion, and resulting 

prejudice, constitutes reversible error. 

The term “discretion” imports the exercise of judgment, wisdom 

and skill so as to reach a dispassionate conclusion, within the 

framework of the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must be exercised 

on the foundation of reason, as opposed to prejudice, personal 

motivations, caprice or arbitrary actions. Discretion is abused 

when the course pursued represents not merely an error of 

judgment, but where the judgment is manifestly unreasonable or 

where the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill will. 

Commonwealth v. Hudson-Greenly, 247 A.3d 21, 24 (Pa. Super. 2021) 

(some quotation marks and citations omitted). 

 Of import here: 

The Sixth Amendment to the United States Constitution provides: 

____________________________________________ 

2

 The initial sentencing order reflected that he would be credited for 175 days 

of time served. 
J-S40044-23 

- 4 - 

“In all criminal prosecutions, the accused shall enjoy the right ... 

to be confronted with the witnesses against him ...” Article 1, 

Section 9 of the Pennsylvania Constitution provides: “In all 

criminal prosecutions the accused hath a right ... to be confronted 

with the witnesses against him ....”2 With regard to the 

Confrontation Clause, the Pennsylvania Constitution provides a 

criminal defendant with the same protection as the Sixth 

Amendment[.] 

2 The Pennsylvania Constitution previously required “face to 

face” confrontation, and under such provision, the use of 

videoconferencing [ ] to present testimony was found to be 

unconstitutional. See Commonwealth v. Ludwig, 594 

A.2d 281 (Pa. 1991). The Pennsylvania Constitution was 

amended in 2003, removing the “face to face” language. 

Commonwealth v. Atkinson, 987 A.2d 743, 745 & n.2 (Pa. Super. 2009) 

(citation and footnote omitted) (some citation formatting altered). 

 Section 5985 dictates the circumstances under which a court may order 

the taking of a child victim’s testimony through a contemporaneous alternative 

method: 

(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 crossexamination of the child victim [ ] shall proceed in the same 
J-S40044-23 

- 5 - 

manner as normally permitted. 

(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. 

42 Pa.C.S. § 5985(a), (a.1) (emphasis added).3 

 In refuting the notion that a child victim is required to demonstrate some 

specific degree of emotional distress before a court can allow 

contemporaneous alternate method testimony, we have stated: 

Insofar as Appellant suggests that a child victim must essentially 

break down in [the trial court’s] presence before permitting 

testimony by contemporaneous alternative method, we need not 

belabor the absurdity of this proposition given our legislature’s 

clear policy expression in this regard. See 42 Pa.C.S. § 5981 

(declaring the General Assembly’s intent to provide special 

procedures as necessary [ ] to protect [the child victim] and to 

promote the best interests of victims and material witnesses of 

____________________________________________ 

3

 We note that “[f]ew published decisions address § 5985, and those that do 

have not announced a standard for reviewing the trial court’s decision. In 

[Commonwealth v. Torres–Kuilan, 156 A.3d 1229, 1231-32 (Pa. Super. 

2017)], this Court employed the principles of statutory construction to 

determine whether the Commonwealth’s proffer complied with § 5985’s 

terms.” Commonwealth v. Tyrrell, 177 A.3d 947, 952 (Pa. Super. 2018) 

(citation omitted). 
J-S40044-23 

- 6 - 

this Commonwealth who are under 18 years of age during their 

involvement with the criminal justice system). 

Commonwealth v. Strafford, 194 A.3d 168, 175 n.5 (Pa. Super. 2018). 

 With these precepts in mind, Patel avers that “[t]he evidence presented 

at the in camera hearing ... was insufficient to meet the [serious emotional 

distress] standard defined by the statute.” Appellant’s Brief, at 10. Patel then 

illuminates five pieces of authority in which this Court and/or our Supreme 

Court found the evidence to be satisfactory to allow each case’s child victim 

to provide testimony via a contemporaneous alternative method. See id., at 

12-13. Distilling those cases down, which featured clear examples of child 

victims exhibiting distress at the prospect of providing in-person testimony, 

see, e.g., Hudson-Greenly, 247 A.2d at 26, Patel does not believe that the 

court’s determination, here, was sufficiently supported by the record. In 

particular, Patel argues that the child victim’s in camera testimony 

established, simply, that she would be nervous testifying in court. Patel then 

concludes that “a mere showing of nervousness and discomfort does not meet 

the plain and ordinary meaning of serious emotional distress that would 

substantially impair the child victim’s ability to reasonably communicate.” 

Appellant’s Brief, at 14-15. 

 First, we emphasize that Patel has not indicated any specific way in 

which he was handicapped at trial through the child victim testifying via an 

alternative method. Absent any specificity, it is unclear how he was either 

harmed or prejudiced as a result of the court’s decision. Moreover, we note 
J-S40044-23 

- 7 - 

that the trial court properly instructed the jury at trial that it was to evaluate 

the victim’s testimony in the same manner as testimony given in court. See

N.T., 2/8/23, at 184-85. 

Second, Patel has failed to demonstrate that the evidence was 

insufficient for the court to find that the child victim would have suffered 

serious emotional distress, impacting her ability to communicate, should she 

have been called on to provide live testimony at his trial. Here, following 

examination of the victim and victim’s mother, the court predicated its 

decision on both the statements that the victim and the victim’s mother made, 

juxtaposing these statements against its own observations, which it was 

required to do under Section 5985. At the hearing, the child victim indicated 

that she “[p]robably wouldn’t be able to” tell her story about what happened 

in front of the jury. N.T., 1/9/23, at 14. The child victim further indicated that 

she would be so nervous that she would be unable to explain everything that 

happened. See id., at 14-15. She also expressed nervousness just thinking 

about the prospect of providing in-person testimony. See id., at 15. The child 

victim said that her nervousness could cause her to laugh. See id. In total, 

the child victim explicitly stated that it would be a problem for her to tell her 

story in a courtroom setting. See id., at 16. 

The child victim’s mother expressed similar sentiments as the victim. 

She believed that if her “daughter had to testify in front of [Patel] in an open 

courtroom with other people present ... [it would cause] her emotional trauma 
J-S40044-23 

- 8 - 

or stress to the point where it may affect her ability to talk about it[.]” Id., at 

20. The child’s mother reported that the victim had trouble sleeping, did not 

want to eat, and became very depressed after the incident, not wanting to 

talk to anybody. See id., at 20, 22 (conveying, further, that some of the child 

victim’s behaviors have gotten better as time progressed, but some negative 

manifestations had remained). In the mother’s opinion, the child victim was 

trying to forget what had happened, not wanting to talk about it. See id., at 

20-21. Moreover, the child victim “has a very big problem with being around 

people [that] has gotten worse.” Id., at 22-23. 

At the conclusion of the hearing, the trial court granted the 

Commonwealth’s motion to present the victim’s testimony via a 

contemporaneous alternative method, explaining that the victim would 

have substantial difficulty conveying what happened in a 

[courtroom] setting. She was visibly uncomfortable when [the 

court] described the layout of what the courtroom would look like. 

She started to fidget, and obviously [was] nervous about it. So 

[the court does not] want to have some experiment where [it] 

put[s] her in there to see if . . . it would just be normal 

nervousness. [T]he [victim’s] mother clearly indicated that it 

would be difficult for her as well. 

Id., at 28. 

Through an extensive review of the child victim’s testimony as well as 

the testimony of the victim’s mother, there is clear support for the court’s 

finding that providing in-person testimony would have caused the victim 

serious emotional distress to such an extent that it would have impacted her 

ability to reasonably communicate what had happened. See Commonwealth 
J-S40044-23 

- 9 - 

v. Lamont, 308 A.3d 304, 311-12 (Pa. Super. 2024) (affirming grant of 

motion for testimony via contemporaneous alternative method where 

testimony of victim and victim’s mother established that victim withdrew from 

sports and activities after indecent assault incidents, victim would be nervous 

and uneasy testifying in front of defendant, and victim likely would not be able 

to “tell what happened” if she testified in court). Therefore, we discern no 

error or abuse of discretion in its decision to permit the child victim to testify 

via a contemporaneous alternative method and affirm Patel’s judgment of 

sentence. 

Notwithstanding our affirmance of Patel’s judgment of sentence, our 

review of the record has uncovered a problem in his sentencing order, 

implicating the legality of his sentence. See Commonwealth v. Watson, 228 

A.3d 928, 941 (Pa. Super. 2020) (issues relating to the legality of a sentence 

may be raised sua sponte by an appellate court). As written, corresponding 

with his unlawful contact with a minor conviction, Patel was sentenced to a 

term of incarceration “for not less than 9 months with a maximum not to 

exceed 24 months, less one day[.]” Sentencing Order, 5/30/23, at 1 

(unpaginated). As to indecent assault of a person less than thirteen, Patel was 

sentenced to “probation for a period of three ... years[.]” Id. This sentence 

was ordered to “run concurrent” to the term of incarceration. Id., at 2 

(unpaginated). For corruption of minors, Patel was sentenced to one year of 

probation, ordered to “run concurrent” to the other two sentences. Id. 
J-S40044-23 

- 10 - 

Therefore, the sentencing order indicates that Patel’s probationary terms are 

to run concurrently with his carceral term.4 

Pursuant to 42 Pa.C.S. § 9721(a), sentences including orders of 

probation and total imprisonment, among other sentencing alternatives, may 

be imposed “consecutively or concurrently.” On prior occasions, however, 

when we have been confronted with situations where imprisonment and 

probationary terms have been imposed concurrently, we have ruled that the 

resulting combined service of these terms is incompatible, resulting in an 

illegal sentence. In Commonwealth v. Basinger, 982 A.2d 121, 127 (Pa. 

Super. 2009), we noted: “No section of the Sentencing Code contemplates 

imprisonment as an element of a probationary sentence; probation is in fact 

a less restrictive alternative to imprisonment directed at rehabilitating the 

defendant without recourse to confinement during the probation period.” In 

Commonwealth v. Allshouse, 33 A.3d 31, 36 (Pa. Super. 2011), overruled 

on other grounds by Commonwealth v. Simmons, 262 A.3d 512 (Pa. 

Super. 2021) (en banc), we stated: “[W]e find no support in the Pennsylvania 

statutes that the General Assembly intended to permit defendants to serve a 

term of probation and term of state incarceration simultaneously.” 

____________________________________________ 

4

 In addition to the sentences that were imposed at each offense, the court 

imposed an additional three-year term of probation, consecutive to his other 

sentences. See Sentencing Order, 5/30/23, at 3 (unpaginated). The 

imposition of this probation term was mandatory under SORNA. See 42 

Pa.C.S. § 9718.5(a). 
J-S40044-23 

- 11 - 

As our prevailing caselaw prohibits concurrent terms of imprisonment 

and probation, we must remand for the lower court to rectify Patel’s 

sentencing scheme and to ensure that an illegal sentence has not been 

imposed. 

Judgment of sentence vacated. Case remanded for correction of 

sentencing order. Judgment of sentence affirmed in all other respects. 

Jurisdiction relinquished. 

Date: 7/17/2024