J-A20027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
RODNEY LEE MOORE                        :
                                        :
                   Appellant            :   No. 1712 MDA 2016

         Appeal from the Judgment of Sentence September 20, 2016
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001251-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                      FILED FEBRUARY 27, 2018

      A jury convicted Appellant, Rodney Moore, on charges of corruption of

minors, unlawful contact with a minor, and indecent assault of a child under

13. These charges were based on allegations that Moore had placed his hand

under the clothing and on the vagina of a child he thought was sleeping. On

appeal, Moore challenges the weight and sufficiency of the evidence

presented at trial due to inconsistencies in that evidence. Furthermore, he

asserts the trial court erred in precluding him from presenting evidence the

victim had been interviewed regarding a sexual assault by a third party.

After careful review, we conclude Moore has not established he is entitled to

relief, and therefore affirm.

      Moore first challenges the sufficiency of the evidence supporting his

convictions. Our standard of review for a challenge to the sufficiency of the
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evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the

crimes   charged    is   established    beyond   a    reasonable    doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Commonwealth v.

Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder. See

Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Id. (citation omitted). Therefore, we will not

disturb the verdict “unless the evidence is so weak and inconclusive that as

a matter of law no probability of fact may be drawn from the combined

circumstances.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak

and inconclusive “[w]hen two equally reasonable and mutually inconsistent

inferences   can   be    drawn   from    the   same   set   of   circumstances…”

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).

      At trial, the victim testified she was between the ages of eight and

nine when Moore molested her. At that time, she lived in the trailer next to

Moore’s. Moore and his wife would occasionally watch the victim while her

mother worked or ran errands.


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     Of particular relevance were two nights when she slept in Moore’s

trailer. On the first night, she was sleeping on a couch while her mother was

away purchasing a car. She heard someone approach her, stick his hand

underneath her clothing, and touch her vagina. She kept her eyes closed

and pretended to sleep through the incident. The assault ended when the

assailant’s cell phone rang and he walked away to answer it. As he walked

away, the victim recognized Moore by his voice while he talked on the phone

with someone whom she believed to be her mother. The victim’s mother

came and brought the victim home shortly thereafter.

     The second incident occurred while the victim was sleeping on the floor

of Moore’s young son’s bedroom. It was the early morning, and Moore’s son

and wife were in the kitchen eating breakfast. She woke up to find Moore

touching her vagina under her clothing. Once again, the victim feigned that

she was asleep during the assault. Moore pulled his hand from under her

clothing and shook her shoulder in an effort to “wake” her for breakfast. The

two then proceeded into the kitchen with Moore’s wife and son.

     On appeal, Moore argues this testimony is irreconcilable with the

victim’s prior statements and with incontrovertible natural facts. He notes

the victim’s testimony that the assaults on two separate occasions differs

from her initial statements that they occurred on the same night.

Furthermore, Moore asserts the victim’s trial testimony that he moved his

hand under her clothing is irreconcilable with her previous statement that he


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had not moved his hand. He highlights conflicts in the evidence on the issue

of whether the victim’s brother was in Moore’s trailer at the time of the

assaults. Finally, he notes the victim’s mother testified she had not spoken

to Moore by phone on the night of the first assault, but rather texted with

him. Thus, he argues, the victim’s testimony that she heard Moore speaking

on the phone to her mother after the first assault is inherently not credible.

      Moore argues that under Commonwealth v. Karkaria, 625 A.2d

1167 (Pa. 1993), these inconsistencies render any verdict based upon the

victim’s testimony unreliable. In Karkaria, our Supreme Court threw out a

conviction where the victim testified the defendant had assaulted her at

times when it was undisputed the defendant was not physically present. See

id., at 1171.

      After reviewing the record, we conclude the inconsistencies pointed out

by Moore do not render the jury’s verdict mere surmise or conjecture. The

inconsistencies highlighted by Moore do not rise to the level of those present

in Karkaria. For example, whether the victim’s brother was present or not

does not affect whether the victim’s tale of the assault was possible. Rather,

it constitutes the sort of run-of-the-mill challenges to a witness’s credibility

that juries routinely resolve.

      Moore’s strongest argument, regarding the phone call that ended the

first assault, still does not render the victim’s rendition of the assault

impossible. It can be reconciled with mother’s testimony that she only texted


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Moore on the night of the assault by finding that either: a) mother’s

recollection was faulty, or b) Moore was talking to someone else other than

the victim’s mother, even though the victim believed it was her mother.

These findings were well within the bailiwick of the jury, and would not

render their ultimate verdict as mere surmise. Moore’s first issue on appeal

merits no relief.

      Next, Moore argues the jury’s verdict was against the weight of the

evidence presented at trial. We do not review challenges to the weight of the

evidence de novo on appeal. See Commonwealth v. Rivera, 983 A.2d

1211, 1225 (Pa. 2009). Rather, we only review the trial court’s exercise of

its discretionary judgment regarding the weight of the evidence presented at

trial. See id. “[W]e may only reverse the lower court’s verdict if it is so

contrary   to   the   evidence   as   to    shock   one’s   sense   of   justice.”

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted). A verdict is said to be contrary to the evidence such that it shocks

one’s sense of justice when “the figure of Justice totters on her pedestal,” or

when “the jury’s verdict, at the time of its rendition, causes the trial judge to

lose his breath, temporarily, and causes him to almost fall from the bench,

then it is truly shocking to the judicial conscience.” Commonwealth v.

Davidson, 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted).

      The trial court acknowledged the appropriate legal standards in

addressing Moore’s challenge and concluded the verdict did not shock its


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conscience. Having reviewed the record, we cannot conclude the trial court

abused its discretion. The victim’s testimony contains inconsistencies, but no

more than might be expected of a minor testifying to traumatic events from

early childhood. Moore's second issue on appeal merits no relief.

      In his final issue on appeal, Moore contends the trial court erred in

precluding him from presenting evidence the victim had been interviewed by

a social agency regarding possible abuse at the hands of a third party. “A

trial court’s ruling on the admissibility of evidence of the sexual history of a

sexual abuse complainant will be reversed only where there has been a clear

abuse of discretion.” Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.

Super. 2009) (en banc) (citations omitted).

      Pennsylvania’s Rape Shield Law provides, in pertinent part, as follows:

      (a)   General rule.—Evidence of specific instances of the
            alleged victim’s past sexual conduct, opinion evidence of
            the alleged victim’s past sexual conduct, and reputation
            evidence of the alleged victim’s past sexual conduct shall
            not be admissible in prosecutions under this chapter
            except evidence of the alleged victim’s past sexual conduct
            with the defendant where consent of the alleged victim is
            at issue and such evidence is otherwise admissible
            pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a). “The purpose of the Rape Shield Law is to prevent a

trial from shifting its focus from the culpability of the accused toward the

virtue and chastity of the victim. The Rape Shield Law is intended to exclude

irrelevant and abusive inquiries regarding prior sexual conduct of sexual




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assault complainants.” Burns, 988 A.2d at 689 (citations omitted). See also

4 Summ. Pa. Jur. 2d Criminal Law § 15:22 (2d ed.).

          There are recognized exceptions to the Rape Shield Law. For instance,

the Rape Shield Law does not provide a basis for the exclusion of relevant

evidence that attributes a motive to lie to the victim. See Commonwealth

v. Allburn, 721 A.2d 363, 367 (Pa. Super. 1998).

          Moore argues evidence of the reported abuse by a third party is

relevant to the victim’s credibility. The trial court excluded the evidence

because it was unduly prejudicial and not relevant to the issue of whether

Moore had assaulted the victim. Moore fails to establish this evidence implies

the victim had a motive in this case. Therefore, we cannot conclude the trial

court abused its authority. Moore’s final claim on appeal therefore merits no

relief.

          As Moore has not established any grounds for reversal, we affirm the

judgment of sentence.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18



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