J-A22001-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

RODNEY NISSLEY

                          Appellant                 No. 2182 MDA 2014


           Appeal from the Judgment of Sentence August 28, 2014
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0002513-2013


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 09, 2015

       Rodney Nissley appeals from the judgment of sentence of ten to

twenty years incarceration followed by ten years probation imposed by the

trial court after a jury found him guilty of three counts each of aggravated

indecent assault and indecent assault, and one count each of aggravated

indecent assault of a child, indecent exposure, corruption of a minor, and

unlawful contact with a minor. We affirm.

       Appellant adopted the victim when she was three years old. Beginning

when the victim was in the third grade, Appellant began to touch her

inappropriately on her genitalia and breasts. The victim asserted that when

she was between seven and eight years of age that Appellant also attempted

to put his penis inside her vagina. He would at other times masturbate and
*
    Retired Senior Judge assigned to the Superior Court.
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ejaculate on her stomach.         In addition, when the victim was between the

ages of eleven and twelve, Appellant would remove the victim’s bra and

touch her breasts. This transpired once or twice a week for ten to fifteen

minutes.

       The victim told her boyfriend of the incidents of being touched on her

chest when she was in middle school and again complained to him of the

abuse on November 20, 2012, after she got into an argument with Appellant

when she went to another boy’s home while his parents were not home.1 At

that time, she was fourteen years old. The victim’s boyfriend then, without

providing details to his mother, disclosed that the victim needed help. The

mother told him that the victim needed to speak with her guidance

counselor. Accordingly, the next day, at school, the victim and her boyfriend

went to the guidance counselor, to whom the victim reported the abuse.

       Police were alerted and an investigation ensued.        As part of the

investigation, the victim was interviewed by an entity called the Children

Resource Center (“CRC”).          During the interview, she was asked whether

anyone had taken pictures of her naked.           The victim responded in the

negative.    Prior to trial, Appellant requested to introduce evidence via an

email exchange with the victim and her then-boyfriend that indicated that
____________________________________________


1
   The victim described her relationship with her boyfriend as being really
good friends and then beginning to date in eighth grade. She maintained
that they hugged and kissed and that was the extent of their relationship.



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the boyfriend was in possession of a picture of the victim’s naked genitalia.

The trial court precluded this evidence and the case proceeded to trial. The

jury found Appellant guilty of the aforementioned charges, and could not

reach a verdict on counts of rape of a child, statutory sexual assault, and

incest.

      Thereafter, the trial court conducted a joint sexually violent predator

and sentencing hearing.     The court sentenced Appellant to an aggregate

sentence of ten to twenty years imprisonment to be followed by ten years of

probation.   Appellant filed a timely post-sentence motion, which the court

denied.   This appeal ensued.    Appellant raises one issue for our review,

“Whether the trial court erred in excluding impeachment evidence which

would have shown that the alleged victim lied during her children’s resource

center interview?” Appellant’s brief at 4.

      Appellant’s claim relates to the trial court’s admission of evidence.

Evidentiary rulings are governed by an abuse of discretion standard.

Commonwealth v. Moser, 999 A.2d 602 (Pa.Super. 2010). The trial court

ruled that the victim’s statement to CRC was not inconsistent with the

existence of a naked photograph.      It further ruled that the evidence was

collateral to the allegations and would not have altered the verdict.

Appellant argues that the excluded evidence was relevant, did not violate

the Rape Shield Law, and was not collateral to the main issue in the case.

In addition, he maintains that any confusion over whether the interviewer’s

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question included whether the victim herself took a picture of herself naked

should be construed in his favor.

        The Commonwealth now asserts that the victim took the picture

herself and that the trial court correctly ruled that the question in the CRC

interview asked whether another person took such a picture.             It further

maintains that the context of the interview concerned sexual abuse and

therefore any ambiguity in the question is resolved by considering the

context of the question.

        Additionally, it submits that the allegation pertains to a collateral issue

and that a witness’s credibility cannot be impugned by specific instances of

conduct that do not result in the conviction of a crime. The Commonwealth

relies on Commonwealth v. Minich, 4 A.3d 1063 (Pa.Super. 2010).

Therein, the defendant was charged with sex offenses against two minors.

The defendant sought to introduce into evidence the fact that one of the

victims had allegedly been caught lying in school about matters unrelated to

the allegations against him.          This Court, based on Pa.R.E. 608 2 and its

____________________________________________


2
    The rule currently reads:

        (a) Reputation Evidence. A witness's credibility may be attacked
        or supported by testimony about the witness's reputation for
        having a character for truthfulness or untruthfulness. But
        evidence of truthful character is admissible only after the
        witness's character for truthfulness has been attacked. Opinion
        testimony about the witness's character for truthfulness or
(Footnote Continued Next Page)


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prohibition against the use of specific instances of conduct to attack the

character of a witness for truthfulness, reversed the trial court’s decision to

allow that evidence.

      Assuming arguendo that the question asked of the victim included an

inquiry into whether she herself had taken a naked picture of her own body,

and that she lied, we find that the evidence was not admissible under the

Minich Court’s interpretation of Rule 608. Here, whether she took a picture

of herself naked does not pertain to the allegations she made against

Appellant. This fact is unrelated to the charges. Moreover, it is a specific

instance of conduct. For these reasons, the trial court did not err.




                       _______________________
(Footnote Continued)

      untruthfulness                   is         not         admissible.

      (b) Specific Instances of Conduct. Except as provided in Rule
      609   (relating   to   evidence  of   conviction  of  crime),

      (1) the character of a witness for truthfulness may not be
      attacked or supported by cross-examination or extrinsic evidence
      concerning specific instances of the witness' conduct; however,

      (2) in the discretion of the court, the credibility of a witness who
      testifies as to the reputation of another witness for truthfulness
      or untruthfulness may be attacked by cross-examination
      concerning specific instances of conduct (not including arrests)
      of the other witness, if they are probative of truthfulness or
      untruthfulness; but extrinsic evidence thereof is not admissible.

Pa.R.E. 608.



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Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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