Com. v. Nissley, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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