J. A03036/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :     PENNSYLVANIA
                                            :
                    v.                      :
                                            :
DEREK J. WIGGINS,                           :
                                            :
                            Appellant       :     No. 440 MDA 2014


            Appeal from the Judgment of Sentence February 10, 2014
               In the Court of Common Pleas of Lancaster County
               Criminal Division No(s).: CP-36-CR-0003291-2012

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 09, 2015

        Appellant, Derek J. Wiggins, appeals from the judgment of sentence

entered in the Lancaster County Court of Common Pleas following a jury trial

and his convictions for Rape of a Child,1 Involuntary Deviate Sexual

Intercourse with a Child,2 Indecent Assault,3 Corruption of Minors,4 and

Unlawful Contact with a Minor.5 Appellant contends the trial court erred in



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 3126(a)(7).
4
    18 Pa.C.S. § 6301(a)(1)(ii).
5
    18 Pa.C.S. § 6318(a)(1).
J. A03036/15


(1) its rulings on several evidentiary issues and (2) improperly refusing a

requested jury instruction. He challenges, pursuant to Commonwealth v.

Wolfe, 106 A.3d 800 (Pa. Super. 2014), the imposition of a mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9718, which was declared

unconstitutional. We affirm the convictions below, vacate the judgment of

sentence, and remand for resentencing.

     We adopt the facts set forth by the trial court’s opinion. See Trial Ct.

Op., 4/28/14, at 1-4. On February 10, 2014, the court sentenced Appellant

to a, aggregate total of ten to twenty years’ imprisonment.       This timely

appeal followed.   Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal and the trial court filed a

responsive opinion.

     Appellant raises the following issues on appeal:

        I. Did the trial court err when it ruled that the defense was
        precluded from questioning [H.F.,] the child victim, her
        Mother, and her Stepmother about the fact that the child
        had previously accused a neighbor with the same name as
        Appellant of asking to perform a sexual act on her?

        II. Did the trial court improperly permit the prosecutor to
        vouch for the veracity of the child witness by allowing her
        to lead the witness, on redirect examination, to state that
        during her prior testimony she had answered in the
        affirmative every time counsel had ended a question with
        the word “right?”

        III. Did the court improperly preclude the defense from
        introducing evidence to show that the child victim’s Great-
        Grandfather had pled guilty to three counts of molestation
        involving young girls to show: (1) that he might have been
        the perpetrator in the instant case; and (2) to impeach the


                                    -2-
J. A03036/15


         testimony of Michele Windle and to show that members of
         the Cornelius family were familiar with the processes and
         consequences of child abuse investigations?

         IV. Did the trial court improperly prevent the defense from
         questioning the child’s Mother about the contents of a
         diary she maintained during the time when the child victim
         was allegedly abused?

         V. Did the trial court improperly rule that the defense had
         opened the door to questioning regarding Appellant’s
         discharge from the military?

         VI. Did the trial court err in refusing to give requested
         Pennsylvania Standard Criminal Jury Instruction 4.08A,
         Impeachment       or   Substantive   Evidence─Inconsistent
         Statement, where the child victim, whose credibility was
         dispositive to the outcome of this case, made numerous
         prior inconsistent statements?

Appellant’s Brief at 5-6.

      At oral argument before this Court, Appellant requested permission to

file a post-submission communication.      This Court granted the request.

Order, 2/6/15.    Appellant raises the following issue in its post-submission

communication: “Is Appellant entitled to a new sentencing hearing based on

this Court’s determination, in Commonwealth v. Wolfe, [ ] that 42 Pa.C.S.

§ 9718, the sentence under which he was sentenced, is unconstitutional?”6

Appellant’s Post-Submission Communication, 2/13/15, at 5 (unpaginated).


6
   The statute provided for mandatory sentences.        “Application of a
mandatory sentencing provision implicates the legality, not the
discretionary, aspects of sentencing.” Commonwealth v. Dixon, 53 A.3d
839, 842 (Pa. Super. 2012) (citation omitted). Appellant challenges the
legality of his sentence. “[L]egality of sentencing claims per se can be
raised for the first time on direct appeal.” Commonwealth v. Brown, 71



                                    -3-
J. A03036/15


      We   summarize    Appellant’s arguments for      his first   five   issues.

Appellant avers that the fact that H.F. claimed another individual with the

same name as his abused her was relevant to the fact-finder’s assessment

of her credibility and should not have been precluded from evidence.

Appellant argues the court improperly permitted the prosecutor to bolster

H.F.’s credibility by explaining the inconsistencies in her testimony were due

to counsel’s phrasing of his questions in prior proceedings. Appellant claims

the court erred in precluding evidence that H.F.’s great-grandfather pled

guilty to three counts of molestation of young girls.      He avers that this

evidence was relevant to the theory that there could have been an alternate

perpetrator.   Appellant contends the court should have permitted the

defense to question H.F.’s mother about the contents of her diary in which

she observed changes in H.F.’s behavior after visits with her biological father

and his family.   Appellant argues the trial court erred in permitting the

Commonwealth to introduce evidence that he was demoted from the rank of




A.3d 1009, 1016 (Pa. Super. 2013), appeal denied, 77 A.3d 635 (Pa. 2013).
We note the Commonwealth avers that it filed a petition for allowance of
appeal in Wolfe, which is pending before the Supreme Court of
Pennsylvania.   See Commonwealth’s Post Submission Communication,
2/20/15, at 3. This Court has held “even though [a] petition for allowance
of appeal was pending before the Pennsylvania Supreme Court, [the]
decision remains binding precedent as long as the decision has not been
overturned by our Supreme Court[.]” Commonwealth v. Santiago, 980
A.2d 659, 666 n.6 (Pa. Super. 2009) (citation omitted).




                                     -4-
J. A03036/15


Corporal to Lance Corporal and not permitted to re-enlist in the Marine

Corps.7 We hold no relief is due.

     On these issues, our standard of review is as follows:

           A trial court has broad discretion to determine whether
        evidence is admissible and trial court’s ruling on an
        evidentiary issue will be reversed only if the court abused
        its discretion. Accordingly, a ruling admitting evidence
        “will not be disturbed on appeal unless that ruling reflects
        manifest unreasonableness, or partiality, prejudice, bias,
        or ill-will, or such lack of support to be clearly erroneous.”

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super.) (citations

omitted), appeal denied, 80 A.3d 775 (Pa. 2013).

     We review the court’s ruling on a motion in limine as follows:

        “[A] motion in limine is a procedure for obtaining a ruling
        on the admissibility of evidence prior to trial, which is
        similar to a ruling on a motion to suppress evidence,
        [therefore] our standard of review . . . is the same as that
        of a motion to suppress.” The admission of evidence is
        committed to the sound discretion of the trial court, and
        our review is for an abuse of discretion.

Commonwealth v. Rosen, 42 A.3d 988, 993 (Pa. 2012) (citations

omitted).

     As to these issues, after careful consideration of the record, the

parties’ briefs, and the decision of the Honorable Jeffrey D. Wright, we find




7
    We note Appellant raised this issue before trial and the court reserved
ruling on it. N.T., 10/29/13 at 36-37.



                                    -5-
J. A03036/15


no relief is due and adopt the trial court’s well-reasoned opinion.8 See Trial

Ct. Op. at 5-14 (holding H.F.’s allegations about a neighbor in Kansas, also

named Derek, were irrelevant; Commonwealth did not ask H.F. leading

questions, rather it attempted to rehabilitate H.F.; evidence of H.F.’s Great-

Grandfather’s charges, and references to them in Mother’s diary, were

irrelevant and prejudicial, as there was no established connection between

H.F. and her Great-Grandfather; and questions regarding Appellant’s

discharge from the military were properly permitted as defendant’s counsel

opened the door). We discern no abuse of discretion. See Rosen, 42 A.3d

at 993; Huggins, 68 A.3d at 966;.

      Next, Appellant contends the trial court erred in refusing to give

requested   Pennsylvania     Standard    Criminal   Jury   Instruction   4.08A,

Impeachment or Substantive Evidence─Inconsistent Statement.          Appellant

avers the trial court erred in stating counsel had waived 9 this issue because

“counsel had already lodged his objection to the court’s refusal to issue the

requested charge . . . .” Appellant’s Brief at 32 n.6.

      As a prefatory matter, we consider whether Appellant has preserved

this issue for our review. In Commonwealth v. Parker, 104 A.3d 17 (Pa.


8
  We note typographical errors in the citations for Commonwealth v.
Petrillo, 19 A.2d 288 (Pa. 1941) and Commonwealth v. Myers, 621 A.2d
1009 (Pa. Super. 1993). See Trial Ct. Op. at 12, 15.
9
  We note the trial court addressed the issue and held it to be meritless,
notwithstanding the fact that it found waiver. See Trial Ct. Op. at 14-16.



                                     -6-
J. A03036/15


Super. 2014), this Court found the appellant had waived his objection to the

jury charge, although he objected at the charging conference, because he

failed to object after the court read the charge to the jury. Id. at 29. This

Court opined:

        In order to preserve a claim that a jury instruction was
        erroneously given, the Appellant must have objected to the
        charge at trial. See Commonwealth v. Spotz, [ ] 84
        A.3d 294, 318 n. 18 ([Pa.] 2014) (citations omitted);
        Pa.R.A.P. 302(b) (“A general exception to the charge to
        the jury will not preserve an issue for appeal. Specific
        exception shall be taken to the language or omission
        complained of.”); Pa.R.Crim.P. 647(B) (“No portions of
        the charge nor omissions from the charge may be
        assigned as error, unless specific objections are
        made thereto before the jury retires to deliberate.”).
        As our Supreme Court has explained:

           The pertinent rules, therefore, require a specific
           objection to the charge or an exception to the trial
           court’s ruling on a proposed point to preserve an
           issue involving a jury instruction.          Although
           obligating counsel to take this additional step
           where a specific point for charge has been
           rejected may appear counterintuitive, as the
           requested instruction can be viewed as alerting the
           trial court to a defendant’s substantive legal position,
           it serves the salutary purpose of affording the
           court an opportunity to avoid or remediate
           potential error, thereby eliminating the need
           for appellate review of an otherwise correctable
           issue.

        Commonwealth v. Pressley, [ ] 887 A.2d 220, 224
        ([Pa.] 2005) (footnotes and citations omitted); see
        Commonwealth v. Garang, 9 A.3d 237, 244–245 (Pa.
        Super. 2010) (citations omitted); Commonwealth v.
        Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations
        omitted).

Id. (emphases added).


                                    -7-
J. A03036/15


         In the case sub judice, at the conclusion of the jury charge, the court

asked counsel “anything that wasn’t covered?”          N.T., 11/1/13, at 664.

Counsel stated: “No. There was nothing that wasn’t covered.” Id. Having

failed to raise a specific objection after the charge was given and before the

jury retired to deliberate, we find the issue waived. See Parker, 104 A.3d

at 29.

         Lastly, Appellant contends that he is entitled to a new sentencing

hearing based on this Court’s determination in Wolfe that 42 Pa.C.S. §

9718,10 the statute under which he was sentenced, is unconstitutional. Our



10
     Section 9718 provides, inter alia, as follows:

           (a) Mandatory sentence.─

              (1) A person convicted of the following offenses when
              the victim is less than 16 years of age shall be
              sentenced to a mandatory term of imprisonment as
              follows:

              18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated
              assault)--not less than two years.

              18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating
              to rape)--not less than ten years.

              18 Pa.C.S. § 3123 (relating to involuntary deviate
              sexual intercourse)--not less than ten years.

              18 Pa.C.S. § 3125(a)(1) through (6) (relating to
              aggravated indecent assault)--not less than five years.

                                    *    *    *




                                        -8-
J. A03036/15


standard of review of questions involving the legality of a sentence is well-

settled:

               “A challenge to the legality of a sentence . . . may be
           entertained as long as the reviewing court has
           jurisdiction.”   It is also well-established that “[i]f no
           statutory authorization exists for a particular sentence,
           that sentence is illegal and subject to correction.” “An
           illegal sentence must be vacated.” “Issues relating to
           the legality of a sentence are questions of law[.] . . . Our



              (3) A person convicted of the following offenses shall be
              sentenced to a mandatory term of imprisonment as
              follows:

              18 Pa.C.S. § 3121(c) and (d)--not less than ten years.

              18 Pa.C.S. § 3125(a)(7)--not less than five years.

              18 Pa.C.S. § 3125(b)--not less than ten years.

                                   *    *    *

           (c) Proof at sentencing.─The provisions of this section
           shall not be an element of the crime, and notice of the
           provisions of this section to the defendant shall not be
           required prior to conviction, but reasonable notice of the
           Commonwealth’s intention to proceed under this section
           shall be provided after conviction and before sentencing.
           The applicability of this section shall be determined at
           sentencing.     The court shall consider any evidence
           presented at trial and shall afford the Commonwealth and
           the defendant an opportunity to present any necessary
           additional   evidence    and    shall  determine,     by    a
           preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9718(a)(1), (3), & (c). The Wolfe Court noted “In [Alleyne v.
United States, 133 S. Ct. 2151 (2013)], the Supreme Court held that “facts
that increase mandatory minimum sentences must be submitted to the jury”
and must be found beyond a reasonable doubt. [Id.] at 1263.” Wolfe, 106
A.3d at 802.



                                       -9-
J. A03036/15


         standard of review over such questions is de novo and our
         scope of review is plenary.”

Wolfe, 106 A.3d at 801-02 (citations omitted and emphasis added).

      In Wolfe, as in the instant case, the appellant was sentenced under

the mandatory minimum statute pursuant to Section 9718. Id. at 802. This

Court opined:

         [T]he mandatory minimum statute in this case contains
         the same format as the statutes struck down as facially
         unconstitutional in [Commonwealth v. Newman, 99
         A.3d    86    (Pa.   Super.   2014)  (en   banc)]  and
         [Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
         2014)].     See 42 Pa.C.S.A. §§ 9712(a), 9712(c),
         9712.1(a),    9712.1(c),    9713(a), 9713(c),  9718(a),
         9718(c).     Following Newman’s instructions, we are
         required to conclude that Section 9718 is also facially
         unconstitutional.

Id. at 805 (emphasis added). This Court found that because Section 9718 is

facially unconstitutional, “we [were] compelled to conclude that the trial

court imposed an illegal sentence when it imposed the mandatory minimum

sentence.” Id. at 806. Accordingly, the Wolfe Court vacated the judgment

of sentence and remanded for resentencing. Id. Analogously, in the case

sub judice, because the trial court imposed an illegal sentence based upon

Section 9718, we vacate the judgment of sentence and remand for

resentencing. See id.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.




                                  - 10 -
J. A03036/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2015




                          - 11 -
                                                                                    Circulated 05/20/2015 04:10 PM




     IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                               CRIMINAL
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 DEREK J. WIGGINS                                                                         C)
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 BY: WRIGHT, J.                                                                       April 28, 2014

        This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

 Procedure. Defendant, Derek Wiggins, claims that this Court issued improper rulings on

 numerous evidentiary issues that arose during his trial, and that the Court provided the jury with

 incomplete instructions, A review of the record and applicable law demonstrates that

Defendant's claims lack merit and, therefore, his appeal should be dismissed.

                                          BACKGROUND

        JQ   I   F-     and W..       C4III met and began dating in 2003, and in May of
2005, while both were still teenagers, J ..     · gave birth to a daughter, H.F. (N.T. Jury Trial

Vol. 3, 277: 12-25.) Eventually,   J4IIII· and W ..     broke up and a custody agreement was put

into place. (N.T. Jury Trial Vol. 3, 278: l 1-23.)

        In December of 2006, J     £ $   started to date Defendant, Derek Wiggins. (N.T. Jury

Trial Vol. 3, 283:7-14.) J l    3 and Defendant married in March of 2007, and in 2009, JtlllP:
gave birth to a second daughter, Elena. (N.T. Jury Trial Vol. 3, 284:6-18.) That same year,

Wtmli married, enlisted in the Army, and relocated to Kansas. (N.T. Jury Trial Vol. 2, 187:4 -

188:24.) In June of 2010, J-and          Defendant purchased a home located at 303 Banyan

Circle in Lancaster. (N.T. Jury Trial Vol. 3, 284:22-25.) Given the distance between their
                                                                                      Circulated 05/20/2015 04:10 PM




 residences, J. £    Q and W ..       agreed that H.F. would live with her mother during the school

 year and spend summers with W ..            and his wife, Brandy. (N.T. Jury Trial Vol. 2, 189:23 -

  190:9.)

            In July of 2011, H.F., then six years old, traveled to Kansas to visit "'9ilwhile    he was

 on block leave from the military. (N.T. Jury Trial Vol. 2, 190: 16-25.) At the end of her stay,

 W ...       Brandy, and H.F. drove back from Kansas to visit W ...       's mother, Michelle Windle,

 in Thomasville, Pennsylvania, (N.T. Jury Trial Vol. 2, 191 :5·24.) The family planned to stay

 with Michelle fol' a week, then travel to Virginia to see Brandy's mother. (N.T. Jury Trial Vol.

 3, 249:2-5.)

         While the family was staying at Michelle's home, H.F. disclosed to Brandy that

 Defendant, whom she referred to as "Daddy Derek," had been sexually abusing her. (N.T. Jury

Trial VoJ. 3, 251 :7 - 252:3.) Specifically, H.F. told Brandy that Defendant liked it when she put

her mouth on his penis. (N.T. Jury Trial Vol. 3, 252: 19-253:3.) Shocked, Brandy asked H.F.

to repeat her statements to    W-...      (N.T. Jury Trial Vol. 3, 253:9·10.) H.F. told her father that

Defendant sexually assaulted her in her bedroom and in the bathroom of their home. (N.T. Jury

Trial Vol. 2, 193:20-22.) Additionally, H.F. revealed that Defendant would "pee white stuff'

into toilet paper during the encounters, and that Defendant put his mouth on her vagina. (N.T.

J my Tl'iul Vol. 2, 193 :23 - 194: 11.)

         After H.F. was finished disclosing the abuse to her father, W ..       instructed Brandy to

take her to talk to Michelle, who was next door at a friend's home preparing dinner for the

family. (N.T. Jury Trial Vol. 3, 253: 15-21.) When confronted by Michelle, H.F. revealed, once

again, that Defendant made her suck on his penis. (N.T. Jury Trial Vol. 3, 386: 13 - 387:6.)




                                                    2
                                                                                    Circulated 05/20/2015 04:10 PM




  W[       discussed H.F.'s statements with his mother, then contacted J-and             York County

  Children and Youth Services ("YCCYS").       (N.T. Jury Trial Vol. 2, 195:12-196:5.)

         The following day, YCCYS and the Northern Regional Police Department responded to

 Michelle's home to speak with the family. (N.T. Jury Trial Vol. 3, 388:7-10.) On July 25, 2011,

 Detective Tricia Mazur of the Manor Township Police received a report from YCCYS assigning

 her to H.F. 's case. (N.T. Jury Trial Vol. 4, 437:22 -438: 18.) In order to clarify the extent of the

 abuse, Detective Mazur scheduled a forensic interview for H.F. at the Lancaster County

 Children's Alliance on July 27, 201 l. (N.T. Jury Trial Vol. 4, 438:15-18.)

        During her interview, and in subsequent testimony and statements, H.F. revealed the

 details of the sexual abuse she had endured. H.F. stated that one night, after her family moved

 into the house at 303 Banyan Street, she attempted to use the bathroom and found that Defendant

was inside. (N.T. Jury Trial Vol. 2, 90:6-13.) Defendant invited her to join him in the bathroom,

and when she went in, H.F. observed that he was looking at something on the computer. (N.T.

Jury Trial Vol. 2, 90: 12-13.) Defendant put his computer aside and asked H.F. to touch his

penis. (N.T. Jury Trial Vol. 2, 90:13-16.) Although she initially resisted, H.F. complied when

Defendant threatened to tell J l    ]about the encounter. (N.T. Jury Trial Vol. 2, 91 :4-10.)

Defendant instructed H.F. to move her hands, and eventually her mouth, up and down over his

penis. {N.T. Jury Trial Vo]. 2, 91:4 -93:3.) After this initial incident, H.F. revealed that

Defendant made her touch his penis on numerous occasions. (N.T. Jury Trial Vol. 2, 93:4-9.)

       Eventually, Defendant's conduct escalated to include vaginal penetration. H.F. disclosed

that one evening, while her mother was at work, Defendant gave her a bath. (N.T. Jury Trial

Vol. 2, 93:15-17.) Afterwards, Defendant told H.F. to go to her room to dry off. (N.T. Jury Trial

Vol. 2, 93:17-18.) While H.F. was still undressed, Defendant entered her room and told her to



                                                 3
                                                                                        Circulated 05/20/2015 04:10 PM




   lean down over the bed. (N.T. Jury Trial Vol. 2, 93: l O - 94: 17.) Defendant then inserted his

  penis into her vagina. (N.T. Jury Trial Vol. 2, 97: 19-25.) Defendant promised H.F. that he

  would stop abusing her after a family beach trip in the summer of20J I, and asked her to remind

  him of his promise. (N.T. Jury Trial 2, 95:2-16.)

            Following H.F.'s forensic interview, on August 5, 2011, Julie Stover, a nurse practitioner

  and expert in child sexual abuse, performed a physical examination of H.F. at the Children's

  Alliance. (N.T. Jury Trial Vol. 2, 226:12-23.) While the results ofH.F.'s examination were

  normal, Ms. Stover cautioned that the mucosa] tissue lining the vagina and rectum typically heals

  within seventy-two hours of injury, and that visible scarring can only be observed in 5% of cases,

 (N.T. Jury Trial VoJ. l, 231 :24-233:25.)

           As a result ofH.F.'s statements, on May 17, 2012, Detective Mazur charged Defendant

 with one count each of Rape of'a Child, 1 Involuntary Deviate Sexual Intercourse with a Child.'

 Indecent Assault,' Corruption of Minors," and Unlawful Contact with a Minor.! (N.T. Jury Trial

 Vol. 4, 442:9-20.) Following a three day jury trial, on November 1, 2013, Defendant was

 convicted of all charges and a Pre-Sentence Investigation was ordered. (N.T. Jury Trial Vol. 5,

 672:4-16; 677:8-11.) On February IO, 2014, Defendant was sentenced to a total aggregate of 10

- 20 years of incarceration.

          On March      7, 20 J 4, Defendant filed a timely Notice of Appeal to the Superior Court, and

on March 28, 2014, Defendant submitted his Concise Statement of Errors Complained of on

Appeal. In his Statement, Defendant claims that this Court issued improper rulings on numerous



118Po.C.S.A.§312l(c).
z 18 P.S. § 3123(b).
3
  18 Pii.C.S.A. § 3216(a)(7).
4 18 P.S. § 6301(a)(l)(ii).
s 18 Pn.C.S.A. § 6318(11)(1 ).

                                                     4
                                                                                     Circulated 05/20/2015 04:10 PM




  evidentiary issues that arose during his trial, and that the Court provided the jury with incomplete

  i nstruct ions.

                                              DISCUSSION

      I.        The Trial Court Properly Prohibited Defense Counsel from Questioning H.F.,
                Jtlllil"and Brandy about Irrelevnut and Prejudicial Hearsay Statements.

            Defendant's first claim is that the Court improperly prevented defense counsel from

 questioning H.F., ~and            Brandy about a comment H.F. made to her stepmother.

 Specifically, H.F. told Brandy that a neighbor in Kansas, who was also named Derek, said that

 he wanted to "lick J1e1· butt." (N.T. Jury Trial Vol. 2, 170:22 - 171: 15.) Brandy relayed this



 her case. (N.T. Jury Trial Vol. 2, 171:16-18; 180:4-12.) During trial, lead defense counsel

 Attorney Ronald Greenblatt attempted to question H.F. about the allegations, and Assistant

District Attorney Karen Mansfield objected asserting that the statements were irrelevant. (N.T.

Jury Trial Vol. 2, 170: 18 - 171 :20.) The Court sustained the Commonwealth's objection and

precluded the line of questioning. (N.T. Jury Trial Vol. 2, 171 :16-172:2.)

           It is axiomatic that only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is

relevant if Hit has any tendency to make a fact more or less probable than it would be without the

evidence, and the fact is of consequence in determining the action." Pa.R.E. 401(a-b). In

addition, a court may exclude otherwise relevant evidence if its probative value is outweighed by

a danger of "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence." Pa.RE. 403.

           H.F. 's statements about the neighbor boy had no relevance to Defendant's trial, While

the neighbor shared Defendant's name, police reports unequivocally established that H.F. and

her family did not meet the neighbor until after she disclosed the sexual abuse. (N.T. Jury Trial


                                                   5
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 Vol. 2, 171 :4-8.) Moreover, the probative value of H.F. 's statements was far outweighed by the

 danger of unfair prejudice, confusing the issues and misleading the jury. H.F. always identified

 Defendant as her abuser, and Attorney Greenblatt's questions would have only served to

 complicate and obscure the issues. Accordingly, Attorney Mansfield's objection was properly

 sustained and the evidence excluded.

    II.       The Court did not Improperly Pe1·111it the Commonwealth to Lead H.F. on Re-
              Direct Examination,

           Defendant's second claim is that the Court improperly permitted the Commonwealth to

lead H.F. on redirect examination. Defendant asserts that, as a result of the leading questions,

the Commonwealth directed H.F. to state that in her prior testimony she had answered in the

affirmative every time defense counsel ended a question with the word "right."

          At trial, after defense counsel engaged H.F. in a lengthy cross-examination that included

repeated attempts to. impeach her with prior inconsistent statements made when she was six and

seven years old, Attorney Mansfield asked H.F. the following questions during her re-direct

examination:

          Atty. Mansfleld:      If someone said to you, "Do you remember if that
                                was after you told your mom, right?" Do you think
                                that person is right when they say that to you?

          H.F.:                No. I'm guessing they just want me to say if that's
                               right or wrong.

          Atty, Mansfield:     Okay. And when they say "right" lo you, are you
                               agreeing with them?

          H.F.:                Not always because sometimes you could say no.

      Atty. Mansfield:         Okay. When you were six would you agree with
                               them?

      Atty. Greenblatt:        Objection ... Hypothetical, your Honor,



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         The Court:             I think it's appropriate. Six years old is the time of
                                that transcript. You can answer that ... if you
                                would like.

         H.F.:                  1 think you- wait. What was the question again?

         Atty. Mansfield:      When you were six years old and you were
                               answering these questions, when someone said
                               "right" to you, did you agree with them? Let me
                               find a page. Let me get to a page that says right. If
                               you look at Page 35 ... If you look at Lines I, 2
                               and 3 on Page 34, if you read those.

         H.F.:                 Okay. Line Number 1.
                               Question: One time, did you remember if that was·
                               after you told your mom, right?
                               Answer: Yes.

        Atty. Mansfield:       Okay. Now, if you look down here a little further
                               on that page when he asked you this question: And
                               that was in Pennsylvania, right?

        H.F.:                  Yes.

        Atty. Mansflehh        Answer was yes.



        Atty. Mansfield:      Down on Line 23. When that happened, you said
                              he was in the bathroom, right?

        H.F.:                 Yes.

        Atty. Mansfield:      So your answer was yes. So every time someone
                              said the word right, to you, did you answer 11yes?"

        H.F.:                 Yes.

       Atty. Greenblatt:      Objection. Judge, we have a full transcript. It's an
                              accurate transcription.

       The Court:             Well, the jury has heard enough to make their own
                              minds up.

(N.T. Jury Trial Vol. 2, 175:3 - 178:25.)



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                 A careful reading of this passage demonstrates that Attorney Mansfield did not ask H.F.

     any leading questions.           Instead, Attorney Mansfield attempted to rehabilitate H.F. by asking her

     to examine the answers she gave to leading questions in a prior proceeding, and to indicate

     whether those answers were influenced by the way the questions were posed. Moreover,

    Attorney Greenblatt only objected to the questions as hypothetical, never as leading.

    Accordingly, the Court properly permitted this line of questioning during H.F. 's re-direct

    examination.

         III.       The Court Properly Granted the Commonwealth's Motion in Limine
                    Prohibiting Defense Counsel from Introducing Evidence that H.F.'s Great-
                    Grandfather pied guilty to, but was not convicted of, Indecent Assault and
                    Corruption of Minors.

                Defendant's next three allegations of error all relate to his attempts to introduce the fact

    that Dll'C         t       •   Senior pied guilty to several sexual offenses involving children. On

    September 4, 2008, D.,              Michelle's father and H.F. 's great-grandfather, pied guilty to three

    counts each of Indecent Assault6 and Corruption ofMinors.7 Ultimately,~                    died before he

    could be sentenced fol' these offenses and the charges were nolle prossed. At trial, Defendant

    sought to introduce evidence of D.'s             guilty pleas for three separate reasons: to demonstrate



vigilant in her attempts to protect H.F. from sexual abuse; and to refute Michelle's claims that

her family was not familial' with the procedures followed in child abuse investigations.




6
    J 8 P.S. § J 126(11)(7).
7
    18 P.S. § 630 I (a)(I ).

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            A. Evidence of D ...   's Charges was Properly Excluded its Both Irrelevant and
               Prejudtclal When Defense Counsel Did Not Establish any Connection Between
               H.F. nnd He1· Great-Grandfather,

            First, Defendant claims that the Court improperly precluded him from introducing

 evidence that H.F. was in D.'s       presence. Defendant sought to present th.is evidence to

 demonstrate that D.,       not Defendant, might have sexually abused H.F. Prior to trial, the

 Commonwealth made an oral Motion in Limine to exclude evidence of D-s              guilty pleas. The



 establish a connection between    D.
 Court granted the Motion, and stated that it would revisit the ruling if defense counsel could

                                          and H.F.

        During his cross-examination of Michelle, Attorney Greenblatt asked whether       D.        ever

 came to visit when H.F. was present in her home. (N.T. Jury Trial Vol. 3, 397: 15-20.) The

 Commonwealth objected to this question, and the Court sustained the objection, concluding that

 the testimony established that H.F. was, at most, twenty months old when she last saw her great-



inadmissible because, although     D.
grandfather. (N.T. Jury Trial Vol. 3, 400:4-8.) Moreover, the Court held that the evidence was

                                         pied guilty to the offenses, he died before he could be

sentenced and the charges were ultimately no/le prossed. (N.T. Jury Trial Vol. 3, 401 :24 -

402: 10.)

        As previously articulated in this Opinion, only relevant evidence is admissible at trial.

Pa.R.E. 402. Moreover, a court may exclude otherwise relevant evidence if its probative value is

outweighed by the risk of "unfair prejudice, confusing the issues, misleading the jury, undue

delay, wasting lime, or needlessly presenting cumulative evidence." Pa.R.E. 403. In the case

sub judice, evidence ofD.'s

consequence in the proceeding.     D.
                                   criminal charges had absolutely no relevance to any fact of

                                          died when H.F. was a toddler, and defense counsel foiled

to establish any connection between H.F. and her great-grandfather that would give the charges



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 pertinence at Defendant's      trial. Moreover, H.F. consistently identified Defendant as the

 individual that abused her, Finally, although D.         pJed guilty to Indecent Assault and

 Corruption of Minors, he died before sentencing for these offenses could occur and all of the

 charges were ultimately 1101/e pressed, further diminishing their relevance.

          In addition, the probative value of [9's       guilty pleas was significantly outweighed by




 D.'s
                              D.
 the risks of unfair prejudice, confusing the issues and misleading the jury, Without establishing

 any connection between              and H.F., defense counsel sought to introduce evidence of

           guilty pleas in an attempt to deflect blame from Defendant by implying that D.          was

 the individual thal abused H.F. Since there was no basis to conclude that D.           even had an

opportunity to sexually assault H.F., this evidence would have prejudiced the Commonwealth

and convoluted the issues before the jury.

          B. Defense Counsel was Properly Precluded from Questioning        · about
             Portions of her Diary that Referred to D- C         and the C••l5
               Family.

          Next, defense counsel sought to introduce evidence ofD.1s guilty pleas to explain

why J l       F was concerned that H.F. would be sexually abused. Specifically, defense counsel
argued that D.'s         charges were relevant in this context to explain why J.    T    "kept journals

and ... was hyper-vigilant about looking out ... for signs that her daughter was being

molested!' (N.T. Jury Trial Vol. 2, 39:20-22.) In addition, defense counsel asserted that the

evidence was admissible to show that Defendant was on notice of Jc C           D's concerns, and that



Jury Trial Vol. 2, 39:22-25.)

        During her cross-examination, J            testified that she kept a journal detailing

          5   interactions with H.F. in case a custody dispute ever arose. (N.T. Jury Trial Vol. 3,



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  310: 19- 311 :5.) While discussing the journal, defense counsel asked J-if         she ever had

  any concerns about allowing H.F. to stay with W..        Brandy, or the C     S    family. (N.T.

 Jury   Trial Vol. 3, 321 :20-22.) The Commonwealth objected, and the Court sustained the

 objection. (N.T. Jury Trial Vol. 3, 321 :23-25.)

          By asking ....    r questions regarding passages of her journal that detailed her concerns

 about allowing H.F. to visit the   aa•••    family, defense counsel was engaged, once again, in a

 thinly veiled attempt to open the door to the irrelevant and highly prejudicial evidence of nes

 charges. As previously articulated, evidence of D-s       guilty pleas was completely irrelevant to

 Defendant's trial, and was significantly more prejudicial than it was probative. Accordingly, the

 Court properly sustained the Commonwealth's objection to defense counsel's question.

         C. Evidence of D ..      's Charges was Not Admissible to Contradict Michelle on       fl
            Col1ate1·al Issue.

         Finally, Defendant attempted to introduce evidence of D-s       charges to demonstrate

that Michelle and her family were familiar with the procedures involved in child abuse

investigations. During her direct examination, Michelle testified that after H.F. disclosed that

she was being sexually abused by Defendant,     V...-. asked her who to contact to report the


don't know what to do, ..        What do you do? l said, I guess start with CYS. So we looked up

York County Children and Youth Services." (N.T. Jury Trial Vol. 3, 388: l-4.)

         During his cross-examination of Michelle, Attorney Greenblatt attempted to introduce

evidence ofD-s        charges lo contradict Michelle's claims that she did not know how to report

H.F. 's allegations. Specifically, Attorney Greenblatt argued that the evidence was admissible "to

show that [Michelle] knows from those convictions bow to call CYS and what to do in these

kinds of situations." (N.T. Jury Trial, 3, 398:19-25.) The Court ruled that, while Attorney


                                                 JJ
                                                                                       Circulated 05/20/2015 04:10 PM




  Greenblatt was permitted to question Michelle about any prior inconsistent statements she made

 regarding her knowledge ofchild abuse investigations, he could not introduce evidence of

 D-s       charges. (N.T. Jury Trial Vol. 3, 402:3-17.)

          It is well-settled in Pennsylvania that a witness may not be contradicted on collateral

 matters. Commonwealth v. Fisher, 447 Pa. 405, 413, 290 A.2d 262, 267 (1972) (clting

 Mctloldrick v. Pa. R.R. Co., 430 Pa. 597, 600, 241 A.2d 90, 92 ( 1968)). A col lateral matter is

 "one which has no relationship to the case on trial." Id. tctting Commonwealth v. Petrillo, 341J ,.

 Pa. 209, 223, 19 A.2d 228, 295 ( 1941 )). The Suprente l!omt of Pennsylvania has slated that "the

 pivotal issues in a trial cannot be 'side-tracked' for the determination of whether or not a witness

 lied in making a statement about something which has no relationship lo the case on trial"

Petrillo, 341 Pa. at 233, 19 A.2d at 295 (emphasis in original). Contradiction of a witness will

only be permitted on "matters germane to the issue trying." Id.
                                                                   ,:··· .~
         Defendant's proffered line of questioning had no relationship to the case on trial, and

thus, was not permitted, even for the purpose of impeaching Michelle. While the Court granted

defense counsel some leeway to question Michelle about her familiarity with child abuse

investigations through the use of prior inconsistent statements, there was absolutely no reason to

permit D-s       charges to be admitted to contradict Michelle's testimony, Undoubtedly,

admitting evidence of D-s           guilty pleas, which was both irrelevant and highly prejudicial, for

the limited purpose of impeaching Michelle would have sidetracked the proceedings and

confused and nJis}_ecid the jury.




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      IV..   The Court Properly Permitted the Commonwealth to Question Defendant about
             the Circumstances of his Discharge from the Mllltary after Defense Counsel
             Opened the Door to the Line of Questioning.

         Defendant's next claim is that the Court erred in permitting the Commonwealth to

 question Defendant about the circumstances surrounding his discharge from the military. Prior

 to trial, counsel agreed that the Commonwealth could not ask any questions about the fact that

 Defendant, although honorably discharged from the United States Marnie Corps, was dropped a

 rank and a pay grade and was barred from re-enlisting in the military as a result of steroid use.

 (N.T. Jury Trial Vol. 2, 35: 16-22.) However, the Commonwealth indicated that the agreement

 did not apply if defense counsel opened the door by portraying Defendant's military career as

 flawless and without incident. (N.T. Jury Trial Vol. 2, 35:23 - 36:6.)

        During Defendant's direct examination, defense attorney Patricia Piece questioned

 Defendant about Ms military background and asked what type of discharge he received. (N.T.

 Jury Trial Vol. 4, 507: 1-2.) Defendant indicated that he received an honorable discharge. (N.T.

Jury Trial Vol. 4, 507:3.) As a result, on cross-examination Attorney Mansfield asked Defendant

about the fact that he was moved back a pay grade prior to discharge and was prohibited from re-

enlisting in the military. (N.T. Jury Trial Vol. 4, 542:5-15.) Attorney Pierce objected to the

Commonwealth's     questions as improper impeachment evidence, and the Court overruled the

objection holding that Attorney Pierce opened the door to the questions by asking Defendant

about his discharge status. (N.T. Jury Trial Vol. 4, 542: 16 - 543 :7.) Nevertheless, the Court

cautioned that the Commonwealth was not permitted to ask Defendant about the reason for these

sanctions. (N.T. Jury Trial Vol. 4, 543:6-9.)

       Pennsylvania courts have held that "if [a] defendant delves into what would be

objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe



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                                                                                         Circulated 05/20/2015 04:10 PM




     further into the objectionable area." Commonwealth v. Stakley, 243 Pa. Super. 426, 430, 365

     A.2d 1298, 1300 ( 1976). This is commonly referred to as "opening the door,"       01· "opening   the

     gate." Id. In Stakley, the Pennsylvania Superior Court concluded that defense counsel opened

 the door to questions about a defendant's military discharge status merely by implying that his

 discharge was honorable. Id. In the case at bar, Attorney Pierce directly asked Defendant what

 type of military discharge he received, unquestionably opening the door to the Commonwealth's

 questions about the circumstances surrounding his discharge. Had Attorney Pierce's objection

 been sustained and the Commonwealth's questions precluded, the jury would have reasonably

 inferred that Defendant's military career was flawless, enhancing his credibility and inaccurately

 portraying his service. Accordingly, defense counsel's objection was properly overruled.

       V.       The Court's Charge, Read in its Entirety, Provided a Clear and Accurate
                Explanation of the LRW to the Jury.

            Defendant's flnal claim is that the Court erred in refusing to give Pennsylvania Suggested

Standard Criminal Jury Instruction 4.08A, "Impeachment          01· Substantive   Evidence - Inconsistent

Statement," Specifically, Defendant claims that this instruction should have been included in the

Court's charge because HF. made several statements at trlnl which were inconsistent with her

prior testimony.

            It is weJl established that a court's jury charge will be upheld so long as it adequately and

accurately reflects the law and guides the jury in its deliberations. Commonwealth v. Ort, 398

Pa. Super. 475, 482, 581 A.2d 230, 234 ( 1990). Further, there is no requirement for a trial court

to   instruct the jury pursuant to every request made to the court, even if the substantive law within

the proposed charge is without error. Commonwealth v. Orgrod, 576 Pa. 412, 475, 839 A.2d

294, 331 (2003). Finally, in evaluating the correctness of a charge, a court must read the charge




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it its entirety and the general effect of the charge controls. Commonwealth v. Myers, 424 Pa.

Super, 1, 10, 612 A.2d 1009, 1014 (1993).

       In the case sub judice, I provided the jury with the following instructions regarding

inconsistent statements by witnesses:

       Throughout your lifetime, you've been deciding whether someone who
       speaks to you is telling you something which is truthful and
       straightforward, something upon which you can rely upon in your own
       affairs. Use the experience that you've gained in your everyday life as
       well as your own good common sense when you go into the jury room to
       deliberate and in determining the credibility of the witnesses and their
       testimony.

       As the sole judges of the facts, you must decide the truthfulness mid
       accuracy of each witness' testimony and decide whether to believe all or
       part or none of that testimony. The following are some examples of
       factors which you may and should consider when judging the credibility
      and deciding whether 01; not to believe the testimony. Was the witness
       able to see, hear, or know the things about which they testified? How well
      could the witness remember and describe the things about which they
      testified? Was the ability of the witness to see, hear, know, remember or
      describe affected by youth or old age or by any physical, mental or
      intellectual deficiency or impairment? Did the witness testify in a
      convincing manner? Did the witness have any interest in the outcome of
      the case, or any bias, prejudice or other motive that might affect the
      witness' testimony? How well does the testimony of the witness square
      with the other evidence in the case, including the testimony of the other
      witnesses?

       While you're judging the credibility of each witness, you're likely to be
      judging the credibility of the other witnesses and evidence. If there's a
      real, irreconcilable conflict, it is up to you to decide which, if any,
      conflicting testimony or evidence to believe. As the sole judges of
      credibility and facts, you, the jury, are responsible to give the testimony of
      every witness and all the other evidence whatever credibility and weight
      you think it deserves ...

     . . . Where there is a conflict in testimony, you, the jury, have the duty of
     deciding which testimony to believe, but you should first try to reconcile,
     that is, fit together, any conflicts in the testimony if it can be done fairly
     and accurately. Discrepancies and conflicts between the testimony of
     different witnesses may or may not cause you to disbelieve some or all of
     their testimony. Remember, two or more persons witnessing an incident


                                               15
                                                                                  Circulated 05/20/2015 04:10 PM




         may see or hear it happen differently. Also, it's not uncommon for a
         witness to be innocently mistaken in his or her recollection of how
         something happened. If you cannot reconcile a conflict in the testimony, it
         is up for you to decide which testimony, if any, to believe and which to
         reject as untrue or inaccurate.                                     ·

        ... [i]n making this decision, consider whether the conflict involves a
        matter of importance or merely some detail, and whether the conflict is
        brought about by an innocent mistake or intentional falsehood. You
        should also keep in mind all the other factors which I've already discussed
        with you in deciding whether or not to believe a witness.

 (N.T. Jury Trial Vol 5., 647:5 - 648:13; 651: 10- 652:5.)

        My instructions not only furnished the jury with a clear and accurate recitation of the law,
but additionally provided the panel with extensive guidance on how to evaluate the credibility of

the witnesses, and how to reconcile inconsistent testimony. Further, at the completion of my

charge, I asked both Attorneys Greenblatt and Mansfield to indicate whether there were any

additional instructions that should be included in my charge. (N.T. Jury Trial Vol. 5, 664: 15-16.)

Both attorneys agreed that the charge was complete. (N .T. Jury Trial Vol. 5, 664: 17-18.)

Accordingly, not only was my charge an adequate and accurate recitation of the law, but no

request for or objection to the absence Pennsylvania Suggested Standard Criminal Jury

Instruction 4.08A was made a part of the record, and as a result, the issue was waived.

                                           CONCLUSION

       Since Defendant's claims of error lack merit, this Court respectfully requests that his

appeal be dismissed.

       According, I enter the following:




                                               16
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   IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                             CRIMINAL


 COMMONWEALTH          OF PENNSYI.. VANIA

               v.                                                   No. 3291-2012

DEREK J. WIGGINS

                                          ORDER

                             ~
       AND NOW, this    Zf   day of April, 2014, the Court hereby submits this Opinion pursuant

to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure,



                                                   BY THE COURT:




Copies to:
       Karen Mansfield, Assistant District Attorney
       Ronald Greenblatt, Esquire
              123 S. Broad Street, Suite 2500, Philadelphia, PA 19109
