J-S48018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEREK J. WIGGINS

                            Appellant                No. 1759 MDA 2016


                  Appeal from the PCRA Order October 7, 2016
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-CR-0003921-2012


BEFORE: OTT, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 16, 2017

        Appellant, Derek J. Wiggins, appeals from the October 7, 2016 order

entered in the Court of Common Pleas of Lancaster County (“PCRA court”)

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The PCRA court summarized the factual and procedural history of the

matter as follows.

              Jennifer Fisher and William Cornelius met and began
        dating in 2003, and in May of 2005, while both were still
        teenagers, Jennifer gave birth to a daughter, H.F. Eventually,
        Jennifer and William broke up and a custody agreement was put
        in place.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           In December of 2006, Jennifer started to date [Appellant].
     Jennifer and [Appellant] married in March of 2007, and in 2009,
     Jennifer gave birth to a second daughter, [E.W.] That same
     year, William married, enlisted in the Army, and relocated to
     Kansas. In June of 2010, Jennifer and [Appellant] purchased a
     home located at 303 Banyan Circle in Lancaster. Given the
     distance between their residences, Jennifer and William agreed
     that H.F. would live with her mother during the school year and
     spend summers with William and his wife Brandy.

             In July of 2011, H.F., then six years old, traveled to
     Kansas to visit William while he was on block leave from the
     military. At the end of her stay, William, Brandy, and H.F. drove
     back from Kansas to visit William’s mother, Michelle Windle, in
     Thomasville, Pennsylvania. The family planned to stay with
     Michelle for a week, then travel to Virginia to see Brandy’s
     mother.

           While the family was staying at Michelle’s home, H.F.
     disclosed to Brandy that [Appellant], whom she referred to as
     “Daddy Derek,” had been sexually abusing her. Specifically, H.F.
     told Brandy that [Appellant] liked it when she put her mouth on
     his penis. Shocked, Brandy asked H.F. to repeat her statements
     to William.    H.F. told her father that [Appellant] sexually
     assaulted her in her bedroom and in the bathroom of their
     home. Additionally, H.F. revealed that [Appellant] would “pee
     white stuff” into toilet paper during the encounters, and that
     [Appellant] put his mouth on her vagina.

           After H.F. finished disclosing the abuse to her father,
     William instructed Brandy to take her to talk to Michelle, who
     was next door at a friend’s home preparing dinner for the family.
     When confronted by Michelle, H.F. revealed, once again, that
     [Appellant] made her suck on his penis. William discussed H.F.’s
     statements with his mother, then contacted Jennifer and York
     County Children and Youth Services (“YCCYS”).

           The following day, YCCYS and the Northern Regional Police
     Department responded to Michelle’s home to speak with the
     family. On July 25, 2011, Detective Tricia Mazur of the Manor
     Township Police received a report from YCCYS assigning her to
     H.F.’s case. 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, 2011.


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             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 [Appellant] was inside. [Appellant]
       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. [Appellant] put his computer aside and asked H.F. to
       touch his penis. Although she initially resisted, H.F. complied
       when [Appellant] threatened to tell Jennifer about the encounter.
       [Appellant] instructed H.F. to move her hands, and eventually
       her mouth, up and down over his penis.          After this initial
       incident, H.F. revealed that [Appellant] made her touch his penis
       on numerous occasions.

             Eventually, [Appellant’s] conduct escalated to include
       vaginal penetration. H.F. disclosed that one evening, while her
       mother was at work, [Appellant] gave her a bath. Afterwards,
       [Appellant] told H.F. to go to her room to dry off. While H.F.
       was still undressed, [Appellant] entered her room and told her to
       lean down over the bed. [Appellant] then inserted his penis into
       her vagina.     [Appellant] promised H.F. that he would stop
       abusing her after a family beach trip in the summer of 2011, and
       asked her to remind him of his promise.

             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. While the results of H.F.’s examination were
       normal, Ms. Stover cautioned that the mucosal 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.

             As a result of H.F.’s statements, on May 17, 2012,
       Detective Mazur charged [Appellant] with one count each of rape
       of a child, involuntary deviate sexual intercourse with a child,
       indecent assault, corruption of minors, and unlawful contact with
       a minor. Following a three-day jury trial[1] on November 1,
____________________________________________


1 At trial Appellant was represented by Ronald L. Greenblatt, Esquire, and
Patricia V. Pierce, Esquire.



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     2013, [Appellant] was convicted of all charges and a pre-
     sentence investigation was ordered. On February 10, 2014,
     [Appellant] was sentenced to a total aggregate of 10-20 years’
     incarceration.

            On March 7, 2014, [Appellant] filed a timely notice of
     appeal to the Superior Court, and on March 28, 2014,
     [Appellant] submitted his concise statement of errors complained
     of on appeal. In his statement, [Appellant] claimed that [the
     trial court] issued improper rulings on numerous evidentiary
     issues that arose during trial, and that the [trial] court provided
     the jury with incomplete instructions.       The Superior Court
     affirmed [Appellant’s] conviction and remanded to [the trial
     court] for resentencing based on the Superior Court’s ruling in
     Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014).
     [The trial court] subsequently resentenced [Appellant] to 10-20
     years’ incarceration in accordance with that opinion.

            [Appellant] filed the instant PCRA petition almost one year
     later.   On July 11, 2016, [the trial court] issued a notice
     pursuant to Pa.R.Crim.P. 907, and [Appellant] filed an amended
     motion. After a conference with counsel and consideration of the
     amended motion, [the PCRA court] entered an order dismissing
     the amended motion and advising [Appellant] of his rights to
     appeal. After receiving [Appellant’s] notice, [the PCRA court]
     issued a [Pa.R.A.P.] 1925 order, [Appellant] filed a timely
     statement of errors, and the Commonwealth filed a timely
     response.
PCRA Court Opinion, 12/19/16, at 1-6 (internal citations and footnotes

omitted) (some capitalization omitted).   The PCRA court issued a 1925(a)

opinion on December 19, 2016.

     Appellant raises four issues for our review, which we repeat verbatim.

     [I.]   Whether the [PCRA] court erred in denying [Appellant’s]
            amended PCRA when trial counsel failed to properly
            preserve for appellate review the claim that the court erred
            by failing to instruct the jury consistent with standard
            criminal jury instruction 4.08(A)?

     [II.] Whether trial counsel was ineffective when [they] failed to
           raise the issue of the admissibility of the circumstances

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            surrounding [Appellant’s] discharge from the Marines prior
            to his direct testimony which resulted in the
            Commonwealth        introducing     unfairly   prejudicial
            impeachment during cross examination?

      [III.] Whether trial counsel was ineffective when [they] failed to
             argue in the lower court and during the direct appeal that
             the court’s failure to permit evidence of David S. Cornelius,
             Sr.’s guilty plea to various offenses including three counts
             of indecent assault of his granddaughters resulted in the
             denial of [Appellant’s] right to due process and
             confrontation under the Fifth, Sixth[,] and Fourteenth
             Amendments to the United States Constitution?

      [IV.] Whether trial counsel was ineffective when they failed to
            ask the victim H.F. if any adult other than the police had
            spoken to her after the charges had been filed and when
            they failed to cross examine her concerning the viewing of
            an adult video?
Appellant’s Brief at 4 (some capitalization omitted).

      Our scope of review in a PCRA appeal is well established.

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted). All of Appellant’s assertions of error on appeal are allegations of

ineffective assistance of trial counsel. “It is well-established that counsel is

presumed effective, and a [PCRA petitioner] bears the burden of proving



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ineffectiveness.”   Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,

779-80 (Pa. Super. 2015) (en banc) (quoting Commonwealth v. Ligons,

971 A.2d 1125, 1137 (Pa. 2009) (additional citations omitted)).

      “To prevail on an [ineffectiveness] claim, a PCRA petitioner must plead

and prove by a preponderance of the evidence that (1) the underlying legal

claim has arguable merit; (2) counsel had no reasonable basis for acting or

failing to act; and (3) the petitioner suffered resulting prejudice.” Reyes-

Rodriguez, 111 A.3d at 780 (citations omitted). Furthermore, in order to

prevail the petitioner must prove all three prongs of the Pierce test or the

claim fails.   Id. (citing Commonwealth v. Pierce, 527 A.2d 973 (Pa.

1987)).

      Appellant’s first allegation of trial counsel ineffectiveness is counsel’s

failure to object to the trial court’s jury instructions, specifically failing to

instruct the jury consistent with standard jury instruction 4.08A, thus failing

to preserve the issue for appellate review. While Appellant is correct that

trial counsel failed to preserve this issue for direct appellate review,

Appellant’s PCRA claim fails as the underlying claim lacks merit.

      Standard Jury Instructions themselves are not binding and do
      not alter the discretion afforded trial courts in crafting jury
      instructions; rather, as their title suggests, the instructions are
      guides only. See Commonwealth v. Simpson, 620 Pa. 60, 66
      A.3d 253, 274-75 (2013) (citations omitted).          Furthermore,
      counsel is not deemed ineffective for failing to object to a jury
      instruction given by the court where the instruction itself is
      justifiable or not otherwise improper. See Commonwealth v.
      Rainey, 593 Pa. 67, 928 A.2d 215, 243 (2007).


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Commonwealth v. Eichinger, 108 A.3d 821, 845 (Pa. 2014).                  On direct

appeal, we review a trial court’s jury instructions for an abuse of discretion

or an inaccurate statement of law. Commonwealth v. Antidormi, 84 A.3d

736, 754 (Pa. Super. 2013).

        Standard     Jury    Instruction       4.08A   regarding   impeachment   or

substantive evidence-inconsistent statement reads as follows.

        1.    You have heard evidence that a witness, [name of
              witness], made a statement on an earlier occasion that
              was inconsistent with [his] [her] present testimony.

                                   [First Alternative]

        2.    You may, if you choose, regard this evidence as proof of
              the truth of anything that the witness said in the earlier
              statement. You may also consider this evidence to help
              you judge the credibility and weight of the testimony given
              by the witness at this trial.

                                 [Second Alternative]

        2.    You may consider this evidence for one purpose only, to
              help you judge the credibility and weight of the testimony
              given by the witness at this trial. You may not regard
              evidence of an earlier inconsistent statement as proof of
              the truth of anything said in that statement.

        3.    When you judge the credibility and weight of testimony,
              you are deciding whether you believe the testimony and
              how important you think it is.]

Pa. SSJI (Crim) § 4.08A (2016).2

        In the matter sub judice the trial court issued the following instruction.

____________________________________________


2   Appellant requested the first alternative instruction.



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            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 and 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 try and
      consider when judging the credibility and deciding whether or
      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.

N.T. Jury Trial, 11/1/13, at 647-48.        Moreover, the trial court added the

following instruction shortly thereafter.

             You may also take into consideration the interest, if any,
      which a witness may have had in the outcome of the case. It
      does not necessarily follow that because a person has a direct
      interest in what the verdict might be, that that person will
      willfully falsify any part of their testimony. Nevertheless, if an


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     interested party takes the stand and testifies, that interest, if
     any is a factor for you to take into consideration, along with all
     the other circumstances, in determining what weight you should
     place upon the testimony.

            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 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.

            In making the decision to consider whether the conflict – in
     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.

            If you conclude that a witness deliberately testified falsely
     about a manner which could affect the outcome of the trial, then
     you may, if you wish, for that reason alone, choose to disbelieve
     the rest of the witness’ testimony; however, you’re not required
     to do so for this reason. It is entirely possible that the witness
     testified falsely and intentionally in one respect but truthfully
     about anything else. If that is the situation, then you may
     accept that part of the witness’ testimony which is truthful and
     which you believe, and you may reject that part which is false
     and not worthy of belief.

Id. at 651-52.

     As discussed above, a trial court has broad discretion in crafting jury

instructions. See Antidormi, 84 A.3d at 754. Moreover, “[i]n reviewing a



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challenged jury instruction, an appellate court must consider the entire

charge as a whole, not merely isolated fragments, to ascertain whether the

instruction fairly conveys the legal principles at issue.” Commonwealth v.

King, 721 A.2d 763, 779 (Pa. 1998) (citing Commonwealth v. Jones, 683

A.2d 1181, 1196 (Pa. 1996)). Upon review of the jury instructions issued in

the matter sub judice, it is clear that the trial court properly instructed the

jury regarding the law; thus, the trial court did not commit an abuse of

discretion. As the underlying claim lacks merit, trial counsel did not provide

ineffective assistance of counsel when they failed to object to the jury

instructions. See Commonwealth v. Sheppard, 648 A.2d 563 (Pa. Super.

1994) (“Counsel will not be deemed ineffective for failing to assert a

baseless claim.”) (citing Commonwealth v. Cook, 557 A.2d 421, 425 (Pa.

Super. 1989)). Appellant’s first claim fails.

       Appellant’s second claim alleges trial counsel was ineffective when

they introduced evidence of Appellant’s honorable military discharge, which

opened the door to questions regarding the conditions of his discharge.3

Appellant asserts that this is tantamount to trial counsel who introduced a

defendant’s otherwise inadmissible criminal convictions, and thus constitutes

ineffective    assistance     of   counsel.        Appellant’s   Brief   at   23;   see

____________________________________________


3  Appellant was honorably discharged from the military; however, his
discharge contained conditions that dropped him a paygrade and that he
was not permitted to reenlist.




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Commonwealth v. Moore, 715 A.2d 448, 452 (Pa. Super. 1998).

Appellant argues that trial counsel should have filed a motion in limine to

determine whether the trial court would permit testimony regarding the

honorable discharge and its conditions prior to asking Appellant about such

discharge.

       On appeal, a petitioner must adequately discuss all three factors of the

‘Pierce test,’ including prejudice. Reyes-Rodriguez, supra.         Appellant’s

claim was not waived, it lacks merit. Trial counsel raised the issue prior to

introducing the testimony during the trial. See N.T Jury Trial, 10/29/13, at

35-37.    After raising the issue, the court deferred an evidentiary ruling.4

When the Commonwealth attempted to rebut the testimony, trial counsel

again objected. See N.T Jury Trial, 10/31/13, at 542-43.5 “To demonstrate

prejudice, the petitioner must show that there is ‘a reasonable probability

that, but for counsel’s error or omission, the result of the proceeding would

have been different.’”       Commonwealth v. Colavita, 993 A.2d 874, 887

(Pa. 2010) (quoting Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa.


____________________________________________


4 The trial court stated that “I’m going to have to see how that plays out
then, see what the exact testimony is.” N.T. Jury Trial, 10/29/13, at 37.
5  Moreover, it appears that trial counsel had a reasonable basis for
introducing the evidence because it introduced evidence that Appellant was
honorably discharged from military service. The introduction of evidence
that there were conditions on his honorable discharge could only soften the
net positive impact of this character evidence.




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2006), abrogated on other grounds by Commonwealth v. Jones, 951 A.2d

294 (Pa. 2008) (citing Strickland v. Washington, 466 U.S. 668, 694

(1984))). The possible prejudice in the matter is that the jury learned that

Appellant’s honorable discharge included conditions that otherwise might not

be included in a standard honorable discharge. In light of the overwhelming

evidence in this matter, namely five days of testimony, there is no

reasonable probability that discovering Appellant’s honorable discharge had

conditions, regarding reenlistment, would have changed the result of the

proceeding. Appellant’s claim fails.

        Next, Appellant asserts that trial counsel was ineffective because they

failed to raise a constitutional argument for the introduction of David

Cornelius, Sr.’s,6 guilty pleas, without convictions,7 to three counts of

indecent assault involving a granddaughter. Trial counsel previously raised

the issue of admissibility of such evidence at trial and on direct appeal;

however, the claim lacked merit.           See Commonwealth v. Wiggins, 440

MDA 2014, unpublished memorandum at 6 (Pa. Super. filed June 9, 2015).

For purposes of obtaining PCRA relief, an issue must not have been

previously litigated.      42 Pa.C.S.A. § 9543(a)(3).   An issue is previously

litigated if “the highest appellate court in which the petitioner could have had
____________________________________________


6   David Cornelius, Sr., was the great-grandfather of the victim.
7 David Cornelius, Sr., died before sentencing, thus the charges were nolle
prossed.




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review as a matter of right has ruled on the merits of the issue[.]”          42

Pa.C.S.A. § 9544(a)(2).      Moreover, “an ‘appellant cannot obtain post-

conviction review of claims previously litigated on appeal by challenging

ineffective assistance of prior counsel and presenting new theories of relief

to support previously litigated claims.’” Commonwealth v. Santiago, 855

A.2d 682, 697 (Pa. 2004) (quoting Commonwealth v. Beasley, 678 A.2d

773, 778 (Pa. 1996)).

      The relevant inquiry when determining whether a PCRA
      petitioner is properly asserting a new and distinct issue, rather
      than simply re-labeling and reasserting a previously litigated
      one, is whether the ineffectiveness claim constitutes a “discrete
      legal ground or merely an alternative theory in support of the
      same underlying issue that was raised on direct appeal.”

Commonwealth v. Gwynn, 943 A.d 940, 944-45 (Pa. 2008) (quoting

Commonwealth v. Collins, 888 A.2d 564, 570 (Pa. 2005)). It is apparent

that Appellant is attempting to reassert a previously litigated claim, that the

evidence of David Cornelius, Sr., should have been admitted into evidence.

Thus, Appellant is not entitled to relief under the PCRA as it was previously

litigated. See 42 Pa.C.S.A. § 9544(a)(2).

      Lastly, Appellant asserts that trial counsel was ineffective for failing to

adequately cross-examine the victim. Counsel’s brief is bereft of discussion

regarding any prejudice or reasonable basis of counsel’s decision regarding

the cross-examination of the victim; thus, Appellant’s claim is waived. See

Reyes-Rodriguez, 111 A.3d at 780 (“[O]n appeal, a petitioner must

adequately discuss all three factors of the “Pierce test,” or the appellate


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court will reject the claim”). Even if the claim was not waived it lacks merit.

Appellant asserts that trial counsel failed to cross-examine the victim

regarding an adult video she viewed while living in North Carolina.

Appellant’s trial counsel questioned the victim extensively regarding adult

videos. See N.T. Jury Trial, 10/29/13, at 135-37, 141-44. Thus, this claim

is without merit.

      Finally, Appellant asserts that trial counsel failed to cross-examine the

victim regarding what she told adults other than police officers. This claim is

meritless as counsel repeatedly asked the victim about what she told others.

See N.T. Jury Trial 10/29/13, at 122-24, 129, 146-47, 149, 151-57, 159,

163. Thus, Appellant’s claim is meritless.

      All of Appellant’s claims are either waived, meritless, or both.      We

therefore affirm the trial court’s order dismissing Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2017




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