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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 presentence 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.” ReyesRodriguez, 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,7to 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 postconviction 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