J. A03036 /15

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

COMMONWEALTH OF PENN SYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : DEREK J. WIGGINS, : : Appellant : No. 440 MDA 2014
Appeal from the J udgment 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 t he 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 Cont act 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

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(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 i mposition 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)
statemen t 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 Mot her, 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 chi ld 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 theJ. A03036/15

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- testi mony 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 c ontents 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 , 71J. A03036/15

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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

- f inder’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 p hrasing 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 th ere 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).J. A03036/15

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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 sim ilar 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

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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.; evid ence 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 mil itary 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 Stand ard 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 is sue 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 citat ions 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

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Super. 2014), this Court found the appellant had wa ived 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 erron eously 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 ret ires 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. Alth ough 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 ser ves 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) (footno tes 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).J. A03036/15

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In the case sub judice , at the conclus ion 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 t he 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 h e 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.
* * *J. A03036/15

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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 a lso 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 secti on 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 Su preme 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.J. A03036/15

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- 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 mini mum 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 a lso 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

s entence.” 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 judgm ent of sentence and remand for resentencing. See id. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.J. A03036/15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 6/9/2015Circle in Lancaster. (N.T. Jury Trial Vol. 3, 284:22-25.) Given the distance between their

188:24.) In June of 2010, J-and Defendant purchased a home located at 303 Banyan 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 - Trial Vol. 3, 283:7-14.) J 

## l 3 and Defendant married in March of 2007, and in 2009, JtlllP: In December of 2006, J 

### £ $ started to date Defendant, Derek Wiggins. (N.T. Jury into place. (N.T. Jury Trial Vol. 3, 278: l 1-23.) J Q 

## 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 

### BACKGROUND Defendant's claims lack merit and, therefore, his appeal should be dismissed. incomplete instructions, A review of th e record and applicable law demonstrates that numerous evidentiary issues that arose during his trial, and that the Court provided the jury with Procedure. Defendant, Derek Wiggins, claims that this Court issued improper rulings on This Opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate BY: WRIGHT, J. DEREK J. WIGGINS



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### OPINJON IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL Circulated 05/20/2015 04:10 PM2 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 Thoma s ville, 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.) 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.) Circulated 05/20/2015 04:10 PM3

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 a nd 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.)
D e fendant 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 Circulated 05/20/2015 04:10 PM4 1 18Po.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 ). Appeal. In his Statement, Defendant claims that this Court issued improper rulings on numerous on March 28, 2014, Defendant submitted his Concise Statement of Errors Complained of on On March 7, 20 J 4, Defendant filed a timely Notice of Appeal to the Superior Court, and - 20 years of incarceration. 672:4-16; 677:8-11.) On February IO, 2014, Defendant was sentenced to a total aggregate of 10 convicted of all charges and a Pre-Sentence Investigation was ordered. (N.T. Jury Trial Vol. 5, Vol. 4, 442:9-20.) Following a three day jury trial, on November 1, 2013, Defendant was Indecent Assault,' Corruption of Minors," and Unlawful Contact with a Minor.! (N.T. Jury Trial with one count each of Rape of'a Child, 1 Involuntary Deviate Sexual Intercourse with a Child.' As a result ofH.F.'s statements, on May 17, 2012, Detective Mazur charged Defendant (N.T. Jury Trial VoJ. l, 231 :24-233:25.) within seventy-two hours of injury, and that visible scarring can only be observed in 5% of cases, normal, Ms. Stover cautioned that the mucosa] tissue lining the vagina and rectum typically heals Alliance. (N.T. Jury Trial Vol. 2, 226:12-23.) While the results ofH.F.'s examination were and expert in child sexual abuse, performed a physical examination of H.F. at the Children's Following H.F.'s forensic interview , on August 5, 2011, Julie Stover, a nurse practitioner him of his promise. (N.T. Jury Trial 2, 95:2-16.) would stop abusing her after a family beach trip in the summer of20J I, and asked her to remind penis into her vagina. (N.T. Jury Trial Vol. 2, 97: 19-25.) Defendant promised H.F. that he lean down over the bed. (N.T. Jury Trial Vol. 2, 93: l O - 94: 17.) Defendant then inserted his Circulated 05/20/2015 04:10 PM5

her family did not meet the neighbor until after she disclosed the sexual abuse. (N.T. Jury Trial the neighbor shared Defendant's name, police reports unequivocally established that H.F. and H.F. 's statements about the neighbor boy had no relevance to Defendant's trial, While time, or needlessly presenting cumulative evidence." Pa.RE. 403. a danger of "unfair prejudice, confusing the issues , misleading the jury, undue delay, wasting addition, a court may exclude otherwise relevant evidence if its probative value is outweighed by evidence, and the fact is o f consequence in determining the action." Pa.R.E. 401(a-b). In relevant if Hit has any tendency to make a fact more or less probable than it would be without the It is axiomatic that only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is precluded the line of questioning. (N.T. Jury Trial Vol. 2, 171 :16-172:2.) Jury Trial Vol. 2, 170: 18 - 171 :20.) The Court sustained the Commonwealth's objection and District Attorney Karen Mansfield objected asserting that the statements were irrelevant. (N.T. Attorney Ronald Greenblatt attempted to question H.F. about the allegations, and Assistant her case. (N.T. Jury Trial Vol. 2, 171:16-18; 180:4-12.) During trial, lead defense counsel he wanted to "lick J1e1· butt." (N.T. Jury Trial Vol. 2, 170:22 - 171: 15.) Brandy relayed this Specifically, H.F. told Brandy that a neighbor in Kansas, who was also named Derek, said that 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. I. The Trial Court Properly Prohibited Defense Counsel from Questioning H.F., 

# Jtlllil" and Brandy about Irrelevnut and Prejudicial Hearsay Statements. DISCUSSION i nstruct ions. evidenti a ry issues that arose during his trial, and that the Court provided the jury with incomplete Circulated 05/20/2015 04:10 PM6 Objection

... Hypothetical, your Honor, Atty. Greenblatt: Okay. When you were six would you agree with

them? Atty. Mansfield: Not always because sometimes you could say no. H.F.: Okay. And when they say "right" lo you, are you

agreeing with them? Atty, Mansfield: No. I'm guessing they just want me to say if that's

right or wrong. H.F.: 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? Atty. Mansfleld: examination: seven years old, Attorney Mansfield asked H.F. the following questions during her re-direct r e p e ated attempts to. impeach her with prior inconsistent statements made when she was six and At trial , after defense counsel engaged H.F. in a lengthy cross-examination that included affirmative every time defense counsel ended a question with the word "right." the Commonwealth directed H.F. to state that in her prior testimony she had answered in the lead H.F. on redirect examination. Defendant asserts that, as a result of the leading questions, Defendant's second claim is that the Court improperly permitted the Commonwealth to II. The Court did not Improperly Pe1·111it the Commonwealth to Lead H.F. on ReDirect Examination, sustained and the evidence excluded. complicate and obscure the issues. Accordingly, Attorney Mansfield's objection was properly Defendant as her abuser, and Attorney Greenblatt's questions would have only served to danger of unfair prejudice, confusing the issues and misleading the jury. H.F. always identified Vol. 2, 171 :4-8.) Moreover, the probative value of H.F. 's statements was far outweighed by the Circulated 05/20/2015 04:10 PM7

(N.T. Jury Trial Vol. 2, 175:3 - 178:25.) The Court: Well, the jury has heard enough to make their own

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

accurate transcription. H.F.: Yes. Atty. Mansfield: So your answer was yes. So every time som e one

said the word right, to you, did you answer 11 yes?" H.F.: Yes. Atty. Mansfield: Down on Line 23. When that happened, you said

he was in the bathroom, right? Atty. Mansflehh Answer was yes. H.F.: 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.: Okay. Line Number 1.

Question: One time, did you remember if that was· after you told your mom, right? Answer: Yes. 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 Pag e 35

... If you look at Lines I, 2 and 3 on Page 34, if you read those. H.F.: 1 think you- wait. What was the question again? The Court: I think it's appropriate. Six years old is the time of

that transcript. You can answer that

... if you would like. Circulated 05/20/2015 04:10 PM8 6 J 8 P.S. § J 126(11)(7). 7 18 P.S. § 630 I (a)(I ). her family was not familial' with the procedures followed in child abuse investigations. vigilant in her attempts to protect H.F. from sexual abuse; and to refute Michelle's claims that sought to introduce evidence of D.'s guilty pleas for three separate reasons: to demonstrate could be sentenced fol' these offenses and the charges were nolle prossed. At trial, Defendant counts each of Indecent Assault 6 and Corruption ofMinors. 7 Ultimately,~ died before he September 4, 2008, D., Michelle's father and H.F. 's great-grandfather, pied guilty to three that Dll'C t • Senior pied guilty to several sexual offenses involving children. On Defendant's next three allegations of error all relate to his attempts to introduce the fact III. The Court Properly Granted the Commonwealth's Motion in Limine Prohibiting Defense Counsel from Introducing Evidence that H.F.'s GreatGrandfather pied guilty to, but was not convicted of, Indecent Assault and Corruption of Minors. examination. A c cordingly, the Court properly permitted this line of questioning during H.F. 's re-direct Attorney Greenblatt only obj e cted to the questions as hypothetical, never as leading. whether those answers were influenced by the way the questions were posed. Moreover, to examine the answers she gave to leading questions in a prior proceeding, and to indicate any leading questions. Instead, Attorney Mansfield attempted to rehabilitate H.F. by asking her A careful reading of this passage demonstrates that Attorney Mansfield did not ask H.F. Circulated 05/20/2015 04:10 PM9

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

# D.

died when H.F. was a toddler, and defense counsel foiled sub judice, evidence ofD.'s criminal charges had absolutely no relevance to any fact of delay, wasting lime, or needlessly presenting cumulative evidence." Pa.R.E. 403. In the case outweighed by the risk of "unfair prejudice, confusing the issu e s, misleadi n g the jury, undue Pa.R.E. 402. Moreover, a court may exclude otherwise relevant evidence if its probative value is As previously articulated in this Opinion, only relevant evidence is admissible at trial. 402: 10.) sentenced and the charges were ultimately no/le prossed. (N.T. Jury Trial Vol. 3, 401 :24 - inadmissible because, although 

# D.
pied guilty to the offenses, he died before he could be grandfather. (N.T. Jury Trial Vol. 3, 400:4-8.) Moreover, the Court held that the evidence was the testimony established that H.F. was, at most, twenty months old when she last saw her greatCommonwealth objected to this question, and the Court sustained the objection, concluding that came to visit when H.F. was present in her home. (N.T. Jury Trial Vol. 3, 397: 15-20.) The During his cross-examination of Michelle, Attorney Greenblatt asked whether 

# D.

ever establish a connection between 

# D.

and H.F. Court granted the Motion, and stated that it would revisit the ruling if defense counsel could Commonwealth made an oral Motion in Limine to exclude evidence of D-s guilty pleas. The 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 First, Defendant claims that the Court improperly precluded him from introducing 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, Circulated 05/20/2015 04:10 PM10



## 5 interactions with H.F. in case a custody dispute ever arose. (N.T. Jury Trial Vol. 3, testified that she kept a journal detailing During her cross-examination, J Jury Trial Vol. 2, 39:22-25.) evidence was admissible to show that Defendant was on notice of Jc 

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

... was hyper-vigilant about looking out

... for signs that her daughter was being argued that D.'s charges were relevant in this context to explain why J. 

## T "kept journals why J 

## l F was concerned that H.F. would be sexually abused. Specifically, defense counsel Next, defense counsel sought to introduce evidence ofD. 1 s guilty pleas to explain B. Defense Counsel was Properly Precluded from Questioning · about Portions of her Diary that Referred to D- C and the C••l5 Family. and convoluted the issues before the jury. opportunity to sexually assault H.F., this evidence would have prejudiced the Commonwealth D.'s 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 any connection between 

# D.
and H.F., defense counsel sought to introduce evidence of the risks of unfair prejudice, confusing the issues and misleading the jury, Without establishing In addition, the probative value of [9's guilty pleas was significantly outweighed by charges were ultimately 1101/e pressed, further diminishing their relevance. Corruption of Minors, he died before sentencing for these offenses could occur and all of the individual that abused her, Finally, although D. pJed guilty to Indecent Assault and pertinence at Defendant's trial. Moreover, H.F. consistently identified Defendant as the Circulated 05/20/2015 04:10 PMJ J

kinds of situations." (N.T. Jury Trial, 3, 398:19

- 25.) The Court ruled that, while Attorney show that [Michelle] knows from those convictions bow to call CYS and what to do in these H.F. 's allegations. Specifically, Attorney Greenblatt argued that the evidence was admissible "to evidence ofD-s charges lo contradict Michelle's claims that she did not know how to report During his cross-examination of Michelle, Attorney Greenblatt attempted to introduce York County Children and Youth Services." (N.T. Jury Trial Vol. 3, 388: l-4.) don't know what to do,

.. What do you do? l said, I guess start with CYS. So we looked up she was being sexually abused by Defendant, 

## V...-. asked her who to contact to report the investigations. During her direct examination, Michelle testified that after H.F. disclosed that that Michelle and her family were familiar with the procedures involved in child abuse Finally, Defendant attempted to introduce evidence of D-s charges to demonstrate C. Evidence of D

.. 's Charges was Not Admissible to Contradict Michelle on fl Col1ate1·al Issue. Court properly sustained the Commonwealth's objection to defense counsel's question. Defendant's trial, and was significantly more prejudicial than it was probative. Accordingly, the charges. As previously articulated, evidence of D-s guilty pleas was completely irrelevant to thinly veiled attempt to open the door to the irrelevant and highly prejudicial evidence of 

## nes about allowing H.F. to visit the 

# aa••• family, defense counsel was engaged, once again, in a By asking

.... r questions regarding passages of her journal that detailed her concerns objection. (N.T. Jury Trial Vol. 3, 321 :23-25.) Jury Trial Vol. 3, 321 :20-22.) The Commonwealth objected, and the Court sustained the 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. Circulated 05/20/2015 04:10 PM12

confused and nJis}

_ ecid the jury. the limited purpose of impeaching Michelle would have sidetracked the proceedings and 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 investigations through the use of prior inconsistent statements , there was absolutely no reason to defense counsel some leeway to question Michelle about her familiarity with child abuse thus, was not permitted, even for the purpose of impeaching Michelle. While the Court granted ,:··· .~ Defendant's proffered line of questioning had no relationship to the case on trial, and only be permitted on "matters germane to the issue trying." Id. Petrillo, 341 Pa. at 233, 19 A.2d at 295 (emphasis in original). Contradiction of a witness will lied in making a statement about something which has no relationship lo the case on trial" pivotal issues in a trial cannot be 'side-tracked' for the determination of whether or not a witness Pa. 209, 223, 19 A.2d 228, 295 ( 1941 )). The Suprente l!omt of Pennsylvania has slated that "the "one which has no relationship to the case on trial." Id. tctting Commonwealth v. Petrillo, 34 1 J ,. Mctloldrick v. Pa. R.R. Co., 430 Pa. 597, 600, 241 A.2d 90, 92 ( 1968)). A col lateral matter is matters. Commonwealth v. Fisher, 447 Pa. 405, 413, 290 A.2d 262, 267 (1972) (clting It is well-settled in Pennsylvania that a witness may not be contradicted on collateral D-s charges. (N.T. Jury Trial Vol. 3, 402:3-17.) regarding her knowledge ofchild abuse investigations, he could not introduce evidence of Greenblatt was permitted to question Michelle about any prior inconsistent statements she made Circulated 05/20/2015 04:10 PM13

objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe Pennsylvania courts have held that "if [a] defendant delves into what would be sanctions. (N.T. Jury Trial Vol. 4, 543:6-9.) cautioned that the Commonwealth was not permitted to ask Defendant about the reason for these about his discharge status. (N.T. Jury Trial Vol. 4, 542: 16 - 543 :7.) Nevertheless , the Court objection holding that Attorney Pierce opened the door to the questions by asking Defendant Commonwealth's questions as improper impeachment evidence, and the Court overruled the enlisting in the military. (N.T. Jury Trial Vol. 4, 542:5-15.) Attorney Pierce objected to the about the fact that he was moved back a pay grade prior to discharge and was prohibited from reJury Trial Vol. 4, 507:3.) As a result, on cross-examination Attorney Mansfield asked Defendant Jury Trial Vol. 4, 507: 1-2.) Defendant indicated that he received an honorable discharge. (N.T. Defendant about Ms military background and asked what type of discharge he received. (N .T. During Defendant's direct examination, defense attorney Patricia Piece questioned flawless and without incident. (N.T. Jury Trial Vol. 2, 35:23 - 36:6.) did not apply if defense counsel opened the door by portraying Defendant's military career as (N.T. Jury Trial Vol. 2, 35: 16-22.) However, the Commonwealth indicated that the agreement rank and a 

### pay grade and was barred from re-enlisting in the military as a result of steroid use. Defendant, although honorably discharged from the United States Marnie Corps, was dropped a to trial, counsel agreed that the Commonwealth could not ask any questions about the fact that question Defendant about the circumstances surrounding his discharge from the military. Prior Defendant's next claim is that the Court erred in permitting the Commonwealth to 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. Circulated 05/20/2015 04:10 PM14

294, 331 (2003). Finally, in evaluating the correctness of a charge, a court must read the charge the proposed charge is without error. Commonwealth v. Orgrod, 576 Pa. 412, 475, 839 A.2d to instruct the jury pursuant to every request made to the court, even if the substantive law within Pa. Super. 475, 482, 581 A.2d 230, 234 ( 1990). Further, there is no requirement for a trial court accurately reflects the law and guides the jury in its deliberations. Commonwealth v. Ort, 398 It is weJl established that a court's jury charge will be upheld so long as it adequately and prior testimony. Court's charge because HF. made several statements at trlnl which were inconsistent with her Statement," Specifically, Defendant claims that this instruction should have been included in the Standard Criminal Jury Instruction 4.08A, "Impeachment 01· Substantive Evidence - Inconsistent Defendant's flnal claim is that the Court erred in refusing to give Pennsylvania Suggested V. The Court's Charge, Read in its Entirety, Provided a Clear and Accurate Explanation of the LRW to the Jury. portraying his service. Accordingly, defense counsel's objection was properly overruled. inferred that Defendant's military career was flawless, enhancing his credibility and inaccurately been sustained and the Commonwealth's questions precluded, the jury would have reasonably questions about the circumstances surrounding his discharge. Had Attorney Pierce ' s objection type of military discharge he received, unquestionably opening the door to the Commonwealth's discharge was honorable. Id. In the case at bar, Attorney Pierce directly asked Defendant what the door to questions about a defendant's military discharge status merely by implying that his gate." Id. In Stakley, the Pennsylvania Superior Court concluded that defense counsel opened A.2d 1298, 1300 ( 1976). This is commonly referred to as "opening the door," 01· "opening the further into the objectionable area." Commonwealth v. Stakley, 243 Pa. Super. 426, 430, 365 Circulated 05/20/2015 04:10 PM15

. . . 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 witn e sses may or may not cause you to disbelieve some or all of their testimony. Remember, two or more persons witnessing an incident 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

... 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 wh e n 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? 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. inconsistent statements by witnesses: In the case sub

judice, I provided the jury with the following instructions regarding Super, 1, 10 , 612 A.2d 1009, 1014 (1993). it its entirety and the general effect of the charge controls. Commonwealth v. Myers, 424 Pa. Circulated 05/20/2015 04:10 PM16

According, I enter the following: appeal be dismissed. Since Defendant's claims of error lack merit, this Court respectfully requests that his CONCLUSION Instruction 4.08A was made a part of the record, and as a result, the issue was waived. request for or objection to the absence Pennsylvania Suggested Standard Criminal Jury Accordingly, not only was my charge an adequate and accurate recitation of the law, but no Both attorneys agreed that the charge was complete. (N .T. Jury Trial Vol. 5, 664: 17-18.) additional instructions that should be included in my charge. (N.T. Jury Trial Vol. 5, 664: 15-16.) charge , I asked both Attorneys Greenblatt and Mansfield to indicate whether there were any the witnesses, and how to reconcile inconsistent testimony. Further , at the completion of my but additionally provided the panel with extensive guidance on how to evaluate the credibility of 

### My instructions not only furnished the jury with a clear and accurate recitation of the law, (N.T. Jury Trial Vol 5., 647:5 - 648:13; 651: 10- 652:5.) ... [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. 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 a nd which to reject as untrue or inaccurate. · Circulated 05/20/2015 04:10 PMCopies to: Karen Mansfield, Assistant District Attorney Ronald Greenblatt, Esquire 123 S. Broad Street, Suite 2500, Philadelphia, PA 19109 BY THE COURT: to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, ~ AND NOW, this 

## Zf day of April, 2014, the Court hereby submits this Opinion pursuant ORDER No. 3291-2012
DEREK J. WIGGINS



### v. COMMONWEALTH OF PENNSYI.. VANIA IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL Circulated 05/20/2015 04:10 PM