J. A03036/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

DEREK J. WIGGINS, :

:

Appellant : No. 440 MDA 2014

Appeal from the Judgment of Sentence February 10, 2014

In the Court of Common Pleas of Lancaster County 

Criminal Division No(s).: CP-36-CR-0003291-2012

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

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

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

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

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

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

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

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3121(c).

2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 3126(a)(7).

4 18 Pa.C.S. § 6301(a)(1)(ii).

5 18 Pa.C.S. § 6318(a)(1).
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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 imposition of a mandatory 

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

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

sentence, and remand for resentencing.

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

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

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

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

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

responsive opinion.

Appellant raises the following issues on appeal:

I. Did the trial court err when it ruled that the defense was 

precluded from questioning [H.F.,] the child victim, her 

Mother, and her Stepmother about the fact that the child 

had previously accused a neighbor with the same name as 

Appellant of asking to perform a sexual act on her?

II. Did the trial court improperly permit the prosecutor to 

vouch for the veracity of the child witness by allowing her 

to lead the witness, on redirect examination, to state that 

during her prior testimony she had answered in the 

affirmative every time counsel had ended a question with 

the word “right?”

III. Did the court improperly preclude the defense from 

introducing evidence to show that the child victim’s GreatGrandfather had pled guilty to three counts of molestation 

involving young girls to show: (1) that he might have been 

the perpetrator in the instant case; and (2) to impeach the 
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testimony of Michele Windle and to show that members of 

the Cornelius family were familiar with the processes and 

consequences of child abuse investigations?

IV. Did the trial court improperly prevent the defense from 

questioning the child’s Mother about the contents of a 

diary she maintained during the time when the child victim 

was allegedly abused?

V. Did the trial court improperly rule that the defense had 

opened the door to questioning regarding Appellant’s 

discharge from the military?

VI. Did the trial court err in refusing to give requested 

Pennsylvania Standard Criminal Jury Instruction 4.08A, 

Impeachment or Substantive Evidence─Inconsistent 

Statement, where the child victim, whose credibility was 

dispositive to the outcome of this case, made numerous 

prior inconsistent statements?

Appellant’s Brief at 5-6.

At oral argument before this Court, Appellant requested permission to 

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

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

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

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

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

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

 

6 The statute provided for mandatory sentences. “Application of a 

mandatory sentencing provision implicates the legality, not the 

discretionary, aspects of sentencing.” Commonwealth v. Dixon, 53 A.3d 

839, 842 (Pa. Super. 2012) (citation omitted). Appellant challenges the 

legality of his sentence. “[L]egality of sentencing claims per se can be 

raised for the first time on direct appeal.” Commonwealth v. Brown, 71 
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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-finder’s assessment 

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

Appellant argues the court improperly permitted the prosecutor to bolster 

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

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

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

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

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

perpetrator. Appellant contends the court should have permitted the 

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

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

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

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

 

A.3d 1009, 1016 (Pa. Super. 2013), appeal denied, 77 A.3d 635 (Pa. 2013). 

We note the Commonwealth avers that it filed a petition for allowance of 

appeal in Wolfe, which is pending before the Supreme Court of 

Pennsylvania. See Commonwealth’s Post Submission Communication, 

2/20/15, at 3. This Court has held “even though [a] petition for allowance 

of appeal was pending before the Pennsylvania Supreme Court, [the] 

decision remains binding precedent as long as the decision has not been 

overturned by our Supreme Court[.]” Commonwealth v. Santiago, 980 

A.2d 659, 666 n.6 (Pa. Super. 2009) (citation omitted).
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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 

similar to a ruling on a motion to suppress evidence, 

[therefore] our standard of review . . . is the same as that 

of a motion to suppress.” The admission of evidence is 

committed to the sound discretion of the trial court, and 

our review is for an abuse of discretion.

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

omitted).

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

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

 

7

 We note Appellant raised this issue before trial and the court reserved 

ruling on it. N.T., 10/29/13 at 36-37.
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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.; evidence of H.F.’s GreatGrandfather’s charges, and references to them in Mother’s diary, were 

irrelevant and prejudicial, as there was no established connection between 

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

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

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

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

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

requested Pennsylvania Standard Criminal Jury Instruction 4.08A, 

Impeachment or Substantive Evidence─Inconsistent Statement. Appellant 

avers the trial court erred in stating counsel had waived9this issue because 

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

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

As a prefatory matter, we consider whether Appellant has preserved 

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

 

8 We note typographical errors in the citations for Commonwealth v. 

Petrillo, 19 A.2d 288 (Pa. 1941) and Commonwealth v. Myers, 621 A.2d 

1009 (Pa. Super. 1993). See Trial Ct. Op. at 12, 15.

9 We note the trial court addressed the issue and held it to be meritless, 

notwithstanding the fact that it found waiver. See Trial Ct. Op. at 14-16.
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Super. 2014), this Court found the appellant had waived his objection to the 

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

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

Court opined:

In order to preserve a claim that a jury instruction was 

erroneously given, the Appellant must have objected to the 

charge at trial. See Commonwealth v. Spotz, [ ] 84 

A.3d 294, 318 n. 18 ([Pa.] 2014) (citations omitted); 

Pa.R.A.P. 302(b) (“A general exception to the charge to 

the jury will not preserve an issue for appeal. Specific 

exception shall be taken to the language or omission 

complained of.”); Pa.R.Crim.P. 647(B) (“No portions of 

the charge nor omissions from the charge may be 

assigned as error, unless specific objections are 

made thereto before the jury retires to deliberate.”). 

As our Supreme Court has explained:

The pertinent rules, therefore, require a specific 

objection to the charge or an exception to the trial 

court’s ruling on a proposed point to preserve an 

issue involving a jury instruction. Although 

obligating counsel to take this additional step 

where a specific point for charge has been 

rejected may appear counterintuitive, as the 

requested instruction can be viewed as alerting the 

trial court to a defendant’s substantive legal position, 

it serves the salutary purpose of affording the 

court an opportunity to avoid or remediate 

potential error, thereby eliminating the need 

for appellate review of an otherwise correctable 

issue.

Commonwealth v. Pressley, [ ] 887 A.2d 220, 224 

([Pa.] 2005) (footnotes and citations omitted); see

Commonwealth v. Garang, 9 A.3d 237, 244–245 (Pa. 

Super. 2010) (citations omitted); Commonwealth v. 

Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations 

omitted).

Id. (emphases added).
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In the case sub judice, at the conclusion of the jury charge, the court 

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

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

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

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

at 29.

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

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

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

 

10 Section 9718 provides, inter alia, as follows:

(a) Mandatory sentence.─

(1) A person convicted of the following offenses when 

the victim is less than 16 years of age shall be 

sentenced to a mandatory term of imprisonment as 

follows: 

18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated 

assault)--not less than two years. 

18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating 

to rape)--not less than ten years. 

18 Pa.C.S. § 3123 (relating to involuntary deviate 

sexual intercourse)--not less than ten years. 

18 Pa.C.S. § 3125(a)(1) through (6) (relating to 

aggravated indecent assault)--not less than five years.

 * * *
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standard of review of questions involving the legality of a sentence is wellsettled:

“A challenge to the legality of a sentence . . . may be 

entertained as long as the reviewing court has 

jurisdiction.” It is also well-established that “[i]f no 

statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction.” “An 

illegal sentence must be vacated.” “Issues relating to 

the legality of a sentence are questions of law[.] . . . Our 

 

(3) A person convicted of the following offenses shall be 

sentenced to a mandatory term of imprisonment as 

follows: 

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

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

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

 * * *

(c) Proof at sentencing.─The provisions of this section 

shall not be an element of the crime, and notice of the 

provisions of this section to the defendant shall not be 

required prior to conviction, but reasonable notice of the 

Commonwealth’s intention to proceed under this section 

shall be provided after conviction and before sentencing. 

The applicability of this section shall be determined at 

sentencing. The court shall consider any evidence 

presented at trial and shall afford the Commonwealth and 

the defendant an opportunity to present any necessary 

additional evidence and shall determine, by a 

preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9718(a)(1), (3), & (c). The Wolfe Court noted “In [Alleyne v. 

United States, 133 S. Ct. 2151 (2013)], the Supreme Court held that “facts 

that increase mandatory minimum sentences must be submitted to the jury” 

and must be found beyond a reasonable doubt. [Id.] at 1263.” Wolfe, 106 

A.3d at 802.
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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 minimum statute pursuant to Section 9718. Id. at 802. This 

Court opined:

[T]he mandatory minimum statute in this case contains 

the same format as the statutes struck down as facially 

unconstitutional in [Commonwealth v. Newman, 99 

A.3d 86 (Pa. Super. 2014) (en banc)] and 

[Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 

2014)]. See 42 Pa.C.S.A. §§ 9712(a), 9712(c), 

9712.1(a), 9712.1(c), 9713(a), 9713(c), 9718(a), 

9718(c). Following Newman’s instructions, we are 

required to conclude that Section 9718 is also facially 

unconstitutional.

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

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

court imposed an illegal sentence when it imposed the mandatory minimum 

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

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

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

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

resentencing. See id.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2015
Circle 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 the 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 

v. 

COMMONWEALTH OF PENNSYLVANIA 

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April 28, 2014 

OPINJON 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

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2 

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

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

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

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

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

3, 249:2-5.) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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.) 

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3 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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118Po.C.S.A.§312l(c). 

z 18 P.S. § 3123(b). 

3 18 Pii.C.S.A. § 3216(a)(7). 

4 18 P.S. § 6301(a)(l)(ii). 

s 18 Pn.C.S.A. § 6318(11)(1 ). 

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 

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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 of 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. 

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

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

Okay. When you were six would you agree with 

them? 

Atty. Mansfield: 

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

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 

repeated 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 

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(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 someone 

said the word right, to you, did you answer 11yes?" 

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 Page 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. 

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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 Assault6 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. 

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

Attorney Greenblatt only objected 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. 

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9 

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 issues, misleading 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, 

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

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

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.1s 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 

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J 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. 

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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, 341J ,. 

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 

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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. 

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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 

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. . . 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 

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 when judging the credibility 

and deciding whether 01; not to believe the testimony. Was the witness 

able to see, hear, or know the things about which they testified? How well 

could the witness remember and describe the things about which they 

testified? Was the ability of the witness to see, hear, know, remember or 

describe affected by youth or old age or by any physical, mental or 

intellectual deficiency or impairment? Did the witness testify in a 

convincing manner? Did the witness have any interest in the outcome of 

the case, or any bias, prejudice or other motive that might affect the 

witness' testimony? How well does the testimony of the witness square 

with the other evidence in the case, including the testimony of the other 

witnesses? 

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. 

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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 and which to 

reject as untrue or inaccurate. · 

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Copies 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 

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