J-A26041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                          Appellee

                     v.

HARVEY ELWOOD DEMMITT, JR.

                          Appellant               No. 233 MDA 2014


         Appeal from the Judgment of Sentence February 23, 2009
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000388-2008


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED DECEMBER 01, 2014

      Appellant Harvey Demmitt, Jr. (“Appellant”) appeals the judgment of

sentence entered on February 23, 2009, by the Centre County Court of

Common Pleas.    After careful consideration, we reverse and remand for a

new trial.

      The trial court summarized the facts and procedural history of this

matter as follows:

            On February 19, 2008, [Appellant] was arrested and
      charged with Failure to Comply with Registration of Sexual
      Offenders Requirements, 18 Pa.C.S.A. § 4915. [Appellant] was
      charged on the same day that [Appellant] was released from the
      State Correctional Institution at Rockview at the completion of
      his revocation sentence on an earlier charge.      Prior to his
      release, having been previously determined to be a Sexually
      Violent Predator, [Appellant] met with SCI-Rockview staff to
      review the residence reporting requirements under Megan's Law
      for Sexually Violent Predators.     Several SCI-Rockview staff
      members worked with [Appellant] to attempt to secure housing
      for him. The staff specifically looked for a structured living
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     arrangement that could accommodate [Appellant’s] mental
     illness. Unfortunately, the staff members were unable to find
     any facility in Pennsylvania with an available bed. [Appellant]
     also attempted to secure a residence with his parents, other
     relatives, and his former foster parents, but those efforts were
     similarly unsuccessful.

           Ten days prior to his scheduled release, [Appellant] met
     with a records[] officer at SCI-Rockview and told the officer that
     he wanted to either stay at SCI-Rockview or walk to the Centre
     County Correctional Facility, the local county prison, because he
     was otherwise homeless.        Eventually, [Appellant] told SCI-
     Rockview staff that he did not have an intended residence and
     therefore did not intend to comply with the reporting
     requirements. Accordingly, upon release, [Appellant] was met
     by Trooper Brian Wakefield of the Pennsylvania State Police,
     who, after confirming that [Appellant] was not in compliance
     with the registration requirements, arrested him, read him his
     Miranda rights, and eventually charged him with Failure to
     Comply with Registration of Sexual Offenders Requirements, 18
     Pa.C.S.A. § 4915.

            [Appellant] was found guilty of this charge by a jury on
     January 13, 2009.          Thereafter, on February 23, 2009,
     [Appellant] was sentenced to 1 to 7 years in a State Correctional
     Facility with credit for 371 days time served. On February 26,
     2009, [Appellant] filed Post-Sentence Motions arguing, inter alia,
     that one could not be convicted for failing to register a residence
     if one was homeless. At trial, [Appellant] requested a Point for
     Charge to inform the jury that it could not find [Appellant] guilty
     if he were homeless. The Commonwealth did not object, and the
     Court said that it would read the charge. Ultimately, the Point
     for Charge was not read to the jury.            [Appellant] timely
     objected. After several hours of deliberation, the jury sent out a
     question as to whether a Sexually Violent Predator had to
     include a specific address on the registration form in order to be
     properly registered. The Court responded, over [Appellant’s]
     objection, that for the form to be complete, it had to contain a
     specific intended residence.

           After a hearing on July 15, 2009, the Court granted in part
     [Appellant’s] Post-Sentence Motion, finding that it was
     constrained by the Superior Court’s holding in Commonwealth
     v. Wilgus, 2009 PA Super. 116, 975 A.2d 1183, rev’d 40 A.3d
     1201 (Pa. 2012) (“Wilgus I”), to award [Appellant] a new trial.

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     The Wilgus I Court found that the lower court had properly
     arrested judgment in a case where an offender was arrested for
     not providing his address due to his homelessness. Accordingly,
     [Appellant] was awarded a new trial. [Appellant] then filed a
     Motion for Reconsideration on July 20, 2009, arguing that the
     proper remedy was not a new trial but instead an arrest of
     judgment.

            Before the Court ruled on [Appellant’s] Motion for
     Reconsideration, the Commonwealth appealed on August 13,
     2009, challenging the [c]ourt’s order granting [Appellant] a new
     trial. The Superior Court did not decide the Commonwealth’s
     appeal until May 1, 2012. ln the interim, on March 26, 2012, the
     Supreme Court reversed Wilgus I and explained that
     “Pennsylvania’s Megan's Law clearly requires sexually violent
     predators to notify Pennsylvania State Police of all current and
     intended residences, and to notify police of a change of
     residence. . . There is no exception for homeless offenders, and
     the Superior Court was incorrect in reading such an exception
     into the statute.” Commonwealth v. Wilgus, 40 A.3d 1201,
     1208 (Pa. 2012) ("Wilgus II”)). Thereafter, on May 1, 2012,
     the Superior Court reversed this [c]ourt’s July 15, 2009 Opinion
     and Order granting [Appellant] a new trial, and held that in
     accordance with Wilgus II homelessness was not a defense to a
     charge of failure to comply with sex offender registration
     requirements. Commonwealth v. Demmitt, 2012 PA Super.
     95, 45 A.3d 429, 432 appeal denied, 67 A.3d 793 (Pa. 2013.)

            On May 13, 2013, [Appellant] filed a Motion to Rule on
     Post-Sentence Motions Outstanding at the Time of the
     Commonwealth’s Appeal because the [c]ourt had not considered
     all of [Appellant’s] Post-Sentence Motions before the appeal. This
     [c]ourt granted [Appellant’s] Motion in an Opinion and Order
     dated September 11, 2013, and held a hearing on the remaining
     motions on November 4, 2013.            Thereafter both parties
     submitted briefs. Upon consideration of the record, briefs, and
     arguments of counsel, the [c]ourt is ready to render its decision
     on the four remaining Post-Sentence Motions: Motion for Arrest
     of Judgment—Sufficiency of the Evidence; Motion for Arrest of
     Judgment—Bill of Attainder; Motion for New Trial—Court's
     Rejection of Defense of Homelessness; and Motion for New
     Trial—Prosecutorial Misconduct.




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Trial Court Opinion and Order, Jan. 9, 2014 (“1925(a) Opinion”), pp. 1-4

(footnote omitted).

      Appellant raises the following claims for our review:

      I. Was the evidence insufficient to establish that [Appellant]
      failed to comply with registration of sexual offender
      requirements as he clearly identified a place where he intended
      to reside, but the records officer refused to list this information
      on the registration form?

      II. As applied to the facts in this case, does Megan’s Law
      constitute an illegal Bill of Attainder?

      III. Is [Appellant] entitled to a new trial where the court changed
      its ruling on [Appellant’s] Points for Charge and took away
      [Appellant’s] homelessness defense after [Appellant’s] closing
      argument?

      IV. Was [Appellant] denied substantive due process of law such
      that he is entitled to a new trial where the Commonwealth, in
      order to avoid dismissal of the charges on pre-trial motions, told
      the trial court that it was not prosecuting [Appellant] because he
      was involuntarily homeless; then reneged on its earlier
      representations and argued that [Appellant] was guilty even if
      his homelessness was involuntary?

Appellant’s Brief, pp. 5-6.

      We address Appellant’s third claim first, as it is dispositive.   In this

claim, Appellant maintains that the court committed reversible error when it

informed him it would instruct the jury that homelessness was a defense to

the crime charged and, after closing arguments, reversed its ruling.        See

Appellant’s Brief, p. 35. We agree.

      This Court’s standard of review in assessing a trial court’s jury

instructions is as follows:



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      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super.2007) (quoting

Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa.Super.2007)).

      Pennsylvania Rule of Criminal Procedure 647 provides:

      Any party may submit to the trial judge written requests for
      instructions to the jury. . . . Before closing arguments, the trial
      judge shall inform the parties on the record of the judge’s rulings
      on all written requests and which instructions shall be submitted
      to the jury in writing. The trial judge shall charge the jury after
      the arguments are completed.

Pa.R.Crim.P. 647(A).   “The purpose of this rule is to require the judge to

inform [counsel] in a fair way what the charge is going to be, so that they

may intelligently argue the case to jury.” Commonwealth v. Hendricks,

546 A.2d 79, 81 (Pa.Super.1988) (quoting United States v. Wander, 601

F.2d 1251, 1262 (3rd Cir.1979)). A court’s failure to comply with Rule 647

requires the granting of a new trial if “counsel’s closing argument was

prejudicially affected thereby.”   Id. (quoting United States v. McCown,

711 F.2d 1441, 1452 (9th Cir.1983) (discussing federal version of rule)).

      In Hendricks, this Court ordered a new trial where the court did not

rule on requested points of charge until after closing argument, and defense

counsel’s closing arguments focused on a requested point of charge that the

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trial court subsequently refused to give to the jury. Hendricks, 546 A.2d at

82-83. The Court found that because the trial court failed to inform counsel

of its decision to reject the proposed instruction, and because counsel’s

summation relied on an instruction the jury never received, a new trial was

warranted. Id. at 83.

      Here, Appellant requested, and the trial court stated it would provide,

an instruction that homelessness was a defense to the crime charged. The

trial court, however, did not provide the homelessness charge. Instead, it

instructed the jury as follows:

            The charge against the Defendant is that of failure to
      follow certain reporting requirements imposed by law. To find
      the defendant guilty of this offense you must find that the
      following elements have been established beyond a reasonable
      doubt:

             First that the Defendant is required to register all current
      of intended residences with the Pennsylvania State Police upon
      his release from a state correctional facility.

            Second that the Defendant knowingly failed to register all
      current or intended residences with the Pennsylvania State Police
      upon release. To act knowingly in this regard means that the
      defendant was aware of his obligation and voluntarily did not do
      so.

            In my instructions I have given you the legal definition of
      the crime charged. Motive is not a part of that definition. The
      Commonwealth [is] not require[d] to prove a motive for the
      commission of the crime charged.

           However, you should consider evidence of motive or lack
      of motive. Knowledge of human nature tells us that an ordinary
      person is more likely to commit a crime [if] he or she has a
      motive than if he or she has none.




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            You should weigh and consider the evidence attempting to
      show motive or absence of motive, along with all other evidence
      in deciding whether the Defendant is guilty or not guilty. It is
      entirely up to you to determine what weight should be given to
      the evidence concerning motive.

             As used in the proceeding instruction, the following words
      have the following meanings: residence is a location where an
      individual resides, or is domiciled, or intends to be domiciled for
      30 consecutive days or more during a calendar year.

            Voluntary is proceeding from the will, done of or due to
      one’s own accord or free choice; unconstrained by external
      inference, force, or influence; not compelled, prompted, or
      suggested by another. Spontaneous: of one’s is or its own
      accord, free.

            Criminal liability may not be imposed for the failure to
      perform acts which a person has no power to perform. Rather,
      [the] essence of criminal law is the imposition of criminal liability
      for voluntary, [culpable] acts which are offensive to public order
      and decency.

N.T. 1/12/2009, pp. 172-174.

      The trial court found the denial of the homelessness charge was not

error because homelessness is not a defense. 1925(a) Opinion, p. 8. The

trial court further found that, unlike Hendricks, Appellant was not

prejudiced by the absence of the requested instruction because it gave the

following instruction instead: “Criminal liability may not be imposed for the

failure to perform acts which a person has no power to perform. Rather the

essence of criminal law is the imposition of criminal liability for voluntary,

[culpable] acts which are offensive to public order and decency.” Id. at 9.

      The trial court abused its discretion by refusing to charge the jury as

agreed.   Prior to closing arguments, the court informed the parties that it



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J-A26041-14



would instruct the jury that homelessness was an absolute defense to the

crimes charged.      Defense counsel tailored his closing argument in reliance

upon the court’s assurances.          See N.T. 1/12/2009, pp. 153-158.        Then,

without warning, the trial court did not give the jury the homelessness

charge. See 1925(a) Opinion, p. 7; N.T. 1/12/2009, pp. 172-174. Given

that defense counsel tailored Appellant’s closing upon the expected

homelessness charge, the trial court’s failure to provide the charge was an

error that prejudiced Appellant.1          This error warrants a new trial.    See

Hendricks, 546 A.2d at 82-83.            Accordingly, we reverse the judgment of

sentence and remand the matter for a new trial.2

       Judgment of sentence reversed.            Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/1/2014

____________________________________________


1
  We further note that the trial court’s “failure to perform” charge, discussed
supra, was not nearly as explicit as the previously-agreed homelessness
charge and did not remedy the prejudice suffered by Appellant when the
court failed to charge the jury as it had indicated it would prior to Appellant’s
closing argument.
2
  Because Appellant’s third claim is dispositive, we need not discuss
Appellant other three claims of error.



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