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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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