Com. v. Demmitt, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 NOVEMBER 04, 2015

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

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

Common Pleas. 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
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residence reporting requirements under Megan’s Law1 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 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 [p]ost-[s]entence
[m]otions arguing, inter alia, that one could not be
convicted for failing to register a residence if one was
homeless. At trial, [Appellant] requested a [p]oint for
[c]harge to inform the jury that it could not find
[Appellant] guilty if he were homeless. The
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1
Megan’s Law III applied at the time of Appellant’s offense. See 42
Pa.C.S.A. §§ 9791–9799.9; Commonwealth v. Demmit, 45 A.3d 429, 430
(Pa.Super.2012), appeal denied, 67 A.3d 793 (Pa.2013).

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Commonwealth did not object, and the [c]ourt said that it
would read the charge. Ultimately, the [p]oint for [c]harge
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 [c]ourt 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 [c]ourt granted in
part [Appellant’s] [p]ost-[s]entence [m]otion, 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. 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 [m]otion
for [r]econsideration on July 20, 2009, arguing that the
proper remedy was not a new trial but instead an arrest of
judgment.

Before the [c]ourt ruled on [Appellant’s] [m]otion for
[r]econsideration, 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. [Demmitt, 45 A.3d at
432].

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On May 13, 2013, [Appellant] filed a [m]otion to [r]ule on
[p]ost-[s]entence [m]otions [o]utstanding at the [t]ime of
the Commonwealth’s [a]ppeal because the [c]ourt had not
considered all of [Appellant’s] [p]ost-[s]entence [m]otions
before the appeal. This [c]ourt granted [Appellant’s]
[m]otion in an [o]pinion and [o]rder dated September 11,
2013, and held a hearing on the remaining motions on
November 4, 2013. Thereafter both parties submitted
briefs.

Trial Court Opinion and Order, Jan. 9, 2014, pp. 1-4 (footnote omitted). On

January 9, 2014, the trial court denied the motions. Appellant filed a timely

notice of appeal. Appellant filed a concise statement of errors complained of

on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)

and, on April 11, 2014, the trial court issued a Rule 1925(a) opinion

adopting its January 9, 2014 opinion.

On December 1, 2014, this Court issued a memorandum holding the

trial court’s failure to instruct the jury that homelessness was a defense to

the charged crime after informing counsel it would do so constituted

reversible error. We reversed Appellant’s judgment of sentence and

remanded to the trial court.

On December 31, 2014, the Commonwealth of Pennsylvania filed a

petition for allowance of appeal to the Supreme Court of Pennsylvania. On

January 8, 2015, Appellant filed a cross-petition for allowance of appeal to

the Supreme Court of Pennsylvania. On July 28, 2015, the Supreme Court

denied the Commonwealth’s petition for allowance of appeal. That same

day, it granted Appellant’s petition for allowance of appeal, vacated this

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Court’s order, and remanded the case to this Court to address Appellant’s

challenge to the sufficiency of the evidence and his constitutional challenge.

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.

Appellant’s first claim maintains the Commonwealth presented

insufficient evidence because it failed to prove he did not register pursuant

to Megan’s Law. Appellant’s Brief at 17-23. We disagree.

We apply the following standard when reviewing a sufficiency of the

evidence claim: “[W]hether viewing all the evidence admitted at trial in the

light most favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond a

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reasonable doubt.” Commonwealth v. Lehman, 820 A.2d 766, 772

(Pa.Super.2003), affirmed, 870 A.2d 818 (2005) (quoting Commonwealth

v. DiStefano, 782 A.2d 574 (Pa.Super.2001)). When we apply this

standard, “we may not weigh the evidence and substitute our judgment for

the fact-finder.” Id.

“[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Lehman, 820 A.2d at

772 (quoting DiStefano, 782 A.2d 574). Moreover, “[a]ny doubts regarding

a defendant’s guilt may be resolved by the fact-finder unless the evidence is

so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances.” Id. “The Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.” DiStefano,

782 A.2d at 582 (quoting Commonwealth v. Hennigan, 753 A.2d 245,

253 (Pa.Super.2000)).

In applying the above test, we must evaluate the entire record and we

must consider all evidence actually received. DiStefano, 782 A.2d at 582

(quoting Hennigan, 753 A.2d at 253). Further, “the trier of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part or none of the evidence.” Id.

Appellant maintains he did not refuse to register or otherwise fail to

provide registration information. Appellant’s Brief at 19. He signed the

registration form prepared by the Department of Corrections’ personnel and

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submitted to the required fingerprinting and photographing. Id. When he

completed the form, he identified the State Correctional Institution at

Rockview as his current residence. Id. Further, he informed the corrections

officer that if he could not stay at SCI-Rockview, he would go to the county

jail. Id. The corrections officer failed to record and transmit this intended

residence to the state police. Id.

At the relevant time, the offense of failure to comply with registration

of sexual offenders requirements was defined as follows:

An individual who is subject to registration under 42
Pa.C.S. § 9795.1(a) (relating to registration) or an
individual who is subject to registration under 42 Pa.C.S. §
9795.1(b)(1), (2) or (3) commits an offense if he
knowingly fails to:

(1) register with the Pennsylvania State Police as required
under 42 Pa.C.S. § 9795.2 (relating to registration
procedures and applicability);

(2) verify his address or be photographed as required
under 42 Pa.C.S. § 9796 (relating to verification of
residence); or

(3) provide accurate information when registering under
42 Pa.C.S. § 9795.2 or verifying an address under 42
Pa.C.S. § 9796.

18 Pa.C.S. § 4915.2

____________________________________________

2
On December 20, 2011, the General Assembly enacted 18 Pa.C.S. §
4915.1, with an effective date of December 2012. Section 4915.1 replaced
18 Pa.C.S. § 4915.

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The version of Megan’s Law applicable at the time of Appellant’s

conduct required:

Offenders and sexually violent predators shall be required
to register with the Pennsylvania State Police upon release
from incarceration, upon parole from a State or county
correctional institution or upon the commencement of a
sentence of intermediate punishment or probation. For
purposes of registration, offenders and sexually violent
predators shall provide the Pennsylvania State Police with
all current or intended residences, all information
concerning current or intended employment and all
information concerning current or intended enrollment as a
student.

42 Pa.C.S. § 9795.2.3 The statute defined “residence” as “a location where

an individual resides or is domiciled or intends to be domiciled for 30
____________________________________________

3
On December 20, 2011, the General Assembly enacted Pennsylvania’s Sex
Offender Registration and Notification Act (“SORNA”), with an effective date
of December 20, 2012, which replaced the prior Megan’s Law, including §
9795.2. SORNA now provides:

(5) Address of each residence or intended residence,
whether or not the residence or intended residence is
located within this Commonwealth and the location at
which the individual receives mail, including a post office
box. If the individual fails to maintain a residence and is
therefore a transient, the individual shall provide
information for the registry as set forth in paragraph (6).

(6) If the individual is a transient, the individual shall
provide information about the transient's temporary
habitat or other temporary place of abode or dwelling,
including, but not limited to, a homeless shelter or park. In
addition, the transient shall provide a list of places the
transient eats, frequents and engages in leisure activities
and any planned destinations, including those outside this
Commonwealth. If the transient changes or adds to the
places listed under this paragraph during a monthly period,
(Footnote Continued Next Page)

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consecutive days or more during a calendar year.” 42 Pa.C.S. § 9792. The

Pennsylvania Supreme Court has found 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.” Commonwealth v. Wilgus, 40 A.3d 1201, 1208 (Pa.2012).

The Court found there was no homelessness exception. Id.

Denise Zelznick, a records specialist at SCI-Rockview, testified that

she met with Appellant ten days prior to his release from SCI-Rockview and

he did not want to be released. N.T., 1/12/2009, at 56-57, 59-60. She

stated: “[Appellant] wanted to stay at Rockview and if he couldn’t stay at

Rockview he wanted to go to the county prison because he had no place to

go.” Id. at 63. Ms. Zelznick notified the state police that Appellant had no

intended residence but that they would continue searching for a residence.

Id. A week later, Ms. Zelznick again met with Appellant. Id. at 63-64. She
_______________________
(Footnote Continued)

the transient shall list these when registering as a
transient during the next monthly period. In addition, the
transient shall provide the place the transient receives
mail, including a post office box. If the transient has been
designated as a sexually violent predator, the transient
shall state whether he is in compliance with section
9799.36 (relating to counseling of sexually violent
predators). The duty to provide the information set forth in
this paragraph shall apply until the transient establishes a
residence. In the event a transient establishes a residence,
the requirements of section 9799.15(e) (relating to period
of registration) shall apply.

42 Pa.C.S. § 9799.16(b)(5).

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informed him he would be arrested if he did not have an intended residence.

Id., at 64. Ms. Zelznick testified that Appellant “was not upset that he was

going to be arrested. He was actually relieved that they were going to come

pick him up.” Id.

The paperwork completed by Ms. Zelznick, and signed by Appellant,

listed Rockview as his current residence and stated that he had no intended

residence. N.T., 1/12/2009, at 65, 74; Exh. D5.

State Trooper Brian Wakefield testified that he and another trooper

went to S.C.I. Rockview to meet Appellant upon his release. N.T.,

1/12/2009, at 90. He asked Appellant some questions, including whether

Appellant was aware he was required to register pursuant to Megan’s Law,

to which Appellant responded in the affirmative. Id. Appellant also was

aware he had to provide an intended residence upon his release. Id. He

informed Trooper Wakefield he did not have an intended residence. Id. at

90-91.

Both Ms. Zelznick and Trooper Wakefield testified that Appellant

expressed concern that he would re-offend if released. N.T., 1/12/2009, at

64-65, 92-94.

The evidence presented, including that Appellant was aware he needed

to provide an intended residence, informed Trooper Wakefield he did not

have an intended residence, and was concerned he would re-offend,

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sufficiently supported the jury’s verdict that Appellant failed to register as

required by Megan’s Law.4

Appellant next claims that, as applied to him, SORNA constitutes an

unconstitutional bill of attainder. Appellant’s Brief at 24-34.

Article I, Section 10 of the United States Constitution provides that

“[n]o State shall . . . pass any bill of attainder.” The Pennsylvania

Constitution provides: “No person shall be attainted of treason or felony by

the Legislature.” Pa. Const. Art. I, § 18. “A bill of attainder is defined as a

legislative enactment which determines guilt and inflicts punishment upon an

identifiable person or group without a judicial trial.” Commonwealth v.

Mountain, 711 A.2d 473, 478 (Pa.Super.1998) (quoting Commonwealth

v. Scheinert, 519 A.2d 422, 425 (Pa.Super.1986)); accord Selective

Serv. Sys. v. Minnesota Public Int. Research Grp., 468 U.S. 841, 847

(U.S. 1984).

Appellant maintains that, as applied to him, the statute is a bill of

attainder. He reasons the jury was informed it should find him guilty solely

because he was homeless and argues the testimony established Appellant
____________________________________________

4
The trial court found there was sufficient evidence that Appellant failed to
provide an intended residence because his intended residence, i.e., a county
jail, did not fall within the definition of residence. Trial Court Opinion,
1/9/2014, at 5. This Court, however, can “affirm the court’s decision if there
is any basis to support it, even if we rely on different grounds to affirm.”
Commonwealth v. McLaurin, 45 A.3d 1131, 1138 n.2 (Pa.Super.2012)
(quoting Commonwealth v. Williams, 35 A.3d 44, 47 (Pa.Super.2011)).

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was homeless because of his designation as a sexually violent predator.

Appellant’s Brief at 25.

Megan’s Law applies to all sexual offenders convicted of delineated

crimes and requires that they register their current and intended addresses.

42 Pa.C.S. § 9795.2. It does not apply only to homeless sexual offenders.

Further, homeless sexual offenders can comply with the registration

requirements by informing the state police of their intended location.

Wilgus, 40 A.3d at 1208. Moreover, a person can be found guilty of failure

to comply with registration of sexual offenders requirements only after a

trial. Therefore, the law does determine guilt and inflict punishment without

a judicial trial and is not a bill of attainder. See Selective Serv. Sys., 468

U.S. at 847; Mountain, 711 A.2d at 478.

In his third 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, but reversed its ruling

after closing arguments. 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:

[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

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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

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

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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 [d]efendant 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 [d]efendant is required to register all current
or intended residences with the Pennsylvania State Police
upon his release from a state correctional facility.

Second that the [d]efendant 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.

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.

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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 [sic], 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

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,

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without warning, the trial court failed to give 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.5 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.6

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

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/4/2015

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5
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 stated it would prior to Appellant’s
closing argument.
6
We will not discuss Appellant’s fourth claim of error. Appellant’s third claim
is dispositive, and the Supreme Court has not requested a discussion of
Appellant’s fourth claim.

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