J-S06042-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WESLEY MORGAN POLLARD, SR.,

Appellant No. 2153 MDA 2014

Appeal from the PCRA Order November 6, 2014

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-DR-0003717-2011

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 28, 2016

This is an appeal from the order entered in the Court of Common Pleas 

of Luzerne County denying Appellant’s first petition filed under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we 

affirm. 

The relevant facts and procedural history are as follows: 

In 1990, Appellant was convicted of involuntary deviate 

sexual intercourse, an offense requiring lifetime registration 

under Megan’s Law. On June 30, 2003, Appellant registered as a 

Megan’s Law offender with the Pennsylvania State Police. On 

that date, Appellant received a written notification of his 

registration obligations, which Appellant signed. Every year 

thereafter, Appellant registered his address with the 

Pennsylvania State Police. On May 11, 2011, Appellant 

registered his address at 286 Hazel Street in Wilkes-Barre. On 

August 31, 2011, Trooper Martin Connors, the Megan’s Law field 

liaison and custodian of records for the Pennsylvania State 

Police, received a call from a probation officer who informed 

Trooper Connors that he had gone to Appellant’s registered 
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address at 286 Hazel Street, and upon speaking with the owner 

of the residence, learned that Appellant was not living there. 

Trooper Connors conducted his own investigation and verified 

that Appellant was not residing at 286 Hazel Street. Appellant 

was subsequently arrested and charged with failure to provide 

accurate information in compliance with Megan’s Law [III’s] 

registration requirements.[1] 

Following a jury trial on July 23, 2012, Appellant was found 

guilty of the aforementioned crime. On September 20, 2012, 

following a hearing, the trial court sentenced Appellant to a term 

of imprisonment of ten to twenty years. Appellant filed a timely 

notice of appeal. 

Commonwealth v. Pollard, No. 1912 MDA 2012, 2 (Pa. Super. filed 

5/22/13) (unpublished memorandum) (footnote added). 

On direct appeal, Appellant’s counsel filed a petition to withdraw his 

representation, as well as an Anders

2 brief in which he raised the sole claim 

of whether the evidence was sufficient to support Appellant’s conviction. 

Upon independent review of the record, and finding the evidence was 

sufficient, this Court found Appellant’s appeal to be frivolous, thus permitting 

counsel to withdraw and affirming the judgment of sentence. Pollard, 

supra. 

Thereafter, on December 16, 2013, the Supreme Court ruled that 

Megan’s Law III was unconstitutional because Act 152 of 2004 (“Act 152”), 

____________________________________________

1 Appellant was convicted under 18 Pa.C.S.A. § 4915(a)(3). Effective 

December 20, 2012, 18 Pa.C.S.A. § 4915 expired and was replaced by 18 

Pa.C.S.A. § 4915.1. Based on Appellant’s offense date of May 11, 2011, the 

former section, 18 Pa.C.S.A. § 4915, applied to Appellant’s case. 

2 Anders v. California, 386 U.S. 738 (1967). 
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which included the provisions of Megan’s Law III under which Appellant was 

convicted, violated the Single Subject Rule of Article III, Section 3, of the 

Pennsylvania Constitution. Commonwealth v. Neiman, 84 A.3d 603 (Pa. 

2013). However, the Court noted:

[A]s we have observed previously in striking down other 

legislation which violated Article III, Section 3, “nothing . . . 

precludes the General Assembly from enacting similar provisions 

in a manner consistent with the Constitution.” [S]ince we find 

merit in the General Assembly’s suggestion that our decision 

abrogating the entirety of Act 152 will have a significant impact 

on a wide variety of individuals and entities which have ordered 

their affairs in reliance on its provisions, we will stay our 

decision, as we have done under similar circumstances, in order 

to provide a reasonable amount of time for the General 

Assembly to consider appropriate remedial measures, or to allow 

for a smooth transition period.

Id. at 616 (quotation and citation omitted).

In fact, despite striking Act 152 in its entirety, the Supreme Court 

held:

We stress, however, that this action should, in no way, be read 

as a repudiation of the merits of the various legislative 

components of Act 152 such as Megan’s Law III, which serves a 

vital purpose in protecting our Commonwealth’s citizens and 

children, in particular, from victimization by sexual predators.

Id. at 615. 

The Supreme Court stayed its decision for 90 days, by which time the 

Legislature passed Act 19 of 2014 (“Act 19”) with a retroactive effective date 

of December 20, 2012. Act 19 amended the sexual offender registration 

requirements imposed by 42 Pa.C.S.A. § 9799.10 et seq., also known as the 

Sexual Offender Registration and Notification Act (“SORNA”) or Megan’s Law
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IV, and included a declaration that “[i]t is the intention of the General 

Assembly to address the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Neiman [ ] by amending this subchapter in the act of 

(March 14, 2014, P.L. 41, NO. 19).” 42 Pa.C.S.A. § 9799.11(b)(3). 

On May 15, 2014, Appellant filed a timely pro se PCRA petition alleging 

trial counsel was ineffective, and following the appointment of counsel, 

Appellant filed a counseled supplemental PCRA petition. In his counseled 

supplemental petition, Appellant averred that, since Megan’s Law III was 

declared unconstitutional by Neiman, he is serving an illegal sentence, and 

therefore, his conviction and sentence must be vacated. 

Following a hearing, by order and opinion filed on November 6, 2014, 

the PCRA court denied Appellant relief under the PCRA. Specifically, as it 

relates to Appellant’s argument that his conviction and sentence should be 

vacated under Neiman, the PCRA court disagreed, finding no merit to the 

claim. This timely appeal followed, and all Pa.R.A.P. 1925 requirements 

have been met.

On appeal, Appellant presents the following issue for our 

consideration:

Did the PCRA court err in denying Appellant’s petition for PostConviction Relief where [Appellant] is currently serving an illegal 

sentence and is incarcerated in violation of the due process 

clauses of both the Constitution of the United States and the 

Constitution of the Commonwealth of Pennsylvania? 
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Appellant’s Brief at 5.3

In essence, Appellant argues that the Megan’s Law III provisions under 

which he was sentenced are void ab initio, rendering his sentence 

unconstitutional because it is as if the offense for which he was convicted 

never existed. Appellant does not dispute that the reporting requirements of 

Megan’s Law III were in effect when he was tried and sentenced, as well as 

during the entirety of his direct appeal. However, he claims that the 

Supreme Court’s subsequent holding in Neiman striking Megan’s Law III as 

unconstitutional should be applied retroactively on collateral review and the 

Legislature’s enactment of Act 19 should be disregarded.

In so arguing, Appellant relies primarily on this Court’s unpublished 

memorandum decision in Commonwealth v. Myers, No. 1295 MDA 2014 

(Pa. Super. filed 7/31/15) (unpublished memorandum). However, we find 

Myers to be unavailing for several reasons. First, as an unpublished 

memorandum decision, Myers has no precedential value and, thus, we are 

____________________________________________

3 This Court has held:

Our standard of review of the denial of a PCRA petition is limited 

to examining whether the court’s determination is supported by 

the evidence of record and free of legal error. This Court grants 

great deference to the findings of the PCRA court if the record 

contains any support for those findings. 

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) 

(citations omitted). “Of course, if the issue pertains to a question of law, our 

standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quotation 

marks and quotation omitted). 
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not bound by its dictates. Commonwealth v. Swinson, 626 A.2d 627 (Pa. 

Super. 1993). Additionally, Appellant’s reliance on Myers is misplaced. 

Unlike the case before us, the appellant in Myers had not yet been 

sentenced in the trial court when the relevant statutes were declared 

unconstitutional, and in vacating the appellant’s sentence, this Court applied 

Neiman on direct appeal. Thus, the issue of whether Neiman should apply 

retroactively on collateral review was not before this Court in Myers, and 

accordingly, Myers is not dispositive. See Commonwealth v. Riggle, 119 

A.3d 1058 (Pa. Super. 2015) (distinguishing the application of opinions to 

direct appeals as opposed to retroactively in collateral appeals).

Appellant next argues that, under the framework set forth by the U.S. 

Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality), which 

was subsequently adopted by a majority of our Supreme Court in 

Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011), Neiman applies 

retroactively on collateral review. See Appellant’s Brief at 14-16. 

This Court recently recognized that “[t]he seminal test in determining 

whether a constitutional rule warrants retroactive application during 

collateral review was delineated in Teague[.]” Riggle, 119 A.3d at 1065 

(citations omitted). 

“Under the Teague framework, an old rule applies both on direct 

and collateral review, but a new rule is generally applicable only 

to cases that are still on direct review. A new rule applies 

retroactively in a collateral proceeding only if (1) the rule is 

substantive or (2) the rule is a ‘watershed rule of criminal 
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procedure’ implicating the fundamental fairness and accuracy of 

the criminal proceeding.”

Riggle, 119 A.3d at 1065 (quoting Whorton v. Bockting, 549 U.S. 406, 

416 (2007)). Generally “a case announces a new rule if the result was not 

dictated by precedent existing at the time the defendant’s conviction became 

final.” Teague, 489 U.S. at 301. Appellant urges us to consider Neiman a 

new rule to be applied retroactively in a collateral proceeding under the 

substantive rule exception.4 See Appellant’s Brief at 14-15.

Assuming, arguendo, Appellant is correct that Neiman, which struck 

down Megan’s Law III as unconstitutional, announced a new substantive 

rule, see Riggle, 119 A.3d at 1066 (“Substantive rules are those that 

decriminalize conduct or prohibit punishment against a class of persons.”) 

(citation omitted)), we disagree that Appellant is entitled to collateral relief. 

As the PCRA court noted, the Supreme Court in Neiman did more than hold 

that Act 152, including Megan’s Law III, was unconstitutional. The Court 

additionally stayed its decision and abrogation of Act 152 for 90 days to 

provide the General Assembly with an opportunity to take remedial 

measures to address the manner in which the legislations were enacted. In 

doing so, the Court, as indicated supra, proclaimed that its action in striking 

down Act 152 “should, in no way, be read as a repudiation of the merits of 

____________________________________________

4 Appellant has not advanced an argument that Neiman pertained to a 

“watershed rule of criminal procedure.” 
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the various legislative components of Act 152 such as Megan’s Law III, 

which serves a vital purpose in protecting our Commonwealth’s citizens and 

children, in particular, from victimization by sexual predators.” Neiman, 84 

A.3d at 615. On March 14, 2014, the Legislature responded and passed Act 

19, with a retroactive effective date of December 20, 2012. With the 

enactment of Act 19, the Legislature addressed Neiman’s concerns by 

retroactively amending SORNA and again criminalizing the conduct for which 

Appellant was convicted. Therefore, Appellant is not entitled to benefit from 

any new rule announced in Neiman since his sentence was not illegal under 

the law existing at the time of his conviction, sentence, and direct appeal. 

Accordingly, we reject Appellant’s suggestion that he is entitled to 

collateral relief pursuant to the Supreme Court’s decision in Neiman, and 

we affirm the denial of PCRA relief.

Affirmed. 

Judge Panella joins the memorandum.

Judge Mundy concurs in result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2016
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