J

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

COMMONWEALTH OF PENN SYLVANIA 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

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- 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 determin ed 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 livingJ

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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 res idence 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 th e 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 Janu ary 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 c ould 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 C ourt 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 Cou rt 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 tria l.J

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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 Mo tion 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 t he [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 clea rly 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 rea ding 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 h eld 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 read y 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.J

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

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(footnote omitted).
Appellant raises the following claims for our review:

I. Was the evidence insufficient to establish that [Appellant] fail ed 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 M egan’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:J

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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 i f 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. K errigan , 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 pa rties 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, 12 62 (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 fe deral 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 theJ

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trial cou rt 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 home lessness 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 elemen ts 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 knowin gly 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. K nowledge 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.J

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- You should weigh and consider the evidence attempting to show motive or absence of motive, along with all o ther 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 mea nings: 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; uncons trained 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 pe rform. 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 w as 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 an d 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 itJ

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would instruct the jury that homelessness was an absolute defense to the
crimes charg ed. 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

- ag reed 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.