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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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.