[J-14-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

JEROME MCINTYRE,

Appellant

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No. 25 EAP 2019

Appeal from the Judgment of 

Superior Court entered on 

December 17, 2018 at No. 3698 

EDA 2016, affirming the November 

4, 2016 PCRA Order in the Court of 

Common Pleas, Philadelphia 

County, Criminal Division at No. CP51-CR-0009339-2010.

SUBMITTED: January 31, 2020

OPINION

JUSTICE TODD FILED: June 16, 2020

On April 1, 2020, our Court issued a per curiam order reversing the judgment of 

sentence of Appellant Jerome McIntyre who had been convicted of violating 18 Pa.C.S. 

§ 4915 (effective 1/1/2007-12/19/2011) (“Section 4915”) for failing to register as a 

convicted sex offender. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458

(Pa. filed April 1, 2020) (order). As explained more fully herein, Appellant’s challenge to 

his sentence was raised in proceedings under the Post Conviction Relief Act (“PCRA”).1 

Because we found his challenge to be meritorious, but because his prison sentence 

 1 42 Pa.C.S. §§ 9541-9546.
[J-14-2020] - 2

expired on April 7, 2020, thus terminating our jurisdiction to grant relief as of that date,

2

we took the unusual action of issuing our April 1, 2020 order, with an opinion to follow. 

We now set forth our reasons in support of that order.

I. Facts and Procedural History

Appellant was convicted of indecent assault in 2001. Pursuant to “Megan’s Law 

II”3 as then in effect, Appellant was required to register for 10 years as a sex offender with 

the Pennsylvania State Police upon his release from prison in 2003. Subsequently, in 

2004, the legislature enacted “Megan’s Law III,”4 a provision of which made it a crime to 

fail to register. See 18 Pa.C.S. § 4915 (effective 1/24/05 to 12/31/06). Later, in 2005, 

Appellant was charged under this statute with not fulfilling this mandatory registration 

requirement. He pled guilty, and he was sentenced to a year of probation. 

In 2010, Appellant was (again) charged with failing to register, under the version 

of Section 4915 then in effect, which is the version of that provision at issue herein.5 In 

April 2012, following a jury trial, Appellant was convicted and received a mandatory 

sentence of 5 to 10 years incarceration. As noted, this sentence expired on April 7, 2020.6

 2 See Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997) (PCRA precludes granting 

relief to a petitioner who is no longer serving a sentence of imprisonment, probation, or 

parole); 42 Pa.C.S. § 9543(a)(1).

3 Act of May 10, 2000, P.L. 74, No. 18. 4 Act of Nov. 24, 2004, P.L. 1243, No. 152, effective January 24, 2005.

5 The initial version of Section 4915 which became effective, along with the remainder of 

Megan’s Law III, on January 24, 2005, and the version in effect in 2010 at the time 

Appellant was charged with the instant offense, differed from the original version only in 

that the later version increased the grading of a first offense from a second-degree 

misdemeanor to a third-degree felony, and, for a second offense, as here, from a thirddegree felony to a second-degree felony.

6 In December 2011, the General Assembly enacted the “Sex Offender Registration and 

Notification Act” (“SORNA”), Act of Dec. 20, 2011, P.L. 446, No. 111, § 12, December 20, 

2012. SORNA repealed 18 Pa.C.S. § 4915, and replaced it with 18 Pa.C.S. § 4915.1. 
[J-14-2020] - 3

Appellant, through appointed counsel, filed a direct appeal, and the Superior Court 

affirmed his judgment of sentence on July 16, 2013. Commonwealth v. McIntyre, 2009 

EDA 2012 (Pa. Super. filed July 16, 2013). Appellant did not seek further review with our 

Court of the Superior Court’s decision. On December 16, 2013, we handed down our

decision in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), in which we held that 

Megan’s Law III, which included Section 4915, was unconstitutional in its entirety as it 

was passed in violation of the single subject rule of the Pennsylvania Constitution.

Appellant next filed a pro se PCRA petition on April 22, 2014, asserting his 

innocence of his underlying conviction for indecent assault, and also raising several 

claims of ineffective assistance of counsel. Counsel was appointed for him, but was 

subsequently removed. Substitute counsel did not file an amended PCRA petition, but, 

rather, a motion to withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) 

(en banc).

The trial court, by order issued in November 2016, granted counsel’s motion and 

dismissed Appellant’s PCRA petition. Appellant, again proceeding pro se, filed a timely 

notice of appeal of this order, and, thereafter, filed a Pa.R.A.P. 1925(b) statement raising 

over 30 claims of PCRA court error.

No further action was taken in this matter until October 10, 2017, when Appellant 

filed, pro se, an amended PCRA petition in which he asserted that his sentence for 

violating Section 4915 was illegal as a result of our Court’s July 19, 2017 decision in 

 

Section 4915.1, which has been subsequently reenacted by the Act of June 12, 2018, 

P.L. 140, No 29, § 1, is not at issue in this appeal.
[J-14-2020] - 4

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that retroactive application 

of SORNA’s registration provisions violated the ex post facto clauses of the Pennsylvania 

and United States Constitutions).7

The trial court issued a Rule 1925(a) opinion in which it summarily rejected the 

claims which Appellant raised in his Rule 1925(b) statement. In his pro se brief filed with 

the Superior Court, Appellant argued that Muniz, and also our Court’s 2017 decision in 

Commonwealth v. Derhammer, 173 A.3d 723 (Pa. 2017) (holding that the Commonwealth 

lacked authority to prosecute a defendant for violating Section 4915 after Megan’s Law 

III was struck down by Neiman), changed the law such that his “conviction in whole and 

in part cannot be sustained.” Appellant’s Brief in Commonwealth v. McIntyre, 3698 EDA 

2016 (Pa. Super.), at 9.

The Superior Court affirmed the denial of PCRA relief. Commonwealth v. 

McIntyre, 3698 EDA 2016 (Pa. Super. filed Dec. 17, 2018). In its unpublished 

memorandum opinion, the court considered Appellant’s claims based on Muniz and 

Derhammer – even though he did not raise the applicability of these cases in his original 

PCRA petition – because, in its view, these claims concerned the legality of Appellant’s 

sentence, which it concluded it had jurisdiction to consider. The court first determined

that Muniz did not apply to Appellant’s case because Appellant was convicted under 

Megan’s Law III, not SORNA. Regarding Derhammer, the court opined that that case 

was distinguishable since the defendant therein was prosecuted after our Court’s decision 

in Neiman, whereas Appellant’s judgment of sentence became final before Neiman was 

 7 The trial court took no action on this amended petition.
[J-14-2020] - 5

issued, and Appellant did not argue that Neiman applied retroactively to invalidate his 

conviction. 

Appellant filed a pro se petition for allowance of appeal to this Court, raising the 

following three issues: 

1. Whether the Superior Court erred by failing to apply the 

standard delineated in Teague v. Lane (1989) and its 

progeny, including and specifically Montgomery v. Louisiana

(2016), allowing a retroactive application in collateral 

proceedings for new substantive rules, as it is United States 

Supreme Court precedent?

2. Whether a complete and fundamental miscarriage of justice 

issued fatally depriving Appellant of his constitutional rights to 

due process under the United States and Pennsylvania 

Constitutions where the court of original jurisdiction lacked 

subject matter jurisdiction to prosecute in this instant case?

3. Whether Commonwealth v. Neiman and/or Commonwealth 

v. Derhammer, both Pennsylvania Supreme Court 

precedents, are to be applied to his first timely PCRA as new 

substantive rules in accord with the United States and 

Pennsylvania Constitutions?

Commonwealth v. McIntyre, 217 A.3d 792, 792-93 (Pa. 2019) (order).

Our Court granted this petition on September 4, 2019, and we referred the matter 

to our Court’s pro bono coordinator to select volunteer counsel to represent Appellant in 

this appeal. Attorneys Bruce P. Merenstein and Brandy S. Ringer entered their 

appearance on behalf of Appellant, and filed a brief on his behalf, along with an 

unopposed motion for expedited consideration in light of the looming expiration of 

Appellant’s sentence. The Commonwealth, by the Philadelphia District Attorney’s Office, 

also filed a brief in which, as explained below, it concurs with Appellant that his sentence 

for violating Section 4915 was illegal and subject to reversal. 
[J-14-2020] - 6

After this briefing process was complete, our review, as discussed below, indicated 

that Appellant was entitled to reversal of his judgment of sentence; however, because the

expiration of Appellant’s sentence was rapidly approaching, at which point our Court 

would be deprived of jurisdiction to grant relief,8 we issued a per curiam order on April 1, 

2020, reversing his judgment of sentence and indicating that the present opinion would 

be forthcoming. See Commonwealth v. McIntyre, --- A.3d ---, 2020 WL 1546458 (Pa. filed

April 1, 2020) (order).

II. Arguments of the Parties

Appellant first argues that, after our Court’s decision in Neiman, Section 4915

became null and void dating back to its inception, and, thus, it was as if this statute never 

existed. Consequently, he maintains that it would violate due process to uphold his 

conviction and to permit his incarceration thereunder. Appellant highlights that our Court 

has recognized the principle that a statute which is stricken for constitutional infirmity must 

be regarded as void ab initio and treated as if it never existed. See Appellant’s Brief at 

11 (citing Glen-Gery Corporation v. Zoning Hearing Board, 907 A.2d 1033, 1037 (Pa. 

2006) (holding that a facially untimely challenge to a zoning statute based on a claim that 

the manner of the statute’s enactment violated due process must be allowed to proceed, 

as the constitutional claim, if proven, would render the statute void ab initio)). Appellant 

asserts that, in Derhammer, our Court acted in accordance with this principle by 

recognizing that Section 4915 was rendered void ab initio as the result of our Court’s 

ruling in Neiman that Megan’s Law III was unconstitutionally enacted. See id. at 12-13 

(quoting Derhammer, 173 A.3d at 728 (“a conviction based on an unconstitutional statute 

 8 See supra note 2.
[J-14-2020] - 7

is a nullity[;] . . . an offense created by an unconstitutional law ‘is not a crime’ and ‘a 

conviction under it is illegal and void, and cannot be a legal cause of imprisonment.’” (in 

turn quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)))). Likewise, Appellant 

reasons that his conviction for allegedly violating Section 4915 “is a nullity. [It] is illegal 

and void, and cannot be a legal cause of imprisonment.” Id. at 13 (internal quotation 

marks omitted).

Appellant further argues that, as a general matter, the Due Process Clause of the 

Fourteenth Amendment of the United States Constitution prohibits a state from convicting 

an individual “for conduct that its criminal statute, as properly interpreted, does not 

prohibit.” Appellant’s Brief at 13 (quoting Fiore v. White, 531 U.S. 225, 228-29 (2001) 

(per curiam) (holding that this Court’s interpretation of a criminal statute as precluding 

criminal culpability for the offense of which petitioner was convicted, handed down after 

petitioner’s conviction became final, did not constitute a new rule of law, but rather 

effectively stated the law at the time of petitioner’s conviction; thus, petitioner’s conviction 

and continued incarceration violated due process)). Appellant proffers that, if a conviction 

based on conduct not prohibited by a criminal statute violates due process, then it 

necessarily follows that a conviction for violating a criminal statute which does not exist 

must also violate due process, inasmuch as there is no more fundamental principle of 

justice than that “an individual should not be convicted and sentenced for violating a nonexistent statute.” Id. at 15.

Additionally, Appellant highlights that the PCRA entitled him to relief from his 

conviction and sentence because the fact that his conviction was void ab initio meets 

several of the criteria for PCRA relief enumerated in 42 Pa.C.S. § 9543(a)(2): his 
[J-14-2020] - 8

conviction constituted a violation of his constitutional guarantee of due process, 

warranting relief under Section 9543(a)(2)(i) (conviction or sentence resulted from a 

violation of the Pennsylvania and United States Constitutions); his conviction resulted in 

an unlawful sentence, necessitating relief under Section 9543(a)(2)(vii) (sentence is 

greater than the lawful maximum) inasmuch as there is no lawful sentence for violation of 

a nonexistent statute, and, thus, any sentence of incarceration is greater than allowed by 

law; and his conviction warranted relief under Section 9543(a)(2)(viii) (a proceeding in a 

tribunal without jurisdiction), given that the non-existence of Section 4915 deprived the 

court of common pleas of jurisdiction to try him for that offense.

Appellant finally argues that, were our Court to apply the framework utilized by the 

United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989) (plurality),9 we 

would apply our Neiman decision to cases, like Appellant’s, on collateral review. In that 

regard, Appellant contends that Neiman merely applied settled rules of constitutional 

interpretation that existed for over 150 years. Hence, as expressing an established

constitutional rule of criminal procedure, in Appellant’s view, Neiman should be applied 

retroactively under Teague. Appellant maintains that, even were we to consider Neiman

 9 Teague was a plurality decision with respect to the proper standard to apply in 

determining whether a decision of the high Court should be given retroactive effect in 

federal habeas corpus proceedings challenging criminal convictions. Yet, a majority of 

the high Court has subsequently adopted its pronouncement that a new constitutional 

rule of criminal procedure does not apply, as a general matter, to federal collateral review

of convictions. By contrast, new substantive rules of constitutional law – i.e., “rules

forbidding criminal punishment of certain primary conduct” – as well as “rules prohibiting 

a certain category of punishment for a class of defendants because of their status or 

offense,” Montgomery v. Louisiana, 136 S.Ct. 718, 728 (2016), must be given retroactive 

effect. Likewise, new rules of criminal procedure which are considered “watershed rules” 

that implicate “the fundamental fairness and accuracy of the criminal proceeding” will also 

be retroactively applied in federal collateral challenges to criminal convictions. Welch v. 

United States, 136 S.Ct. 1257, 1264 (2016).
[J-14-2020] - 9

to have established a substantive change in the law, given that it altered the range of 

criminally proscribed conduct by eliminating the offense which Appellant was charged 

with committing, Teague requires its retroactive application to his case.

The Commonwealth responds that it believes, “in the interest of justice, [the] 

defendant could not have been convicted of a criminal offense that was enacted through 

unconstitutional legislation.” Commonwealth’s Brief at 11. The Commonwealth points 

out that our Court in Neiman determined that all of Megan’s Law III, which includes 

Section 4915, was passed in violation of the single subject rule of the Pennsylvania 

Constitution, and that our Court has subsequently concluded in Derhammer, albeit in what 

it characterizes as dicta, that the violation of the single subject rule resulted in Megan’s 

Law III (and thus Section 4915) being void ab initio. The Commonwealth acknowledges 

that Derhammer involved a direct appeal; however, the Commonwealth considers “the 

refusal to retroactively apply those decisions in post-conviction review cases, like the 

instant one, where a defendant’s judgment of sentence has become final, would create 

an inequitable and unacceptable result,” with “some defendants remaining convicted of 

violating a non-existent criminal statute, while others are not.” Id. at 11.

In the Commonwealth’s view, though, affording relief in this case is complicated by 

the fact that Appellant did not include this claim in his PCRA petition, arguably resulting 

in waiver for purposes of appellate review. The Commonwealth posits that, nevertheless, 

our Court should treat Appellant’s claim for retroactive application of Neiman and 

Derhammer as a claim which implicates the legality of Appellant’s sentence, given that it 

is in the genus of claims involving a trial court’s lack of constitutional or statutory authority 

to impose a sentence. Commonwealth’s Brief at 26-27 (quoting Commonwealth v. 
[J-14-2020] - 10

Foster, 17 A.3d 332, 344 (Pa. 2011) (plurality) (legality of sentence is implicated when “a 

sentencing court’s inherent, discretionary authority to wield its statutorily prescribed 

powers is supplanted, abrogated, or otherwise limited, or the legislature’s intent in 

fashioning a sentence has been potentially misapplied” (citation omitted)). The 

Commonwealth considers Appellant’s claim to fall within this “catch-all” category of 

legality of sentence claims given that, “if there was no authority to enact the criminal 

statute that defendant was convicted under, then there was no legal authority for any

sentence to be imposed in this case.” Id. at 26-27 (emphasis original). 

Thus, the Commonwealth agrees Appellant should be granted relief “because 

there does not appear to be any authority in Pennsylvania that would provide that a 

defendant can be lawfully incarcerated for breaking a law that was rendered 

unconstitutional due to the manner in which it was improperly enacted.” Id. at 29. The 

Commonwealth declares that it “cannot advocate for the incarceration of a person for 

breaking a law that has been struck down as unconstitutional.” Id.

10

 10 The Commonwealth disputes Appellant’s claim that retroactive application of Neiman

and Derhammer is implicated by Teague, inasmuch as the analysis articulated in Teague

is implicated only when a state court is considering whether to give retroactive application 

to a new rule of federal law interpreting the United States Constitution, and, in any event, 

Neiman and Derhammer did not articulate a new rule of constitutional law. At most, from 

the Commonwealth’s perspective, Neiman involved a procedural rule, in that it was 

concerned with the process the legislature used in enacting the statute; therefore, it was 

not a watershed rule implicating retroactive application. The Commonwealth also rejects 

Appellant’s claim that the trial court lacked jurisdiction to adjudicate his guilt and impose 

a sentence, because the trial court was empowered statutorily to hear criminal cases of

this nature, and offers that Appellant is actually arguing that the trial court lacked the 

power to try Appellant and impose his sentence. The Commonwealth considers such a 

claim to be waivable. Commonwealth’s Brief at 25 (citing In re Melograne, 812 A.2d 1164 

(Pa. 2002) (explaining the difference between a claim that a court lacked subject matter 

jurisdiction, which is nonwaivable, and a claim that a court lacked power to take a 

particular action, which can be waived)). 
[J-14-2020] - 11

III. Analysis

Appellant claims that he is entitled to relief because our Court’s decision in Neiman

– striking down Megan’s Law III due to its unconstitutional enactment – rendered Section 

4915 void ab initio, and his conviction (and sentence) based thereon invalid. Before 

addressing the merits of this claim, however, we must address its preservation for our 

review. 

Initially, as recounted above, both parties characterize the nature of Appellant’s 

claim as a challenge to the legality of his sentence. Our own independent analysis has 

confirmed this characterization.

11

In Commonwealth v. Barnes, 151 A.3d 121 (Pa. 2016), our Court considered the 

question of whether the defendant’s challenge to a mandatory minimum sentence

imposed before such sentences were later deemed to be unconstitutional by the United 

States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), was preserved 

for direct appellate review, notwithstanding the fact that the defendant failed to raise the 

challenge in the proceedings below. Relying on the lead opinion in Foster, supra,

12 the 

defendant contended that our Court could consider his claim because it implicated the 

legality of his sentence, due to the fact that the trial court lacked authority to enter the 

sentence which it did. Our Court accepted this argument, and held that, because the 

sentencing provision in question was later ruled by our Court to be unconstitutional, “it is 

 11 Because the issues involved in this appeal present pure questions of law, our review is 

plenary. Commonwealth v. Parrish, 224 A.3d 682, 699 (Pa. 2020). 

12 In Foster, the lead opinion authored by Justice Baer, and joined by this author and 

Justice McCaffery, concluded that a challenge to a sentencing court’s authority to impose 

a mandatory minimum sentence, under an unconstitutional mandatory minimum 

sentencing statute, implicated the legality of sentence and was not waivable. Foster, 17 

A.3d at 344-45.
[J-14-2020] - 12

as if that statutory authority never existed.” Barnes, 151 A.3d at 127. Hence, we 

reasoned that, because the sentencing statute was “void on its face,” and the trial court 

possessed no other legal authority to enter the imposed sentence, the defendant was 

entitled to challenge the legality of his sentence, regardless of the fact that he did not 

preserve the issue prior to seeking direct appellate review with our Court. Id.

Likewise, Appellant’s assertion that the statute under which he was convicted was 

void ab initio because it was passed in an unconstitutional fashion necessarily implicates 

the trial court’s authority to impose a sentence of incarceration for that conviction, given 

that a trial court is not empowered under our Commonwealth’s Sentencing Code to 

sentence an individual for a non-existent criminal offense. We, therefore, conclude that 

Appellant’s claim is one which implicates the legality of his sentence. See Commonwealth 

v. Monarch, 200 A.3d 51 (Pa. 2019) (defendant’s claim that trial court lacked legal 

authority to impose mandatory minimum sentence for his DUI conviction, because 

Pennsylvania’s mandatory minimum sentencing statute was invalidated as 

unconstitutional by the decision of the United States Supreme Court in Birchfield v. North 

Dakota, 136 S.Ct. 2160 (2016), implicated the legality of his sentence); see also

Commonwealth v. Spruill, 80 A.3d 453, 464 (Pa. 2013) (Saylor, J., concurring) (“Since a 

conviction is the essential supporting infrastructure for a sentence, . . . ‘illegality’ with 

respect to the former extends to the latter as well. The alternative is for courts to accept 

as legal a sentence which is grounded upon an illegal conviction.” (citation omitted)).

Moreover, the PCRA specifically permits the courts of our Commonwealth to grant 

relief from an illegal sentence. See 42 Pa.C.S. § 9542 (“This subchapter provides for an 

action by which persons . . . serving illegal sentences may obtain collateral relief.”). Thus, 
[J-14-2020] - 13

in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), our Court found that the 

defendant’s assertion – that the trial court lacked the authority to impose his mandatory 

minimum sentence because the mandatory sentencing statute under which the sentence

was imposed was rendered unconstitutional by Alleyne – should be treated as a claim 

involving the legality of sentence under Barnes; as a result, it was cognizable under the 

PCRA and could be raised in a timely filed PCRA petition. Inasmuch as Appellant’s claim 

that the trial court lacked authority to sentence him because the statute under which he 

was convicted was void ab initio is also, under Barnes, a claim involving the legality of his 

sentence, it too is cognizable under the PCRA. See generally Commonwealth v. Fahy, 

737 A.2d 214, 223 (Pa. 1999) (“legality of sentence is always subject to review within the 

PCRA,” provided the PCRA’s time limits for filing a petition thereunder, or one of its 

exceptions, are satisfied).

13

However, as the Commonwealth highlights, Appellant did not include this legality 

of sentence claim in his pro se PCRA petition, nor did his appointed counsel file an

amended PCRA petition presenting this issue to the PCRA court. These procedural facts, 

in the Commonwealth’s view, implicate a question of waiver. 

As a general matter, under the PCRA, an issue is waived “if the petitioner could 

have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in 

a prior state postconviction proceeding.” 42 Pa.C.S. § 9544; Commonwealth v. Mason, 

130 A.3d 601, 674 (Pa. 2015). In the case at bar, Appellant could not have raised the 

issue of whether Nieman and Derhammer rendered his conviction void ab initio at trial or 

 13 It is undisputed that Appellant’s pro se PCRA petition was timely filed within one year 

of his judgment of sentence becoming final.
[J-14-2020] - 14

on direct appeal, as Nieman was not issued by our Court until five months after his 

conviction was affirmed by the Superior Court (and Derhammer was issued years after 

that); thus, textually, the PCRA does not require waiver on this basis. 

Appellant first raised his challenge to the legality of his sentence in his appeal to 

the Superior Court from the denial of his PCRA petition – in his pro se brief – after 

appointed counsel had been permitted to withdraw. In that brief, he argued that our 

Court’s decisions in Neiman and Derhammer changed the law such that his “conviction 

in whole and in part can not be sustained.” Appellant’s Brief in Commonwealth v. 

McIntyre, 3698 EDA 2016 (Pa. Super.), at 9. For the following reasons, we conclude that, 

due to the unique nature of Appellant’s legality of sentence claim – founded, as it is, on 

the claim that his conviction under Section 4915 was void ab initio – we may presently 

address it, even though it was first raised on appeal from the denial of PCRA relief.

14

As our Court has previously explicated, the void ab initio doctrine is rooted in a 

judicial imperative to protect individual constitutional rights, such as the right of due 

process, against transgression by coordinate branches of government:

Under this theory, a statute held unconstitutional is 

considered void in its entirety and inoperative as if it had no 

existence from the time of its enactment. The origin of this 

doctrine may lie in the early case of Marbury v. Madison[, 5 

U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)], in which Chief Justice 

 14 Neither Barnes nor DiMatteo directly addresses this question, given that both cases 

arrived at our Court in a different procedural posture than the case at bar — Barnes

involved a direct appeal from a judgment of sentence, and DiMatteo involved an appeal 

from a PCRA petition in which the legality of sentence had been raised in the PCRA 

petition. Moreover, prior to both decisions, our Court had previously held in 

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), that, under the Teague

framework, the high Court’s ruling in Alleyne – which was the focus in Barnes and 

DiMatteo – was not entitled to retroactive application to cases pending on collateral 

review, and that, as a result, the defendant’s sentence in that case was not rendered 

illegal by Alleyne.
[J-14-2020] - 15

Marshall wrote that “a law repugnant to the constitution is 

void.”

Oliver P. Field, the most noted scholar on this issue has 

suggested that the void ab initio theory is premised on the 

historical American concern over excessive authority asserted 

by a tyrannical executive or legislative branch in violation of 

the rights of individuals protected by the Constitution. Field 

explains that whereas the Constitution prohibits the legislature 

and executive from overstepping their limits, the courts came 

to regard themselves as the ultimate guardians of individual 

rights. Any act that invaded these rights was to be judged 

unconstitutional and treated as though it never existed.

Glen-Gery, 907 A.2d at 1037 (quoting Erica Frohman Plave, The Phenomenon of Antique 

Laws: Can a State Revive Old Abortion Laws in a New Era?, 58 Geo. Wash. L.Rev. 111 

(1990)).

Thus, in Glen-Gery, following these precepts, our Court ruled that a claim alleging 

that a zoning ordinance was passed in a manner that deprived landowners of their due 

process rights to notice and an opportunity to be heard could be brought outside the time 

period allowed for bringing such challenges under the Municipalities Planning Code

enacted by the General Assembly. We reasoned that such a challenge could not be 

dismissed as time-barred by legislative fiat, because, if the constitutional claim were 

proven, the zoning ordinance would be void ab initio and, thus, judicially unenforceable. 

Glen-Gery, 907 A.2d 1044-45.

This void ab initio principle has been applied in the realm of criminal proceedings 

by the United States Supreme Court in the seminal case of Ex Parte Siebold, supra. This 

case established, as a fundamental principle of our system of jurisprudence, that an 

unconstitutional law cannot serve as the foundation of a court’s authority to try and 

imprison an individual, and, thus, criminal convictions and sentences based upon such 

unconstitutional laws must not be permitted to stand. The high Court declared therein 
[J-14-2020] - 16

that “[a]n unconstitutional law is void, and is as no law. An offence created by it is not a 

crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot 

be a legal cause of imprisonment.” Ex parte Siebold, 100 U.S. at 376–77.

Appellant’s void ab initio claim therefore implicates all phases of the criminal 

proceedings against him, dating to their beginning, and seeks to have them declared null 

and void, as, in his view, judicial enforcement of his incarceration under an 

unconstitutionally enacted statute would result in a denial of his most basic due process 

right — that of liberty. This claim does not, therefore, involve the more typical question, 

such as that which our Court confronted in Washington, see supra note 14, of whether a 

judicial decision declaring a species of sentence to be unconstitutional should be given 

retroactive effect on collateral review. Indeed, this question does not involve retroactivity 

at all, given that, as Appellant develops in his brief to our Court, his claim is, at its core,

an assertion that his conviction and resulting sentence are, and in effect always were,

illegal under Pennsylvania law. See, e.g., Fiore, 531 U.S. at 228 (where our Court’s 

interpretation of a criminal statute rendered after the defendant was convicted “was the 

law of Pennsylvania - as properly interpreted - at the time of [defendant’s] conviction. 

[Thus] this case presents no issue of retroactivity.”); cf. Kendrick v. District Attorney of 

Philadelphia County, 916 A.2d 529, 539 (Pa. 2007) (“[a] person does not run afoul of 

Pennsylvania criminal law unless he violates a specific statute;” our Court’s construction 

of a criminal statute as not proscribing certain conduct reflects the scope of the statute at 

the time of its enactment).

Consequently, given that this case involves an assertion of an illegal sentence due 

to a void ab initio conviction, we conclude that Appellant is entitled to judicial review of his
[J-14-2020] - 17

unique Derhammer-based claim, even though it was raised for the first time in his appeal 

from the denial of his PCRA petition.

Turning to the merits of Appellant’s claim, our Court in Neiman declared Megan’s 

Law III, of which Section 4915 was a part, to be unconstitutionally enacted – a 

determination that it was void from the date it purported to take effect. Our Court 

acknowledged this fact in Derhammer, wherein we ruled that the Commonwealth was 

barred from prosecuting a defendant under Section 4915 following Neiman:

It is undisputed that a conviction based on an unconstitutional 

statute is a nullity. In [Ex Parte] Siebold the Supreme Court 

explained that an offense created by an unconstitutional law 

“is not a crime” and “[a] conviction under it . . . is illegal and 

void, and cannot be a legal cause of imprisonment.” Siebold, 

100 U.S. at 376-77. It follows that [a]ppellant’s conviction 

cannot be sustained to the extent it is based on Megan’s Law 

III as enacted in 2004.

Derhammer, 173 A.3d at 728.

Likewise, Appellant’s conviction and sentence cannot stand, even though predating our Neiman decision, because his conviction was likewise based on Section 4915, 

which, after Neiman, must be regarded as void from the time of its enactment. Accord

Commonwealth v. Wolfe, 140 A.3d 651, 661 (Pa. 2016) (“[A] sentence based on an 

unconstitutional statute that is incapable of severance is void.”). Indeed, to permit 

Appellant’s conviction and sentence to stand would, as he contends, and the 

Commonwealth concurs, violate principles of due process, inasmuch as there was no 

validly-enacted criminal statute on which the Commonwealth could base Appellant’s 

conviction. Cf. Fiore (a criminal conviction offends due process whenever the 

Commonwealth has failed to prove any element of a criminal offense beyond a 
[J-14-2020] - 18

reasonable doubt). Appellant was, therefore, entitled to reversal of his sentence and 

discharge from his conviction.

On this basis, we entered our per curiam order of April 1, 2020, reversing 

Appellant’s judgment of sentence.

Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy 

join the opinion.