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Commonwealth of Pennsylvania v. Harvey Elwood Demmitt

May 1, 2012

COMMONWEALTH OF PENNSYLVANIA,
APPELLANT
v.
HARVEY ELWOOD DEMMITT, JR., APPELLEE



Appeal from the Order Entered July 15, 2009, Court of Common Pleas, Centre County, Criminal Division, at No. CP-14-CR-0000388-2008.

The opinion of the court was delivered by: Shogan, J

J-E02007-10

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, BENDER, BOWES, DONOHUE SHOGAN, ALLEN, OLSON and OTT, JJ.

OPINION BY SHOGAN, J.:

The Commonwealth of Pennsylvania ("the Commonwealth") appeals the July 15, 2009 order entered in the Centre County Court of Common Pleas that granted Harvey Elwood Demmitt, Jr.'s ("Appellee") motion for a new trial after a jury convicted him of failing to comply with registration of sexual offender requirements pursuant to 18 Pa.C.S.A. § 4915(a)(1). The Commonwealth argues Appellee was not entitled to a new trial as Megan's Law*fn1 should not be construed to allow sexually violent predators to circumvent the requirement of registering a location as their "residence" by asserting a defense of homelessness. We agree and reverse.

On January 29, 2002, Appellee was convicted of indecent assault*fn2 and corruption of minors*fn3 in York County. At that time, Appellee was on parole for his prior January 15, 1998 convictions of indecent assault, corruption of minors, and statutory sexual assault. As a result, the trial court revoked Appellee's parole and sentenced him to 15-48 months of imprisonment for the 2002 convictions to be served consecutively to a one (1) to three (3) year term of imprisonment on his 1998 statutory sexual assault conviction.

The trial court determined that Appellee is a Sexually Violent Predator and notified him of his obligation under Megan's Law to register with the Pennsylvania State Police on a quarterly basis each year for the rest of his life. N.T. Trial, 1/12/09, at 30-33. Appellee was informed of the specific requirement that he provide the State Police with a place of intended residence upon release from his incarceration at the State Correctional Institute at Rockview. Id.

As Appellee would complete his maximum sentence on February 19, 2008, SCI Rockview records specialist Diane Zelznick reviewed the Megan's Law requirements with Appellee to make sure he understood his reporting obligations. N.T. Trial, 1/12/09, at 58-59.

Appellee informed Zelznick that he had attempted to find a place to live upon his release from incarceration, but had been unsuccessful. Id. at 60. Appellee was very upset because he did not want to be released to the street and asked to stay in SCI Rockview or to be transferred to the Centre County Prison. Id. at 62-63. On a later occasion, when Appellee was informed he would be arrested for failure to provide an address, he expressed relief that police would take him into custody. Id. at 64-65. When asked to explain why he did not want to be released, Appellee expressed fear he would commit another sexual offense, stating, "You don't understand. You can't let me go. You can't let me go. I will reoffend." Id.

As SCI Rockview officials informed the State Police that Appellee had not indicated an intended residence on his registration form, Trooper Brian Wakefield proceeded to SCI Rockview on February 19, 2008, the date Appellee was to be released. N.T. Trial, 1/12/09, at 86-90. When Appellee exited the prison, Trooper Wakefield identified himself and asked if Appellee was aware of his registration requirements under Megan's Law. Id. at 90. Appellee affirmed that he was aware of his obligations and Trooper Wakefield asked Appellee if he had any intended residence. Id. Appellee answered in the negative. Id. at 91. After Trooper Wakefield took Appellee into custody and gave him his Miranda*fn4 rights, he inquired whether Appellee felt he would commit additional other sexual offenses if released. Id. at 91-93. Appellee replied, "I will. I will go back to square one with nowhere to go. I have - I do have support but I can't count on it." Id. at 92. Appellee again confessed that he should not be released as he would reoffend. Id. at 93.

After a trial was held on January 19, 2008, a jury convicted Appellee of failing to comply with registration of sexual offender requirements pursuant to 18 Pa.C.S.A. § 4915(a)(1). On February 23, 2009, the trial court sentenced Appellee to a term of incarceration of not less than one (1) year nor more than seven (7) years of imprisonment with credit for time served. On February 26, 2009, Appellee filed a post-sentence motion, requesting, inter alia, a new trial based on an allegation that the trial court answered a jury question with an incorrect statement of the law. Post- Sentence Motion, 2/26/09, at ¶¶ 15-33. Specifically, Appellee alleged that one could not be convicted for failing to register a residence, if one was homeless. Id. Based on Commonwealth v. Wilgus, 975 A.2d 1183 (Pa. Super. 2009) ("Wilgus I"), which set aside a conviction for failing to register a residence where the defendant was homeless, the trial court granted his post-sentence motion and granted Appellee a new trial. Order, 7/15/09. On appeal, the Commonwealth challenges the trial court's order granting Appellee a new trial.

We begin our discussion by setting forth our standard of review. We point out that "[a] trial court has an 'immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case so requires.'" Commonwealth v. Dorm, 971 A.2d 1284, 1288 (Pa. Super. 2009) (quoting Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240, 1242 (1991)). On appeal, we review such a ruling to determine if there was an abuse of discretion. Id.

As noted above, in the case at bar, the trial court relied on Wilgus I in granting Appellee post-sentence relief. However, the Commonwealth sought allowance of appeal in Wilgus I, which was granted on February 16, 2010. Commonwealth v. Wilgus, 605 Pa. 313, 989 A.2d 340 (2010). On March 26, 2012, the Supreme Court reversed Wilgus I. Commonwealth v. Wilgus, ___ A.3d ___ , 6 MAP 2010 (Pa. 2012) ("Wilgus II").

In Wilgus II, our Supreme Court held 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." Wilgus II, Slip. Op. at 5. "There is no exception for homeless offenders, and the Superior Court was incorrect in reading such an exception into the statute." Id. Thus, pursuant the Pennsylvania Supreme Court's ruling in ...


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