134 A.3d 1066 (Pa.Super. 2016), 2087 MDA 2014, Commonwealth v. Derhammer

Docket Nº:2087 MDA 2014
Citation:134 A.3d 1066, 2016 PA Super 34
Opinion Judge:BOWES, J.
Attorney:Janan M. Tallo, Wilkes Barre, for Appellant. James L. McMonagle, Assistant District Attorney, Wilkes-Barre, for Commonwealth, Appellee.
Case Date:February 16, 2016
Court:Superior Court of Pennsylvania

Page 1066

134 A.3d 1066 (Pa.Super. 2016)

2016 PA Super 34




No. 2087 MDA 2014

Superior Court of Pennsylvania

February 16, 2016

Submitted October 19, 2015

Appeal from the Judgment of Sentence of the Court of Common Pleas, Luzerne County, Criminal Division, No(s): CP-40-CR-0001372-2010. Before LUPAS, J.

Janan M. Tallo, Wilkes Barre, for Appellant.

James L. McMonagle, Assistant District Attorney, Wilkes-Barre, for Commonwealth, Appellee.




Joseph Derhammer appeals from the judgment of sentence of four to eight years incarceration imposed by the court after it found him guilty of failing to comply with sex offender registration pursuant to former 18 Pa.C.S. § 4915. After careful review, we affirm.

Appellant pled guilty in June of 1995 to involuntary deviate sexual intercourse and was sentenced to five to ten years incarceration. See CP-40-MD-439-1995. As a result, Appellant was required to register for life as a sex offender. On April 13, 2009, a fire at the home of Nancy Kostelnick and her daughter resulted in their deaths. An investigation ensued that determined that the fire was the result of arson.1 As part of the investigation, police learned that Appellant had been in a romantic relationship with Nancy Kostelnick and had resided at the home. However, police discovered that Appellant was evicted after an argument with Nancy Kostelnick and no longer lived at the home as of April 1, 2009. Appellant had reported a new address to Pennsylvania State Police on April 6, 2009.

The Commonwealth charged Appellant on January 10, 2010, with failing to register as a sex offender under 18 Pa.C.S. § 4915. At that time, Appellant was subject to registration pursuant to 42 Pa.C.S. § 9795.1(b)(2) and 42 Pa.C.S. § 9795.2, provisions that were part of Megan's Law III and, prior to that, part of Megan's Law II. The version of Megan's Law III then in effect required a person to inform Pennsylvania State Police of a change in address within forty-eight hours. See former 42 Pa.C.S. § 9795.2(a)(2)(i) (2012).2

On July 6, 2010, the Commonwealth filed its criminal information, which set forth that Appellant, " an individual subject to registration under 42 Pa.C.S. [§ § ] 9795.2 (b)(1), (2) or (3), knowingly failed to register with the Pennsylvania State Police as required under 42 Pa.C.S. [§ § ] 9795.2 (relating to registration procedures and applicability) in violation of Section 4915(a)(1) of the Pennsylvania Crimes Code (Section 4915 effective January 24, 2005), 18 Pa.C.S.A. Section 4915(a)(1)." Criminal Information, 7/6/10. Appellant proceeded to a bench trial on March 3, 2011. The court found Appellant guilty and sentenced him on April 20, 2011, to three years and four months to six years and eight months incarceration. Appellant failed to file a direct appeal, but timely sought post-conviction relief under the Post-Conviction Relief Act (" PCRA" ). The PCRA court reinstated Appellant's appellate rights.

This Court, with the agreement of the Commonwealth, on January 7, 2014, reversed Appellant's judgment of sentence and remanded for a new trial because he had not been given an adequate colloquy regarding the waiver of his jury trial rights. In the meantime, Megan's Law III and 18 Pa.C.S. § 4915 expired on December 20, 2012. Megan's Law III was replaced on that same date by the Sexual Offender Registration and Notification Act (" SORNA" ). The General Assembly also passed 18 Pa.C.S. § 4915.1 on December 20, 2011, which substantially re-enacted and replaced 18 Pa.C.S. § 4915 and became effective December 20, 2012. Act 2011-111 (S.B. 1183), P.L. 446.

Prior to Appellant's retrial, the Pennsylvania Supreme Court, on December 16, 2013, decided Commonwealth v. Neiman, 624 Pa. 53, 84 A.3d 603 (Pa. 2013). Therein, the Pennsylvania Supreme Court declared Act 152 of 2004 unconstitutional in its entirety as a violation of the Pennsylvania Constitution's single subject rule. That Act included Megan's Law III and its registration and notification requirements. Additionally, it re-codified the crime for which Appellant was charged under a new Crimes Code provision.

Specifically, 18 Pa.C.S. § 4915 was created by Megan's Law III. The crime existed in a prior form under a separate statute in Megan's Law II. See former 42 Pa.C.S. § 9795.2(d)(2) (" An individual subject to registration under Section 9795.1(b)(1), (2), or (3), who fails to register with Pennsylvania State Police as required in this section commits a felony of the first degree and shall be sentenced to a mandatory minimum sentence of probation for the remainder of the individual's lifetime and may be sentenced to a period of incarceration of up to the individual's lifetime." ); 3 see also former 42 Pa.C.S. § 9795.2(d)(1) (" An individual subject to registration under Section 9795.1(a) who fails to register with the Pennsylvania State Police as required in this section commits a felony of the third degree." ).4

The Neiman Court stayed its decision for ninety days to permit the legislature to take action. In response, the legislature enacted Act 19 of 2014 on March 14, 2014. Act 19 amended Title 42 relative to sex offender registration requirements, but did not address the Crimes Code, which, relevant to this case, had already been amended via the original SORNA.

On August 26, 2014, Appellant filed a motion to dismiss based on Neiman. Therein, he argued that the statute under which he was charged was unconstitutionally void and that the substantive crime for which he was charged no longer existed. The trial court heard argument by the parties on September 2, 2014, and denied Appellant's motion. The matter proceeded to a non-jury trial and Appellant stipulated to the entry of the transcript of his first trial as the evidence to be considered by the court.

That evidence revealed that Appellant resided for two to three years at 46 Chester Street, Wilkes Barre, Pennsylvania, with the Kostelnicks. That was his registered address as of April 1, 2009. Thereafter, Appellant lived from April 1, 2009 to April 13, 2009 at another address with a friend. Appellant registered at the new address on April 6, 2009.[5] That friend, Sandra Wickkiser, asked him to find another place to reside after learning that he was required to register as a sex offender. She also called police on April 13, 2009, to inquire about Megan's Law registration and spoke to police regarding Appellant. He also registered a different address on April 14, 2009, after Ms. Wickkiser no longer permitted him to live with her.

The court denied Appellant's renewed request to dismiss the charge based on 18 Pa.C.S. § 4915 being null and void and found him guilty. The court imposed the aforementioned sentence on October 24, 2014. This timely appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and Appellant complied. The trial court authored a Rule 1925(a) opinion and the matter is now ready for our review. Appellant's sole contention on appeal is: Whether the court erred when it violated the Appellant's right to due process under the United States and Pennsylvania Constitutions by the [sic] denying the Appellant's motion for habeas corpus prior to trial and ultimately convicting the Appellant under a statute which was rendered unconstitutional by the Supreme Court of Pennsylvania in Commonwealth v. Neiman?

Appellant's brief at 4.

Appellant's issue involves the interplay between Megan's Law II, Megan's Law III, and SORNA in light of our Supreme Court's decision in Neiman and our legislature's subsequent remedial action. This is a matter of first impression. As Appellant's issue involves analysis of the application of statutory law, the question is one of law. Thus, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Stotelmyer, 110 A.3d 146, 149 (Pa. 2015).

Preliminarily, since it is pertinent to our analysis, we trace the development of sex offender registration law in Pennsylvania. In 1995, the legislature enacted Megan's Law I. See Act 1995 Special Session-24 (S.B. 7), P.L. 1079, § 1, approved Oct. 24, 1995.6 Megan's Law I created two separate classifications: sexually violent predators (" SVP" ) and other offenders. See

Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 595 (Pa. 1999) (Williams I).

Megan's Law I presumed an offender was an SVP if the person was convicted of delineated offenses, including: rape, involuntary deviate sexual intercourse, aggravated indecent assault, spousal sexual abuse, and a misdemeanor of the first-degree indecent assault. In addition, a person who committed...

To continue reading