Effect of Conviction Under Criminal Statute Declared Unconstitutional

Com. v. Derhammer, 134 A. 3d 1066 (Pa. Super. 2016), allocatur granted, 121 MAP 2016


Whether a sex offender can be convicted of the crime of failing to register with the State Police where the statute under which he was charged and convicted had been declared unconstitutional.


By order issued January 7, 2014, Superior Court reversed and remanded sex offender’s conviction for failure to register with State Police under Megan’s Law because he had not received an adequate colloquy prior to waiving his jury trial rights.  However, on December 16, 2013, Supreme Court in Com. v. Neiman had declared the statute unconstitutional in its entirety as a violation of the Pennsylvania Constitution’s single subject rule, but deferred effectiveness of its decision to allow the legislature time to reenact the law.  On remand, defendant filed a motion to dismiss based on Neiman, arguing 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 denied the motion, defendant was convicted again, and Superior Court affirmed, holding that the repeal of a statute defining a criminal offense by a statute that re-enacts in substance the original offense does not interrupt the operation of the older offense, and that the General Assembly did not abolish the crime of failing to register, but instead replaced and substantially re-enacted that law via 18 Pa.C.S. § 4915.1. Therefore, the offense of failing to register as a sex offender continued and was at all times prohibited.

For more information, contact Kevin McKeon or Dennis Whitaker