*2 HESTER, Before CATANIA, HOFFMAN and JJ.* * Judge President J. FRANCIS CATANIA of the of Court Common County, Pennsylvania, sitting by designation. Pleas of Delaware is
CATANIA, Judge: a jury was convicted before in this matter appellant deliver and deliv- with intent to of possession substance, marijua- being that substance of a controlled ery assigned points has three defendant/appellant na. points the first We believe two he considers error. which them first. and will discuss without merit are of error is that the assignment first The defendant’s weight contrary verdict that his the defendant believed More specifically, evidence. been accepted should have entrapment defense of the defend alleged by of error assignment The second jury. failing to sustain the erred is that the lower court ant *3 to evidence. The defendant suppress defendant’s motion statements suppressed should have Court believes agent, an undercover which the defendant to made agent prior to the to the undercover statements were made fact, was, in he an undercover realizing that defendant’s agent. a the name of Janice Miller girl facts are and cooperating appar- who was rather zealous individual
a with law enforcement officers cooperate continues to ently selling arrested for persons to have various attempting in of law enforce- not a member drugs. Janice Miller was informant. Miller a paid Nor was Janice agency. ment two approximately defendant for Miller knew the Janice that she had smoked his She admitted years arrest. prior she past apparent- in the and with the defendant dealer fairly large the defendant was a also believed that ly intentionally Miller introduced Janice marijuana. in of for the purpose Rentschler Deputy defendant to Sheriff the defendant and subse- investigate having Rentschler There were numer- him for certain crimes. charge quently and Jensch prior between Rentschler ous conversations (25) Rentschler twenty-five final deal Jensch sold whereby pounds marijuana. of review,
A of the record makes it quite clear that Jensch was not a person who was not already inclined to sell marijuana. The relevant provision Code, of the Crimes (18 313) Section Pa.C.S.A. provides as follows: (A) General Rule-A public law enforcement official or a
person acting cooperation with such an official perpetrates an if for entrapment purpose ob- taining evidence of the offense, commission of an he induces or encourages person another to engage in conduct constituting offense by either: such (1) making false knowingly representations designed to induce the belief that such conduct or, is not prohibited; (2) employing methods or persuasion inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
A complete reading of the transcript which has been provided makes it clear that the defendant was not a person who is led or police by Janice Miller to sell He drugs. was a person had who been already selling drugs who had been selling large quantities of drugs, meaning marijua na, prior to the police ever meeting him. All the police did in this matter was to work very to make diligently sure that Jensch sold them a large quantity marijuana rather than just a small amount. Nor can it be said that what state ments were made to the undercover agents an attempt to work out a deal for the sale of the marijuana to them should have been suppressed. The agents undercover must be *4 given some latitude to continue to represent the interest of the people of this Commonwealth and therefore this second argument of*the defendant is overruled.
In his assignment error, third the defendant allege es that during Deputy Rentschler’s he testimony, stated that the defendant told him that he was in engaged drug deal ings while in college. The alleges defendant that this testi mony prior criminal was so activity prejudicial that the defendant was deprived of his right trial impartial jury. It is noted in the briefs that during the suppression statement, not the suppress the did although judge
hearings, both for the attorney appellant and the attorney district the not as testify officer should police the agree However, Deputy his during testimony, above statement. into testi- the statement managed get Rentschler Sheriff attorney. the district objection of almost above the mony describing happened first what Rentschler Sheriff Deputy the He stated that defend- transaction. night the the on a were in room and ant, another detective himself and out of his coat baggie out a plastic pulled the defendant so cut a book that he could telephone asked for pocket After other could test it. parties that the the so he was asked the cigarettes, he rolled the discussing how the conversation with defend- any if he had attorney district as follows: responded then Sheriff Deputy ant. He told me transactions. drug “It was talk about mostly ...” college through how he went the him and attorney immediately interrupted The district for side bar objected and asked attorney for the defendant conference, after judge, the bar the At side conference. the reread, that he was denying the statement stated having record, that as he reads for a mistrial and stated motion indication as to how the does not that there is he believe He felt that the defendant through college. went defendant through college. something having gone about merely-stated and the record and must have read the statement We the only court. We believe that disagree with the lower made by be drawn from the statement inference that could drug transac- many was that there were Sheriff Deputy in college. while he was this defendant engaged tions draw the would necessarily jury It be that may not worked his actually way defendant inference that is but it clear to selling marijuana, quite through college by defendant inferred that us that the should have while drug college. transactions engaged in at least some 156, Harkins, 459 Pa. 328 A.2d In Commonwealth stated: Pennsylvania Court of Supreme
271 raised only arguments the in this prosecution concern the issue of appeal harmless error. we Initially, reject must the contention that it should prosecution’s not be required establish that the error was harmless be- a reasonable doubt. yond Under Sixth Amendment to I, the United States Constitution and under Article Sec- Constitution, P.S., tion 9 of the Pennsylvania the appellant impartial entitled to a trial these jury. Since violated, rights were had the burden of prosecution that the error was proving harmless a reasonable beyond California, 18, doubt. v. Chapman 824, 386 U.S. 87 S.Ct. 17 705, 987, L.Ed.2d reh. den. 87 824, 386 U.S. S.Ct. 17 L.Ed.2d 705 (1967); Pearson, 45, Commonwealth v. 427 Pa. 233 A.2d (1967); 552 Cf. Commonwealth v. Padgett, 428 229, Pa. (1968). has failed to prosecution establish that the error was
harmless
a reasonable doubt.
beyond
Error cannot be
harmless
a reasonable doubt if
beyond
there is a reasona-
ble
that the
possibility
information received
jury
California,
contributed to the conviction. Chapman v.
386
18,
824,
705,
U.S.
87
17
S.Ct.
L.Ed.2d
reh. den. 386 U.S.
987, 87
824,
S.Ct.
17
(1967).
L.Ed.2d 705
Schneble
Florida,
427,
1056,
92
(1972).
U.S.
S.Ct.
cial formula.
is
that
the
177,
theory
system
The
our
In Commonwealth jurors because certain had the conviction we reversed (1974), had information that the defendant nontestimonial received being for which he was crime other than that committed a case, received non-testimonial jurors in this Similarly, tried. that crime other than for which prior information of a is de- tried. The therefore being appellant was appellant a and indifferent impartial trial by panel of a fair prived jurors. has also stated Com- Supreme Court Pennsylvania
The
367,
783 that the
Fortune,
Pa.
346 A.2d
v.
464
monwealth
limiting
the trial
that
court’s
submission
Commonwealth’s
improp-
is
unpersuasive.
instruction
error
mitigates
limiting
and a
instruction
is highly prejudicial
er evidence
prejudice.
to remove that
Common-
adequate
not be
would
173,
(1971).
Foose, 441 Pa.
Because we believe that there was an reference improper defendant, criminal activities prior of the we believe that granted defendant should be a new trial. of the lower Judgment court will be reversed and this matter will be remanded for a new trial.
HOFFMAN, J., concurs in the result.
HESTER, J., files a concurring and dissenting opinion. HESTER, Judge, concurring dissenting: I agree with and join majority’s Opinion with the exception of the point discussed below. The defendant urges, and the majority agrees, that a new trial be granted on the basis of testimony given by Sheriff Rentsch- Deputy ler, the undercover agent. Said testimony consisted of only the following:
Q. “Did have you (the conversation with him defend- ant) at that time?
A. It was talk mostly drug about transactions. He told ” me how he went thru . . .. college (N.T. 7). p.
At that point he was immediately interrupted the assist- ant district The attorney. would a new majority grant trial that: holding
“We believe that the only inference that could be drawn from the statement made sheriff was deputy that there were many drug transactions engaged by this defendant while he was in It college. may not necessarily be that the would draw the inference that the de- fendant worked his actually way through college sell- ing marijuana, but it is quite clear to us that the jury should have inferred that the defendant at engaged in least some drug transactions while in college.” 401). (p. question testimony concludes majority activity. criminal prior reference to improper constitutes an indicate, answer to nothing There is in the I do not agree. defendant assumption, could support or that in college. while drugs sold He, in the trial. as stated received fair defendant “who had been person already was a
majority Opinion, ever drugs prior police selling large quantities agent He sold 25 meeting pounds him.” $8,500.00. for
A trial is not warranted. new I dissent. respectfully Pennsylvania L. ex rel. Wistar CANN
COMMONWEALTH of CANN, Appellant. Charles M.
Superior Pennsylvania. Court 11, 1979.
Argued June *8 Filed Jan. 1980.