COMMONWEALTH of Pennsylvania v. Christopher WRIGHT, Appellant.
Superior Court of Pennsylvania.
Argued June 19, 1990. Filed Aug. 1, 1990.
Petition for Allowance of Appeal Denied Jan. 24, 1991.
578 A.2d 513
W. Jeffrey Yates, Asst. Dist. Atty., W. Bellefonte, for Com.
CIRILLO, President Judge.
Christopher Wright appeals from the judgment of sentence entered by the Court of Common Pleas of Centre County following his convictions for two counts of possession with intent to deliver marijuana, and two counts of delivery of marijuana.
Ken Doran and appellant Christopher Wright attended Penn State University in 1982 and were in the same physics class. They also worked together in 1984 at the Saloon, a restaurant/bar located in State College. In March of 1985, Doran was arrested by the local and campus police for selling cocaine. On March 29, 1985 Doran signed a plea agreement with agents of the Commonwealth in which he agreed to help gather information concerning drug dealing on the Penn State campus in exchange for a probationary sentence. The agreement stated that Doran was aware that the Centre County District Attorney‘s Office, the University Police Services, and the DEA reserved the right to indicate their approval of the agreement until Doran “fully cooperated.”
Doran came into contact with Wright a few months later. Wright invited Doran to visit his apartment.1 Doran had not taken any action to satisfy his plea agreement between March 29 and the beginning of July and when he ran into Wright he decided to cultivate a friendship in order to persuade Wright to purchase marijuana for him. Doran
On August 29, 1985, Doran was made aware that his plea bargain was not going to be approved because he had not “fully cooperated” with the agents of the Commonwealth. Thereafter, Doran contacted Police Officer Ronald Schreffler and told him that Wright was an individual from whom Doran thought he could purchase marijuana. Officer Schreffler testified that he and Doran then placed a phone call to Wright during which Doran attempted to set-up a drug transaction. The set-up, however, was unsuccessful. On August 30, 1985, Officer Schreffler again dialed Wright‘s residence and Doran asked to meet with Wright. The purpose of the meeting was for Doran to give Wright the $40.00 he had received from the police to enable Wright to purchase two ounces of marijuana. Doran met with Wright, gave him the money, and made arrangements to meet again later that day to pick up the marijuana. Doran stated that the police were aware of all of his actions; “they took charge of the whole thing.... They made up the lies and I told them to fool [Wright] I suppose, to go along with the guise that I was just some innocent person.”
On September 11, 1985, a similar meeting was set up when Officer Schreffler placed a call to Wright‘s residence and Doran requested to meet with Wright for the purpose of purchasing marijuana. Again the transaction took place in two steps; first Doran gave Wright the money and later that day they met to enable Wright to give Doran the drugs. This time, however, Doran was given $42.00 by the police, two dollars representing the money which he would give Wright for gasoline expenses.
On September 18, 1985, a third meeting was set up by the police, through Doran, to identify Wright‘s source of mari-
Again, on October 3, 1985, Officer Schreffler placed a call to Wright‘s residence. Doran spoke with Wright and made arrangements for Wright to purchase some marijuana for Doran. Officer Schreffler gave Doran $280.00 to purchase a pound of marijuana. Officer Schreffler and Agent Albert R. Lumpkin, Jr., a narcotics investigator employed by the Pennsylvania Office of Attorney General, then drove him to a location near the area where he was to meet Wright. Doran and Wright travelled in Wright‘s vehicle to Stouffer‘s residence. They stopped on their way to Stouffer‘s to buy gas and sodas. Again, Doran paid. Once at Stouffer‘s, Doran was permitted to go downstairs to the basement where he saw a room filled with marijuana plants. Doran then purchased a pound of marijuana for $280.00. After leaving the Stouffer residence, Doran gave the marijuana to Agent Lumpkin. After each of the incidents, Doran gave a taped statement. Wright was arrested and thereafter was tried before a jury on April 23, 1986.
The aforementioned discussion details the nature and sequence of the events which transpired. However, also relevant to our disposition of this case is the testimony that illustrates the extent of the police department‘s involvement and the nature of the relationship between Wright and Doran.
For example, on cross-examination, Officer Schreffler testified that Doran was acting as an informant. He also
In addition, Agent Lumpkin testified that Doran was not charged with possession of marijuana because “he was my informant or our informant, law enforcement agent.” Agent Lumpkin, an agent of the Commonwealth, testified that he had agreed to allow Doran to act as an informant. He also testified that he was aware that each time Wright drove Doran to Stouffer‘s residence, Doran gave Wright money for gas. Agent Lumpkin also stated that he initially was not aware that Doran was fronting the money to Wright and that he preferred not to front money but if it was the only method of accomplishing the transaction, he would permit it.
Moreover, Thomas P. King, a criminal investigator with the State College Bureau of Police Services, testified that he had worked in drug enforcement and with the Penn State University Police. On cross-examination, Investigator King referred to Doran as “the informant” when he was explaining that Doran introduced King to Stouffer.2 King also stated that Doran was advised to tell Wright that he worked at the University to provide Doran with an excuse for not initially accompanying Wright to obtain the marijuana and to enable the police to control where Doran and Wright would meet to exchange the money and marijuana.
In addition, Doran testified that on August 30, he asked Wright if he could purchase two ounces of marijuana and Wright responded that he would look into it but that he probably could obtain it. Doran stated that during his phone conversations with Wright, Wright never indicated that he did not want to sell him the marijuana. On cross-examination, Doran admitted that he told Wright he had to
In his own defense, Wright testified that he ran into Doran in the beginning of July and that Doran “started to buddy up to me.” He stated that Doran visited once or twice a week, stayed about an hour or two and occasionally brought a six pack of beer. Wright also testified that he introduced Doran to his friends. Wright also stated that he purchased the marijuana for Doran because Doran told him that he had to work. He agreed to pick up the marijuana for Doran because “he was my friend and it was a favor.” He also stated that he did not ask Doran for compensation on August 30 because he “thought it was a one-time only thing, it was a favor to a friend.” Wright testified that on September 11, Doran came to Wright‘s apartment to give him the money to get the marijuana and that the reason Doran could not accompany him to get the marijuana was because he had to work. He also stated that the reason he drove Doran to Stouffer‘s was because Doran told him that
On cross-examination, Wright admitted that his fraternity brothers often came to his apartment to smoke marijuana that he provided to them as friends. He stated that he viewed smoking marijuana as a social activity. He admitted that there was some sort of trust between himself and Stouffer. Wright did not dispute the occurrence of the transactions. He stated that he drove back and forth to Milesburg because of his friendship with Doran. Wright never specifically told Doran that he was not going to get him marijuana. He stated that he did not sell Doran marijuana, he only bought it for him. In return for driving four hours and approximately 120 miles, Wright testified that he received nothing other than gas and two cartons of lemonade.
Following trial, the jury found Wright guilty of two counts of possession with intent to deliver in connection with incidents occurring on August 30, 1985 and on September 11, 1985, and two counts of delivery of marijuana in connection with an incident occurring on September 11, 1985. He was found not guilty of two counts of conspiracy to deliver marijuana. On April 26, 1986, Wright filed timely post-trial motions requesting a new trial because the trial court erroneously denied his jury instructions. In addition, he requested that the judgment against him be arrested because the conduct of Doran constituted entrapment as a matter of law. These motions were denied in an opinion and order by the Honorable Charles Brown, Jr., President Judge of the Court of Common Pleas of Centre County.
Wright filed a motion for probation without verdict pursuant to
Wright raises the following issues for our consideration:
- Must the defendant receive a new trial due to the failure of the trial court to give any one of the defendant‘s requested jury instructions on the defense of consent.
- Must the defendant receive a new trial due to the failure of the trial court to instruct the jury as requested in Instruction No. 2, as modified that in considering the entrapment defense, Ken Doran was a Commonwealth agent.
- Was the conduct of the police and Ken Doran concerning Christopher Wright, entrapment as a matter of law requiring arrest of judgment.
Because we find that Wright‘s third issue is meritorious and requires vacatur of his judgment of sentence, we address only that issue.
Wright argues that he was entrapped as a matter of law and consequently contends that his judgment should be arrested. He asserts that the Commonwealth should not be permitted to use the bonds of friendship to induce the purchase of marijuana.
The Commonwealth, on the other hand, states that Doran‘s social meetings with Wright were merely part of the strategy generally employed in undercover drug investigations. Moreover, the Commonwealth notes that it merely offered Wright the opportunity to commit the crimes as he was already predisposed with the intent to sell and deliver controlled substances as evidenced by his friendship with Stouffer, the man from whom he purchased the marijuana for Doran. The Commonwealth concludes that there was no evidence presented to clearly establish entrapment as a matter of law. We disagree.
(a) General rule. A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof. —Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment....
Recently our supreme court in Commonwealth v. Weiskerger and Commonwealth v. Clapps, 520 Pa. 305, 554 A.2d 10 (1989), considered whether
Prior to the adoption of the 1972 Crimes Code, the Pennsylvania test for entrapment was “... whether the criminal design was created by the officer or whether the officer merely afforded an opportunity for the commission of a crime by the person already disposed to commit the crime...” ... This test was derived from the majority opinions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), which focused on the predisposition of the accused to
commit the crime.... The present codification of entrapment finds its origin in Mr. Justice FRANKFURTER‘S concurring opinion in Sherman: “This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime.... This test shifts attention from the record and predisposition of the particular defendants to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Thus, the test for entrapment has shifted in emphasis from a consideration of a particular defendant‘s readiness to commit crime, a subjective test, to an evaluation of the police conduct, an objective test, to determine whether there is a substantial risk that the offense will be committed by those innocently disposed. To determine whether an entrapment has been perpetrated in any particular case, therefore, the inquiry will focus on the conduct of the police and will not be concerned with the defendant‘s prior criminal activity or other indicia of a predisposition to commit crime.
Weiskerger/Clapps, 520 Pa. at 311, 554 A.2d at 13 (emphasis in original), citing Jones, supra, 242 Pa.Super. at 310-11, 363 A.2d at 1284-85. The court, thus, concurred in our interpretation of section 313 as set forth in Jones and unequivocally concluded that the “objective test represents the more enlightened approach and fosters the constitutional idea of equal justice for all.” Weiskerger/Clapps, 520 Pa. at 312, 554 A.2d at 14. The court noted that its conclusion was consistent with the legislative intent behind section 313 and opined that the burden of proof language in subsection (b) should not be read to indicate otherwise. Id. Subsection (b) was “merely intended to explicitly place the burden of proof on the defendant to establish the defense of
Several cases decided prior to Weiskerger/Clapps are illustrative of this court‘s application of the objective test. For example, in Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979), we stated that when viewed objectively “the police conduct did no more than afford appellant an opportunity to make a sale of heroin [because] the undercover agent... merely provided a market if appellant wished to sell.” We stated the police conduct, that is, the actions of the deputy sheriff working undercover, was “not calculated to induce an innocent man to deal in heroin.” Id., 264 Pa.Superior Ct. at 518-19, 400 A.2d at 206. Accordingly, we found no entrapment. Id. at 518, 400 A.2d at 206. See also Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980) (court found that the evidence showed that the police officer merely provided appellant with the opportunity to commit the crime of prostitution, that the officer did not importune her to commit the crime, and that the officer‘s behavior would not have induced an innocent person to act as a prostitute, and thus the court concluded that the trial court properly found no entrapment as a matter of law.)
Moreover, in Commonwealth v. Lee, 262 Pa.Super. 218, 396 A.2d 724 (1978), we stated,
Artifice and stratagem are legitimate tactics that may be employed by law enforcement officials to detect and combat crime. Merely affording opportunities or facilities for the commission of a crime by one who already had the criminal intent to engage in such a crime does not defeat the prosecution.
Id., 262 Pa.Superior Ct. at 221, 396 A.2d at 725. There, we found no entrapment where an auxiliary policewoman acted as a decoy prostitute and did not initiate conversation with appellant potential customer, quote prices or suggest locations for the proposed work. Id., 262 Pa.Superior Ct. at 222, 396 A.2d at 725.
In addition, this court sitting en banc in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985), reviewed the evolution of the defense of entrapment and noted that by enacting section 313 the legislature rejected the subjective standard that formerly comprised the entrapment defense.5 Id. 339 Pa.Super. at 327, 488 A.2d at 1148. In McGuire, we stated,
Pennsylvania‘s entrapment statute addresses the concern over ‘unconventional’ investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.6
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... Official conduct designed to provoke criminal behavior, or which creates a substantial risk that unwitting citizens will be implicated in criminal schemes, should not be tolerated in Pennsylvania.”
Id., 339 Pa.Superior Ct. at 328, 334, 488 A.2d at 1149, 1151 (emphasis added).
Thus, it is clear that this Commonwealth has adopted an objective standard for evaluating whether entrapment has occurred. Generally speaking, this standard is employed by the fact finder. Whether an “entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.” Clawson, supra, 250 Pa.Super. at 425-26, 378 A.2d at 1008, citing Commonwealth v. Mott, 234 Pa.Super. 52, 334 A.2d 771 (1975), (court held that as a matter of law the defense of entrapment was not available and should not go to the jury); see also Weiskerger/Clapps, supra (court stated that in order to prevail on a claim that the evidence demonstrated entrapment as a matter of law, appellants must show that the evidence was so overwhelming that it could admit no other conclusion and because appellants did not meet this standard, the court concluded that the question of whether the evidence demonstrated entrapment was one of fact and thus properly submitted to the jury); Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34, allocatur denied, 520 Pa. 595, 552 A.2d 250 (1988) (court disagreed with appellant‘s contention that the detective‘s conduct amounted to entrapment as a matter of law where detective approached appellant, asked him to buy heroin for detective, and appellant readily accepted the proposition on five separate occasions without the detective‘s insistence); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977) vacated on other grounds 491 Pa. 461, 421 A.2d 636 (1980) (where appellant acted as a middle man in several drug sales which were set-up by an informant who was a friend of appellant, court employed objective test, looked at the police conduct to determine if there was a substantial likelihood that the offense would be committed by one innocently disposed, stated that the evidence did not admit
Our review of the case law addressing entrapment as a matter of law leads us to conclude that based on an application of the objective test, the evidence admits of only one conclusion—that Wright was entrapped. We reach this conclusion by implementing the analysis utilized by this court in Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984), the leading case on entrapment as a matter of law. In Thompson we stated that once “the defense of entrapment has been properly established the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense.” Id., 335 Pa.Superior Ct. at 341, 484 A.2d at 164. There, we found that the appellant had properly established the defense because he had proven by a preponderance of the evidence that his conduct was in response to an entrapment.7 Id., 335 Pa.Superior Ct. at
A careful review of the record in this case reveals no significant discrepancy in testimony of the Commonwealth‘s sole witness (Trooper Hammond) and of appellant regarding the course of conduct between the two over a ten month period. Appellant was a middle-aged black male and the trooper was a young, blonde, attractive female. A series of meetings and telephone calls occurred over a ten month period, all at the initiative of
Trooper Hammond. Drugs were constantly discussed. Although it is not always clear who brought the subject up on each occasion; what is clear is that beginning on September 29, 1980, Hammond began requesting drugs from the appellant. By early 1981, and perhaps earlier, Hammond began to chide and criticize appellant for his consistent failure to obtain or provide drugs. Beginning in late 1980 or early 1981, the two began kissing after each meeting. Hammond also permitted appellant to put his arm around her, walked around in public with him, and socialized with his friends.
Id.
The court then stated that the goal which the defense of entrapment seeks to establish is “‘public confidence in the fair and honorable administration of justice” id., 335 Pa.Superior Ct. at 342, 484 A.2d at 165, citing United States v. Sherman, 356 U.S. 369, 380, 78 S.Ct. 819, 824, 2 L.Ed.2d 848 (1958), and noted that the objective test is “aimed at condemning certain impermissible police conduct which, regardless of who may be induced to commit a crime, falls below standards to which common feelings respond, for the proper use of government power.” Thompson, 335 Pa.Super. at 342, 484 A.2d at 165, citing Sherman, supra, 356 U.S. at 382, 78 S.Ct. at 825. Next, the court stated that although whether an entrapment exists must be evaluated upon the facts in each case, “impermissible [police] activity may include ‘appeals to sympathy, friendship, the possibility of exorbitant gain, ...’ ‘extreme pleas of desperate illness, appeals based primarily on sympathy, pity or close personal friendship, and offers of inordinate sums of money.‘” Thompson, 335 Pa.Super. at 343, 484 A.2d at 165 (emphasis added) (citations omitted).
In concluding that appellant was entrapped as a matter of law, the court in Thompson stated that the conduct of Trooper Hammond was not police conduct which presented the mere opportunity to commit a crime but instead constituted inducement. Thompson, 335 Pa.Super. at 344, 484 A.2d at 166. Moreover, the court distinguished the facts in Thompson from those in Commonwealth v. Manley, su-
Wright, like the appellant in Thompson, has successfully invoked the defense of entrapment by proving by a preponderance of evidence that his conduct occurred in response to an entrapment. Id.; see also
We are guided by our statements in Thompson where we acknowledged that impermissible police activity may include appeals to friendship. Here, Doran feigned friendship with Wright in order to manipulate him into purchasing marijuana as a favor to Doran. Doran, acting in cooperation with
The present case is distinguishable from those cases in which no entrapment as a matter of law was found. For example, in Commonwealth v. Frank, 357 Pa.Super. 442, 516 A.2d 64 (1986), we found that the issue of entrapment was properly submitted to the jury where a female undercover police agent posed as a patient who wished to control her weight and did no more than provide appellant physician with an opportunity to dispense medication. Id., 357 Pa.Superior Ct. at 447, 516 A.2d at 67. We stated that she merely provided appellant with an opportunity to commit an illegal act by establishing an artificial doctor-patient relationship and did not persuade him or induce him to dispense drugs illegally. Id. “There is no evidence that she established or promised, expressly or by implication, any relationship other than that of patient and physician.” Id. (emphasis added).
Clearly, such is not the case here. The testimony of both Wright and Doran illustrate that Wright‘s actions were made in response to Doran‘s implicit promise of friendship, not a professional doctor-patient relationship. For example, Doran testified that he feigned friendship in order to get Wright to purchase marijuana for him. Moreover, Doran‘s testimony is buttressed by Wright‘s testimony that he agreed to pick up the marijuana because Doran was his friend and it was a favor.
In addition, this case differs from Commonwealth v. Delligatti, supra. There, a detective approached appellant and asked appellant to obtain heroin for him. Appellant readily accepted the proposition on five separate occasions without the detective‘s insistence. We stated that the conduct of the detective “was in no way calculated to induce an innocent person to deal in heroin,” and concluded that appellant was not entrapped as a matter of law. Delligatti, 371 Pa.Super. at 324-25, 538 A.2d at 39. In Delligatti, unlike here, appellant was not doing a favor for a friend
Thus based on the aforementioned discussion we conclude that the trial court erred in submitting the issue of whether Wright was entrapped to the jury.11 Doran, acting as a deputy of the police, rekindled a friendship with an unsuspecting Wright in order to further his own gain. The police, through Doran, employed tactics which created a controlled environment. In this environment, Wright acted as a good friend and demonstrated his friendship by doing favors for Doran. Doran used Wright and in the process abused a friendship that had flourished between them.
A man that hath friends must show himself friendly; and true is a friend that striketh closer than a brother. Proverbs 18:24.
Judgment of sentence vacated.
CAVANAUGH, J., dissents.
CAVANAUGH, Judge, dissenting.
I respectfully dissent. The majority correctly states the rule that generally it is the fact finder which determines if entrapment has occurred, and that this issue may be decided as a matter of law only if the evidence points to one conclusion. It then goes on to state that the evidence, which is subject to different reasonable interpretations, leads to only one conclusion, namely that the appellant was entrapped.
In my opinion, the evidence raises a substantial factual issue as to whether the appellant was entrapped and the factual question clearly fell within the province of the jury. It seems to me that the majority has usurped the jury‘s
Notes
In a footnote the court explained that when the trial court rejected appellant‘s motion for new trial or motion in arrest of judgment, it stated that there was “some conflicting testimony regarding the extent of the parties’ emotional involvement with each other and as to the effect this may have had on [appellant‘s] actions.” The court went on to explain that this conflicting testimony was improperly considered by the trial court. The court stated that it would not address appellant‘s issue that the trial court erred in allowing the Commonwealth to elicit prejudicial, conjectural testimony from the Commonwealth witness. However, in dicta, the court stated:
this conflicting testimony relates not to the trooper‘s conduct and appellant‘s response to it, but rather to the supposed state of mind of this particular appellant. By considering the testimony, the trial court focused subjectively on appellant‘s mental state and not on the conduct of the police as contemplated by the statute. Also, what appellant ‘thought’ and what Hammond supposed he ‘thought’ are not ‘conflicting’ but only different.
In the instant case, the police used an informant who became friendly with defendant, visited defendant in his apartment on a few occasions at which times they drank beer and smoked marijuana, and subsequently, asked defendant to buy marijuana for him, which defendant did. The evidence does not show any resistance or apprehension on the part of defendant. Cf. Commonwealth v. Thompson, supra.