Commonwealth v. WrightCommonwealth v. Wright
- Reporters:
- , ,
- Before:
- Voort
Opinion by
Van der Voort, J.,Appeal is taken to this Court by the Commonwealth following Judge Shadle’s Order sustaining appellant’s motion for demurrer. Entrapment was the rationale for entry of this Order.
Trial testimony indicates that onе Charles Rodgers, employed as an undercover narcotics agent of the Pennsylvania State Police, conversed with appellant in an alley in York regarding the possibility of purchasing cocaine from appellant. The arrangemеnt was consummated by appellant’s transferring two foil-wrapped packages of a substance (later identified as сocaine) to Agent Rodgers in exchange for $20.00. Subsequently aрpellant was arrested and charged with violation of “The Cоntrolled Substance, Drug, Device and Cosmetic Act”, Section 13 (а) (30) 1 Proper indictment preceded trial.
*291Quoting Butts v. U. S., 273 F. 35, 38 (8th Cir. 1921), the United States Supreme Court, in Sorrells v. U. S., 287 U.S. 435, 444-445, 53 S. Ct. 210, 213-214 (1932), has stated, regarding entrapment, that “ ‘it is unconscionable, сontrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and еvidently never would have been guilty of if officers of the law had nоt inspired, incited, persuaded, and lured him to attempt to commit it.’” That Court further pointed out, at U. S. 441 and S. Ct. 212, that “artifice and strategеm may be employed to catch those engaged in criminаl enterprises....” Entrapment is no defense where the Commonwеalth did nothing more than offer an appellant the opрortunity to commit crime. See Commonwealth v. Kutler, 173 Pa. Superior Ct. 153, 96 A.2d 160 (1953). Entrapment does become a defense when “a law enforcement officer, by emрloying methods of persuasion or inducement which create a substantial risk that persons not otherwise ready to commit the criminal act will do so, actually induces such a person to commit the act.” Commonwealth v. Conway, 196 Pa. Superior Ct. 97, 103-104, 173 A.2d 776, 779 (1961). To differentiate between these positions, “ [t] he test is whether the criminal design was created by the officer or whether the officer merely afforded the opportunity for the commission of a crime by a person alreаdy disposed to commit that crime, in which case there is no еntrapment.” Commonwealth v. Klein, 222 Pa. Superior Ct. 409, 411, 294 A.2d 815, 816 (1972).
In the instant case, it is the uncontradicted testimony of the State Police Agent that he simply inquired of appellаnt whether he (appellant) had some cocaine for purchase. Appellant’s reply was “he had none, but that he could get some”, and the next step was that appellant, the agent, and others unidentified drove to an address where appellant obtained the drug which he thereupon sold to *292Agеnt Rodgers for $20.00. Absent the initial inquiry, all affirmative action in this scenariо was at the instance of appellant. We find no misreprеsentation, threat or coercion by the agent. Nor do we believe that the asking of the initial question presents “inducement” sufficient to dissuade an individual from his law-abiding ways, if these he has. Having bеen asked the pertinent question, and following with all actions leading to the commission of the crime, a defendant should not bе allowed to avail himself of a defense at least for рurposes of moving for a demurrer, that he was less disposed to commit the crime than undisputed testimony reveals.
We hold that the lower court erred in holding that as a matter of law the officer’s conduct constituted entrapment.
Order is reversed and a new trial is ordered.
Jacobs and Hoffman, JJ., concur in the result.
Notes
. Act of 1972, April 14, P.L. 233, No. 64 (