J-A02022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DANIEL THOMAS SOURBEER
Appellant No. 226 MDA 2015
Appeal from the Judgment of Sentence January 9, 2015 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000916-2013
BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 16, 2016
Appellant, Daniel Thomas Sourbeer, appeals from the judgment of
sentence entered January 9, 2015, in the Court of Common Pleas of Centre
County. We affirm.
In January 2013, a Confidential Informant (“C.I.”) working with State
College Police informed Detective Donald Paul that he had sold marijuana to
the Appellant in the past. See N.T., Jury Trial, 11/17/14 at 237. Via text
messages, Detective Paul and the C.I. sent a text message to Appellant
asking whether Appellant knew of anyone from whom the C.I. could
purchase marijuana. See id. at 237-236. Appellant agreed to sell the C.I.
one-half ounce of marijuana for $180.00 and the controlled buy was
____________________________________________
* Former Justice specially assigned to the Superior Court. J-A02022-16
conducted at Appellant’s apartment. See id. at 240-245. At Detective Paul’s
request, the C.I. again texted Appellant later that evening to see whether he
could purchase an ounce of marijuana. See id. at 245. Appellant replied that
he could and the price would be $340.00. See id.
Approximately one week later, the C.I. made plans to purchase an
unspecified amount of marijuana. See id. at 246. At Appellant’s apartment,
Appellant showed the C.I. a scale and a mason jar filled with approximately
one ounce of marijuana and asked Appellant how much he wanted to
purchase. See id. at 247-248. The C.I. again purchased one-half ounce of
marijuana for $180.00. See id. at 248-249. When the C.I. asked Appellant if
he could purchase a full ounce of marijuana later in the week, Appellant
replied that he could. See id. at 249.
Based on the two controlled purchases of marijuana, Detective Paul
obtained and executed a search warrant for Appellant’s apartment located at
201 Vairo Boulevard, Apartment J240, in State College, Pennsylvania. While
the apartment was searched, Appellant and the other occupant were placed
in handcuffs and read Miranda1 warnings.2 See N.T., Suppression Hearing,
2/28/14 at 30-31. Appellant invoked his right to remain silent. After the
other officers assisting in the search collected the cell phones and wallets ____________________________________________
1 Miranda v. Arizona, 384 U.S. 486 (1966). 2 Appellant concedes in his brief that he was read Miranda warnings when handcuffed. See Appellant’s Brief at 19.
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from Appellant and the other occupant in the apartment, Detective Paul
asked the officers who the phones belonged to. See id. at 26-27. Appellant
volunteered that the phone was his. See id. at 27. A search of Appellant’s
bedroom revealed a digital scale, a jar of marijuana weighing approximately
30 grams, multiple smoking pipes and devices, Ziploc bags and $210.00 that
included the pre-recorded buy money the C.I. gave to Appellant. See N.T.,
Trial, 11/17/14 at 345-350; 354. An analysis of Appellant’s cell phone
resulted in the discovery of text messages pertaining to the sale of
marijuana on occasions other than the controlled purchases conducted by
the C.I. See id. at 357-378.
Appellant was subsequently charged with multiple counts of Possession
with Intent to Deliver of a Controlled Substance (PWID)3 and related
charges. Prior to trial, Appellant filed a motion to suppress the physical
evidence discovered at his apartment as well as the statement Appellant
made regarding his cell phone to Detective Paul. Appellant also filed a
motion in limine to preclude the Commonwealth from introducing at trial the
text messages recovered from his phone as prior crimes, wrongs or acts
under Pa.R.E. 404(b). The court denied both motions.4 A jury convicted
3 35 Pa.C.S.A. § 780-113(a)(30). 4 The Honorable Pamela A. Ruest disposed of Appellant’s suppression motions. The trial judge assigned to Appellant’s case, the Honorable Jonathan D. Grine, denied Appellant’s motion in limine.
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Appellant of three counts of PWID, two counts of Possession of a Controlled
Substance,5 and one count each of Possession of Drug Paraphernalia6 and
Criminal Use of a Communication Facility.7 The trial court sentenced
Appellant to an aggregate term of five years of probation. This timely appeal
followed.
Appellant raises the following issues for our review.
I. The trial court erred in refusing to instruct the jury on the defense of entrapment.
II. The trial court erred by improperly limiting defense counsel’s cross-examination of the confidential informant by prohibiting him from asking the confidential informant about potential mandatory minimum sentences and places of confinement the informant may face and how that information affected his decision to testify against the [Appellant].
III. The trial court erred in denying [Appellant’s] motions to suppress evidence due to improper presentment of information beyond the four corners of the affidavit of probable cause for the search warrant and the violation of [Appellant’s] [Miranda] rights.
IV. The trial court erred in denying [Appellant’s] motion in limine to preclude the Commonwealth from introducing cell phone text messages or other electronic data indicating other alleged drug activity.
Appellant’s Brief at i-ii (unnecessary capitalization omitted).
5 35 Pa.C.S.A. § 780-113(a)(16). 6 35 Pa.C.S.A. § 780-113(a)(32). 7 18 Pa.C.S.A. § 7512(a).
-4- J-A02022-16
Appellant first claims that the trial court erred when it refused to
instruct the jury on the defense of entrapment.
The law is well settled that a trial court is not obligated to instruct a jury upon legal principles which have no applicability to the presented facts. There must be some relationship between the law upon which an instruction is requested and the evidence presented at trial. However, a defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor.
Commonwealth v. Bohonyi, 900 A.2d 877, 883 (Pa. Super. 2006)
(citation omitted; emphasis in original).
The defense of entrapment is set forth by statute as follows.
(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 evidence that his conduct occurred in response to an entrapment.
(c) Exception.—The defense afforded by this section is unavailable when causing or threatening bodily injury is an element of the offense charged and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
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18 Pa.C.S.A. § 313.
The entrapment defense “is based upon an objective standard
intended to deter overreaching on the part of law enforcement and those
individuals acting in cooperation with law enforcement, such as confidential
informants. However, the government may only be held accountable for the
acts of a third party if those acts were taken at the request or direction of
law enforcement.” Commonwealth v. Willis, 990 A.2d 773, 775-76 (Pa.
Super. 2010) (citations omitted).
Appellant next complains of the curtailment of his questioning of the
C.I. regarding the potential mandatory minimum charges and places of
confinement he might face and how these effected his decision to cooperate
with the police. This issue challenges the trial court’s ruling on the scope of
cross-examination. “The scope and the manner of cross-examination are
within the sound discretion of the trial court and will not be overturned
unless the court has abused that discretion.” Commonwealth v. Nunn, 947
A.2d 756, 761 (Pa. Super. 2008) (citation omitted).
Appellant’s third claim on appeal challenges the trial court’s denial of
his suppression motions.
Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a
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whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Further, [i]t is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.
Commonwealth v. Houck, 102 A.3d 443 ,455 (Pa. Super. 2014) (internal
citations and quotations omitted).
Lastly, Appellant argues that the trial court erred when it admitted into
evidence the text messages recovered from his cell phone that indicated his
involvement in prior instances of marijuana distribution. “[T]he admission of
evidence is within the sound discretion of the trial court and will be reversed
only upon a showing that the trial court clearly abused its discretion.”
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). Such evidence, however, may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted). Rule 404(b)(2) provides that
“[e]vidence of other crimes, wrongs, or acts may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.” Pa.R.E., Rule
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404(b)(2). Rule 404(b)(3), however, mandates that other crimes, wrongs, or
acts evidence “may be admitted in a criminal case only upon a showing that
the probative value of the evidence outweighs its potential for prejudice.”
Pa.R.E., Rule 404(b)(3); see also Russell, 938 A.2d at 1092. “[O]ur courts
will allow evidence of prior bad acts where the distinct crime or bad act was
part of a chain or sequence of events which formed the history of the case
and was part of its natural development.” Commonwealth v. Walker, 656
A.2d 90, 99 (Pa. 1995) (citation omitted).
We have reviewed Appellant’s issues raised on appeal, along with the
briefs of the parties, the certified record and the applicable law. Having
determined that the Honorable Pamela A. Ruest’s May 16, 2014 opinion and
the Honorable Jonathan D. Grine’s April 9, 2015 opinion ably and
comprehensively dispose of Appellant’s issues raised on appeal, with
appropriate reference to the record and without legal error, we will affirm on
the basis of those opinions. See Trial Court Opinion, 5/16/14 (finding that
1) the Comment to Pa.R.Crim.P. 211 anticipates that the Commonwealth will
present ex parte information to the trial court when establishing “good
cause” to seal a search warrant and that the affidavit attached the warrant
nonetheless contained ample facts and circumstances establishing good
cause to seal the warrant; and 2) that Appellant was properly issued
Miranda warnings and therefore volunteered a reply to Detective Paul’s
question of his own free will. See also Trial Court Opinion, 4/9/15 (finding
that 1) evidence did not support an entrapment defense where the C.I.
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testified that Appellant willingly offered to sell him marijuana and the record
did not indicate that police or the C.I. employed any methods of persuasion
or inducement to entice Appellant to commit a crime; 2) although the trial
court permitted cross-examination of the C.I. as to whether he had been
promised anything by the Commonwealth or hoped to gain leniency as a
result of testifying against Appellant, questions regarding the potential
length of punishment or places of incarceration the C.I. faced was irrelevant
and likely to confuse the jury; and 3) prior bad acts evidence in the nature
of Appellant’s cell phone messages indicating prior drug deliveries was
relevant and probative of Appellant’s intent to deliver the drugs in his
possession).
Judgment of sentence affirmed.
Judge Stabile joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/16/2016
-9- Circulated 04/21/2016 01:56 PM
11111111111/ If Ill Ill~ lllllll ll/ll Ill l/11/llfI lri!l/111
IN tHE COURi OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
V, No. CP·14-CR-0000-916~2013
DANIEL T. SOUR8EER, Defendant
Attorney tor the Commonwealth: Nathan L. Boob, Esq. Attorney for Defendant: Philip M. MDsorti, Esq.
OPINION ANO ORDER Ruest, J.
Presently before the Court is an Omnibus Pre-Trial Motion filed by Defendant Daniel T.
Sourbeer ("Defendant") on January 31, 2014. A hearing on this matter was held Ol'1 February
28, 2014. and Defendant submitted a brief in support of his Motion on May 5. 2014. The parties
resolved Defendant's Motions to Compel at the February 28, 2014 hearing. The parties also
agreed Defendant's Motions in Llmine would be held in abeyance and heard prior to trial by the
trial Judge. The Court will therefore address (1) Defendant's Motion to Suppress-Improper
Presentment of Affidavit of Probable Cause, Improper Placement of Affidavit Under Seat; (2)
Defendant's Motion to Suppress-Reliance Upon Inapplicable Pro Forme Language, Reliance
Upon False Information; and (3) Defendant's Motion to Suppress--M/randa Violation.
Upon consideration of the arguments of counsel and the brief, Defendant's Motions are
DENIED. -·-- 5~; .....,~ Findings of ract .. · ..·,,... o, . 1. During the month of February 2013, a Confidential Informant advised Oetective7DbAald ~5lul ·;·; :·· ,, ;JC !11
that a male, later ldentlfied as Defendant, wa$ selling marijuana in the State coi!kd"&i area>in ~ > k; ;J Centre County. Pennsylvania.
000 ORD OS
Printed from Centre County Online Access - 10/23/2014 10:58:42 AM 2. Detective Paul Md the Confidential Informant arranged for the Confidential lnformantto
make controlled purchases of marijuana from Defendant on February 20, 2013 and
February 26, 2013.
3. Based on the two controlled purchases, Detective Paul applied for a search warrant on
February 27, 2013. Judge Jonathan D. Grine signed the search warrant that same day, placing it under seal for good cause shown for 60 days.
4. On February 27; 2013, Detective Paul and an additional officer executed the search warrant
at Defendant's residence. The officers seized suspected marijuana, suspected marijuana
seeds, marijuana paraphernalia, and pre-recorded US currency from the residence.
5. Defendant was charged with Manufacture, Delivery, or Possession With Intent to
Manufacture or Deliver, Criminal Use of Communication Facility, Intentionally Possessing
Controlled Substances by Person Not Registered; and Use/Possession of Drug
Paraphernalla,
Discussion
Defendant now raises three Motions to Suppress. First, Defendant asks the Court to
suppress any evidence obtained as a result of the search of Defendant's residence because
Detective Paul and Assistant District Attorney Nathan Boob improperly presented addltlonal
evidence beyond the four corners of the Affidavit of Probable Cause when they asked Judge
Grine to seal the warrant. Second, Defendant asks the Court to suppress any evidence obtained as a result Of the search of Defendant's. residence because Detective Paul Included
misstatements of facts in the Affidavit of Probable Cause. Third, Defendant asks the Court to
suppress a statement he made during the search of his residence because he. was in custody
but had not been read his Miranda rights. The Court will address each Motion in turn.
1. Sealing the Warrant
Defendant first argues that Judge Jonathan D. Grine improperly considered evidence
outside the four corners of the Affidavit of Probable Cause when he sealed the Affidavit for 60
Printed tr orn Centre County Online Access - 10/23/2014 10;58:42 AM days because the Commonwealth did not include a request to seal the Affidavit within the
Affidavit. Defendant seeks suppression of any evidence obtained by the execution of that
warrant. Rule 211 of the Rules of Criminal Procedure governs sealing search warrant affidavits
and states:
(B) When the attorney for the Commonwealth intends to request that the search warrant affidavit(s} be sealed, (1) the application for the search warrant shall be presented by the attorney for the Commonwealth to a judge of the court of common pleas or an appellate court Justice or judge; and (2) the affidavit(s) for the search warrant shall Include the facts and circumstances Which are alleged to establish good cause for the sealing of the search warrant affidavit(s). ·
Pa. R. Crim. P. 211. In support of hls argument. Defendant relies on Rule 203, which prohibits the issuing authority from considering any evidence outside of the affidavit in detetmir1in9
whether probable cause exists to issue a search warrant. However, as explained above, the
standard for whether to seal a search warrant ls "good cause shown" under Rule 211 not
"probaole cause" under Rule 203. In fact. the comments to Rule 211 specifically anticipate that
the Commonwealth will present information to the Court ex parte and provide a remedy to
protect Defendant's interests:
When determining whether there is good cause to extend the time that the affidavlt(s) Is to remain sealed or the lime before a copy of the affidavit(s) is given to the defendant, in addition to examining the Commonwealth's Or the defendant's need to have the affidavit sealed, the justice or Judge should consider any pertinent information about the case, such as whether any items were seized, whether there were any arrests, and whether any motions were filed. The justice or judge should also consider the defendant's need to have the affidavil(s) to prepare his or her case, especially the right to file motions, including a mottort to suppress or a motion for return of property (see, e.q; Rules 578, !579. 581, and 588). Although the initial request to have the affidavit(s) sealed is made ex parte by the attorney for the Commonwealth as part of the search warrant application process, once the affidavit(s) Is sealed and the warrant Is executed; thereby giving the person who was searched or whose premises were searched and the defendant. if any, notice of the sealing, that person may, of course, request by motion that the affidavit(s) be made available to him or her, or that the order sealing the affidavlt(s) be rescinded.
Pa. R. Crim. P. 211 Comment.
Printed from Centre County Online Access - i D/23/2014 10:58:42 AM Here, Assistant District Attorney Boob and Detective Paul presented Judge Grine with
the application for the search warrant and the Affidavit supporting the appllcatlon. Detective
Paul testitied that he inadvertently omitted an extra paragraph, Paragraph 38, from the affidavit.
Paragraph 38 specifically asked the Court to seal the Affidavit because Detective Paul intended to use the Confidential Informant in additional drug investigations. Nevertheless, the affidavit
still included facts and circumstances establishing good cause for sealing the search warrant
affidavit because the affidavit makes clear that a Confidential Informant was involved. Further.
Detective Paul testified that he and Assistant District Attorney Boob provided Judge Grine with
an oral summary of the case and why they wanted the warrant sealed. Nothing in Rule 211
prohibits the Commonwealth from doing so, and as explained above, the official comments to
Rule 211 anticipate that the Commonwealth will do so when they state that "in addition to
examining the Commonwealth's or the defendant's need to have the affidavit sealed, the justice
or judge should consider any pertinent Information about the case .... " Pa. R. Crim. P. 211
Comment. Finding no violation of the Rules of Criminal Procedure, Defendant's Motion lo
Suppress is DENIED.
2. Misstatements of Fact
Defendant next asks the Court to suppress any evidence obtained as a result of the
execution of the search warrant because the affJdavit contains misstatements of fact. Defendant first objects to Detective Paul's assertion that he has experience In "large scale drug
trafficking." The Court finds that this is proper background information explaining the detective's
background and not an assertion that Defendant was involved In "large scale" dn,ig traffic::king.
Defendant next objects that Detective Pall! erroneously referred to Defendant as "she" instead
of'he." The Court finds that this was a typographical error. Finally, Defendant takes issue with
the fact that the affidavit describes the controlled buy as occurring ''during the last few hours"
when in tact it had occurred the day prior. Detective Paul testified that he drafted the affidavit
within a few hours of the controlled buy, but he acknowledged that he did not draft that section
Printed from Centre County Online Access - 10/23/2014 10:58:42 AM as clearly as possible. Defendant does not argue and presented no evidence that Detective
Paul deliberately mlscharacterized the facts In the affidavit. "Misstatements of fact in a search
warrant affidavit Will invalidate a search and require suppression only if they ate deliberate and material." Commonwealth v. Mickell, 409 Pa. Super. 595, 609, 598 A.2d 1003, 1010 (1991).
Accordingly, Defendant's Motion to Suppress is DE.NIED.
3. Miranda
Defendant argues that the Court should suppress a statement he made while the officers
searched his apartment because he was in custody at the time that he made the statement in
response to an officer's question but he had not been read his Miranda rights. An encounter
between police and a suspect may be described as "a mere encounter, an investigative
detention, a custodial detention, or an arrest." Commonwealth v. Dou!Jlass, 372 Pa.Super.
227, 539 A.2d 412, 417 (1988). Miranda warnings are required when a police detention
becomes custodial, that is, when, under the totality of the circumstances, the condltions or
duration of the detention become so coercive as to constitute the functional equivalent of arrest.
Commonwealth v, M,mnlon, 725 A.2d 196 (Pa. Super. 1999).
A person must be informed of his or her Miranda rights prior to custodial interrogation by police. Commohw(fallh v Sites, 427 Pa. 486, 490, 235 A.2d 387, 389 (1967). Custodial lnterroqatlon is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his {or her) freedom of action in any significant way," Id. at 492, 235 A.2d at 390 (emphasis supplied) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). "Interroqatlon' Is police conduct 'calculated to, expected to, or likely to evoke acmlsslon." Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Sima/a, 434 Pa. 219, 226, 252 A.2.d 575, 578 (1969)). When an lnculpatory statement is notmade in response to interrogation by polrce officers, however, "the statement is classified as a volunteered statement, gratuitous and not subject to suppression for Jack of warnings." Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted}.
Commonwealth v. Johnson, 373 Pa. Super. 312, 541 A.2d 332, 336 (1988). Spontaneous,
unsolicited statements that are not the product of police conduct are admissible even when a
Printed from Centre County Online Accesa . 10/23/2014 10:58:42 AM person under arrest has not received Miranda warnings. Commonwealth v, Fisher, 564 Pa.
505. 769 A.2d 1116. 1125 (2001);
Detective Paul testified that upon entering the apartment, the residents, Including
Defendant, were placed in handcuffs prior to the officers conducting their search. At this point,
Defendant was clearly in custody. Defendant Paul testified that the residents were read their
Miranda rights at that time. Later, as the officers were concluding their search, they noticed two
cell phones on the couch. Detective Paul testified that as he was collecting the cell phones to
document them on the search warrant inventory form, he asked the other officer to whom one of
the phones belonged. Defendant then stated that It was his phone. Detective Paul specifically
testified that he was speaking to the other officer, although he acknowledged that Defendant
may have believed th:;it Detective Paul was speaking to him. The Court is satisfied based on
this testimony that Defendant voluntarily responded to Detective Paul's inquiry after having been
informed of his Miranda rights and previously electing to remain silent. "The record indicates
that [Defendant] volunteered [this statement] of his own freewill; thus, the remarks constitute
merely gratuitous utterances unsolicited by the government and are admissible." Fisher, 769 A.2d 1116 at 1125. Defendant's inculpatory statement was not made in response to police
interrogation, and therefore will not be excluded from trial. Accorclingly, Defendant's Motion to
Suppress is .DENIED and the following Order iS entered:
ORO ER
AND NOW, this~ day of May, 2014, Defendant's Omnibus Pretrial Motion is
DENIED.
BY THE COURT:
t Jrn..1hl)J»J/" ''J
Printed from Centre County Online Access - 10/23/2014 10:58:42 AM Circulated 04/21/2016 01:56 PM
Foster Masortl
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMQNWEALTB OF PENNSYLVANIA ) Plaintiff: ) v. ) No. CP-14-CR-00916-2013 ) DANIEL T. SOURBBER, ) Defendant. )
\',~ )q •·~··1 :•" t',J'l I;,.,
Attorneyfor Commonwealth: LindsayC, Foster Efef!..: s'·•~·' i:D in Attorney for Defendant: Philip M. Masoni, Efr/ · I \P '-'.:::i.· '"Q
OPINION IN RESPONSE TO MATTERS COMPLAINED OF ON APPEAL ::::: ~; . • I.
,; ~ ~,,/ ; ..... Presently before this Court is an appeal filed byDaniel T. Sourbeer (hereinaftef .
"Appellant.") After a.jury trial on November l7, 2014,Appellant was foundguilty of one count
of Delivery of'a Controlled Substance (35 Pa.C.S.A. §780-U3(a)(30)); two counts of Possession
with Intent to Deliver (35 Pa.C.S.A §780-l 13(a)(30)); one count of Criminal Use of a
Communication Facility (18 P:a.C.S.A . §75l2(tl)); two counts of Possession of a Controlled
Substance (35 Pa.C.S.A. § 780- 113(a)(l 6)); and one count of'Use/Possessionof Drug
Paraphernalia (35 Pa.C.S.A. §780-ll3(a)(32)). Appellant was sentenced on Januaryv, 2015.
This appeal followed.
Appellant raises four issues in his Statement of Matters- Complained of on Appeal, three of
which pertain to rulings and decisions by this Court and one of which pertains to a ruling by the
Honorable Paroda A Ruest. This Court will address the'Issues pertaining to its rulings and
decisions in turn.
I. This Court did not err in Refusing an Entrapment Instruction
Appellantargues this Court erred in tefos1ng to insti'u.ct.tb:e jury on the defense of entrapment. The Court disagrees.
The defense of entrapment is set forth in 18 Pa.C.S.A. §313. Entrapment occurs when an
officer or an individual cooperating with an officer; "for the purpose of obtaining evidence of the
commission of an offense, •.• induces or encourages another person to engage in conduct
constituting an offense;' by either "making knowingly false representations designed to induce
the belief that such conduct is not prohibited" or by "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." 18 Pa.C.S1A. §,313(a). The statute establishesan
objective standard which focuses 011 the conduct of the officer rather than on "the defendants
prior criminal activity or other lndicia of a predisposition to commit crime." Commonwealth v.
Lightfoot, 648 A.2d 761; 764 (Pa. 1994),
. Generally, a court "may not refuse to charge the jury on the elements of a defense where the
defense Is supported by evidence in the record." Jd. When the record contains such evidence, "it
is for the trier of fact-to pass upon that evidence and improper ;for the trial judge to exclude such
consideration' by refusing the· charge." Id. So long as the defendant has presented evidence
which, if'taken as true would establish the defense ofentrapment, the court must give the
entrapment instruction . Id.
However, in tlle ihstant case, no evidence was presented which would establish a defense or'
entrapment. Testimony presented by the confidential informant, Shivam Patel, indicated he was
approached by the police regarding conducting potential controlled buys of marijuana. Mr. Patel
testified he contactedAppellant via text.message and asked him if he knew anyone who could
sell him some marijuana, Mr. Patel then related Appellantoffered to sell him marijuana and did,
in fact, do so on several occasions. This testimony was corroborated by Detective Donald Paul,
and byphotographs of the text messages.sent.by M~·. Patel and Appellant. The record contained 2 no other evidence to indicate the police or Mr, Patel employed any methods of persuasion or
inducement to Appellant to entice him to commit a crime. The testimony and evidence did not
indicate Mr. Patel repeatedly asked Appellant to sell him marijuana, or that Appellant initially
refused to do so, or that Mr .. Patel made any promises or false statements to. Appellant in order to
entice him to sell him the. marijuana. Mt. Patel merely asked Appellant if he knew anyone who
would be able to sell to him. Appellant then volunteered to do so.
Because the record contained no evidence to .supporf the defense of'entrapment, the Court did
not err in refusing to instruct the jury accordingly.
H, Tl1e Court .did not ·err in Limitinll Cr9ss..Exa:mjifation of Confidential .Informant Regarding Potential Sentences · ·· · · · · · ·
Appellant.next alleges this Court erred in limiting his cross-examination of the. confidential
informant, Shivam Patel) regarding potential mandatory minimum sentences andplaces of
confinement he may be facing as a result of his own pending drug charges. The Court disagrees.
The scope of cross-examination "is a matter left to the sound discretion of the trial court, and the trial court's.rulings will not be disturbed absent an abuse of discretion." Commonwealth.v.
Boczkowski, 84.6A.2d 75.) 98 (Pa. 2004). In the instant case, the Court limited.the cross-
examination of Mt. Patel to whether he bad been promised anything by the-Commonwealth or
hoped to gain leniency in his own criminal case ?S aresult oftestifying against Appellant, This
was Informatiou relevant to his potential bias or Impetus.for-testifying against Appellant.
Appellant wasalso permitted to inform the jury Mr ..Patel was facing the possibility of
incarceration, as this.information was also relevant toMr, Patel's possible bias;
However, the potential length of punishment he could receive or potential places of
incarceration were not relevant and, to the extent they may have been relevant, their potential for
influencing the jury by way of the.jury correlating this information with the charges Appellant
3 was facing outweighed any potential benefit. The jury's function is to act as factfinder and,
from those facts found, determine guilt or innocence. 'Commonwealth v. White, 504 A.2d 930
(Pa.Super. 1986). The issue of punishment is not determined by the jury, and it would not be
proper for the juryto have information regarding potential punishments faced by a defendant.
The Court, therefore, did not err in limiting the scope of cross-examination of Mr. Patel.
Ill, Court did not err in Admitting Text Messages Regarding Other Alleged Drug Sales·
Appellant finally alleges the Court erredin permitting the-Commonwealth to introduce text
messages or other electronic dataregarding other alleged drug sales. The Court disagrees.
Generally, under Pa.R.E. 404(b)(l), evidence ofprior crimes or other bad actsis not admissible
to pro.ve a defendant acteci in conformity therewith. However, such evidence may be admissible
forproving opportunity, motive, intent, preparation.knowledge, plan, identity, absence of
mistake, or lack ofaccident, Pa.RE. 404(b){2).
Inthe instant case, the Commonweafth used these text messages for a limited purpose-that
is, to rebut the argument that Appellant possessed the· marijuana for his own use and would not
have sold it to anyone but.for Mr. Patel's entreaties. Evidence of "uncharged acts'; of
distribution is "relevant andprobative of whether a defendant had the intent to distribute drugs in
his possession." U.S. v. Jansen, 218 F.Supp.2d.6S9> 667 (M.D.Pa. 2002)(l'eVersed on other
!,rfotinds)( applying F'.R.R 404(b), Which Is identical to Pa.R.E. 404(b) when examined in
conjunction with F,:R.E. 403). The probative value of'this evidence substantially outweighed.the
potential prejudice, :given that Appellant attempted to argue he possessed the marijuana only for
personal use.
Further, the Court gave a cautionary instruction to the jury at the conclusion of trial,
indicatingthey may not considerthe text messages to other individuals for any other purpose
4 than as the basis of the opinion of Detective Paul that Appellant possessed the marijuana with the
intent to deliver. This instruction acted to .:nullify any prejudicial effect these text messages may have had against Appellant
This Court hopes this Opinion aids the Honorable Superior Court and respectfully requests
its Orders remain undisturbed.
/JA DATE: April _0._.,.2015