Com. v. Watson, O.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellant

v.

ORVAL WALTER WATSON, JR.

Appellee No. 507 WDA 2014

Appeal from the Order Dated March 11, 2014 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001074-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 6, 2014

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Fayette County Court of Common Pleas, granting the pretrial

motion for writ of habeas corpus filed on behalf of Appellee, Orval Walter

Watson, Jr. We reverse and remand for further proceedings.

The relevant facts and procedural history of this appeal are as follows.

In April 2013, Officer Mandy Mudrick, working undercover for the Southwest

candy w4m

hey guys. i have tomorrow free and am available. i love my beans, but dont have the cash for them and really dont like taking the chances buying them. so if someone wants

_________________________

*Retired Senior Judge assigned to the Superior Court.

to hook me up with some percs or oxys i will gladly trade them a little affection if you know what i mean :)

im in belle vernon and i host

im real. the pens won last night and iginla scored.

email me!

Id. The following email exchange then took place between Appellee and

Officer Mudrick: nice. 10 MS for sex?

Appellee: Sure can you send pic I am sending one. Dont want no popo lol

Appellee: You have a number I can call or text can meet very soon

Officer Mudrick: phones off money problem but should be on tomorro

Appellee: Hi are you still interested?

Officer Mudrick: Ya you available tomorrow? 10 MS for whatever u want babe :)

Appellee: Yes, before 2pm in the afternoon still need to know where to go or meet cutie

Officer Mudrick:

Appellee: Yes I could, you still want to do this right

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Officer Mudrick: yeah i do. we meet in belle vernon in the park across the street from my

have the goods then we go back to my place and have a good time :) sound good? any ideas what u want 2 do with me?

Appellee: I have many ideas of what I would like to do with you lol ok I will chat with you tomorrow.

Id. Appellee and Officer Mudrick ultimately agreed to meet at

approximately 3:00 p.m. on April 24, 2013, but Appellee failed to show.

Appellee sent Officer Mudrick an apologetic email explaining he had been

n his way to the meeting location. Appellee

Id. Appellee and Officer Mudrick arranged to meet at approximately 1:30

p.m. on April 29, 2013. Appellee arrived at the agreed-upon location and

asked Officer Mudrick if she was the person who posted the Craigslist ad.

Officer Mudrick confirmed and asked Appellee if he brought anything.

Appellee handed Officer Mudrick a baggie containing morphine pills, at which

point Appellee was arrested. The police recovered a second bag of morphine

The Commonwealth charged Appellee with one (1) count each of

delivery of a controlled substance, possession with intent to deliver

On

November 25, 2013, Appellee filed a pretrial motion for writ of habeas

corpus. The trial court held a hearing on the motion on December 16, 2013.

habeas

corpus and dismissed all charges against Appellee. The Commonwealth filed

a timely notice of appeal on March 31, 2014. On the same date, the court

ordered the Commonwealth to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The court issued an amended

Rule 1925(b) order on April 7, 2014. On May 13, 2013, the Commonwealth

filed its Rule 1925(b) statement and a petition to accept the Rule 1925(b)

statement as timely filed. On May 15, 2014, the court granted the

timely filed.2

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1 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), respectively.

2 This Court may address the merits of a criminal appeal where the appellant failed to file a timely Rule 1925(b) statement if the trial court had adequate opportunity and chose to prepare an opinion addressing the issues being raised on appeal. See generally Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en banc) (addressing post-amendment Rule 1925 and ramifications regarding untimely Rule 1925(b) statement). See also Commonwealth v. Grohowski, 980 A.2d 113 (Pa.Super. 2009) (stating rule permitting late filing of Rule 1925(b) statement applies to Commonwealth as well as to represented criminal defendant). Here, the to accept its Rule 1925(b)

statement as timely filed. Furthermore, the court issued an opinion accompanying its order, which it adopted as its Rule 1925(a) opinion. This (Footnote Continued Next Page)

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On appeal, the Commonwealth raises a single issue for review:

WHETHER THE COURT ERRED IN DISMISSING THE CASE DUE TO OUTRAGEOUS POLICE CONDUCT AND/OR ENTRAPMENT BECAUSE OF THE PLACING OF THE AD IN QUESTION.

The Commonwealth ar

persuade or induce Appellee to commit the offenses in question for purposes

of entrapment. The Commonwealth contends the interaction began with an

advertisement on Craigslist that made it abundantly clear the person who

posted the ad was seeking drugs. According to the Commonwealth, the

police did not target Appellee; Appellee unilaterally responded to the

Craigslist ad. Likewise, the Commonwealth avers Appellee made his own

decision to arrange a meeting with Officer Mudrick and to deliver the pills.

The Commonwealth stresses that Officer Mudrick had no preexisting

of the crime in any way. The Commonwealth concludes the court erred

when it determined Appellee had established the defense of entrapment as a

matter of law and dismissed the charges against him. We agree.

The Crimes Code defines the defense of entrapment in relevant part as

follows:

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(Footnote Continued)

review is unimpeded.

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§ 313. Entrapment

(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.

18 Pa.C.S.A. § 313(a)-(b). With regard to this defense,

entrapment, as set forth in Commonwealth v. Jones, 363 A.2d 1281 (Pa.Super. 1976):

[T]he test for entrapment has shifted in emphasis

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

criminal activity or other indicia of a predisposition to commit crime.

Id. at 1285 (emphasis added). See also Commonwealth v. Weiskerger, 520 Pa. 305, 311, 554

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A.2d 10, 13 (1989) (holding conduct of police is chief inquiry in entrapment analysis). As this Court explained:

[T]he objective approach conceives the entrapment defense as aimed at deterring police wrongdoing. The defense provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule. The focus of the defense is on what the police do and not on what kind of person the particular defendant is whether he is innocent or predisposed to crime.

Commonwealth v. Lucci, 662 A.2d 1, 3 (Pa.Super. 1995), appeal denied, 543 Pa. 710, 672 A.2d 305 (1995) (citation omitted). Accord Commonwealth v. Borgella, 531 Pa. 139, 611 A.2d 699 (1992); Commonwealth v. Medley, 725 A.2d 1225 (Pa.Super. 1999), appeal denied, 561 Pa. 672, 749 A.2d 468 (2000); Commonwealth v. McGuire to enforce the law, government agents may not originate a

disposition to commit a criminal act and then induce commission of the crime so that the government may Borgella, supra at 144 (citing Jacobson v.

United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992)). See, e.g., Borgella, supra at 143- 44 (holding evidence supported entrapment instruction where paid police informant used false pretenses to secure ncouraged defendant to buy drugs, and offered defendant lucrative job on condition that defendant provide drugs); Commonwealth v. Wright, 578 A.2d 513 (Pa.Super. 1990) (en banc), appeal denied, 526 Pa. 648, 585 A.2d 468 (1991) (holding entrapment established as matter of law where police helped informant cultivate false friendship with defendant in order for informant to persuade defendant to purchase and supply drugs); Lucci, supra at 7-8 (holding outrageous and egregious police conduct constituted entrapment as matter of law where confidential informant

knew defendant had just returned from drug rehabilitation, confidential informant appealed to bonds of friendship and sympathy engendered by his mot

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death, and repeatedly approached defendant about selling

considered sufficiently outrageous police conduct to support an entrapment defense. Commonwealth v. Morrow, 650 A.2d 907, 913 (Pa.Super. 1994), appeal denied, 540 Pa. 648, 659 A.2d 986 (1995). See also Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa.Super. 2003), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (providing opportunity without attempting to overcome

of outrageousness necessary to find entrapment as matter of law).

Commonwealth v. Marion, 981 A.2d 230, 238-39 (Pa.Super. 2009),

appeal denied, 605 Pa. 697, 990 A.2d 729 (2010). See also

Commonwealth v. Stokes, 400 A.2d 204 (Pa.Super. 1979) (stating offer

to purchase heroin alone did not rise to level of entrapment where

Thus, the availability of the entrapment defense under the

detect those engaging in criminal conduct and ready and willing to commit further crimes should the occasion arise.

Morrow, supra at 914.

Pennsylvania case law has consistently held:

[T]he determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes

defense of entrapment has been properly raised, 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.

Lucci, supra at 3 (quoting Commonwealth v.

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Thompson, 484 A.2d 159, 163-64 (Pa.Super. 1984)). See, e.g., Commonwealth v. Mance, 619 A.2d 1378 (Pa.Super. 1993), , 539 Pa. 282, 652 A.2d 299 (1995) (holding matter of entrapment properly submitted to jury where operative facts are disputed). Importantly, the court may also consider, based upon the operative facts, whether it can reject an entrapment defense as a matter of law. Morrow, supra at 914. Operative facts are:

[T]hose that are necessary for [a defendant] to prove by a preponderance of the evidence that he was entrapped. Under the objective test for entrapment, these would be facts that go to the course of conduct of a government officer or agent that would fall below standards to which common feelings respond, for the proper use of government power.

Lucci, supra at 4 (citation omitted).

Marion, supra at 239.

Under certain circumstances, police conduct in a criminal investigation

may be so egregious as to constitute a violation of due process. Mance,

supra at 1381.

Only in the rarest and most outrageous circumstances will government conduct in a criminal investigation be found to violate due process. Before the conduct of law enforcement officials or government agents will be found to have vi conduct was so grossly shocking and so outrageous as to violate the universal sense of justice. The establishment of a due process violation generally requires proof of government overinvolvement in the charged crime and

government orchestrated and implemented criminal activity. Moreover, for due process to bar a conviction, the

must be malum in se or amount to engineering and direction of the criminal enterprise from beginning to end.

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Id. (internal citations and quotation marks omitted) (emphasis in original).

Instantly, the operative facts are not in dispute. Officer Mudrick

posted a generic advertisement on Craigslist in which she pretended to be a

nineteen-year-

itiated contact with Officer Mudrick by

replying to the ad. In his initial message, Appellee expressed interest and

said he had MS Contin (morphine) and Vicodin pills. Officer Mudrick

was still interested. The Craigslist ad merely afforded Appellee an

opportunity to commit the offense of delivery of a controlled substance. See

Marion, supra. The police did not target or have any prior contact with

Appellee, and the ad was open to anyone who visited Craigslist. The ad

indicated the poster was looking to trade sexual favors for drugs; it was not

directed at Appellee and, absent more, did not constitute entrapment. See

Stokes, supra.

exchange for sex does not change our conclusion. At that point, Appellee

had already initiated contact with Officer Mudrick and asked if she was

interested in the pills he possessed. Appellee immediately agreed to the

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proposed exchange without further prompting and began to arrange a time

and place to meet. Nothing in the email conversation between Officer

Mudrick and Appellee indicates Officer Mudrick was overzealous or

See

Zingarelli, supra; Lucci, supra. The initial plan to meet failed only

because Appellee was involved in a car accident. Appellee then sent Officer

Mudrick an email in which he apologized and indicated he was still interested

in meeting up with her. Appellee had not changed his mind about

participating in a sex-for-

few days later proposing a new meeting time was not an attempt to lure

Appellee back. The evidence of record shows the police conduct, viewed

objectively, did nothing more than afford Appellee an opportunity to commit

an illegal act by exchanging drugs for sex. Therefore, as a matter of law,

the police actions were insufficient to support an entrapment defense. See

Marion, supra

commission of the crime was not so outrageous as to constitute a violation

of due process. See Mance, supra. Accordingly, we reverse the order

habeas corpus and remand for

further proceedings.

Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judge Platt joins this memorandum.

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President Judge Emeritus Bender files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014