Commonwealth v. Jensch

418 A.2d 399, 274 Pa. Super. 266, 1980 Pa. Super. LEXIS 1900
CourtSuperior Court of Pennsylvania
DecidedJanuary 11, 1980
Docket29
StatusPublished
Cited by5 cases

This text of 418 A.2d 399 (Commonwealth v. Jensch) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Jensch, 418 A.2d 399, 274 Pa. Super. 266, 1980 Pa. Super. LEXIS 1900 (Pa. Ct. App. 1980).

Opinions

[268]*268CATANIA, Judge:

The appellant in this matter was convicted before a jury of possession of marijuana with intent to deliver and delivery of a controlled substance, that substance being marijuana. The defendant/appellant has assigned three points which he considers error. We believe the first two points are without merit and will discuss them first.

The defendant’s first assignment of error is that the verdict of the jury was contrary to the weight of the evidence. More specifically, the defendant believed that his defense of entrapment should have been accepted by the jury. The second assignment of error alleged by the defendant is that the lower court erred in failing to sustain the defendant’s motion to suppress evidence. The defendant believes that the Court should have suppressed statements made by the defendant to an undercover agent, which statements were made to the undercover agent prior to the defendant’s realizing that he was, in fact, an undercover agent.

The facts are that a girl by the name of Janice Miller was a rather zealous individual who was cooperating and apparently continues to cooperate with law enforcement officers in attempting to have various persons arrested for selling drugs. Janice Miller was not a member of any law enforcement agency. Nor was Janice Miller a paid informant. Janice Miller knew the defendant for approximately two years prior to his arrest. She admitted that she had smoked marijuana with the defendant in the past and she apparently also believed that the defendant was a fairly large dealer in marijuana. Janice Miller intentionally introduced the defendant to Deputy Sheriff Rentschler for the purpose of having Rentschler investigate the defendant and subsequently charge him for certain crimes. There were numerous conversations between Rentschler and Jensch prior to a final deal whereby Jensch sold Rentschler twenty-five (25) pounds of marijuana.

[269]*269A review, of the record makes it quite clear that Jensch was not a person who was not already inclined to sell marijuana. The relevant provision of the Crimes Code, Section 313 (18 Pa.C.S.A. 313) provides 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.

A complete reading of the transcript which has been provided makes it clear that the defendant was not a person who is led by the police or by Janice Miller to sell drugs. He was a person who had already been selling drugs and who had been selling large quantities of drugs, meaning marijuana, prior to the police ever meeting him. All the police did in this matter was to work very diligently to make sure that Jensch sold them a large quantity of marijuana rather than just a small amount. Nor can it be said that what statements were made to the undercover agents in an attempt to work out a deal for the sale of the marijuana to them should have been suppressed. The undercover agents must be 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 third assignment of error, the defendant allege es that during Deputy Rentschler’s testimony, he stated that the defendant told him that he was engaged in drug dealings while in college. The defendant alleges that this testimony of prior criminal activity was so prejudicial that the defendant was deprived of his right to trial by an impartial jury. It is noted in the briefs that during the suppression [270]*270hearings, although the judge did not suppress the statement, the district attorney and the attorney for the appellant both agree that the police officer should not testify as to the above statement. However, during his testimony, Deputy Sheriff Rentschler managed to get the statement into testimony almost above the objection of the district attorney. Deputy Sheriff Rentschler first describing what happened on the night of the transaction. He stated that the defendant, himself and another detective were in a room and that the defendant pulled out a plastic baggie out of his coat pocket and asked for a telephone book so that he could cut the marijuana so that the other parties could test it. After discussing how he rolled the cigarettes, he was asked by the district attorney if he had any conversation with the defendant. The Deputy Sheriff then responded as follows:

“It was mostly talk about drug transactions. He told me how he went through college ...”

The district attorney immediately interrupted him and the attorney for the defendant objected and asked for a side bar conference. At the side bar conference, the judge, after having the statement reread, stated that he was denying the motion for a mistrial and stated that as he reads the record, he does not believe that there is any indication as to how the defendant went through college. He felt that the defendant merely-stated something about having gone through college. We have read the statement and the record and must disagree with the lower court. We believe that the only inference that could be drawn from the statement made by the Deputy Sheriff was that there were many drug transactions engaged in by this defendant while he was in college. It may not necessarily be that the jury would draw the inference that the defendant actually worked his way through college by selling marijuana, but it is quite clear to us that the jury should have inferred that the defendant engaged in at least some drug transactions while in college.

In Commonwealth v. Harkins, 459 Pa. 196, 328 A.2d 156, the Supreme Court of Pennsylvania stated:

[271]*271The only arguments raised by the prosecution in this appeal concern the issue of harmless error. Initially, we must reject the prosecution’s contention that it should not be required to establish that the error was harmless beyond a reasonable doubt. Under the Sixth Amendment to the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution, P.S., the appellant was entitled to a trial by an impartial jury. Since these rights were violated, the prosecution had the burden of proving that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. 386 U.S. 987, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Commonwealth v. Pearson, 427 Pa. 45, 233 A.2d 552 (1967); Cf. Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968).

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Related

Commonwealth v. Jensch
469 A.2d 632 (Supreme Court of Pennsylvania, 1983)
Commonwealth v. Arenella
452 A.2d 243 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Green
434 A.2d 137 (Superior Court of Pennsylvania, 1981)
Commonwealth v. Jensch
418 A.2d 399 (Superior Court of Pennsylvania, 1980)

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Bluebook (online)
418 A.2d 399, 274 Pa. Super. 266, 1980 Pa. Super. LEXIS 1900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-jensch-pasuperct-1980.