Commonwealth v. Lightfoot

648 A.2d 761, 538 Pa. 350, 1994 Pa. LEXIS 481

• Court: Supreme Court of Pennsylvania
• Decided: October 7, 1994
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice.

The question presented in this appeal is whether the trial court committed reversible error in refusing to charge the jury on the defense of entrapment. Our examination of the entire record persuades us that the court did so err, and thus we vacate the judgment of sentence and remand for new trial. 428 Pa.Super. 638, 627 A.2d 203.

Curtis Lightfoot was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, delivery of a controlled substance, and criminal conspiracy. The Commonwealth’s evidence consisted of the testimony of two Westmoreland County detectives, Terrence Kuhns and Anthony Marcocci, who encountered Lightfoot on October 9, 1988, while working as undercover narcotics agents with an informant in the Monessen area.

Detective Kuhns testified that the informant advised him that Lightfoot would be at a certain bar in Monessen and would probably be able to obtain drugs for him. Kuhns and Marcocci went to the bar and there met the informant and Lightfoot. After a brief conversation, Kuhns had a discussion ■with Lightfoot about purchasing “double dutch”, a mixture of heroin and cocaine. Lightfoot indicated that he could obtain the drugs for thirty dollars a bag, plus a “tariff’ for his services in obtaining the drugs. Kuhns gave Lightfoot one hundred twenty five dollars and Lightfoot left the bar in the informant’s car. Sometime later, a woman named Sharon Norfleet entered the bar and indicated to Kuhns and Marcocci that they should accompany her outside. Lightfoot was waiting in the car. After the detectives entered the car, Lightfoot gave them several packets of drugs. He indicated that he had needed Norfleet’s help to obtain the drugs.

Lightfoot, testifying in his own defense, admitted that he possessed the drugs and ultimately delivered them to Kuhns, but presented a radically different version of the events. According to Lightfoot, he was acquainted with the informant as a fellow drug user, but he had never engaged in selling drugs to her or anyone else. On the night in question the informant called him, picked him up in her car, and drove him to the bar in Monessen. He indicated to her that he had not had any heroin that day and was “sick” with withdrawal symptoms.

At the bar, the informant indicated that she had some cousins who were trying to get some drugs, and that if Lightfoot could obtain the drugs for them he would be able to get fifty dollars for himself to get whatever drugs he needed. She then introduced Lightfoot to Kuhns, who said he was interested in buying some drugs. Thereafter the informant gave Lightfoot one hundred twenty five dollars from Kuhns for this purpose. Moreover the informant told Lightfoot to take her car and advised him where he could obtain the drugs. After taking the car to Clairton and obtaining some drugs, Lightfoot happened upon Sharon Norfleet and offered her a ride. They returned to the bar, where Lightfoot gave Kuhns the drugs, after which the informant drove Lightfoot and Norfleet back to Lightfoot’s home.

Prior to closing arguments, defense counsel requested that the court’s charge to the jury include an instruction on the defense of entrapment. The court refused the request, stating as follows:

Let me say this. I’m not going to give you an entrapment charge. I have already decided that because I don’t think, in this case, there’s been a preponderance of evidence at all that shows an otherwise law abiding citizen would be enduced [sic] or persuaded to commit a criminal act by a law enforcement officer or any person acting in cooperation with a law enforcement officer.

But that doesn’t mean you can’t make arguments of that nature to the jury. You might want to say — You might not want to say the Judge is going to tell you this or that, but I’m not precluding you from making an argument that the predisposition was on the part of the informant because that’s who you are going after here and that’s clear from your questioning. You’re entitled to make that argument, but I’m not giving an entrapment instruction because I don’t think it’s been established____

Notes of Testimony, pp. 162-163. The court expounded on its reasoning in its opinion, stating,

[a] jury charge on the issue of entrapment is necessary only when there is evidence that the defendant was not disposed to commit a crime and that police conduct was likely to entrap an innocent defendant. Commonwealth v. Lee, [262 Pa.Super. 218, 396 A.2d 724 (1978)]. Since Defendant presented no evidence of police misconduct, no instruction on entrapment was necessary.

Opinion at 4.

The defense of entrapment is. set out at 18 Pa.C.S. § 313:

(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 an 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. ■

(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.

The general rule is that “[a] trial court may not refuse to charge the jury on the elements of a defense, where the defense is supported by evidence in the record---- Where there is evidence to support a claimed defense, 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.’ ” Commonwealth v. Kyslinger, 506 Pa. 132, 136, 484 A.2d 389, 391 (1984), quoting Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980).

We applied this rule in the context of the entrapment defense in Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989). After holding that the statute establishes an objective standard “focus[ing] on the conduct of the police and [] not on the defendant’s prior criminal activity or other indicia of a predisposition to commit crime,” 520 Pa. at 311, 554 A.2d at 13, we rejected the Commonwealth’s argument that no instruction on entrapment was required because the defendant had neither testified nor admitted participating in any elements of the crimes. We observed that

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. See Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983); Pa.R.Crim.P. Rule 1119. Moreover, the entrapment statute conditions the availability of the defense only on a defendant’s ability to establish its elements. 18 Pa.C.S. § 313(b). Although it may be difficult for a factfinder to believe that a person who has denied any criminal wrongdoing was entrapped into doing a criminal act, the law of this Commonwealth does not bar a jury instruction on entrapment on the basis of a jury’s potential incredulity.

520 Pa. at 312-313, 554 A.2d at 14 (emphasis in original).

More recently in Commonwealth v. Borgella, 531 Pa. 139, 611 A.2d 699 (1992), we analyzed the defendant’s evidence regarding the events that resulted in his arrest according to an objective standard and determined that there was sufficient evidence to entitle him to a jury instruction on entrapment. The defendant’s testimony indicated that a police informant contacted him, gained his confidence through false pretenses, and made repeated requests that the defendant obtain drugs, which were refused until the informant linked the illegal activity to the possibility of a lucrative job with his “boss”, in reality an undercover police officer.

In relying on Commonwealth v. Lee, and indicating that an entrapment instruction “is only necessary when there is evidence that the defendant was not disposed to commit a crime ...,” Opinion at 4, the trial court clearly failed to follow Weiskerger.1 The court further erred in concluding that Lightfoot “presented no evidence of police misconduct.” Opinion at 4.

Lightfoot’s testimony indicated that the informant contacted him by phone, picked him up in her car and drove him to a bar, introduced him to undercover officers whom she identified as her cousins, advised him that he could make money to satisfy his own drug addiction by obtaining drugs for the officers, provided him with a car and then directed him to a source where he could obtain the drugs, all while being aware that Lightfoot was experiencing withdrawal symptoms which could be relieved if he could get drugs for himself. This testimony was sufficient to create an issue of fact as to whether the informant improperly induced Lightfoot to buy drugs for Detective Kuhns.² As Judge Wieand observed in dissent below, it is “particularly perplexing] that the trial court believed there to be sufficient evidence to permit a defense argument of entrapment but insufficient evidence to warrant a jury instruction thereon.”

The order of the Superior Court is reversed. Judgment of sentence is vacated and the case is remanded to the court of common pleas for a new trial,

NIX, C.J., concurs in the result. CASTILLE, J., files a Dissenting Opinion in which FLAHERTY and PAPADAKOS, JJ., join. MONTEMURO, J., is sitting by designation.

1 . Justice McDermott’s concurring opinion in Weiskerger referred to Lee as a "notable exception" to Superior Court’s application of the objective analysis of the entrapment defense. See 520 Pa. at 322, n. 5, 554 A.2d at 19, n. 5.

2 . The Dissenting Opinion, while making reference to "the evidence provided by Appellant and his witness,” hardly reviews that evidence in the light most favorable to Appellant, as it purports to do, Dissenting Opinion at 765. Though the Appellant admitted that he was a drug user, he testified that he had never before sold drugs either to the informant or to anyone else. This alone, if taken in the light most favorable to the Appellant, is evidence sufficient to raise the question of predisposition in accordance with the objective standard. It matters not that a jury might ultimately reject the Appellant’s argument, and conclude, as does the Dissenting Opinion, that "Appellant was ready and willing to commit these crimes because he wanted money to purchase and use controlled substances for which he himself was responsible in creating his own need,” id. at 766-767. The question here is not whether this Court believes the Appellant’s version but whether the Appellant was entitled to have the jury instructed as to the law of entrapment when deliberating on the evidence.