Commonwealth v. Weiskerger

554 A.2d 10, 520 Pa. 305, 1989 Pa. LEXIS 25

Opinions

LARSEN,

* Justice.

The issues presented for our consideration by these cases involve the defense of entrapment in a criminal prosecution. Specifically, we are called upon to determine 1) whether our Crimes Code embodies an objective or a subjective standard to guide a factfinder in the application of that defense; and 2) whether “defendants who did not testify at trial and who failed to admit either their participation in the crimes charged or in any of the elements of the crimes charged were nonetheless entitled to a jury instruction on entrapment.” Brief for Appellant at 3.

Appellees, Elmer Weiskerger (Weiskerger) and Bob Allen Clapps (Clapps), were convicted by a jury in the Court of Common Pleas of Luzerne County on charges of Criminal Conspiracy (18 Pa.C.S. § 903), Bribery in Official and Political Matters (18 Pa.C.S. § 4701), and Violations of the Public Officials Ethics Act (65 P.S. §§ 403 and 409). Weiskerger was sentenced to a term of three years’ probation. Clapps was sentenced to imprisonment for a term of six to twenty-three and one-half months, and a consecutive probation of one year. A third co-defendant, Adam Hudock, was also convicted but died prior to sentencing.

The facts presented at trial are as follows. Walter Placek (Placek) was a member of the majority faction of the Wyoming Area School Board during the years preceding the general election of November, 1979. His wife, Barbara, a nurse, was employed at the county nursing home, Valley Crest, as a Coordinator of Program Development, an administrative position. Appointments to positions at the nursing home were under the control of the County Institution District, which is composed of the county commissioners. Appellee Weiskerger was treasurer of the local Republican party organization and he was politically allied with appellee Clapps who was vice-chairman of the local Democratic party organization and a member of the Exeter Borough Council. Four new school directors from the ticket endorsed by Clapps were elected in November, 1979. A change of county commissioners also occurred as a result of the election. Placek, a holdover board member, testified at trial that in January, 1980, he was approached by Weiskerger who wanted to know if Placek would be willing to join the four new directors in forming a new majority coalition which would give that group control of the nine-member Board of School Directors. Placek further testified that Weiskerger told him that Clapps might be able to guarantee Placek’s wife’s retention of her position at the Valley Crest nursing home by exercising influence with the new county commissioners because at that time positions at that facility were being abolished.

Two days after his meeting with Weiskerger, Placek reported the incident to the Federal Bureau of Investigation, whose agents equipped his phone with a tape recording device for the purpose of obtaining evidence to be used against appellees. That equipment, and a bodywire used by Placek to record a meeting with Clapps, produced the tapes and transcripts which were used by the Commonwealth at trial. It was during the meeting with Clapps that Placek elicited Clapps’ offer to intercede with the new county commissioners to preserve Barbara Placek’s job in exchange for Placek’s agreement to switch his allegiance to the Clapps faction on the school board. Placek did not vote with that faction as required by the terms of the offer. Later, his wife’s position at the nursing home was abolished, and she was offered a position as a full-time nurse, a position for which she was qualified and which paid more than the position she had been filling. She declined, and, in April, 1981, she initiated a suit against appellees, Hudock and others in federal court for alleged civil rights violations.

When the within prosecution commenced, appellees pled not guilty. At trial they did not testify, nor did they offer any other evidence. Counsel for appellees developed facts through cross-examination which showed that Placek may have benefited at a time prior to the incidents at issue herein by a change of allegiance from a minority to a majority coalition on the board. It was shortly after that conversion that Placek’s wife received her initial appointment at the nursing home. In addition, Placek himself had received a consultant’s position and two part-time teaching assignments following this earlier switch. It was also made clear to the jury that Placek had served the FBI in an “enthusiastic manner”, performing his role as an FBI “recruit” like a “zealot.” ¹ Counsel for appellees used these facts in an attempt to portray Placek’s behavior as that of a corrupted individual whose interests would be served both politically and monetarily (through his wife’s civil suit) by the convictions of appellees.

At the close of the evidence, the trial court charged the jury with a subjective test of entrapment, which test included references to the predisposition of the accused to commit the crimes charged. On appeal, Superior Court found this charge to be incorrect. That court vacated the judgments of sentence and granted a new trial. Commonwealth v. Clapps, 355 Pa.Super. 80, 512 A.2d 1219 (1986). The test for and the limits of the entrapment defense are matters of first impression for this Court, hence we granted leave to appeal to both the Commonwealth and Clapps. Clapps, as cross-appellant, asserts that he is entitled to discharge on the facts of this case as a matter of law.

In 1973, with minor modification, the General Assembly incorporated into our Crimes Code the American Law Institute formulation of the entrapment defense which is generally considered to be a statement of the objective test. Our entrapment statute provides:

(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.

1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6,1973, 18 Pa.C.S. § 313.

In Commonwealth v. Jones, 242 Pa.Super. 303, 310-12, 363 A.2d 1281, 1284-85 (1976), Superior Court interpreted subsection (a) as follows:

Prior to the adoption of the 1972 Crimes Code, the Pennsylvania test for entrapment was “... whether the criminal design was created by the officer or whether the officer merely afforded an opportunity for the commission of a crime by the person already disposed to commit the crime ...” ... This test was derived from the majority opinions in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), which focused on the predisposition of the accused to commit the crime____ The present codification of entrapment finds its origin in Mr. Justice FRANKFURTER’S concurring opinion in Sherman: “This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation. It does mean that in holding out inducements they should act in such a manner as is likely to induce to the commission of crime only these persons and not others who would normally avoid crime____ This test shifts attention from the record and predisposition of the particular defendants to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” 356 U.S. at 383-384, 78 S.Ct. at 826. Thus, the test for entrapment has shifted in emphasis from a consideration of a particular defendant’s 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 and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.⁷

(some citations and footnotes omitted; emphasis added). See also Superior Court cases cited in that court’s opinion in the instant case, Commonwealth v. Clapps, 355 Pa.Super. 80, 89, 512 A.2d 1219, 1224 (1986).

The Superior Court interpretation of section 313 is a legitimate legislative construction. The language of subsection (b) which places the burden of proof on a defendant to prove that his or her conduct “occurred in response to an entrapment” does not indicate a legislative enunciation of a subjective test requiring that a defendant prove that he or she was not predisposed to commit crime. The burden of proof language was merely intended to explicitly place the burden of proof on the defendant to establish the defense of entrapment as defined in subsection (a) with its language focusing objectively on the conduct of the police officers. In addition, the objective test represents the more enlightened approach and fosters the constitutional ideal of equal justice for all. Because the trial court herein gave a subjective entrapment test instruction to the jury, we must remand for a new trial so that the jury may make its determination with an objective entrapment test instruction.

As to the Commonwealth’s position that appellees were not entitled to a jury instruction on entrapment (regardless of which standard was applicable — objective or subjective) because appellees did not testify at trial and failed to admit either their participation in the crimes charged or in any of the elements of the crimes charged, we disagree. 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. We have reviewed the record in the case sub judice and we conclude that the evidence was sufficient to entitle appellees to a jury instruction on entrapment.

With respect to Clapps’ assertion that the evidence demonstrated entrapment as a matter of law, in order to prevail on this claim, Clapps must show that the evidence of entrapment was so overwhelming that it could admit of no other conclusion. Commonwealth v. Manley, 252 Pa.Super. 77, 87, 380 A.2d 1290, 1294 (1977). The only evidence of entrapment was that which his attorney elicited on cross-examination. A review of that evidence establishes that it was' not so overwhelming that no reasonable jury could have failed to find entrapment. Thus, the matter was a question of fact and not one of law; and was and is properly to be submitted to the factfinder.

Accordingly, the order of Superior Court is affirmed and the cases are remanded to the Court of Common Pleas of Luzerne County for a new trial.

McDERMOTT, J., files a concurring opinion in which NIX, C.J., joins.

This case was reassigned to this writer on September 21, 1988.

1 . Commonwealth v. Clapps, 355 Pa.Super. 80, 85, 86, 512 A.2d 1219, 1222 (1986). Superior Court noted, for example, that Placek made twenty attempts in five days to reach Clapps by telephone.

7 . The objective test was recommended by the drafters of the Model Penal Code: “If the defense is available only to persons who are ‘innocent/ the full deterrent effect of the defense is undermined. Police conduct toward a particular defendant may be seriously objectionable even though he entertained a purpose to commit crime prior to any inducement by officials. Law enforcement officers may feel free to employ forbidden methods if the ‘innocent’ are freed but the habitual offenders, in whom the police have the greater interest, will nevertheless be punished____ The very notion that certain police conduct may be improper in relation to the ‘innocent’ but acceptable when addressed to the ‘guilty’ seems incompatible with the ideal of equality before the law____ Further, to permit the use against' a previously convicted person, of police measures not permitted toward the rest of society is to fix a permanent status of criminality against the hopes of enlightened penology." Model Penal Code, Tentative Draft No. 9, Comment, § 2.10(1) at 20.