Com. v. Watson, O. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S58036-14
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
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1
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
____________________________________________
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, supracommission 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
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