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COMMONWEALTH v. BERRIGAN (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
BERRIGAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, No. 73-10, 188, in case of Commonwealth of Pennsylvania v. Gary S. Berrigan.

COUNSEL

Kenneth C. Brown, Assistant Public Defender, with him John A. Felix, Public Defender, for appellant.

Gregory Smith, with him William S. Kieser, Assistant District Attorney, and Allen E. Ertel, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Jacobs, J., in Support of Affirmance. Watkins, P.j., and Price, J., join in this opinion. Opinion by Hoffman, J., in Support of Reversal. Cercone and Spaeth, JJ., join in this opinion.

Author: Per Curiam

[ 234 Pa. Super. Page 371]

The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Opinion by Jacobs, J., in Support of Affirmance:

This is an appeal from the conviction of appellant, Gary S. Berrigan, for possession and delivery of marijuana in violation of The Controlled Substance, Drug, Device and Cosmetic Act*fn1 for which he received a sentence of five years probation. The only issue involved is whether the facts of this case establish as a matter of law the defense of entrapment. I feel that the evidence supported the trier of fact's determination of no entrapment and would affirm the decision of the court below.

At trial before the court, a jury having been waived, the following facts were revealed: Mrs. Eileen Dowes, the only witness for the Commonwealth, testified that

[ 234 Pa. Super. Page 372]

    on November 8, 1972, she was employed by the Williamsport Police Department as a confidential informant. On that evening she entered a restaurant in Williamsport and occupied a seat next to appellant at the bar. She testified that she bought appellant a beer and started a conversation with him. The subject became that of drugs, and then Mrs. Dowes asked appellant whether he could help her purchase some. According to Mrs. Dowes, appellant replied that he did not sell them but he could get her "anything" that she wanted. On re-direct examination Mrs. Dowes explained that appellant introduced the subject of drugs into the conversation by mentioning to her that some of his friends had robbed a drug store and that the police were investigating the matter. After appellant's response that he could get her "anything" she wanted, the two left the bar and entered Mrs. Dowes' car. They first drove to someone's residence, but the person appellant was hoping to contact for drugs was not home. Then, on appellant's instructions, Mrs. Dowes drove to another bar. She gave appellant $30.00 and he left the car but soon returned with a substance later to be identified as marijuana which he gave to Mrs. Dowes along with $5.00 change. Mrs. Dowes then drove appellant back to the bar where she had first met him.

Appellant took the witness stand in his own defense and admitted that he purchased the marijuana for Mrs. Dowes. However, he testified that it was Mrs. Dowes who brought up the subject of drugs in their conversation. He further claimed that he saw Mrs. Dowes three or four times before he finally obtained the marijuana for her.

The trial judge sitting without a jury found appellant guilty as charged. In his opinion, the trial judge stated the following concerning the entrapment defense presented by appellant:

"The Court finds that Mrs. Dow[e]s did not employ methods of persuasion or inducement which

[ 234 Pa. Super. Page 373]

    would cause an innocent person to commit a criminal act. The Court does not believe the defendant's testimony of repeated attempts by ...


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