No. 29 October Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Berks County, Pennsylvania, Criminal Action, at No. 77071601.
Terry L. Parish, Boyertown, for appellant.
J. Michael Morrissey, District Attorney, Reading, submitted a brief on behalf of Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn* Hoffman, J., concurs in the result. Hester, J., files a concurring and dissenting opinion.
[ 274 Pa. Super. Page 268]
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.
[ 274 Pa. Super. Page 269]
A 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 ...