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COMMONWEALTH PENNSYLVANIA v. SHIRLL JOHNSON (01/07/83)

filed: January 7, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
SHIRLL JOHNSON, APPELLANT



No. 935 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 1903-04 May Term 1980.

COUNSEL

Charles A. Fitzpatrick, III, Philadelphia, for appellant.

Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Wickersham and Cirillo, JJ.

Author: Wickersham

[ 309 Pa. Super. Page 118]

On August 15, 1980, Shirll Johnson went to trial before the Honorable Kendall H. Shoyer and a jury on charges of theft and robbery, Nos. 1903 and 1904 May Term 1980.

In his opinion filed April 14, 1981, pursuant to Pa.R.A.P. 1925(a), Judge Shoyer summarizes the facts accurately as follows:

This is a 'granny squad' case. On April 25, 1980 at around 11:30 p.m. thirty-seven year old Shirll Johnson asked Grandpop Squad decoy Andrew Kalmar, No. 4487, sitting on a milk crate in the 1200 block of Cuthbert Street, Philadelphia, for some money. Cuthbert is a narrow street running parallel to and just south of Arch Street. Kalmer refused, but agreed to give defendant a cigarette. Johnson tried to grab from Kalmar the bundle of decoy play money, wrapped in currency which he saw attached to Kalmar's cigarettes with a rubber band. The

[ 309 Pa. Super. Page 119]

    two men wrestled. Johnson said: 'Give it up' as he grabbed the money, swung at Kalmar with his fist, missed and ran. Two back up policemen apprehended the defendant a few seconds later. After a trial before the undersigned and a jury the verdict was guilty of robbery.

Defendant filed two assignments of error in his post verdict motions which, after argument, were dismissed by the Court. This was defendant's sixth felony conviction and he was sentenced to a term of five to twelve years in prison. From the sentence the instant appeal has been taken.

Lower ct. op. at 1-2.*fn1

Appellant argues in his brief that trial counsel was ineffective for failing to raise the issue of entrapment, "the only reasonable and credible defense available to appellant." Brief for Appellant at 7.*fn2

Entrapment is defined as follows:

313. Entrapment

(a) General rule. -- A public law enforcement official or a person acting in cooperation with such an official perpetrates

[ 309 Pa. Super. Page 120]

    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.

18 Pa.C.S. ยง 313.

In Commonwealth v. Lee, 262 Pa. Super. 218, 396 A.2d 724 (1978), appellant was convicted of promoting prostitution, and contended that a new trial was necessitated by the failure of the court below to charge the jury on entrapment:

The pertinent facts are simple. The Reading Police Vice Squad secured the assistance of an auxiliary policewoman, Ms. Donna Bendel, to act as a decoy in their investigations. She was instructed to stand in the area of Seventh and Chestnut Streets in the City of Reading, a section known to have a high incidence of crime. Both parties agree that she is an attractive woman, and her attire on the day in question included a pair of long pants, a white turtleneck sweater and a green T-shirt. Ms.

[ 309 Pa. Super. Page 121]

Bendel's orders were to say nothing until approached, and then merely to reply, 'What do you mean' if propositioned.

On March 26, 1976, appellant drove by the decoy, parked his car, and walked back to where she was standing. He then stated that she could earn more money by not walking the streets. She replied, 'What do you mean,' and he retorted that she would make more by turning tricks at the Mushroom Plant. She again responded, 'What do you mean,' and appellant argued that the career he proposed would be better than standing on a corner. Ms. Bendel then gave a signal to the police officers observing the scene, who apprehended appellant after a brief chase and arrested him.

The defense is available, however, and a jury charge is necessary, only if there is evidence that the defendant was not disposed to commit the crime and that the police conduct was likely to entrap the innocently disposed defendant . . . . Thus, artifice and strategem are legitimate tactics that may be employed by law enforcement officials to detect and combat crime. Merely affording opportunities or facilities for the commission of a crime by one who already had the criminal intent to engage in such a crime does not defeat the prosecution . . . .

In the instant case, there is no evidence that the police action constituted a method of persuasion that created a substantial risk that persons not otherwise ready to commit the crime would do so. This is not a situation as was presented in Commonwealth v. Clawson, [250 Pa. Super. 422, 378 A.2d 1008], supra. In Clawson, a police informant asked the defendant if he could get a pound of marijuana for an acquaintance. The informant was a friend of the defendant and the latter said he would check on the availability of the drug. Subsequently, the defendant received $170 from the informant, procured the marijuana, and turned it over to the informant. The defendant had never been a drug dealer, did not make a profit

[ 309 Pa. Super. Page 122]

    on the deal, and testified that he delivered the marijuana only because the informant was a friend. The defendant was convicted of delivery of marijuana, but this court subsequently reversed the judgment of sentence and remanded for a new trial as a result of the failure to give instructions on entrapment.

Unlike Clawson, however, the decoy was here instructed not to initiate conversation with any potential customer, nor to speak at all, save for the non-committal 'What do you mean.' She did not quote prices or suggest locations for the proposed work; actions which might conceivably be construed as inducing the crime. Rather, she merely stood silently and allowed appellant to approach her.

There is nothing reprehensible about this procedure, and its use has been sanctioned in other jurisdictions. See, e.g., Williams v. United States, 342 A.2d 367 (D.C. 1975) (no entrapment found in a conviction for solicitation of prostitution when female police decoy said nothing and defendant broached terms for the 'trick'); State v. Wilson, 41 Wis.2d 29, 162 N.W.2d 605 (1968) (no entrapment when non-uniformed male officer sat in car and was approached by a female who asked him if he wanted a girl and quoted terms for her work). If, as appellant contends, the ploy was infirm because of the decoy's positioning in a high crime area, the police would be restricted from using efficacious methods of detection precisely in those areas in which crime control is most imperative. To adopt appellant's argument would lead to just such an absurd result.

The judgment of sentence is therefore affirmed.

Id., 262 Pa. Superior Ct. at 220-223, 396 A.2d at 724-26.

Instantly we have a clear factual situation whereby the police properly used artifice and strategem to detect and combat crime. Officer Kalmar merely afforded opportunities for the commission of a crime by the appellant who clearly already had the criminal intent to engage in such a crime. Under the circumstances here present, entrapment

[ 309 Pa. Super. Page 123]

    was not an available defense and a jury charge on the same was not necessary or appropriate.

At trial Officer Andrew Kalmar had testified:

Q. Officer, would you describe briefly the function of the Grandpop Squad?

A. Yes. It is a detail composed of four men. We go into high crime areas where street robberies are committed dressed as insurance men, elderly people, whatever the type of crime might be. We go into these areas hoping if there is going to be a robbery that it will be committed on us rather than a citizen.

Q. Now, Officer, on April 25th of 1980 were you working as a police ...


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