No. 02297 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Criminal Division at No. 413, 1981.
Arthur L. Goldberg, Harrisburg, for appellant.
Gregory B. Abeln, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Wickersham, Montemuro and Montgomery, JJ. Wickersham, J., files dissenting opinion.
[ 335 Pa. Super. Page 333]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Cumberland County. Because we find entrapment as a matter of law, we reverse.
On May 1, 1981, appellant, Russell Thompson, a former Carlisle policeman, was arrested and charged with one count of unlawful delivery of a small amount of marijuana*fn1 and one count of criminal conspiracy.*fn2 Appellant was convicted
[ 335 Pa. Super. Page 334]
by a jury on both counts on September 23, 1981. After his post-verdict motions requesting a new trial or an arrest of judgment were denied, he was sentenced on the drug conviction to a term of imprisonment of not less than fifteen (15) days nor more than thirty (30) days and was fined fifty dollars; the sentence was suspended generally on the conspiracy conviction. This timely appeal followed.
Appellant raises two issues:
Did the [l]ower [c]court err in finding that under the facts in this case the police conduct in the investigation did not constitute entrapment as a matter of law?
Did the lower court err in permitting the Commonwealth to elicit prejudicial, conjectural testimony from the Commonwealth witness?
Brief for appellant at 3.
The first issue, whether the state police conduct in question constituted entrapment as a matter of law, was raised in pre-trial motions, during trial by demurrer following the Commonwealth's case, in post-trial motions, and now on appeal. Appellant does not deny giving Trooper Lucinda Hammond a small amount of marijuana on the evening of March 23, 1981. Rather, he argues that the procurement and delivery of the marijuana were the result of a romantic relationship that developed on the part of the appellant, a relationship brought about by Hammond's conduct over a ten month period. Because we agree with appellant's contention that this conduct constituted entrapment, we need not reach the second issue he has raised.
Beginning on May 1, 1980, state police Trooper Lucinda Hammond became involved in an undercover investigation of appellant,*fn3 a 46-year-old black male who was married and living with his wife and mentally retarded daughter in Carlisle. At the time this investigation began, he was a ten-year veteran of the Carlisle Borough Police Force.
[ 335 Pa. Super. Page 335]
Trooper Hammond was a young, blonde, white female who apparently was very attractive.
The undercover officer came to Carlisle on May 2, May 9, May 12, May 16, May 22, May 23, May 28, June 5, June 6, June 12, June 19, and June 25 of 1980 in an attempt to make contact with appellant. Although Trooper Hammond was unable to establish any direct communication with appellant, he did wave to her on May 22 and May 28. Her purpose in making contact with appellant on all these occasions was to determine if he would provide her with drugs.
Trooper Hammond's first "face-to-face" contact with appellant was on July 10, 1980 at the square in Carlisle. He was on duty and she approached him with a question about a false temporary driver's license which apparently was used as a pretext for starting a conversation. She testified that at the time her hair was long and straight and she wore mid-thigh cut-off shorts and a short-sleeved jersey. During the conversation which ensued, the two began talking about "partying" and having a good time. Appellant discussed with Hammond his purported use of marijuana and she let him know that she "partied" and "got high." He then told her he would be able to get drugs for her.
The second encounter between appellant and Hammond occurred on August 8, 1980 when she again walked up to him while he was on duty. She was again dressed in cut-offs and a jersey. There was a brief conversation, but no mention of drugs. Sometime after this meeting, Hammond began to telephone appellant at his place of work, the Carlisle Police Station. These calls continued over the course of the investigation, totaling at least eight to ten in all. Appellant never contacted Hammond and she never provided him with a means of doing so.
The third direct contact between them occurred on September 3, 1980, when she again walked up to him while he was working. She wore a blouse that was open in the back and shoulders, as well as her by now standard cut-offs. Appellant recognized her immediately and started a friendly conversation, which included a discussion of drugs and
[ 335 Pa. Super. Page 336]
getting high. He tried to get her to meet him after work at a tavern called the Oliver Plunkett,*fn4 but she declined and instead arranged to meet him ...