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filed: February 22, 1985.


No. 303 Pittsburgh, 1981, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC8001638A, CC8002095A.


Samuel J. Reich, Pittsburgh, for appellant.

Melinda G. Tell, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, McEwen, Tamilia and Johnson, JJ. Spaeth, President Judge, files a concurring and dissenting opinion. McEwen, J., joins in the concurring and dissenting opinion of Spaeth, President Judge.

Author: Rowley

[ 339 Pa. Super. Page 324]


This is a direct appeal from the judgments of sentence entered after appellant was found guilty by a jury of multiple violations of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended 35 P.S. § 780-101, et seq. and criminal conspiracy, 18 Pa.Cons.Stat. § 903(a)(1). At Information No. CC8002095A, appellant was charged with two counts of violation of the CSDDCA, resulting from the possession and delivery of drugs to undercover police officers on January 14, 1980. Two counts of criminal conspiracy stemming from appellant's activities on January 31, 1980 were also charged therein. At Information No. CC8001638A, appellant was charged with two CSDDCA violations, stemming from his delivery of illegal drugs to police officers on February 26, 1980. Consecutive sentences of 2 1/2 to 5 years

[ 339 Pa. Super. Page 325]

    imprisonment were imposed at Information No. CC8001638A. Similarly, sentences of 2 1/2 to 5 years imprisonment were entered on each of three counts of Information No. CC8002095A, to run concurrent with the sentences at Information No. CC8001638A.*fn1

Appellant presents three questions for our review: first, whether the trial court improperly denied his requested point for charge on the defense of entrapment with respect to the February 26, 1980 incident.*fn2 Second, whether the trial judge unduly interfered with the presentation of his defense, denying him a fair and impartial trial, and third, whether the consecutive sentences imposed at Information No. CC8001638A are legal.

Although the record in this case is lengthy, the pertinent facts may be briefly stated as follows:

Pennsylvania State Troopers Weis and Galloway conducted an undercover narcotics investigation which first involved appellant's co-defendants in October of 1979.*fn3 The undercover agents became friendly with the co-defendants, and made several drug purchases from them. Appellant's name was mentioned as a supplier of drugs and the officers prevailed on the co-defendants to introduce them to appellant. Appellant thereafter sold or delivered drugs to the officers on two separate occasions in 1980: January 14 and February 26. On February 26, appellant was arrested and charges were filed based on both transactions.

There is a dispute in the testimony concerning the circumstances of the final transaction on February 26. The undercover officers testified that the delivery of substantial amounts of cocaine and methaqualone, which were wrapped in a brown paper bag, was the fulfillment of a bargain they had with appellant for the purchase of these specific drugs. Appellant, on the other hand, testified that one of the

[ 339 Pa. Super. Page 326]

    undercover officers had requested that appellant, as a personal favor, pick up a plainly wrapped parcel for him from a source that had been arranged by the officers. Appellant then testified that he delivered the unopened parcel to the undercover officers, at all times unaware that it contained drugs.


Appellant's defense to the February 26 incident was based on two theories. First, appellant contended that since he was a mere courier, unaware of the illicit nature of the contents of the parcel, he lacked the requisite intent to support his conviction for delivery of the drugs on that occasion. Second, he contended that the undercover police activity amounted to entrapment. With respect to his entrapment defense, appellant requested a point for charge which tracked 18 Pa.Cons.Stat. § 313, the entrapment provision of the Crimes Code. The trial court refused this request.

On appeal, argument was scheduled before this court en banc, to review the trial court's determination that appellant was required to admit all of the constituent elements of the crime charged, including knowledge of the package's contents at the time he delivered it, before he was entitled to a charge on entrapment.

At the outset, we examine the present nature of the defense of entrapment in light of the defense as it formerly existed. Formerly, the defense consisted of two elements: there must have been (1) evidence that the government initiated the crime and (2) evidence negating the defendant's propensity to commit the crime. See Commonwealth v. Conway, 196 Pa. Super. 97, 173 A.2d 776 (1961). Thus, the inquiry focused on whether the defendant was, prior to his or her contact with the police, predisposed to commit the crime charged. See e.g., Commonwealth v. Harrison, 228 Pa. Super. 42, 323 A.2d 848 (1974). In addition, the defendant was required to admit all elements of the crime charged before being permitted to raise the defense of entrapment.

[ 339 Pa. Super. Page 327]

By enacting 18 Pa.C.S.A. § 313, however, the Legislature has rejected the "subjective" standard that formerly comprised the entrapment defense. Section 313 provides,

(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 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.

Noticeably absent from section 313 is any reference to reliance on a defendant's own predisposition. Rather, the focus of inquiry has now shifted to the nature of the government's conduct. As such, criminal defendants may legitimately contend, "Regardless of my criminal inclinations, I may not be held responsible for any crime, because the police have engaged in improper conduct intended to provoke the commission of a crime." Thus, the entrapment defense is no longer a means of ...

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