submitted: June 4, 1985.
COMMONWEALTH OF PENNSYLVANIA
OTTO MARTIN JENSCH, APPELLANT
No. 02742 PHILA. 1984, Appeal from the Order in the Court of Common Pleas of Berks County, Criminal No. 77071601-4
Lawrence J. Hracho, Reading, for appellant.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com.
Spaeth, President Judge, and McEwen and Beck, JJ.
[ 348 Pa. Super. Page 143]
This is an appeal from an order denying a petition for relief under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S. § 9541 et seq. The only issue is whether the trial court incorrectly instructed the jury that appellant bore the burden of proving entrapment by a preponderance of the evidence. We affirm.
Appellant was convicted in 1981 of possession with intent to deliver and delivery of marijuana. We affirmed the judgment of sentence, Commonwealth v. Jensch, 322 Pa. Super. 304, 469 A.2d 632 (1983), and the Supreme Court denied appellant's petition for allocatur. In 1984 appellant filed a PCHA petition alleging that trial counsel had been ineffective in failing to object to the trial court's instruction on the burden of proving entrapment, thereby waiving the issue for appellate review.*fn1 See Pa.R.A.P. 302(b). The
[ 348 Pa. Super. Page 144]
PCHA court found that because the issue was of arguable merit, counsel was ineffective in failing to object. The court refused to award appellant a new trial, however, because it concluded that the trial court's instruction was in accordance with the entrapment statute, 18 Pa.C.S. § 313,*fn2 and Pennsylvania case law.*fn3
The trial court's instruction was indeed in accordance with § 313(b), and with this court's decision in Commonwealth v. Jones, 242 Pa. Super. 303, 363 A.2d 1281 (1976), where we rejected a due process challenge to § 313(b). Appellant argues, however, that § 313(b) and Jones were effectively overturned in Commonwealth v. Loccisano, 243 Pa. Super. 522, 366 A.2d 276 (1976).*fn4 In Loccisano, decided two months after Jones, we reversed a conviction for sale of marijuana because the trial court had instructed the jury that the defendant had the burden of proving entrapment by a preponderance of the evidence.
Appellant's reliance on Loccisano is misplaced. As pointed out by the PCHA court, since the crime in Loccisano occurred before the adoption of the 1972 Crimes Code, § 313(b) could not apply. This inapplicability was, moreover, at least implicitly recognized in Loccisano, for we noted there that "[t]he trial judge charged the jury on entrapment defining the defense as it existed in the case law of this Commonwealth prior to the new Crimes Code",
[ 348 Pa. Super. Page 145]
and that "[a]t the time the alleged offense in the present case was committed, the law on entrapment was in accord with the position of the majority of the United States Supreme Court." Commonwealth v. Loccisano, supra, 243 Pa. Superior Ct. at 531-32, 366 A.2d at 280-81. The law thus alluded to employed a subjective test, focusing on the defendant's disposition to commit the crime. In Loccisano we equated disposition to commit the crime with criminal intent, from which the conclusion followed that since intent was an element of the offense, it was the Commonwealth's burden to disprove entrapment (or lack of intent) beyond a reasonable doubt. The entrapment defense was undeniably altered, however, by § 313, "shift[ing] in emphasis . . . to an evaluation of the police conduct, an objective test . . . ." Commonwealth v. Jones, supra, 242 Pa. Super. at 311, 363 A.2d at 1285. Under § 313, "entrapment does not negate an element of the offense, [and] it is [thus] constitutionally permissible to place the burden of proving an entrapment on the criminal defendant." Id., 242 Pa. Superior Ct. at 314, 363 A.2d at 1286-87.
Since Jones and Loccisano, the propriety of the preponderance of the evidence burden has been recognized by this court in several cases. See Commonwealth v. McGuire, 339 Pa. Super. 320, 488 A.2d 1144 (1985); Commonwealth v. Thompson, 335 Pa. Super. 332, 484 A.2d 159 (1984); Commonwealth v. Suggs, 289 Pa. Super. 44, 432 A.2d 1042 (1981). As appellant's offense was committed in 1977, well after the effective date of the Crimes Code, the jury instruction on entrapment at his trial was correct. Trial counsel was therefore not ineffective in failing to object to the instruction.