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filed: November 8, 1985.


Appeal from the Order in the Court of Common Pleas of Warren County, Criminal No. 332 of 1983. Appeal from the Order in the Court of Common Pleas of Warren County, Criminal No. 327 of 1983


Marcia Ziki, Assistant District Attorney, Warren, for Commonwealth, appellant (at 823 and 824).

Michael J. Healey, Pittsburgh, for appellees (at 823 and 824).

Spaeth, President Judge: and Rowley and Wieand, JJ. Wieand, J., files a dissenting opinion.

Author: Spaeth

[ 347 Pa. Super. Page 321]

These are consolidated appeals by the Commonwealth from orders arresting judgment. Although the jury rejected appellees' arguments that they had been entrapped, see 18 Pa.C.S. ยง 313, and found them guilty of attempt to manufacture a controlled substance, the trial court, on post-verdict motions, arrested judgment because it found that the police conduct in this case was so outrageous that appellees were denied due process. We affirm.

Even where entrapment is not proved, police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the United States Supreme Court said:

While we may some day be presented with a situation in which the conduct of law enforcement is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a

[ 347 Pa. Super. Page 322]

    conviction, . . . the instant case is distinctly not of that breed . . . The law enforcement conduct here stops far short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment.

Id. at 431-32, 93 S.Ct. at 1643.

Three years later, in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), the Supreme court affirmed a conviction despite arguments that police conduct in supplying heroin for later sale was so outrageous as to bar prosecution on due process grounds. Justice REHNQUIST, in a plurality opinion joined by Chief Justice BURGER and Justice WHITE, would have held that because the defendant had conceded that he was predisposed to sell heroin, he could not argue that due process barred his prosecution. Justice POWELL, in an opinion joined by Justice BLACKMUN, concurred but would have held that if police over-involvement in criminal activity reached a demonstrable level of outrageousness it would bar prosecution on due process grounds, despite predisposition. Id. at 495 n. 7, 96 S.Ct. at 1653 n. 7. Justices BRENNAN, STEWART, and MARSHALL dissented from the view espoused by Justice REHNQUIST and while agreeing with Justice POWELL that due process might bar prosecution in some cases, would have held that, even apart from due process, if police conduct is sufficiently offensive the defense of entrapment should bar a conviction. Id. at 497, 96 S.Ct. at 1653.

[ 347 Pa. Super. Page 323]

Many courts, including this court, have interpreted Russell and Hampton as in combination announcing the rule that the concept of fundamental fairness embodied in the due process clause of the Fifth and Fourteenth Amendments will bar conviction where police conduct has been "outrageous", even if entrapment is not shown. See, e.g., United States v. Ward, 696 F.2d 1315 (11th Cir. 1983) cert. denied 461 U.S. 934, 103 S.Ct. 2101, 77 L.Ed.2d 308; United States v. Gianni, 678 F.2d 956 (11th Cir. 1982) cert. denied 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633; United States Page 323} v. Gray, 626 F.2d 494 (5th Cir. 1980) cert. denied sub nom. Fennell v. United States, 449 U.S. 1038, 101 S.Ct. 616, 66 L.Ed.2d 500; United States v. Twigg, 588 F.2d 373 (3rd Cir. 1978); Commonwealth v. Minnich, 324 Pa. Super. 339, 344 n. 3, 471 A.2d 869, 871 n. 3 (1984); People v. Johnson, 123 Ill.App.3d 363, 78 Ill.Dec. 829, 462 N.E.2d 948 (1984); People v. Peppars, 140 Cal.App.3d 677, 189 Cal.Rptr. 879 (1983); Harrison v. State, 442 A.2d 1377 (Del.Sup. 1982).

In this case the trial court relied primarily on United States v. Twigg, supra, for its holding that the police involvement was so outrageous that appellees' convictions should be arrested. The facts of Twigg were as follows:

In October 1976 at the request of DEA [Drug Enforcement Agency] officials, Kubica [a police informant] contacted an acquaintance of twenty years, Henry Neville, to discuss setting up a speed laboratory. Neville expressed an interest and a discussion of the proposed operation ensued. Over the next several months numerous discussions took place between the two parties as arrangements were made to set up the laboratory. Some of the telephone conversations were recorded by Kubica on equipment supplied by the DEA. The tapes, introduced as evidence at trial, indicate that Neville assumed primary responsibility for raising capital and arranging for distribution of the product, while Kubica undertook the acquisition of the necessary equipment, raw materials, and a production site.

The Government proved to be of considerable assistance to Kubica in carrying out his part of the operation. DEA agents supplied him with two and one-half gallons of phenyl-2-propanone-a chemical essential to the manufacture of speed and the most difficult of the ingredients to obtain. The cost to the Government was $475.00, although the chemical could retail for twice as much. The DEA provided Kubica with about 20 percent of the glassware needed and a rented farmhouse in New Jersey in which to set up the laboratory. In addition, the DEA Officials made arrangements with chemical supply houses

[ 347 Pa. Super. Page 324]

    to facilitate the purchase of the balance of the materials by Kubica under the business name of "Chem Kleen." Kubica personally bought all of the supplies (with the exception of one separatory funnel) with approximately $1,500.00 supplied by Neville.

On March 1, 1977, Neville introduced Kubica to William Twigg, who apparently got involved in the operation to repay a debt to Neville. Twigg accompanied Kubica on a trip to several chemical supply houses. Later that day, the laboratory was set up at the farmhouse. The laboratory operated for one week, producing approximately six pounds of methamphetamine hydrochloride. Kubica was completely in charge of the entire laboratory. Any production assistance provided by Neville and Twigg was minor and at the specific direction of Kubica. Twigg often ran errands for groceries or coffee, while Neville spent much of his time away from the farmhouse. On March 7, Neville left the farmhouse with the drugs in a suitcase. Kubica notified the DEA agents, who arrested Neville driving down the road. A ...

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