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COMMONWEALTH PENNSYLVANIA v. STEVEN LINDENMUTH (01/03/89)

filed: January 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
STEVEN LINDENMUTH, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. BRUCE S. FENSTEMAKER APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GARY L. LOMISON, APPELLANT



Appeal from the Judgment of Sentence Entered October 27, 1987, in the Court of Common Pleas of Lycoming County, Criminal Division, at No. 86-10, 882, 883, 884.

COUNSEL

Michael J. Rudinski, Williamsport, for appellant in No. 737.

Peter T. Campana, Williamsport, for appellants in Nos. 738 and 739.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Beck, Kelly and Hester, JJ. Beck and Kelly, JJ., concur in the result.

Author: Hester

[ 381 Pa. Super. Page 401]

Steven Lindenmuth, Bruce Fenstemaker and Gary Lomison each appeal from the judgment of sentence entered against them on October 27, 1987, in the Court of Common Pleas of Lycoming County. They were convicted of criminal attempt to possess a controlled substance with intent to deliver following a consolidated jury trial. Their appeals were also consolidated. We affirm.

The evidence introduced at trial establishes the following. Agent Thomas Sokso of the Internal Revenue Service was investigating a large scale drug dealer by the name of Nicholas DiEspriella. A former companion of DiEspriella turned informant, named Dosso, aided in the investigation. Dosso had sold large quantities of marijuana to Scott L. Brown for DiEspriella in 1984 and 1985 and knew that Brown still owed money to DiEspriella from these deals. Agent Sokso, with the aid of Dosso and Agent Hollier of the Pennsylvania Attorney General's Office, began to gather evidence against DiEspriella by contacting Brown.

The plan was to have Dosso meet with Brown under the pretext of collecting the money. On July 14, 1986, Agents Sokso and Hollier accompanied Dosso as extra intimidation to collect the debt which Brown owed DiEspriella and which Dosso had been unable to collect from Brown. Since Brown did not have the money or any means to raise the money, he eventually agreed to sell marijuana supplied by Dosso to make a profit and repay the debt.

The agents returned to Brown's residence with Dosso to tell Brown that he must have the money before the marijuana would be delivered to him. Agent Hollier threatened Brown that one of his vehicles would be seized for payment

[ 381 Pa. Super. Page 402]

    of the debt if he did not come forward with the money to buy the marijuana. Brown, who had not been selling marijuana recently, agreed to collect the money from some friends and meet Sokso at a later date.

On July 28, 1986, agents Sokso and Hollier contacted Brown and arranged to meet him to discuss the deal further. They told Brown that they would provide him with seven pounds of marijuana for the sum of $3,000.00. Brown agreed to get the money from friends and to meet Sokso and Hollier the next day in a parking lot. Brown met with a number of friends from work and told them he would sell them a minimum quantity of one pound of marijuana for $600.00. Appellants were interested and gave their money to Brown since marijuana was not readily available in the Williamsport area at that time.

Brown met with Hollier and Sokso on July 29, 1986. He had only $2,600.00. They agreed to sell him only six pounds. He was arrested after he gave Hollier and Sokso $2,600.00. Brown was then transported to the civil defense building and later decided to cooperate in the investigation. No immunity was given, and no specific leniency was promised. Sokso interviewed Brown about DiEspriella. The investigation was turned over to agent Hollier.

Agent Hollier persuaded Brown to telephone each of his buyers to tell them that the deal had not gone through, that the money was stolen and that he would try to repay them. Each telephone conversation was tape recorded. Each appellant acknowledged that he had given Brown money for the purpose of purchasing a pound of marijuana.

Appellants were charged with criminal attempt to possess with intent to deliver and conspiracy to possess with intent to deliver. They were tried together following denial of their pretrial motions to sever. The jury found appellants not guilty of conspiracy, but did find them guilty of criminal attempt to possess with intent to deliver. This timely appeal followed.

Appellants first contend that the conduct of the agents in threatening Brown and inducing him to buy and sell marijuana

[ 381 Pa. Super. Page 403]

    was outrageous and so fundamentally unfair that it violated their due process rights under the Fourteenth Amendment to the United States Constitution and Article I, ยง 9 of the Pennsylvania Constitution. Appellants ask us to dismiss the charges against them on the basis that the veiled threats and conduct toward Brown by the agents was egregious in that government agents threatened force and induced a crime that otherwise would not have occurred. Appellants contend that dismissal is required in order to send a message that police involvement which creates criminal action is a perversion of the criminal justice system, and will not be condoned.

Appellants rely on United States v. Twigg, 588 F.2d 373 (3rd Cir.1978) and Commonwealth v. Mathews, 347 Pa. Super. 320, 500 A.2d 853 (1985), to support their claim that conduct of government agents can be so outrageous as to bar prosecution even where entrapment is not shown. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Appellants further posit that Brown's ignorance that he was ...


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