Appeal from the Judgment of Sentence December 11, 2007, In the Court of Common Pleas of Centre County, Criminal, Nos. CP-14-CR-0001198-2007 and CP-14-CR-0001199-2007.
The opinion of the court was delivered by: Gantman, J.
BEFORE: ORIE MELVIN, GANTMAN, AND CLELAND, JJ.
¶ 1 Appellant, Scott Marion, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas, following his jury trial conviction for delivery of marijuana, possession with intent to deliver a controlled substance ("PWID"), possession of small amount of marijuana for personal use, and criminal use of communication facility.*fn1 Appellant asks us to determine whether the trial court erred when it (1) directed the jury to continue deliberations; (2) found Appellant failed to establish an entrapment defense; and (3) imposed a mandatory minimum sentence under the "drug- free school zone" sentencing provision at 18 Pa.C.S.A. § 6317. We hold (1) the court's jury instruction in the face of deadlock was appropriate; (2) Appellant failed to establish an entrapment defense; and (3) the court properly sentenced Appellant under the "drug-free school zone" sentencing provision at 18 Pa.C.S.A. § 6317. Accordingly, we affirm.
¶ 2 The trial court opinion sets forth the relevant facts of this appeal as follows:
Appellant was a student at Pennsylvania State University, State College Campus. On October [20, 2005], Appellant was visited at his apartment by a confidential informant who knew Appellant from Penn State Worthington. On this date, the confidential informant received marijuana from Appellant. On November 3, 2005, the confidential informant contacted Appellant by phone to purchase marijuana. This time the confidential informant was accompanied to Appellant's apartment by an undercover police officer. The undercover police officer was able to purchase 1/4 ounce of marijuana from Appellant for $35. [Police arrested Appellant, and the Commonwealth charged him with two counts each of Delivery of marijuana, PWID, criminal use of communication facility, and possession of small amount of marijuana].
[On October 12, 2007], jury deliberations in the present case commenced at 12:58 p.m. at the conclusion of a half-day trial. At 4:09 p.m. the same day, this [c]court received a note from the jury stating that the jury was deadlocked on some of the charges and, "further deliberation will not change any minds." This [c]court decided to give the jurors encouragement to continue the deliberation for 45 minutes. In response, Appellant moved for a mistrial arguing that a "pep talk" would be inappropriate and a mistrial should therefore be declared. [The] court denied the motion for mistrial and then addressed the jury with both counsel present:
[W]hat I am going to do for the next maybe five minutes is to challenge you to try to make-to try to determine whether there's any possibility of reaching a verdict on the outstanding counts. I'm going to give you a period of time to do that. I am not going to tell you you're going to be locked up in that room until 8:00 o'clock at night or anything like that. That's not my intent.
It may help when you return for your deliberations-and I'm going to ask you to deliberate for another 45 minutes. It may help during that 45 minutes if you take a fresh look at perhaps an approach that you haven't used yet. I had other jurors suggest to me that you go to the jury room and try-if you believe one way, try arguing the other side of the coin or something like that..
(Trial Court Opinion, filed June 11, 2008, at 1-2, 9) (internal citations omitted). The court further instructed the jury:
Again, everybody here appreciates the work that you're doing everybody, and we know that it's not easy but-and I'm not going to keep you here forever. But I would like to ask you to take one more shot at it and try re-inventing the wheel if that's what it takes, you know, stop looking at the earth like it's flat, whatever analogy you want me to give you and try to see if there isn't some way as a group that you can explore something that will help come to a resolution as to the remaining charges.
We call this a pep talk, okay. You don't look very peppy. You don't look very happy and I understand that but you're going to be out of here shortly. By that I mean I'm not going to keep you forever, but I would like you to give it one more shot.
So we'll come down in 45 minutes. If you have not told us that you have reached a verdict otherwise, we'll come down in 45 minutes, and we'll bring you up, and then we'll discuss it at that time.
(N.T. Trial, 10/12/07, at 218-19). That same day, the jury convicted Appellant. On October 15, 2007, the Commonwealth gave notice of its intent to pursue the sentence enhancement under the Drug-Free School Zone Act, 18 Pa.C.S.A. § 6317. On December 11, 2007, the court sentenced Appellant to an aggregate term of two (2) to four (4) years of incarceration.
Appellant did not file any post-sentence motions.
¶ 3 Appellant timely filed his notice of appeal on January 7, 2008. On January 9, 2008, the court ordered Appellant to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on January 29, 2008. That same date, Appellant also filed an application for permission to file a supplemental Rule 1925(b) statement, which the court granted on January 31, 2008. After Appellant received the trial and sentencing hearing transcripts, Appellant timely filed a supplemental Rule 1925(b) statement.
¶ 4 Appellant raises the following issues on appeal:
WHETHER THE TRIAL COURT ERRED IN DIRECTING THE JURY TO CONTINUE ITS DELIBERATIONS DESPITE ITS INDICATION THAT IT WAS DEADLOCKED, GIVEN THE COERCIVE NATURE OF THE COURT'S SUPPLEMENTAL INSTRUCTION AND ITS INCLUSION OF A "TIME FUSE" DEADLINE FOR COMPLETION OF DELIBERATIONS?
WHETHER THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANT HAD ESTABLISHED ENTRAPMENT AS A MATTER OF LAW, AND IN IMPROPERLY INSTRUCTING THE JURY IN ITS SUPPLEMENTAL INSTRUCTION REGARDING APPELLANT'S BURDEN RELATIVE TO THE ENTRAPMENT DEFENSE?
WHETHER THE TRIAL COURT ERRED IN IMPOSING A MANDATORY MINIMUM SENTENCE OF TWO TO FOUR YEARS IMPRISONMENT GIVEN THAT [THE COMMONWEALTH] FAILED TO PROVIDE SUFFICIENT EVIDENCE TO ESTABLISH THAT THE RELEVANT TRANSACTION OCCURRED WITHIN ONE THOUSAND FEET OF A SCHOOL PURSUANT TO 18 PA.C.S.A. § 6317?
(Appellant's Brief at 3).
¶ 5 In his first issue, Appellant argues the court "crossed the constitutional line in several ways when it issued its supplemental instruction to the declaredly deadlocked jury." (Id. at 9). Specifically, Appellant alleges the jury informed the court that while agreement had been reached on certain counts, further deliberations would not change the minds of any jurors regarding the remaining counts. Appellant avers the court should have declared a hung jury. Instead, Appellant claims the court improperly suggested to the jury how to conduct further deliberations, and gave the jury a forty-five (45) minute "time fuse" to deliberate. Appellant posits any time limitation on jury deliberations is suspect and inherently coercive, which renders the instruction wholly inappropriate. Appellant believes the court "invaded the jury's exclusive province by offering a veritable 'stage direction' on how that deliberation was to be conducted by 'suggesting' a 'role play' where jurors were to 'argue the other side of the coin' contrary to their views." (Id. at 14). Essentially, Appellant posits the jury instruction far exceeded asking the jury to consider other views; instead, the court destroyed the individual views of the jurors prior to the re-instruction.
Additionally, Appellant contends the jury was also notably fatigued.
Appellant concludes the verdict was a legal nullity due to the court's charge and the jury's fatigue. We disagree.
¶ 6 The relevant scope and standard of review for a claim involving a court's instructions to a deadlocked jury is for an abuse of discretion.
Commonwealth v. Santiago, 492 Pa. 297, 424 A.2d 870 (1981). This Court will find an abuse of discretion regarding jury instructions where the jury verdict is the product of coercion or fatigue. Commonwealth v. Greer, 597 Pa. 373, 387, 951 A.2d 346, 354-55 (2008). Relevant factors in this assessment include the charges at issue, the complexity of the issues, the amount of testimony to consider, the length of the trial, the solemnity of the proceedings, and indications from the jury on the possibility of reaching a verdict. Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). Additionally, this Court leaves the length of jury deliberation to the sound discretion of the trial court. Commonwealth v. Chester, 587 A.2d 1367 (Pa.Super. 1991), cert. denied, 526 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
¶ 7 In Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), our Supreme Court addressed judicial interaction with deadlocked juries; prohibited the use of the Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) jury charge;*fn2 and cited with approval the American Bar Association ("ABA") guidelines governing jury deadlock, noting: "Such guidelines may avoid the evils inherent in the Allen charge and with proper usage may aid in the alleviation of problems which arise when juries are deadlocked." Spencer, supra at 305, 275 A.2d at 338. The ABA guidelines provide:
STANDARD 15-5.4 LENGTH OF DELIBERATIONS; DEADLOCKED JURY
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(4) that in the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous; and
(5) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for ...