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HomeMy WebLinkAboutCP-21-CR-0329-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : : : CP-21-CR-0329-2009 : CHARGE: (1) CRIMINAL CONSPIRACY TO : UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION : WITH INTENT TO DELIVER A : CONTROLLED SUBSTANCE V. : (2) UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION : WITH INTENT TO DELIVER A : SCHEDULE I CONTROLLED : SUBSTANCE – HEROIN : (3) CRIMINAL USE OF A : COMMUNICATION FACILITY : ELWOOD CLAYTON WILLIARD : OTN: K7656749-2 : AFFIANT: TPR. JAMES M. BORZA IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, Jr., J., April 30, 2010 - Defendant Elwood Clayton Williard(hereinafter “Defendant”) has filed an appeal following a jury trial and sentencing. Defendant appeals his conviction on the basis that this Court erred by denying his request to include the fifth paragraph of the Standard Jury Instruction 1 for Entrapment, Pa.SSJI (Crim) 8.313, in the closing charge to the jury. STATEMENT OF FACTS Defendant was placed in the Cumberland County Prison on December 24, 2008, following his arrest on charges unrelated to this case. He made contact with another prisoner, Roger Atwood, and expressed a desire to have Atwood’s contacts outside the prison continue 1 Defendant’s Concise Statement of Matters Complained of on Appeal, ¶1, filed Mar. 17, 2010. 2 Defendant’s drug business. Atwood initially contacted Corporal Eickhoff, a corrections officer 3 at the prison who then contacted the Pennsylvania State Police. On January 7, 2009, Roger Atwood was taken to the Carlisle Borough Police Department and interviewed by Trooper First Class James Borza, who was a member of the Pennsylvania State Police Troop H, Harrisburg, 4 Vice, Narcotics Unit. Trooper James Borza was then assigned in an undercover capacity to 5 pose as Atwood’s brother “Mouse.” Defendant arranged for “Mouse” to meet Carolyn Hocker 6 at Defendant and Hocker’s home in Mt Holly Springs, Cumberland County. Hocker arranged for “Mouse” to drive to a convenience store in Morrisville, Bucks County, PA to meet with 7 “Mrs. T” and purchase heroin. The deal required Mouse to pay “Mrs. T” $2700 upon purchasing the heroin, to place $2700 in Hocker’s mailbox upon return to Cumberland County, 8 and allowed Mouse to keep any profit made from the sale. Defendant’s desire to find an individual to continue his drug business and the planning of this event were all recorded by way 9 of the Cumberland County Prison telephone system. At trial, Defendant raised the defense that Atwood had entrapped him. A jury found Defendant guilty on all counts on November 4, 2009 and he was sentenced on December 15, 10 2009. On Count 1, Criminal Conspiracy to Possess with Intent to Deliver Heroin, Defendant was sentenced to pay the costs of prosecution and undergo incarceration in a State Correctional 11 Institute for one and a half to three years. On Count 2, Possession with Intent to Deliver 2 Notes of Testimony, Jury Trial 11/2-4/09, page 32-33. (Hereinafter N.T. p. __); Affidavit of Probable Cause, CR 27-09, Jan. 14, 2009, at 1 (Hereinafter A.P.C. p. __) 3 N.T. p. 33 4 N.T. p. 58 -62, A.P.C. p. 1. 5 N.T. p. 64, A.P.C. p.1 6 N.T. p. 65, A.P.C. p.1 7 N.T. p. 65, A.P.C. p.1. 8 Id. 9 Id. 10 Transcript of Record, In Re: Sentence, Commonwealth v. Williard (2009) (No. CP 21-CR-0329-2009). 11 Id. at 8. 2 Heroin, Defendant was sentenced to pay a fine of $25,000, and undergo imprisonment in a State Correctional Institution for a period of five to ten years to run concurrent with the sentence at 12 Count 1, and to submit a DNA sample. On Count 3, Criminal Use of Communication Facility, Defendant was ordered to pay the costs of prosecution and undergo a concurrent period of 13 imprisonment of six to twelve months. The sentences on Counts 1 and 3 were standard range sentences. The sentence at Count 2 was the mandatory minimum sentence allowed under the provisions of 18 Pa.C.S.A. §7508 (a) (7) (ii) and the Commonwealth’s Amended Notice of Mandatory Sentencing filed December 15, 2009. DISCUSSION Defendant claims that this Court erred by denying his request to include the fifth paragraph of Pennsylvania Suggested Standard Criminal Jury Instruction 8.313, relating to Entrapment in the closing charge to the jury. “A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error.” Commonwealth v. Brown, 911 A.2d 576, 583 (Pa.Super. 2006). A trial court has wide discretion in fashioning jury instructions and is not required to give every instruction requested by a party. Refusal to give a requested charge does not require reversal unless appellant was prejudiced by a trial court’s refusal to give a requested charge. Id. Generally, it is said that an Appellate Court in reviewing the propriety of an instruction given by a trial court to a jury will determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear, or has a tendency to mislead or confuse, rather than clarify a material issue. A charge is considered adequate unless 12 Id. at 7-8. 13 Id. at 8-9. 3 the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Id. at 582-583. The Court was initially inclined not to give the entrapment instruction at all. However, after further research, the Court overruled the Commonwealth’s objection to the entrapment instruction. This Court determined that as a matter of law it could not be said that the Defendant was entrapped, but that it would allow the issue to be submitted to the jury. The jury instruction given on behalf of Defendant consisted of the first four parts of Pa. SSJI (Crim) 8.313, and was as follows: 1.Entrapment is a defense to a criminal charge. A defendant who is entrapped by the police—or by a person cooperating with the police—cannot be convicted even if he has committed a crime 2.A defendant is not entrapped merely because the police gave him an opportunity to commit a crime or merely because the police outwitted him. The law allows the police to use undercover operations and deception in catching criminals. However, if the police go too far, if they use tactics that, loosely speaking, might lead a law-abiding person to commit a crime, the police have participated in an entrapment. If a defendant commits a crime in response to that entrapment, the defendant has a defense. 3.The defendant has the burden of proving an entrapment defense by a preponderance of the evidence—that is, by the greater weight of the evidence. The facts are proven by a preponderance if it is more likely than not that the facts are true. This is a less demanding standard than proof beyond a reasonable doubt. . . . You must find the Defendant not guilty if you are satisfied of two things by a preponderance of the evidence: That the police, or a person cooperating with the police, perpetrated an entrapment; and that the defendant did what he did in response to the entrapment. 4.The term “perpetrating an entrapment” means a person cooperating with the police perpetrates an entrapment if it is the persons purpose to obtain evidence of a crime; the person induces or encourages another person to engage in conduct constituting a crime; and the person does this by using methods or persuasion or inducement that if he were to use them on a person who was not ready to commit the crime, it would create a substantial risk that the person 14 would commit it. The Defendant submits that it was reversible to omit the fifth paragraph of the standard instruction which consisted of two sentences: 14 Transcript of Record at 220-22, Commonwealth v. Williard (2009) (No. CP 21-CR-0329-2009). 4 5.The defense of entrapment is available to any defendant regardless of his or her character. If you are satisfied that the defendant was entrapped, you should find him not guilty regardless of any evidence that he was a person of 15 bad character or was predisposed to commit that kind of crime. This court felt that this language would draw attention to or emphasize Defendant’s predisposition or bad character. Therefore, the fifth paragraph, which implies that a defendant is of bad character or interested in doing crimes was not appropriate in this case. The jury was not made aware of any prior offenses of Defendant and Defendant denied any involvement in the crime charged. He testified that he was a 74 year old business man, with a college degree, who had never been in prison before. The jury was instructed on several occasions that although they were aware that Defendant was in jail at the time of the incident, they were not allowed to infer guilt from that information. A cautionary instruction regarding the imprisonment was given on multiple occasions to remind the jury “that you may not find the Defendant guilty of these charges pending against him based on the fact that he was being held in the Cumberland County Prison when the alleged offenses are said to have taken place.” Defendant’s Concise Statement of Matters Complained of on Appeal consistently maintains the prosecuting attorney argued at length in his closing argument that the Defendant had a “predisposition” to commit the crimes. But Defendant’s own testimony was that he was not predisposed. Consequently the requested instruction was not necessary. The Defendant appears to lose sight of the fact that the District Attorney’s closing argument focused on proving the elements of the offenses of Criminal Conspiracy, Possession with the Intent to Deliver Heroin, and Criminal Use of a Communication Facility for which he had the burden of proof. This was not an argument about predisposition. 15 Pa. SSJI (Crim) 8.313 5 As is often been stated, the defense of entrapment focuses totally on an objective consideration of the conduct of the police. In assessing the viability of the defense of entrapment a court does not address predisposition of the Defendant. 18 Pa.C.S.A. §1313(a), Commonwealth v. Johnson, 678 A.29 666. It must also be remembered that the Defendant had the burden of proving by a preponderance of the evidence that: (1) The police, or a person cooperating with the police perpetrated entrapment, and (2) That the Defendant did what he did in response to the entrapment. Commonwealth v. Joseph, 848 A.2d 934 (Pa.Super. 2004). No fair reading of the testimony and evidence given at Defendant’s trial would indicate that had the jury been given the two requested lines from paragraph 5 of the Standard Jury Instruction, that the outcome of this trial would have been different. Accordingly, the omission of the two requested lines did not constitute a clear abuse of discretion or an error of law which controlled the outcome of this case. Defendant met Roger Atwood on or about December 26 or 27, 2008. Atwood was obviously not working for the Pennsylvania State Police until after his interview on January 7, 2009. From the time Roger Atwood met the Defendant until he began giving information to the Pennsylvania State Police on January 7, 2009, Roger Atwood was a private person who had no official connection with law enforcement. The entrapment defense cannot be based upon the activity of a private person having no official connection. Pa.SSJI (Crim.) 8.13, Advisory Committee Note, Page 3. No one can listen to or read the transcripts of the telephone conversations taped at the prison between the Defendant and Carolyn Hocker and not know that this Defendant was actually already engaged in perpetrating a conspiracy to deal narcotics. All this happened before Roger Atwood had any official connection with the Pennsylvania State Police. The evidence of the taped conversations between the Defendant and Carolyn Hocker is 6 so overwhelming given the fact that the Defendant had the burden of proving entrapment, it cannot be said that the two lines of requested instructions would have controlled the outcome of the case. In Commonwealth v. Ritter, 615 A.2d 442, 450, (Pa.Super. 1992), the Superior Court stated that the trial court properly instructed the jury on the issued of entrapment when it stated: [A] police officer or a law enforcement official or personal [sic] acting in cooperation with the law enforcement official perpetrates an entrapment if, for the purpose of obtaining evidence of a crime, he [i]nduces or encourages another person to engage in any conduct constituting that crime by employing methods of persuasion or inducement which create a substantial risk that such a crime will be committed by that person. In essence, this language is the gravamen of the entrapment instruction. In this case, this Court’s jury instruction on entrapment did include this very language. CONCLUSION The absence of two lines in over nineteen pages of jury instructions in this case did not constitute error. Denial of paragraph 5 of the entrapment jury instruction was within the Court’s discretion and was not improper. By the Court, M. L. Ebert, Jr., J. Derek R. Clepper, Esquire Senior Assistant District Attorney Peter B. Foster, Esquire Counsel for Defendant 7