J-S77004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS D. RICE

                            Appellant                 No. 2211 MDA 2015


              Appeal from the Order Entered November 23, 2015
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000522-2014


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 18, 2016

        Appellant, Thomas D. Rice, appeals1, pro se, from the order that

granted him a new trial but failed to bar his retrial on double jeopardy or

entrapment grounds. Additionally, he has filed in this Court an “application

for relief for the purpose of obtaining an accurate record.” After reviewing

the parties’ briefs and the certified record, we conclude that the relief Rice

requests in his application to this Court is collateral to his issues on appeal.2

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Rice’s appeal is an interlocutory appeal as of right. See Pa.R.A.P.
311(a)(6).
2
  In his application, Rice requests that we enter an order compelling the trial
court to hold a hearing on the accuracy of certain transcripts, recuse itself
from the re-trial, appoint “non-bias[ed] counsel,” and compel release of
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We therefore deny relief on his application, without prejudice towards his

right to raise the same issues in the trial court before his re-trial. Regarding

the two issues Rice has raised on appeal, we conclude that neither double

jeopardy concerns nor his affirmative defense of entrapment bar his re-trial,

and therefore affirm.

      A jury convicted Rice of six counts of criminal use of a communication

facility and three counts of conspiracy to deliver heroin. The trial court

sentenced Rice to a term of imprisonment of 21 to 42 years.

      In post-sentence motions, Rice argued, among others, that the trial

court erred in finding that he had waived his right to counsel, that the

Commonwealth had not committed a Brady3 violation, and that he had not

established entrapment as a matter of law. In an exhaustive 37-page

opinion, the trial court concluded that the record did not support a finding

that Rice had knowingly and voluntarily waived his right to counsel at trial

and granted him a new trial. The trial court further found that, while the
                       _______________________
(Footnote Continued)

certain audio recordings of proceedings. Rice does not link these requests to
the two issues he raises on appeal, both of which seek to prevent re-trial as
a matter of law. We have already denied Rice’s request for counsel of choice
for purposes of this appeal, and our review of his application and all other
materials relevant to this appeal has convinced us that, while the remaining
relief requested by Rice may arguably be relevant to his re-trial, it is not
relevant to the determination of whether Rice’s re-trial is barred as a matter
of law.
3
  In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme
Court declared that due process is offended when the prosecution withholds
evidence favorable to the accused.



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Commonwealth had failed to disclose the plea agreement it had with an

informant, this failure did not prejudice Rice at trial. Finally, the trial court

concluded that while Rice had raised a triable issue of entrapment, he had

not established his right to relief as a matter of law.

      The Commonwealth did not appeal from the order granting a new trial.

Rice did, but has limited his issues on appeal to two. First, he argues that

principles of double jeopardy prohibit his re-trial. Second, he argues that the

trial court erred in not granting him a directed verdict on all charges due to

entrapment as a matter of law. We will address these issues in sequence.

      In his first argument, Rice contends that the rule against double

jeopardy contained in the Pennsylvania and United States Constitutions bars

his re-trial. Our scope and standard of review of this claim is as follows:

      An appeal grounded in double jeopardy raises a question of
      constitutional law. This court’s scope of review in making a
      determination on a question of law is, as always, plenary. As
      with all questions of law, the appellate standard of review is de
      novo.

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations

and quotation marks omitted).

      “The Double Jeopardy Clause of the Fifth Amendment protects a

criminal defendant from repeated prosecutions for the same offense.”

Oregon v. Kennedy, 456 U.S. 667, 679 (1982). The United States

Supreme Court has recognized a relevant exception to this rule:

      [T]he circumstances under which such a defendant may invoke
      the bar of double jeopardy in a second effort to try him are

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      limited to those cases in which the conduct giving rise to the
      successful motion for a mistrial was intended to provoke the
      defendant into moving for a mistrial.
Id., at 679. The Pennsylvania Supreme Court has determined that the

Pennsylvania Constitution provides parallel protections:

      [T]he double jeopardy clause of the Pennsylvania Constitution
      prohibits retrial of a defendant not only when prosecutorial
      misconduct is intended to provoke the defendant into moving for
      a mistrial, but also when the conduct of the prosecutor is
      intentionally undertaken to prejudice the defendant to the point
      of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).

      This Court has recognized that

      [p]rosecutorial    misconduct      includes     actions    intentionally
      designed to provoke the defendant into moving for a mistrial or
      conduct by the prosecution intentionally undertaken to prejudice
      the defendant to the point where he has been denied a fair trial.
      The double jeopardy clause of the Pennsylvania Constitution
      prohibits retrial of a defendant subjected to the kind of
      prosecutorial misconduct intended to subvert a defendant's
      constitutional rights. However, Smith did not create a per se bar
      to retrial in all cases of intentional prosecutorial overreaching.
      Rather, the Smith Court primarily was concerned with
      prosecution tactics, which actually were designed to demean or
      subvert the truth seeking process. The Smith standard
      precludes retrial where the prosecutor’s conduct evidences intent
      to so prejudice the defendant as to deny him a fair trial. A fair
      trial, of course is not a perfect trial. Errors can and do occur.
      That is why our judicial system provides for appellate review to
      rectify such errors. However, where the prosecutor’s conduct
      changes from mere error to intentionally subverting the court
      process, then a fair trial is denied. A fair trial is not simply a lofty
      goal, it is a constitutional mandate, ... [and][w]here that
      constitutional mandate is ignored by the Commonwealth, we
      cannot simply turn a blind eye and give the Commonwealth
      another opportunity.




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Commonwealth v. Chmiel, 777 A.2d 459, 463-464 (Pa. Super. 2001)

(citations and quotation marks omitted).

      Here, a new trial was granted not due to any conduct by the

Commonwealth, but due to the trial court’s failure to assiduously ensure that

Rice had knowingly and voluntarily waived his right to counsel at all critical

stages of the proceeding. See Trial Court Order, 11/23/15, at 20-21. Thus,

double jeopardy principles do not act to bar the re-trial, and Rice is due no

relief on his first claim on appeal.

      In his second claim, Rice argues that the trial court erred in failing to

grant him a directed verdict on his affirmative defense of entrapment. The

Crimes Code defines the defense of entrapment in relevant part as follows:


      § 313. Entrapment

      (a) General Rule.—A public law enforcement official or a
      person acting in cooperation with such an official perpetrates an
      entrapment if for the purpose of obtaining evidence of the
      commission of an offense, he induces or encourages another
      person to engage in conduct constituting such offense by either:

      (1) making knowingly false representations designed to induce
      the belief that such conduct is not prohibited; or

      (2) employing methods of persuasion or inducement which
      create a substantial risk that such an offense will be committed
      by persons other than those who are ready to commit it.

      (b) Burden of Proof.—Except as provided in subsection (c) of
      this section, a person prosecuted for an offense shall be
      acquitted if he proves by a preponderance of the evidence that
      his conduct occurred in response to an entrapment.

18 Pa.C.S.A. § 313(a)-(b). Pennsylvania courts apply an objective test for

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entrapment:

      [T]he test for entrapment has shifted in emphasis from a
      consideration of a particular defendant’s readiness to commit
      crime, a subjective test, to an evaluation of the police conduct,
      an objective test, to determine whether there is a substantial
      risk that the offense will be committed by those innocently
      disposed. To determine whether an entrapment has been
      perpetrated in any particular case, therefore, the inquiry will
      focus on the conduct of the police and will not be concerned
      with the defendant’s prior criminal activity or other indicia of a
      predisposition to commit crime.

Commonwealth v. Marion, 981 A.2d 230, 238 (Pa. Super. 2009),

(quotation and citation omitted; emphasis added). As we explained:

      [T]he objective approach conceives the entrapment defense as
      aimed at deterring police wrongdoing. The defense provides a
      sanction for overzealous and reprehensible police behavior
      comparable to the exclusionary rule. The focus of the defense is
      on what the police do and not on what kind of person the
      particular defendant is—whether he is innocent or predisposed to
      crime.

Id., at 238 (quotation and citation omitted).

      “In their zeal to enforce the law, government agents may not originate

a criminal design, implant in an innocent person’s mind the disposition to

commit a criminal act and then induce commission of the crime so that the

government may prosecute.” Commonwealth v. Borgella, 611 A.2d 699,

701 (Pa. 1992) (citing Jacobson v. United States, 503 U.S. 540, (1992)

(holding evidence supported entrapment instruction where paid police

informant   used   false   pretenses    to   secure   defendant’s   confidence,

encouraged defendant to buy drugs, and offered defendant lucrative job on

condition that defendant provide drugs)).

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      Where police ‘do no more than afford appellant an opportunity’
      to commit an illegal act, their actions are not considered
      sufficiently outrageous police conduct to support an entrapment
      defense. Thus, the availability of the entrapment defense under
      the statute does not preclude the police from acting “so as to
      detect those engaging in criminal conduct and ready and willing
      to commit further crimes should the occasion arise. Such indeed
      is their obligation.”

      Pennsylvania case law has consistently held:

         [T]he determination of whether police conduct constitutes
         entrapment is for the jury, unless the evidence of police
         conduct clearly establishes entrapment as a matter of law….
         Thus, after the defense of entrapment has been properly
         raised, the trial court should determine the question as a
         matter of law wherever there is no dispute as to the
         operative facts relating to the defense.

Marion 981 A.2d at 239 (citations omitted). In other words, to prevail on an

entrapment defense as a matter of law, the defendant must prove that the

evidence of entrapment was so overwhelming that it could admit of no other

conclusion. See Commonwealth v. Weiskerger, 554 A.2d 10, 14 (Pa.

1989).

      Rice’s defense centers on the cover story utilized by the undercover

officer when he first approached Rice to purchase heroin. The undercover

officer testified that he utilized a cover story that he wanted to purchase

heroin for his girlfriend. See N.T., 1/18/14, at 63. “I don’t use heroin, I have

a girlfriend that has an addiction. There had been some relationship

problems between her and I because of it.” Id.

      The informant that the undercover officer utilized to introduce him to

Rice testified to an almost identical cover story. The first difference in the

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story was that, instead of a girlfriend, it was the undercover officer’s wife

that was addicted to heroin. See id., at 184. Of most importance to this

appeal, however, is that the informant testified that he told Rice that the

undercover officer’s wife needed heroin because she was “dope sick.” Id.

The informant further testified that Rice had responded that he didn’t deal

heroin anymore, but he might be able to get some from his old supplier. See

id.

      Rice argues that this testimony establishes entrapment as a matter of

law. We disagree. Even giving credence only to the testimony that supports

Rice’s argument, we conclude that a reasonable jury could find that the

cover story provided by the informant was not such egregious conduct that it

created a substantial risk that it would induce an innocent person to commit

the crime. A rational jury could conceivably find that Rice, if he were truly

innocent, would decline to involve himself in the illicit transaction, and

instead refer the undercover officer to a treatment center for his significant

other. The trial court correctly determined that this question is best left in

the hands of the jury, as the ultimate trier of fact. Rice is due no relief on

this argument.

      After reviewing Rice’s arguments and his application for relief, we

conclude that none of his requests have merit, and therefore affirm.

      Order affirmed. Application for relief denied without prejudice to raise

the arguments in the trial court. Case remanded. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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