J-A28042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HENRY CHRISTOPHER MALONEY                  :
                                               :
                       Appellant               :    No. 377 EDA 2019

      Appeal from the Judgment of Sentence Entered November 29, 2018
    In the Court of Common Pleas of Pike County Criminal Division at No(s):
                          CP-52-CR-0000297-2017


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED FEBRUARY 26, 2020

        Appellant, Henry Christopher Maloney, appeals from the judgment of

sentence entered in the Court of Common Pleas of Pike County, which sitting

as finder of fact in Appellant’s non-jury trial found him guilty of Driving Under

the    Influence—Second Offense          (“DUI”),   pursuant   to   75   Pa.C.S.A. §

3802(a)(2). Sentenced to a period of incarceration of not less than two nor

more than six months, Appellant challenges the trial court’s rejection of his

affirmative defense that police entrapment caused his DUI. We affirm.

        At Appellant’s non-jury trial of August 20, 2018, Corporal Daniel Nilon

of the Pennsylvania State Police1 testified that, on August 20, 2016, he and a
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*   Former Justice specially assigned to the Superior Court.

1 Corporal Nilon explained at trial that he still held the rank of trooper during
the time relevant to this case. For ease of discussion, therefore, we will refer
to Corporal Nilon as “Trooper Nilon” or “the trooper” throughout the
memorandum decision.
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fellow trooper responded to a dispatch reporting an attempted child luring into

a vehicle. N.T. 8/20/18, at 25. At the scene, he interviewed two juvenile

boys between the ages of five and ten years old, with their parents present,

and recorded their allegations that Appellant had attempted to convince at

least one of them to sit inside his vehicle with him. N.T. at 25, 51-52.2

       Trooper Nilon went to Appellant’s residence to interview him about the

allegations. Appellant’s son, however, answered the door and informed the

trooper Appellant was not home. The son used his cell phone to call Appellant,

but he said he received no answer. Trooper Nilon explained to Appellant’s son

the reason for their visit and afterward returned to the patrol vehicles when

the son came out moments later and said he was able to reach Appellant on

the phone. N.T. at 26.

       Trooper Nilon spoke with Appellant through his son’s speakerphone.

Specifically, he testified, “I spoke to [Appellant] briefly. I asked where he

was, he refused to tell me. I asked to speak or to meet with him and he

refused to tell me where he was and then he hung up the phone and said he

had nothing to tell me.” N.T. at 26-27. The trooper said he had no further

telephone contact with Appellant, but he acknowledged noticing Appellant’s

slurred speech during the conversation. N.T. at 27, 45.

       Trooper Nilon testified he told Appellant’s son that a warrant would

probably issue against Appellant if Appellant refused to speak with the trooper.
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2 The ultimate resolution of the luring investigation is not germane to the
present appeal.

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N.T. at 43, 46. The trooper went outside again and the son came out minutes

later to report Appellant was on his way to the house. N.T. at 27. The troopers

decided to spread out in the neighborhood in anticipation of his arrival, but

they reached only the end of the short residential street when they

encountered Appellant’s car.         N.T. at 28.   They discerned that Appellant

appeared intoxicated, conducted field sobriety tests, and arrested him for DUI.

A subsequent breath test performed on Appellant registered a .092% BAC.

N.T. at 35.

       In defending against the Commonwealth’s DUI case,3 Appellant

advanced an entrapment theory based on testimony that Trooper Nilon

directed him to drive to his home despite Appellant’s admission that he had

been drinking. N.T. at 59. The trooper did so, Appellant testified, by expressly

warning him “if you don’t drive over here now to talk to us, there’s going to

be an APB put out for your arrest.” N.T. at 59. Appellant’s son and his son’s

girlfriend also testified to this effect, each alleging that Trooper Nilon told

Appellant directly that an “APB” would issue against him if he did not drive

home at that instant. N.T. at 69, 76.

       Contesting the allegation of entrapment, Trooper Nilon repeatedly

testified that in his brief phone conversation with Appellant he asked where

Appellant was and if he could meet with Appellant. N.T. at 41, 42, 44. He

____________________________________________


3 The Commonwealth prosecuted two counts of DUI, one at subsection (a)(1),
incapable of safe driving, and one at subsection (a)(2), general impairment
(BAC .08-.10).

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denied directing or even asking Appellant to drive home, stating, “I never told

him to come to the residence. I asked him where he was and if I can meet

with him.” N.T. at 44. His conversation with Appellant was brief, the trooper

testified, because Appellant replied that he had nothing to tell the trooper and

hung up on him. N.T. at 45, 46, 51.

      In addition to Trooper Nilon’s testimony, the Commonwealth also

produced an audio recording of the phone conversation between the trooper

and Appellant as captured by a microphone worn on the trooper’s lapel in the

ordinary course of his duty. N.T. at 79-80 (explaining how the microphone

was part of an audio/video recording system routinely employed during

investigations of alleged criminal investigations).      The audio recording

established that Trooper Nilon neither directed Appellant to drive home nor

warned him that a warrant would issue against him if he failed to do so. N.T.

at 81-83.

      At the conclusion of evidence, the court considered oral argument and

then took the matter under advisement. N.T. at 84-90. In reaching a verdict,

the court first made relevant findings of fact that Appellant failed to prove by

a preponderance of the evidence that police entrapment caused him to commit

DUI. Further concluding the Commonwealth proved beyond a reasonable

doubt each element of DUI at 75 Pa.C.S.A. § 8802(a)(2), the court found

Appellant guilty on that count. The court acquitted Appellant on the second

DUI charge at subsection 8802(a)(1).       On November 29, 2018, as noted

supra, the court imposed a two to six month sentence.

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       Appellant filed a timely post-sentence motion arguing his verdict was

against the sufficiency or, in the alternative, the weight of the evidence given

his presentation of entrapment testimony. The court conducted a hearing on

the matter on January 10, 2019, after which it entered an order denying the

motion. This timely notice of appeal followed.

       In Appellant’s “Statement of Questions Involved,” he raises six issues

that coalesce to challenge the sufficiency of the evidence because he

presented an entrapment defense warranting judgment of acquittal. First, we

observe our standard of review of a challenge to the sufficiency of the

evidence:

       In reviewing a sufficiency of the evidence claim, we must
       determine whether the evidence admitted at trial, as well as all
       reasonable inferences drawn therefrom, when viewed in the light
       most favorable to the verdict winner, are sufficient to support all
       elements of the offense. Commonwealth v. Moreno, 14 A.3d
       133 (Pa.Super. 2011). Additionally, we may not reweigh the
       evidence or substitute our own judgment for that of the fact
       finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
       2009). The evidence may be entirely circumstantial as long as it
       links the accused to the crime beyond a reasonable doubt.
       Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011).

       Appellant presents a two-prong challenge to the trial court’s rejection of

his entrapment offer of proof. Not only were defense witnesses’ testimonies

sufficiently credible to prove entrapment, Appellant argues, Trooper Nilon’s

testimony, standing alone, also proved Appellant’s entrapment defense. On

this   latter   point,   Appellant   specifically   contends   Trooper    Nilon’s



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acknowledgment that he told Appellant’s son a warrant would likely issue if

Appellant did not talk to the trooper was sufficient evidence that he improperly

induced Appellant to drive while intoxicated, for it was foreseeable that

Appellant would drive home when the son relayed this message.           For the

reasons that follow, we disagree.

        The Pennsylvania Crimes Code makes clear that “a person prosecuted

for an offense shall be acquitted if he proves ... that his conduct occurred in

response to an entrapment.” 18 Pa.C.S. § 313(b).4 An entrapment defense

does not deny that the defendant committed the charged offense, but rather

constitutes an affirmative defense. Commonwealth v. Joseph, 848 A.2d

934, 938 (Pa. Super. 2004). A successful entrapment defense requires the


____________________________________________


4   Entrapment is defined as follows:

        (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.

18 Pa.C.S. § 313(a).



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J-A28042-19



defendant to prove by a preponderance of the evidence that the conduct of

the police or an agent of the police reached such a “level of outrageousness”

as to “make a reasonable person feel compelled to commit the crimes.”

Commonwealth v. Zingarelli, 839 A.2d 1064, 1073-74 (Pa. Super. 2003).

       A review of the record in light of these standards leads us to agree with

the trial court that Appellant did not carry his burden of proof. In this respect,

we readily dismiss the first prong of Appellant’s argument in which he alleges

court error with its credibility determination discrediting the defense

witnesses’ respective and collective testimonies.

       Our standard of review prohibits us from disturbing credibility

determinations that have support in the record, as is the case here. Critically,

the Commonwealth indisputably established that all three defense witnesses

misrepresented what Trooper Nilon said to Appellant during their phone

conversation with one another, as he did not direct Appellant, as they falsely

claimed, to return to his home immediately lest he become the subject of an

APB.    The court, therefore, was free to discredit the entirety of their

testimonies in favor of crediting Trooper Nilon’s, such that we discern no error

in its choosing to do so.

       With respect to the second prong of Appellant’s argument, that Trooper

Nilon’s testimony established the elements of entrapment, the record does not

sustain his assertion. Appellant’s argument turns on the trooper’s testimony

that he informed Appellant’s son that a warrant would likely issue if Appellant

refused to speak with the trooper about the allegations. Trooper Nilon made

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this statement immediately after Appellant abruptly declined the trooper’s

offer to conduct the interview at Appellant’s current location and hung up the

phone. Minutes later, the son emerged from his house to tell the troopers

that Appellant was on his way.

      Reviewing the record in a light most favorable to the Commonwealth as

verdict winner, we find no error in the trial court’s conclusion that Trooper

Nilon reasonably attempted to talk with Appellant about the allegations

against him and appropriately explained to the son the potential consequences

of Appellant’s abrupt refusal to do so. In neither conversation did the trooper

issue a directive or request that Appellant drive home.

      There is no showing by a preponderance of the evidence that Trooper

Nilon’s statement to Appellant’s son reached a “level of outrageousness”

“mak[ing] a reasonable person” in Appellant’s position “feel compelled to

commit the crimes.”     See Zingarelli, supra.      Contrary to the defense

witnesses’ false assertions, Trooper Nilon never said that a warrant would

issue if Appellant did not drive home immediately. Rather, the court credited

the trooper’s testimony that he predicated the possibility of an APB only on

Appellant’s refusal to speak with the trooper. This message was consistent

with the audio recording of Trooper Nilon’s conversation with Appellant

wherein he suggested that they talk over the phone or at Appellant’s then-

current location. Appellant, however, acted on his own accord to drive home

after speaking with his son.




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     Therefore, given the absence of outrageous police conduct likely to

make a reasonable person commit a crime, we discern no error with the trial

court’s determination that Appellant failed to set forth a viable entrapment

affirmative defense. As such, the present appeal merits no relief.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/20




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