J-S58036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

ORVAL WALTER WATSON, JR.

                          Appellee                    No. 507 WDA 2014


                  Appeal from the Order Dated March 11, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001074-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 6, 2014

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Fayette County Court of Common Pleas, granting the pretrial

motion for writ of habeas corpus filed on behalf of Appellee, Orval Walter

Watson, Jr. We reverse and remand for further proceedings.

        The relevant facts and procedural history of this appeal are as follows.

In April 2013, Officer Mandy Mudrick, working undercover for the Southwest




candy     w4m

          hey guys. i have tomorrow free and am available. i love
          my beans, but dont have the cash for them and really dont
          like taking the chances buying them. so if someone wants

_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S58036-14


         to hook me up with some percs or oxys i will gladly trade
         them a little affection if you know what i mean :)

         im in belle vernon and i host

         im real. the pens won last night and iginla scored.

         email me!




Id.   The following email exchange then took place between Appellee and



         Officer Mudrick:     nice. 10 MS for sex?

         Appellee:            Sure can you send pic I am sending
                              one. Dont want no popo lol

         Appellee:            You have a number I can call or text
                              can meet very soon

         Officer Mudrick:     phones off      money problem but
                              should be on tomorro

         Appellee:            Hi are you still interested?

         Officer Mudrick:     Ya you available tomorrow? 10 MS for
                              whatever u want babe :)

         Appellee:            Yes, before 2pm in the afternoon still
                              need to know where to go or meet
                              cutie

         Officer Mudrick:


         Appellee:            Yes I could, you still want to do this
                              right

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        Officer Mudrick:      yeah i do. we meet in belle vernon in
                              the park across the street from my

                              have the goods then we go back to
                              my place and have a good time :)
                              sound good? any ideas what u want 2
                              do with me?

        Appellee:             I have many ideas of what I would
                              like to do with you lol ok I will chat
                              with you tomorrow.

Id.    Appellee   and   Officer    Mudrick   ultimately   agreed   to   meet   at

approximately 3:00 p.m. on April 24, 2013, but Appellee failed to show.

Appellee sent Officer Mudrick an apologetic email explaining he had been

                                  n his way to the meeting location. Appellee




Id. Appellee and Officer Mudrick arranged to meet at approximately 1:30

p.m. on April 29, 2013. Appellee arrived at the agreed-upon location and

asked Officer Mudrick if she was the person who posted the Craigslist ad.

Officer Mudrick confirmed and asked Appellee if he brought anything.

Appellee handed Officer Mudrick a baggie containing morphine pills, at which

point Appellee was arrested. The police recovered a second bag of morphine



      The Commonwealth charged Appellee with one (1) count each of

delivery of a controlled substance, possession with intent to deliver

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J-S58036-14


                                                                       1
                                                                           On

November 25, 2013, Appellee filed a pretrial motion for writ of habeas

corpus. The trial court held a hearing on the motion on December 16, 2013.

                                                                      habeas

corpus and dismissed all charges against Appellee. The Commonwealth filed

a timely notice of appeal on March 31, 2014. On the same date, the court

ordered the Commonwealth to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The court issued an amended

Rule 1925(b) order on April 7, 2014. On May 13, 2013, the Commonwealth

filed its Rule 1925(b) statement and a petition to accept the Rule 1925(b)

statement as timely filed.           On May 15, 2014, the court granted the



timely filed.2


____________________________________________


1
    35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), respectively.
2
  This Court may address the merits of a criminal appeal where the appellant
failed to file a timely Rule 1925(b) statement if the trial court had adequate
opportunity and chose to prepare an opinion addressing the issues being
raised on appeal. See generally Commonwealth v. Burton, 973 A.2d
428 (Pa.Super. 2008) (en banc) (addressing post-amendment Rule 1925
and ramifications regarding untimely Rule 1925(b) statement). See also
Commonwealth v. Grohowski, 980 A.2d 113 (Pa.Super. 2009) (stating
rule permitting late filing of Rule 1925(b) statement applies to
Commonwealth as well as to represented criminal defendant). Here, the
                                                    to accept its Rule 1925(b)
statement as timely filed.       Furthermore, the court issued an opinion
accompanying its order, which it adopted as its Rule 1925(a) opinion. This
(Footnote Continued Next Page)


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      On appeal, the Commonwealth raises a single issue for review:

           WHETHER THE COURT ERRED IN DISMISSING THE CASE
           DUE TO OUTRAGEOUS POLICE CONDUCT AND/OR
           ENTRAPMENT BECAUSE OF THE PLACING OF THE AD IN
           QUESTION.



      The Commonwealth ar

persuade or induce Appellee to commit the offenses in question for purposes

of entrapment. The Commonwealth contends the interaction began with an

advertisement on Craigslist that made it abundantly clear the person who

posted the ad was seeking drugs.                 According to the Commonwealth, the

police did not target Appellee; Appellee unilaterally responded to the

Craigslist ad.   Likewise, the Commonwealth avers Appellee made his own

decision to arrange a meeting with Officer Mudrick and to deliver the pills.

The Commonwealth stresses that Officer Mudrick had no preexisting



of the crime in any way.           The Commonwealth concludes the court erred

when it determined Appellee had established the defense of entrapment as a

matter of law and dismissed the charges against him. We agree.

      The Crimes Code defines the defense of entrapment in relevant part as

follows:

                       _______________________
(Footnote Continued)


review is unimpeded.



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        § 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). With regard to this defense,


        entrapment, as set forth in Commonwealth v. Jones,
        363 A.2d 1281 (Pa.Super. 1976):

           [T]he test for entrapment has shifted in emphasis

           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

           criminal activity or other indicia of a predisposition to
           commit crime.

        Id. at 1285   (emphasis  added).      See    also
        Commonwealth v. Weiskerger, 520 Pa. 305, 311, 554


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       A.2d 10, 13 (1989) (holding conduct of police is chief
       inquiry in entrapment analysis). As this Court 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.

       Commonwealth v. Lucci, 662 A.2d 1, 3 (Pa.Super.
       1995), appeal denied, 543 Pa. 710, 672 A.2d 305 (1995)
       (citation omitted). Accord Commonwealth v. Borgella,
       531 Pa. 139, 611 A.2d 699 (1992); Commonwealth v.
       Medley, 725 A.2d 1225 (Pa.Super. 1999), appeal denied,
       561 Pa. 672, 749 A.2d 468 (2000); Commonwealth v.
       McGuire
       to enforce the law, government agents may not originate a

       disposition to commit a criminal act and then induce
       commission of the crime so that the government may
                     Borgella, supra at 144 (citing Jacobson v.
       United States, 503 U.S. 540, 112 S.Ct. 1535, 118
       L.Ed.2d 174 (1992)). See, e.g., Borgella, supra at 143-
       44 (holding evidence supported entrapment instruction
       where paid police informant used false pretenses to secure
                                  ncouraged defendant to buy
       drugs, and offered defendant lucrative job on condition
       that defendant provide drugs); Commonwealth v.
       Wright, 578 A.2d 513 (Pa.Super. 1990) (en banc), appeal
       denied, 526 Pa. 648, 585 A.2d 468 (1991) (holding
       entrapment established as matter of law where police
       helped informant cultivate false friendship with defendant
       in order for informant to persuade defendant to purchase
       and supply drugs); Lucci, supra at 7-8 (holding
       outrageous and egregious police conduct constituted
       entrapment as matter of law where confidential informant

       knew defendant had just returned from drug rehabilitation,
       confidential informant appealed to bonds of friendship and
       sympathy engendered by his mot


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J-S58036-14


         death, and repeatedly approached defendant about selling




         considered sufficiently outrageous police conduct to
         support an entrapment defense.      Commonwealth v.
         Morrow, 650 A.2d 907, 913 (Pa.Super. 1994), appeal
         denied, 540 Pa. 648, 659 A.2d 986 (1995). See also
         Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa.Super.
         2003), appeal denied, 579 Pa. 692, 856 A.2d 834 (2004)
         (providing opportunity without attempting to overcome

         of outrageousness necessary to find entrapment as matter
         of law).

Commonwealth v. Marion, 981 A.2d 230, 238-39 (Pa.Super. 2009),

appeal   denied,   605   Pa.    697,   990   A.2d   729   (2010).   See   also

Commonwealth v. Stokes, 400 A.2d 204 (Pa.Super. 1979) (stating offer

to purchase heroin alone did not rise to level of entrapment where



         Thus, the availability of the entrapment defense under the

         detect those engaging in criminal conduct and ready and
         willing to commit further crimes should the occasion arise.
                                          Morrow, supra at 914.

         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

            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.

         Lucci,    supra   at    3     (quoting   Commonwealth      v.

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        Thompson, 484 A.2d 159, 163-64 (Pa.Super. 1984)).
        See, e.g., Commonwealth v. Mance, 619 A.2d 1378
        (Pa.Super. 1993),      , 539 Pa. 282, 652 A.2d 299 (1995)
        (holding matter of entrapment properly submitted to jury
        where operative facts are disputed). Importantly, the
        court may also consider, based upon the operative facts,
        whether it can reject an entrapment defense as a matter of
        law. Morrow, supra at 914. Operative facts are:

           [T]hose that are necessary for [a defendant] to
           prove by a preponderance of the evidence that he
           was entrapped.      Under the objective test for
           entrapment, these would be facts that go to the
           course of conduct of a government officer or agent
           that would fall below standards to which common
           feelings respond, for the proper use of government
           power.

        Lucci, supra at 4 (citation omitted).

Marion, supra at 239.

     Under certain circumstances, police conduct in a criminal investigation

may be so egregious as to constitute a violation of due process.       Mance,

supra at 1381.

        Only in the rarest and most outrageous circumstances will
        government conduct in a criminal investigation be found to
        violate due process.        Before the conduct of law
        enforcement officials or government agents will be found
        to have vi
        conduct was so grossly shocking and so outrageous as to
        violate the universal sense of justice. The establishment of
        a due process violation generally requires proof of
        government overinvolvement in the charged crime and

        government orchestrated and implemented criminal
        activity. Moreover, for due process to bar a conviction, the

        must be malum in se or amount to engineering and
        direction of the criminal enterprise from beginning to end.


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Id. (internal citations and quotation marks omitted) (emphasis in original).

     Instantly, the operative facts are not in dispute.        Officer Mudrick

posted a generic advertisement on Craigslist in which she pretended to be a

nineteen-year-

                                        itiated contact with Officer Mudrick by

replying to the ad. In his initial message, Appellee expressed interest and

said he had MS Contin (morphine) and Vicodin pills.            Officer Mudrick




was still interested.    The Craigslist ad merely afforded Appellee an

opportunity to commit the offense of delivery of a controlled substance. See

Marion, supra.    The police did not target or have any prior contact with

Appellee, and the ad was open to anyone who visited Craigslist.        The ad

indicated the poster was looking to trade sexual favors for drugs; it was not

directed at Appellee and, absent more, did not constitute entrapment. See

Stokes, supra.



exchange for sex does not change our conclusion.       At that point, Appellee

had already initiated contact with Officer Mudrick and asked if she was

interested in the pills he possessed.    Appellee immediately agreed to the


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J-S58036-14


proposed exchange without further prompting and began to arrange a time

and place to meet.      Nothing in the email conversation between Officer

Mudrick   and    Appellee   indicates    Officer    Mudrick   was   overzealous    or

                                                                                  See

Zingarelli, supra; Lucci, supra.           The initial plan to meet failed only

because Appellee was involved in a car accident. Appellee then sent Officer

Mudrick an email in which he apologized and indicated he was still interested

in meeting up with her.         Appellee had not changed his mind about

participating in a sex-for-

few days later proposing a new meeting time was not an attempt to lure

Appellee back.    The evidence of record shows the police conduct, viewed

objectively, did nothing more than afford Appellee an opportunity to commit

an illegal act by exchanging drugs for sex. Therefore, as a matter of law,

the police actions were insufficient to support an entrapment defense. See

Marion, supra

commission of the crime was not so outrageous as to constitute a violation

of due process.    See Mance, supra.             Accordingly, we reverse the order

                                                     habeas corpus and remand for

further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

      Judge Platt joins this memorandum.


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     President Judge Emeritus Bender files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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