J-S44029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

MARK A. GNACINSKI, JR.

                         Appellant                 No. 59 WDA 2015


           Appeal from the PCRA Order Entered December 12, 2014
                In the Court of Common Pleas of Erie County
              Criminal Division at No: CP-25-CR-0001036-2012


BEFORE: LAZARUS, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.                    FILED NOVEMBER 25, 2015

     Appellant, Mark A. Gnacinski, Jr., appeals from the December 12, 2014

order of the Court of Common Pleas of Erie County (PCRA court) denying

him relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-46.    Upon review, we affirm.

     The PCRA court summarized the relevant background as follows:

     In and around October 2011, [Appellant] came into possession
     of a stolen .38 caliber Smith and Wesson which he offered to sell
     to Mr. Timothy Lawrence. Lawrence did not initially accept that
     offer.   Around the same time, Lawrence was charged with
     driving while his operator’s license was suspended or revoked.
     In an attempt to avoid a mandatory minimum jail sentence, he
     contacted law enforcement agents and offered to cooperate. At
     that time, the agents were interested in “getting guns off the
     street[.]” He advised the agents that he knew some guys who
     sold guns. In particular, he told them that [Appellant] had
     offered to sell him a gun a few weeks before for $300. There
     was a rumor that it had been stolen from a police officer. As a
     result, Lawrence participated in an undercover investigation
     which, after a number of phone calls and text messages,
     eventually led to the purchase of the gun and drugs from
     [Appellant]. [Appellant] proceeded to trial and on July 24, 2013,
     the jury returned a guilty verdict on the charge of receiving
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        stolen property (Count 3) involving the firearm.[1]          It was
        deadlocked on Count 1 (unlawful delivery of hydrocodone),[2]
        firearms not to be carried without a license (Count 4),[3] sale of
        firearms, (Count 5)[4] and criminal use of a communication
        facility (Count 6).[5] It found [Appellant] not guilty of possession
        of hydrocodone (Count 2).[6]
        ....
                On October 4, 2013, [Appellant] was sentenced to serve 9
        to 20 months imprisonment, followed by 24 months of
        consecutive probation.        Subsequently, the Commonwealth
        elected not to try [Appellant] on the deadlocked counts.
        [Appellant] filed a post-sentence motion which was denied by
        this [c]ourt. On November 1, 2013, he took a timely appeal. He
        alleged that this [c]ourt erred when it refused to instruct the jury
        on the affirmative defense of entrapment as it applied to the
        receiving stolen property charge. Appellate counsel filed an
        [Anders v. California, 386 U.S. 738 (1967)] brief and, after
        review, the Pennsylvania Superior Court found that the claim
        had been waived.[7] Therefore, the judgment of sentence was
        affirmed.

PCRA Court Opinion, 11/21/14, at 1-2.

        On September 25, 2014, Appellant timely filed a first PCRA petition pro

se. The PCRA court appointed counsel, who filed a supplemental petition on

November 13, 2014. On December 12, 2014, the PCRA court entered a final

order denying Appellant’s PCRA petition, and this appeal followed. Appellant

was not ordered to file a Pa.R.A.P. 1925(b) concise statement of errors


____________________________________________


1
    18 Pa.C.S.A. § 3952.
2
    35 Pa.C.S.A. § 780-113(a)(30).
3
    18 Pa.C.S.A. § 6106 (a)(1).
4
    18 Pa.C.S.A. § 6111(c).
5
    18 Pa.C.S.A. § 7512(a).
6
    35 Pa.C.S.A. § 780-113(a)(16).
7
    1768 WDA 2013.



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complained of on appeal.         The PCRA court issued a Pa.R.A.P. 1925(a)

opinion requesting that its December 12, 2014 order be affirmed for the

reasons set forth in its Pa.R.A.P. 907 Notice.           Pa.R.A.P. 1925(a) Opinion,

1/6/15.

      On appeal, Appellant raises one issue for our review:

      Whether the [PCRA court] erred in denying PCRA relief in that
      the Appellant was afforded ineffective assistance of counsel
      arising from counsel’s failure to object to the trial court error in
      declining to instruct the jury as to the defense of entrapment in
      regard to the criminal charge of receiving stolen property in
      conjunction with all of the other criminal charges?

Appellant’s Brief at 2.

      “In PCRA appeals, our scope of review is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in   the     light   most    favorable   to      the    prevailing     party.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (en banc) (internal quotation omitted). We apply a mixed standard of

review, deferring to the PCRA court’s factual findings and credibility

determinations,      but   reviewing   de   novo   its    legal   conclusions.      Id.

Additionally, we may affirm the PCRA court on any basis supported by the

record. Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super.

2014).

      Appellant alleges that trial counsel was “ineffective in failing to assert

an objection to the trial court’s determination that the affirmative defense of

entrapment did not apply to the count for receiving stolen property.”



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Appellant’s Brief at 5. Appellant argues that, because the jury questioned

whether they could apply the entrapment defense to any of the charges and,

ultimately, was hung on four of the charges, that some members of the jury

would have applied the defense of entrapment to the charge of receiving

stolen property. Id. Appellant further argues that there was no legal basis

to exclude the entrapment defense as to the charge of receiving stolen

property. Id. at 6.

       The PCRA allows relief for a petitioner who pleads and proves by a

preponderance of the evidence ineffective assistance of counsel (IAC)

“which, in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.”       42 Pa.C.S.A. § 9543(a)(2)(ii).      “It is well-established

that counsel is presumed effective, and [a PCRA petitioner] bears the burden

of proving ineffectiveness.” Reyes-Rodriguez, 111 A.3d at 779-80.

       To prevail on an IAC claim, a PCRA petitioner must plead and
       prove by a preponderance of the evidence that (1) the
       underlying legal claim has arguable merit; (2) counsel had no
       reasonable basis for acting or failing to act; and (3) the
       petitioner suffered resulting prejudice. A petitioner must prove
       all three factors of the “Pierce[8] test,” or the claim fails.

Id. at 780 (internal citations omitted).         Pierce “reiterates the preexisting

three-prong test for ineffective assistance of counsel in Pennsylvania and

holds it to be consistent with the two-prong performance and prejudice test
____________________________________________


8
    Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).



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provided   by     the   United   States    Supreme   Court   in   Strickland   v.

Washington, 466 U.S. 668 (1984).” Commonwealth v. Eichinger, 108

A.3d 821, 831 (Pa. 2014) (citing Pierce, at 527 A.2d at 976–77) (parallel

citations omitted).

      “A defendant is entitled to an instruction on any recognized defense

which has been requested, which has been made an issue in the case, and

for which there exists evidence sufficient for a reasonable jury to find in his

or her favor.” Commonwealth v. Lightfoot, 648 A.2d 761, 764 (Pa. 1994)

(Opinion Announcing the Judgment of the Court) (quoting Commonwealth

v. Weiskerger, 554 A.2d 10, 14 (Pa. 1989)). “Where a defendant requests

a jury instruction on a defense, the trial court may not refuse to instruct the

jury regarding the defense if it is supported by evidence in the record.”

Commonwealth v. DeMarco, 809 A.2d 256, 261 (Pa. 2002).

      The defense of entrapment is defined by the Crimes Code 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.

      (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 evidence that his
      conduct occurred in response to an entrapment.


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     (c) Exception.--The defense afforded by this section is
     unavailable when causing or threatening bodily injury is an
     element of the offense charged and the prosecution is based on
     conduct causing or threatening such injury to a person other
     than the person perpetrating the entrapment.

18 Pa.C.S.A. § 313.

     The entrapment defense “is based upon an objective standard

intended to deter overreaching on the part of law enforcement and those

individuals acting in cooperation with law enforcement, such as confidential

informants. However, the government may only be held accountable for the

acts of a third party if those acts were taken at the request or direction of

law enforcement.” Commonwealth v. Willis, 990 A.2d 773, 775-76

(Pa. Super. 2010).

     Appellant argues that Commonwealth v. Phillips, 654 A.2d 591 (Pa.

Super. 1995), provides precedent for applying the entrapment defense to

the charge of receiving stolen property. We agree with the PCRA court that

Appellant’s reliance on Phillips is misplaced. As the PCRA court stated:

     In Phillips, the police set up a reverse sting operation targeting
     subjects who were buying or selling stolen merchandise. An
     undercover police officer went to Philips’ grocery store and sold
     him a VCR that was in the original box displaying a Sears label.
     Phillips actually called Sears to determine if the VCR had been
     stolen.     In spite of his efforts to verify ownership, the
     Commonwealth pressed the prosecution.             The trial court
     dismissed a number of the counts pre-trial finding entrapment or
     due process violations. At trial, after the Commonwealth’s case
     in chief, the trial court granted judgment of acquittal.

     The fact that the entrapment defense applied in Phillips is of no
     moment. In the case sub judice, the police conduct did not
     place the stolen item in [Appelant’s] possession, nor did it affect
     any other element relevant to the commission of the crime. In
     fact, [Appellant’s] possession of the stolen item predated the

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      undercover operation and continued through the police
      investigation in this case. Stated another way, the crime was
      committed independently of the police conduct. Moreover, their
      conduct did not provide [Appellant] an opportunity to commit
      the crime (which is not barred by the entrapment defense) or in
      any way influence him to commit it.

PCRA Court Opinion, 11/21/14, at 7-8.

      Indeed, it is undisputed that Appellant was in possession of the

firearm, the stolen item, before police involvement in the instant case. Trial

counsel, therefore, could not have argued that the police, or anyone acting

in cooperation with them, induced or encouraged Appellant to receive or

retain the item. Because the record did not support an entrapment defense,

the trial court did not err refusing to instruct the jury on entrapment

regarding Appellant’s receiving stolen property charge.

      The test for ineffective assistance of counsel is cumulative, and failure

to establish one of the three prongs is fatal to the claim.               See

Commonwealth v. Jones, 951 A.2d 294, 302 (Pa. 2008) (“Failure to

establish any one of these prongs is fatal to an appellant's claim.”). Because

the evidence in the record did not support the application of entrapment,

trial counsel was not ineffective for failing to pursue this defense.

Accordingly, Appellant’s underlying legal claim is without arguable merit, and

he cannot satisfy the first factor of the Pierce test.      Consequently, we

conclude that he is not entitled to relief on his IAC claim, and affirm the

order of the PCRA court.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




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