J-S50018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BRANDON L. CRAWFORD                       :
                                           :
                    Appellant              :    No. 1830 WDA 2017

              Appeal from the Order Entered November 1, 2017
           In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0005705-2016


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 16, 2018

      Brandon L. Crawford appeals from the judgment of sentence imposed

on November 1, 2017, in the Court of Common Pleas of Westmoreland County,

upon being found guilty by a jury of delivery of a non-controlled substance,

35 P.S. § 780-113(a)(35).       Crawford was sentenced to a term of 27 – 54

months’ incarceration. In this timely appeal, Crawford argues the trial court

erred in failing to instruct the jury as to the affirmative defense of entrapment.

After a thorough review of the submissions by the parties, relevant law, and

the certified record, we affirm.

      We quote the trial court for a recitation of the facts underlying this

appeal.

      A criminal trial was held in this matter from August 9, 2017 to
      August 10, 2017. [Crawford] was accused of selling a police
      informant, Charles Brant, a non-controlled substance during a
      controlled buy arranged by Officer Garrett McNamara and
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        Detective Toni Marcocci. According to the evidence presented by
        the Commonwealth, Mr. Brant contacted [Crawford] by telephone
        and requested sixty dollars’ worth of cocaine. The controlled buy
        was then arranged and conducted at an address known to be
        [Crawford’s] address. The arrangements included providing Mr.
        Brant with sixty dollars in purchase money, bodily searching Mr.
        Brant before and after the controlled buy, providing Mr. Brant with
        transportation to and from the buy, and observing [Crawford’s]
        front porch during the controlled buy. Mr. Brant testified that
        [Crawford] handed him a piece of mail from [Crawford’s] mail box
        and inside was a bag containing a white substance. At the
        conclusion of the buy, Mr. Brant got into Detective Marcocci’s
        vehicle and provided the mail with the bag to the detective. The
        substance was later tested and was not cocaine, but it appeared
        to be cocaine in packaging, appearance, and price based on the
        experience and testimony of Officer McNamara and Detective
        Marcocci.

Trial Court Opinion, at 1.

        Against this factual background, Crawford now argues the trial court

erred in failing to instruct the jury, sua sponte, regarding the affirmative

defense of entrapment.1 Specifically, Crawford states: “Although no request

for such instruction was made by trial counsel, such instruction should have

been given, with the evidence presented at trial.” Appellant’s Brief at 5.

“Under these circumstances, an entrapment instruction would have been

appropriate, as there was no history indicated of any drug dealing activities

by Mr. Crawford, and he did not even sell Mr. Brant any actual cocaine.” Id.

at 6.

        Our standard of review for a challenge to jury instructions is as follows:

           Our standard of review regarding jury instructions is
           limited to determining whether the trial court committed a
____________________________________________


1   See 42 Pa.C.S. § 313, Entrapment.

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            clear abuse of discretion or error of law which controlled
            the outcome of the case. Error in a charge occurs when the
            charge as a whole is inadequate or not clear or has a
            tendency to mislead or confuse rather than clarify a
            material issue. Conversely, a jury instruction will be upheld
            if it accurately reflects the law and is sufficient to guide the
            jury in its deliberations.

            The proper test is not whether certain portions or isolated
            excerpts taken out of context appear erroneous. We look
            to the charge in its entirety, against the background of the
            evidence in the particular case, to determine whether or
            not error was committed and whether that error was
            prejudicial to the complaining party.

            In other words, there is no right to have any particular form
            of instruction given; it is enough that the charge clearly
            and accurately explains the relevant law.

      Krepps v. Snyder, 112 A.3d 1246, 1256 (Pa. Super. 2015)
      (citations and internal quotation marks omitted). Further, “to
      obtain a new trial based on the trial court’s treatment of a jury’s
      question, the moving party must demonstrate in what way the
      trial error caused an incorrect result.” Jeter v. Owens-Corning
      Fiberglas Corp., 716 A.2d 633, 636 (Pa. Super. 1998) (citation
      omitted).

      Further, “A specific and timely objection must be made to preserve a

challenge to a particular jury instruction. Failure to do so results in waiver.”

Commonwealth v. Olsen, 82 A.3d 1041, 1050 (Pa. Super. 2013) (citation

omitted).

      Here, no jury charge regarding entrapment was ever requested, and no

objection to a lack of jury charge regarding entrapment was ever raised. The

law is clear that there is no trial court error in failing to provide a specific jury

charge where that charge was never requested and no objection to the lack

of the charge was raised at trial. Indeed, the failure to request such charge


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or to raise a timely objection means the challenge has been waived.         See

Commonwealth v. Olsen, supra.

       As the trial court cogently stated, “To preserve an issue involving a jury

instruction for appeal, the Defendant must make a specific objection on the

record. Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. Supreme

2005). Since no objection was ever made of record, a ruling was never made

on the matter and no error occurred.” Trial Court Opinion at 2.2

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018


____________________________________________


2The trial court further noted, and we agree, that had the issue not been
waived, Crawford would not be entitled to relief. The trial court stated:

       ...Defendant had the burden to prove “by a preponderance of
       [the] evidence that his conduct occurred in response to an
       entrapment.” 18 Pa.C.S.A. § 313. [Crawford] failed to meet that
       burden, as there was no evidence in the record to establish that
       law enforcement made knowingly false representations designed
       to induce [Crawford] into believing that his conduct was not
       prohibited, or that the controlled buy utilized by law enforcement
       led [Crawford] to commit an offense that he otherwise would not
       have committed.

Id. at 2-3.

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