J-S80039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

ANDREW LEWIS LEGO

                             Appellant                       No. 572 MDA 2016


            Appeal from the Judgment of Sentence March 21, 2016
           in the Court of Common Pleas of Northumberland County
              Criminal Division at No(s): CP-49-CR-0000465-2015


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                  FILED JANUARY 03, 2017

        Appellant, Andrew Lewis Lego, appeals from the March 21, 2016,

judgment of sentence of fourteen months to two and one-half years of

incarceration imposed after his conviction for possession with intent to

deliver a controlled substance, delivering a controlled substance, and

criminal use of a communication facility.1 We affirm.

        Appellant was arrested as a result of a Pennsylvania State Police

investigation    which      utilized   controlled   buys    made   by   a   confidential

informant, William Register.           See Notes of Testimony (N. T.), 1/14/16, at

19-26.     Mr. Register and Appellant knew each other previously, as they

played pool together.         Id. at 70.       Appellant had a prescription for pain

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1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 7512.
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medication but reported forty of the pills stolen. N. T. at 102-103. On June

10, 2014, and June 19, 2014, respectively, Mr. Register purchased nine pills

of Oxyocodone and eight pills of Oxycodone from Appellant. Id. at 27-28,

33-34, 75-81. Each time, Mr. Register paid Appellant with $40.00 of pre-

recorded buy money.       Id. at 28, 33-34.     While arranging the second

controlled buy, Mr. Register called Appellant seven times due to bad cell

phone reception. Id. at 76.

      Appellant testified in his own defense.   Id. at 96.   Appellant stated

that Mr. Register asked Appellant for pain medication and harassed him on

the phone and at pool games. Id. at 98-101. Appellant testified that he felt

sorry for Mr. Register, who suffered from foot pain, and eventually gave him

the pills. Id. at 101-102. Appellant denied that he had accepted money in

exchange for the pills. Id. at 105.

      In his opening argument, Appellant mentioned an entrapment defense.

At the close of testimony, the trial court stated that it had not heard any

evidence that would justify instructing the jury on entrapment, so the court

did not wish Appellant to mention entrapment in his closing.      Id. at 108.

Trial counsel did not object but instead stated he felt there was some

evidence to justify the instruction. Id. at 109. The court made its ruling,

and trial counsel did not object. Id.

      On January 14, 2016, following trial, a jury convicted Appellant of two

counts of possession with intent to deliver a controlled substance, two

counts of delivering a controlled substance, and two counts of criminal use of

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a communication facility.          The Commonwealth withdrew two charges of

possession of a controlled substance.2           On March 21, 2016, the court

sentenced Appellant to an aggregate sentence of fourteen months to two

and one-half years of incarceration.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement.     The trial court issued a statement in lieu of a formal opinion

pursuant to Pa.R.A.P. 1925(a).

        Herein, Appellant presents two issues for our review:

        I. Whether the court erred in denying [Appellant’s] request to
        have a jury instruction of entrapment read to the jury.

        II. Whether the court erred in not permitting defense counsel to
        argue the defense of entrapment during his closing argument.

Appellant’s Brief at 6 (unnecessary capitalization omitted).

        First, Appellant argues that the trial court erred in denying his request

to have the jury charged with entrapment. Appellant has waived this issue.

Under the rules of criminal procedure,

        the mere submission and subsequent denial         of proposed points
        for charge that are inconsistent with or          omitted from the
        instructions actually given will not suffice to   preserve an issue,
        absent a specific objection or exception to       the charge or the
        trial court’s ruling respecting the points.

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005); Pa.R.Crim.P.

603, 647(b); Pa.R.A.P. 302. When the trial court informed Appellant that it

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2
    35 P.S. § 780-113(a)(16).



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would not permit a charge on entrapment, counsel replied that he

understood the court’s ruling but felt there was some evidence to justify the

instruction. Trial counsel presented that evidence to the court. The court

then reiterated that it was not going to give the charge, and Appellant

should not mention it in his closing.             Again, counsel did not object.

Consequently, Appellant has waived this issue for purposes of appeal.

      Next, Appellant argues that the court erred in not permitting him to

argue the defense of entrapment during his closing argument.

      Appellant   has   also    waived    this    issue   by   failing   to   lodge   a

contemporaneous objection at trial.        See Commonwealth v. May, 887

A.2d 750, 758 (Pa. 2005) (“To the extent the claims would sound in trial

court error, they are waived due to the absence of contemporaneous

objections.”); see also Commonwealth v. Montalvo, 956 A.2d 926, 937

(Pa. 2008) (noting that failure to object to order of closing arguments

contemporaneously results in appellate waiver); see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).

      Our review of the record reveals that at no time did trial counsel lodge

an objection to the trial court’s ruling.        Consequently, he has waived this

issue for purposes of appeal.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2017




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