J-S02038-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRANDON SCOTT FOURNIER,                    :
                                               :
                       Appellant               :       No. 754 MDA 2019

        Appeal from the Judgment of Sentence Entered January 23, 2019
                in the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0005626-2017

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED MARCH 11, 2020

        Brandon Scott Fournier (“Fournier”) appeals from the judgment of

sentence imposed following his convictions of unlawful contact with a minor

and criminal use of a communication facility.1 We affirm.

        In its Opinion, the trial court set forth the relevant factual and procedural

background as follows:

               On August 24, 2017, Agent [Gordon] Goodrow [(“Agent
        Goodrow”), a supervisory special agent with the Office of the
        Attorney General’s Child Predator Section,] had an undercover
        profile on Grindr, a mobile application that allows men to seek
        other men. On this day, Agent Goodrow began to receive
        messages on the Grindr app from [] Fournier[,] who [had]
        initiated contact. Based upon the conversations between Fournier
        and Agent Goodrow, Fournier was arrested.




____________________________________________


1   18 Pa.C.S.A. §§ 6318(a)(1), 7512(a).
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          The following is the relevant dialogue exchanged between
     Agent Goodrow, who was posing as a fourteen[-]year-old, and
     Fournier[,] on August 24, 2017, that led to Fournier’s arrest[:]

          Fournier: Cute pic U looking for a good time

          Goodrow: Yeah this is my last week before school
          starts

          Fournier: Where u from and u have a clear face pic
          what u in the mood for

          Goodrow: Live in Harrisburg

          Fournier: Tbats not far from me any more pics

          Goodrow: [picture of boy sitting in driver’s seat of car
          with his seatbelt on]

          Fournier: How old are u

          Goodrow: I’ll be 15 in December

          Fournier: What u want to dO

          Goodrow: I haven’t done anything

          Fournier: How are u on here if your 15

          [Fournier:] Does your parents no your gay

          Goodrow: New to this and don’t know any guys my
          age

          [Goodrow:] No they do t

          [Goodrow:] Don’t

          [Goodrow:] It’s gotta be a secret

          [Goodrow:] My mom would be so upset

          [Goodrow:] And her boyfriend would probably be an
          ass

          Fournier: I’m 35 old enough to b your dad let me see
          some more of you


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J-S02038-20


          Goodrow: Mmmmm showed you a pic???

          [Goodrow:] Gotta be careful

          [Goodrow:] Don’t know you

          [Goodrow:] Can’t get in trouble

          ***

          Fournier: Ur parents let u out at 14

          [Fournier:] By yourself

          Goodrow: My mom works downtown and lets me
          come with her

          [Goodrow:] I went over to city island

          [Goodrow:] She will drive me home at 5

          [Goodrow:] When she gets off work

          ***

          Fournier: If u got head from a guy would u cum fast

          ***

          Fournier: Do you want to try it with a guy

          Goodrow: Oh really

          [Goodrow:] How?

          Fournier: Some place outside

          [Fournier:] Its up to you I just don’t want to get in
          trouble for talki,g to u

          ***

          Fournier: Would like to meet up some place

          Goodrow: I can walk somewhere

          Fournier: Where u want to walk to


                                    -3-
J-S02038-20


          Goodrow: I’m at strawberry square right now getting
          something to eat

          [Goodrow:] I can walk to city island after

          Fournier: Ok ill head their now

          ***

          Fournier: I’m nervous about meeting up with u
          because of your age

          ***

          Goodrow: If your not into I can understand

          Fournier: Ill come meet you quick

          [Fournier:] U almost their

          Goodrow: Not yet

          [Goodrow:] What if your a cop? I’m screwed

          Fournier: I’m on my way

          [Fournier:] I’m not a cop

          [Fournier:] When’s the last time u came

          ***

          Goodrow: What if people see us?

          Fournier: Ill b their in 6 min

          Goodrow: I saw security there this morning

          [Goodrow:] I’m just finishing my lunch

          Fournier: Ok

          Goodrow: What if people see us

          Fournier: No one will

          [Goodrow:] Really?


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          [Fournier:] Ill meet u on 3rd st by stsilons

          Goodrow: Where’s that????

          ***

          Fournier: I’m here behind stsilons

          Goodrow: Where we go then?

          Fournier: I know places

          Goodrow: Ok cool

          [Goodrow:] Can’t get caught

          Fournier: Were not going to

          Goodrow: Oh man

          [Goodrow:] I’m excited

          Fournier: U coming or what

          Goodrow: Leaving now

          Fournier: Hurry up

          Goodrow: What you want to do first [smirking face
          emoji]

          [Goodrow:] Damn

          [Goodrow:] On my way

          Fournier: look at you see what u think of me and see
          what u want to do

          ***

          Fournier: Ur not going to get into trouble and I’m not
          going to hurt u

          Goodrow: But you won’t even tell me what you want
          to do and you could def hurt me

          Fournier: Lets just meet first so I know your for real
          and not trying to set me up

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              [Fournier:] U almost here

              ***

              [Fournier:] Hurry up

              [Fournier:] Where u at

              Goodrow: I’m walking

              Fournier: Ok well if u want to do something it needs
              to happen quick

              Goodrow: Kk

              Fournier: U want me to blow u

              Goodrow: Umm ok. How

              [Goodrow:] Where r u

              Fournier: I’m behind stallions theirs an alley way in
              between 704 and stallions

              Goodrow: OkAy

              [Goodrow:] Blue car ?

              Fournier: Yea I’m at the end of the parking lot

              Goodrow: Okay

              Fournier: How close are u

              Goodrow: Almost there

       [N.T., 5/17/18, at 24 (wherein Commonwealth’s Exhibit 3A was
       admitted).2]




____________________________________________


2 The trial court corrected grammatical errors in the original, perhaps
inadvertently, without adding brackets or otherwise making note of the
changes. We have reverted the changes to comport with the original, as it is
found in the certified record.

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J-S02038-20


             On August 24, 2017, [Fournier] was arrested and charged
       with [u]nlawful [c]ontact with [m]inor-[s]exual [o]ffenses and
       [c]riminal [u]se of a [c]ommunication [f]acility.

              On February 8, 2018, [Fournier] filed a [“]Motion for Judicial
       Finding of Entrapment As a Matter of Law.[”] The Commonwealth
       responded and a hearing was held before the [trial court] on May
       17, 2018. After hearing the testimonial evidence of [Agent]
       Goodrow, the [trial c]ourt found that entrapment was not proven
       as a matter of law[,] but allowed [Fournier] to pursue the defense
       at trial.

             A jury trial was held before [the trial c]ourt on September
       27 and September 28, 2018, and [Fournier] was found guilty of
       [the above-mentioned offenses]. The jury also found no
       entrapment by [Agent Goodrow].

             On January 23, 2019, [Fournier] was sentenced to [an
       aggregate term of] 48 to 96 months [in prison] with a consecutive
       five years [of] probation…. [Fournier] was given credit for time
       served. He was mandated to register under Megan’s Law[3] and a
       fine was imposed.

Trial Court Opinion, 7/8/19, at 1-2, 4-7 (citations to record omitted;

paragraphs reordered; errors in original; footnote added). Fournier filed a

timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal.

       On appeal, Fournier raises the following question for our review:

       Did not the trial court err in refusing to find entrapment as a
       matter of law, where the court correctly found that the issue of
       entrapment had been properly raised, and there was no dispute
       as to the operative facts relating to the defense?



____________________________________________


3Our review of the record discloses that Fournier was sentenced pursuant to,
and given notice of his registration requirements under, the Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-
9799.41, and not Megan’s Law.

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Brief for Appellant at 5.

      Fournier claims that the trial court erred in not concluding that, as a

matter of law, the evidence at trial established the defense of entrapment.

See id. at 18-24.     Fournier points out that in order to create his Grindr

account, Agent Goodrow must have provided a date of birth designating him

as at least eighteen years old. Id. at 23. Fournier states that he was aware

of this fact when he initiated the conversation with Agent Goodrow.         Id.

Fournier further claims that (1) the communication that constituted a criminal

act did not occur until the 112th minute of the conversation; (2) at one point,

Fournier ceased messaging, and Agent Goodrow reinitiated the conversation

twenty minutes later; (3) Fournier wanted to meet the purported child in the

daytime, at a public location, with the intent to “walk and talk,” but Agent

Goodrow expressed a reluctance to meet at that location, forcing Fournier to

suggest another place to meet; and (4) the picture Agent Goodrow sent

Fournier, purportedly of himself, showed a person in the driver’s seat of a car

with a seat belt on, which led Fournier to believe the person was at least 16

years old.    Id. at 23-24.    Fournier argues that these factors establish

entrapment as a matter of law. Id. at 24.

      “Our standard of review regarding questions of law is de novo.”

Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa. Super. 2019).

      In its Opinion, the trial court concisely set forth the law, and addressed

Fournier’s claim as follows:


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     The Crimes Code defines the defense of entrapment[,] in relevant
     part[,] as:

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

          ….

     18 Pa.C.S.A. § 313.

           “The burden is on the defendant to establish entrapment
     and the inquiry focuses on the conduct of the police, not the
     predisposition of the defendant.” Commonwealth v. Joseph,
     848 A.2d 934, 939 (Pa. Super. 2004). “The test with regard to
     police conduct is an objective one.        Merely affording the
     opportunity, through police artifice and stratagem, for the
     commission of a crime by a person who already has the requisite
     intent is not entrapment. Rather, the defense of entrapment is
     aimed at condemning certain impermissible conduct which … falls
     below standards ... for the proper use of governmental power.”
     Id.    “Where police do no more than afford appellant an
     opportunity to commit an illegal act, their actions are not
     considered sufficiently outrageous police conduct to support an
     entrapment defense.” Commonwealth v. Marion, 981 A.2d
     230, 239 (Pa. Super. 2009).


                                  -9-
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            “The trial court may consider, when there is no dispute as
      to the operative facts, whether it can reject an entrapment
      defense as a matter of law.” Id. “Operative facts are those that
      are necessary for appellant 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.” Id.

      ....

             The conduct of Agent Goodrow did not rise to the requisite
      level of outrageousness that would justify a finding of entrapment
      as a matter of law. The texts reveal that Agent Goodrow merely
      afforded [Fournier] with the opportunity to commit a crime.
      [Agent Goodrow] did not initiate contact with [Fournier]. During
      the conversation, [Fournier] asked [Agent Goodrow] how old he
      was and [Agent Goodrow] responded that he was fourteen years
      old. Even after [Fournier] was informed that the individual he was
      conversing with was underage, [Fournier] continued to pursue the
      conversation, arranged a meeting with [the purported fourteen-
      year-old boy], and traveled to the prearranged location to meet
      with the minor for sex. [Fournier] was then arrested.

Trial Court Opinion, 7/8/19, at 7-9 (some quotation marks omitted; paragraph

break added). The record supports the trial court’s findings and we agree with

the trial court’s sound rationale and determination. We therefore affirm on

this basis in rejecting Fournier’s claim. See id.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2020




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