J-S08041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ANDRE IKARD                              :
                                          :   No. 1425 WDA 2017
                    Appellant

          Appeal from the Judgment of Sentence August 30, 2017
    In the Court of Common Pleas of Beaver County Criminal Division at
                      No(s): CP-04-CR-0002086-2016


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED MARCH 16, 2018

      Appellant, Andre Ikard, appeals from the judgment of sentence entered

in the Court of Common Pleas of Beaver County after a jury convicted him of

delivery of a noncontrolled substance in contravention of 35 Pa.C.S. § 780-

113(a)(35)(ii). We affirm.

      The trial court aptly sets forth the procedural and factual histories of the

case as follows:

      On October 5, 2017, a Criminal Complaint was filed in this case
      charging Defendant [hereinafter “Appellant”] with unlawful
      delivery of crack cocaine, possession with intent to deliver crack
      cocaine, and criminal use of a communications facility. The case
      was scheduled for a non-jury trial on March 31, 2017. On March
      31, 2017, Appellant informed the court that he now wanted a jury
      trial, and that he no longer wanted the private attorney he had
      hired. The case was scheduled for a jury trial and Appellant’s
      attorney withdrew from representing him.



____________________________________
* Former Justice specially assigned to the Superior Court.
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     Appellant was then represented by the Public Defender’s Office.
     Voir dire began and a jury was selected on July 10, 2017. Trial
     commenced on July 11, 2017. By agreement of the parties, the
     charges at trial, contained in the Amended Information filed on
     April 19, 2017, were limited to Count 1, for criminal use of a
     communications facility, Count 3 for unlawful delivery of crack
     cocaine, and Count 4 for distribution or sale of a noncontrolled
     substance.1

     _____________________________________________________________________________
     1Count 4 was amended from unlawful delivery of crack cocaine to
     distribution or sale of a noncontrolled substance after the
     Pennsylvania Crime Lab determined that the substance delivered
     on August 11, 2016, was not a controlled substance.


     The Commonwealth presented the testimony of Agents
     Christopher Burnell and Sean Gelchion from the Pennsylvania
     Office of Attorney General, as well as the testimony of the
     confidential informant (hereinafter, “CI”). The Commonwealth’s
     case-in-chief alleged that Appellant delivered crack cocaine to the
     CI on July 25, 2017. Appellant was found not guilty by the jury
     on Counts 1 and 3, which related to that incident.

     The Commonwealth’s evidence also showed that on August 11,
     2016, a controlled buy for crack cocaine was attempted. The CI
     called and spoke to Appellant who agreed to meet him at Tank
     Alley in Beaver Falls, Pennsylvania for the purpose of selling him
     crack cocaine.

     The CI was searched prior to and after the purchase and no
     contraband was found. The CI was provided pre-recorded U.S.
     currency in the amount of $80.00.

     The completion of a hand-to-hand transaction from Appellant to
     the CI was witnessed by Agent Gelchion and captured on video by
     the agents for the Office of Attorney General. The white chalky
     substance which was purchased appeared to the agents and to
     the CI to be crack cocaine, and the packaging was consistent with
     crack cocaine.     Further, the amount of the substance that
     appeared to be crack cocaine was consistent with a sale for
     $80.00. The substance was not field tested, but was submitted to
     the Pennsylvania crime lab for testing, where it was determined
     not to be a controlled substance.

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     In his case-in-chief, Appellant testified on his own behalf. In his
     testimony, Appellant admitted all of the essential elements of the
     distribution or sale of a noncontrolled substance, but claimed that
     he only did it in order to get the CI to stop calling him.

     Appellant testified that on July 25, 2016, the CI called to meet him
     and, upon meeting him, asked to by crack cocaine from him. N.T.,
     7/11/17, at 240-44. Appellant stated that he did not sell crack
     cocaine to the CI, but instead introduced him to Quincy Roberts,
     known as “Q,” who lived in the same apartment building, and who
     he knew could sell cocaine to the CI.2 N.T. 7/11/17, at 244-46.
     Appellant testified that afterward the CI called him numerous
     times, and that Appellant placed [the CI’s] number under “do not
     answer” in his cell phone, in order to block his calls. N.T., at 246-
     47.


     2This incident, which the Commonwealth charged under Counts 1
     and 3, and [for] which the jury found Appellant not guilty,
     occurred inside an apartment building and out of sight of the
     agents.


     Regarding the controlled buy that occurred on August 11, 2017,
     Appellant testified that the CI called Appellant’s girlfriend, whose
     phone number was listed on Appellant’s Facebook page. N.T, at
     250. Appellant testified that he already made up his mind what
     he would do, that he would put something in a baggie that was
     not drugs so that afterward the CI would not call him anymore.
     N.T., at 251-53.

     Appellant admitted giving the noncontrolled substance to the CI
     and taking the $80.00 from him in exchange. Id. He stated that
     he filled a plastic baggie with drywall that he found in Tank Alley
     prior to the CI’s arrival. N.T., at 251-53, 264-65. He explained
     that he had seen crack cocaine in person before and knew how it
     is packaged, and that the substance which he gave the CI did look
     like drugs. N.T., at 263-64. He said that he kept the $80.00 that
     he received from the CI because he wanted the CI to think the
     plastic baggie contained drugs. N.T., at 265. He testified that he
     sold the noncontrolled substance to the CI because the CI kept
     calling him, and he believed that when the CI tried to use the


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      noncontrolled substance and discovered that it was not drugs that
      the CI would not call him anymore. N.T., at 265-66.

      Appellant’s attorney argued a defense of entrapment, and the jury
      was instructed by the court on entrapment. After deliberations,
      the jury found Appellant not guilty on Counts 1 and 3 for the
      unlawful delivery [of controlled substances] that was alleged to
      have occurred on July 25, 2017, but found Appellant guilty on
      Count 4, distribution or sale of a noncontrolled substance for the
      incident that occurred on August 11, 2017.

      Appellant was sentenced on August 30, 2017, to, inter alia,
      twenty-one months to sixty months in a state correctional
      institution. Appellant filed a Notice of Appeal on September 27,
      2017. On September 29, 2017, the court entered an Order
      directing Appellant to file a Concise Statement, per Pa.R.A.P.
      1925(b). Appellant filed his Concise Statement on October 20,
      2017.

Trial Court Opinion, filed November 2, 2017, at 1-4.

      Appellant presents the following question for our review:

      I.    WHETHER THE APPELLANT’S CONVICTION OF
            DISTRIBUTION/SALE OF A NON CONTROLLED
            SUBSTANCE,   35 PA.C.S.A. 780-113(A)(35)(II),
            SHOULD     BE   REVERSED     BECAUSE     THE
            COMMONWEALTH FAILED TO PRESENT SUFFICIENT
            EVIDENCE TO REBUT THE PRESUMPTION OF
            ENTRAPMENT ESTABLISHED BY THE APPELLANT?

Appellant’s brief, at 8.

      Initially, we note that Appellant misconstrues the allocation of

evidentiary burdens when he posits that the Commonwealth failed to rebut a

presumption of entrapment established by Appellant.      As explained below,

Appellant, alone, bore the burden of proving by a preponderance of the

evidence that his illegal conduct—which he concedes the Commonwealth

proved beyond a reasonable doubt—was the product of an entrapment carried


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out by law enforcement officials. If Appellant met this burden, he was entitled

to an acquittal. To the extent Appellant contends that he carried his burden

of proof in this regard, we address that portion of his question presented.

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

follows:

      § 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).

      Pennsylvania courts apply an objective test for entrapment:

      [T]he test for entrapment has shifted in emphasis from a
      consideration of a particular defendant's 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 and will not be concerned with the defendant's prior



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

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

and citation omitted; emphasis added). As we explained in Marion:

      [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.

Id., at 238 (quotation and citation omitted).

      “In their zeal to enforce the law, government agents may not originate

a criminal design, implant in an innocent person's mind the disposition to

commit a criminal act and then induce commission of the crime so that the

government may prosecute.” Commonwealth v. Borgella, 611 A.2d 699,

701 (Pa. 1992) (citing Jacobson v. United States, 503 U.S. 540, (1992)

(holding evidence supported entrapment instruction where paid police

informant used false pretenses to secure defendant's confidence, encouraged

defendant to buy drugs, and offered defendant lucrative job on condition that

defendant provide drugs)).

      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.
      Thus, the availability of the entrapment defense under the statute
      does not preclude the police from acting “so as to detect those
      engaging in criminal conduct and ready and willing to commit
      further crimes should the occasion arise. Such indeed is their
      obligation.”

      Pennsylvania case law has consistently held:


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            [T]he determination of whether police conduct
            constitutes entrapment is for the jury, unless the
            evidence of police conduct clearly establishes
            entrapment as a matter of law.... Thus, after the
            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.

Marion, 981 A.2d at 239 (citations omitted).

      Here, the entirety of Appellant’s argument consists of the following

statement: “The Appellant proved to a preponderance of the evidence the

defense of entrapment in that [the CI] continually called him requesting drugs

after the Appellant told him he did not sell drugs.          [The CI’s] testimony

confirmed that multiple phone calls occurred between the time period of the

controlled buys.” Appellant’s brief, at 16. Assuming, arguendo, Appellant has

developed his argument adequately to gain merits review, we discern no merit

to his claim.

      At Appellant’s trial, Appellant testified that the C.I.’s unsolicited calls for

crack became so bothersome that he agreed to the August 11, 2016, drug buy

only to carry out a sham sale as a means to deter the CI from calling him

again.

      The C.I. denied the suggestion that he had to harass Appellant before

Appellant agreed to transact with him.        Specifically, the C.I. testified that

Appellant always welcomed the phone calls from him and, on August 11, 2016,

instantly agreed to the proposed drug buy between them:

      Q:   [C.I.], the phone calls that you made to Andre Ikard when
      you were with the agents?


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      A:    Yes.

      Q:    Do you remember talking to him and the agents listening?

      A:    Yes.

      Q:    How would you describe those, the tone of those
      conversations? By that I mean, were they friendly, were they
      unfriendly, were they hostile?

      A:   No, “Hey, what’s up.” “You gave me the number.” “Can I
      come through?” “Yes.”

      Q:    Okay.

      A:    “I’m in Rochester. If you can get a ride over come over.”

      Q:   Okay. And who always picked the meeting [place] on those
      two occasions?

      A:    If he was somewhere I went to him.

      Q:    And as well on August 11th during those phone calls, what
      was the tone?

      A:    Same as always.

      Q:    Okay.

N.T., 7/11/17, at 235-36.

      In light of this conflicting evidence, the court instructed the jury as to

the entrapment defense, and the jury was required to determine whether the

preponderance of the evidence established that law enforcement agents,

through their use of the C.I., engaged in overzealous behavior that created a

substantial risk of inducing an innocent person to commit crime. We conclude

that a reasonable jury could have found, given the evidence before it and

acting within its exclusive province as finder of fact, that the C.I.’s phone calls

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to Appellant did not constitute egregious conduct creating an impermissible

risk of inducing Appellant to commit crime. Accordingly, we reject Appellant’s

contention that he proved his claim of entrapment.

     Judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2018




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