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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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