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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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