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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S08041-18
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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Com. v. Ikard, A.
Combined Opinion