Commonwealth v. Borgella

PAPADAKOS, Justice,

dissenting.

Appellant was sentenced to prison for a term of eleven and one-half months to twenty-three months on a conviction for two counts of delivering cocaine and marijuana to an undercover police officer. The issue for review is whether the trial court erred in refusing to instruct the jury on the defense of *145 entrapment. For the following reasons, I would affirm the lower court.

The facts are that Detective Domenic Pelino was approached by a reliable paid police informer, Timothy Updegraff, with an offer to arrange a meeting between Pelino and Appellant Frantz Borgella for the purpose of drug dealing. Two meetings took place in February, 1987, at which time Borgella sold drugs to the undercover officer, followed by arrest and conviction. Appellant contends that he was entrapped by Updegraff into proceeding with the criminal acts. Consideration of his claim, therefore, turns on the facts of the relationship between Updegraff as police agent and Borgella.

That relationship began in November, 1986, when Updegraff appeared at Appellant’s home asking to use toilet facilities. Over the following weeks and months, Updegraff often visited Borgella. An apparent friendship ensued to the point where the informer repeatedly requested Borgella’s help in securing drugs for himself. Borgella refused at all times inspite of a growing relationship as drinking partners and forays for women. In this particular time frame, Updegraff purchased drugs for himself without the aid of Borgella.

A critical point, for purposes of this review, is that Updegraff represented himself as employed with a good salary and, on that basis, offered to introduce Borgella to his “employer.” For his part, Borgella had articulated to Updegraff his own discontent with his present job. The three ultimately met in a parking lot; the “employer,” of course, was undercover Officer Pelino and there Borgella sold drugs to Pelino for cash. Detective Pelino also got Borgella’s telephone number with a promise to call in the event of an employment opportunity. Appellant, nevertheless, was arrested on December 7, 1987.

At trial, the defendant unsuccessfully requested an instruction to the jury on the legal defense of entrapment. The trial court, relying on Commonwealth v. McGuire, 339 Pa.Superior Ct. 320, 334, 488 A.2d 1144, 1151 (1985), held that the defense was available only if a defendant first admitted some element of the crime. Since Borgella refused to concede that he had *146 participated in the crime, he was not entitled to the instruction. (Majority opinion, p. 142).

In 1989, we issued a definitive ruling on our entrapment statute in Commonwealth v. Weiskerger, 520 Pa. 305 , 554 A.2d 10 (1989). 1 I conclude that the present case falls under Section (a)(2) which instructs us to determine whether the methods employed by the police would have led “other” persons down the road to legal perdition. 2 Under Weiskerger , this "evaluation would constitute an objective standard by which an entrapment defense will lie if the conduct of the police could overwhelm even innocent, unwilling minds or those citizens who normally avoid criminal acts.

*147 I reject the argument that police conduct in the case under review either provoked, or risked provoking, criminal behavior by innocent citizens of the Commonwealth. Police behavior would not have induced an innocent person to sell drugs as Appellant Borgella did once given the opportunity. The sale of drugs is a peculiarly heinous offense in today’s world. The Appellant anticipated gaming a benefit through an act which, objectively speaking, ordinary citizens would avoid. As a matter of law, therefore, the evidence was such that the actor was not entitled to a jury instruction on the defense of entrapment.

I would affirm the judgment below.

McDERMOTT, J., joins this dissenting opinion.

. Weiskerger interpreted our entrapment statute, 18 Pa.C.S. § 313:

(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.

(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.

. While this Court has not defined the term “other,” the Superior Court has interpreted it to mean "an innocent person.” Commonwealth v. Schauffler, 397 Pa.Superior Ct. 310, 580 A.2d 314 (1990), appeal denied, 525 Pa. 663 , 583 A.2d 793 (1990); Commonwealth v. Wright, 396 Pa.Superior Ct. 276, 578 A.2d 513 (1990) ("an innocent man”); Commonwealth v. Wilson, 381 Pa.Superior Ct. 253, 553 A.2d 452 (1989). This rendition follows earlier identical meanings; Commonwealth v. Stokes, 264 Pa.Superior Ct. 515, 400 A.2d 204 (1979); Commonwealth v. Conway, 196 Pa.Superior Ct. 97, 173 A.2d 776 (1961). Conways’s definition was employed by Mr. Justice McDermott in his Concurring Opinion in Weiskerger (joined by Mr. Chief Justice Nix) as part of an analysis of legislative intent and the Model Penal Code. I agree with the conclusions and point out that the majority opinion in *147 Weiskerger adopted the federal law’s language of "others who would normally avoid crime.” 520 Pa. at 311 , 554 A.2d at 13 .