Petition for Writ of Certiorari — Thompson v. Hammond

“on em ema Nerang

87 1073

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Jn the Supreme Court of the

Auited States

Term, 1988

RUSSELL T. THOMPSON and LOIS L.

THOMPSON, his wife,

Petitioners

VS.

LUCINDA HAMMOND, Individually and in her

official capacity as a Pennsylvania State Trooper;

CORPORAL RONALD PROUGH, Supervising Of-

ficer of the Pennsylvania State Police, Individually

and in his official capacity and COMMONWEALTH

OF PENNSYLVANIA, PENNSYLVANIA STATE

POLICE,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ANGINO & ROVNER, P.-C.

By: NEIL J. ROVNER

JoseEPH M. MELILLO

Attorneys for Petitioners

4503 North Front Street

Harrisburg, PA 17110

(717) 238-6791

Murrelle Printing Coa.,, Box 100, Sayre, Pa 18840—{717) 888-2244

Statement of Question Presented

STATEMENT OF QUESTION PRESENTED FOR

REVIEW

Does the law recognize a civil cause of action, arising

under 42 U.S.C. §1983, based upon police investigation

techniques which are calculated to overcome the resolve of

an individual not to commit an offense; and if so, under

what standard must the claim be evaluated in deciding

whether it is legally sufficient to survive a motion for

summary judgment?

TABLE OF CONTENTS

Statement of Questions Presented for Review .. .

Tite Gf GO no a ee ee

Tabie ob CIOS | bh a eee

Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Cir-

UME 2 ook a 8 ee Gee

Reference to Opinions Delivered in the Courts

DR oo ee ae

Panwa. os. ee

Constitutional Provision and Statute Involved ..

Pahemont of He CONe 6s cidade ee

Reason for Granting the Writ ................

Cr os ee ea eee

Cetiieates of Service... ios ok 5a eee

Appendix:

Memorandum in the United States District

Court for the Middle District of Pennsylva-

nia, Civil Action No. 85-1807 ............

Order and Judgment, dated January 7,

MGT occas esses Oe

Memorandum Opinion of the Court in the Unit-

ed States Court of Appeals for the Third

Civeutt at No. 67-GIG2 . see

Opinion of the Superior Court of Pennsylvania,

Commonwealth of Pennsylvania v. Russell

T. Thomipaon, Appeiam....<..-..5.54-055

il

la

6a

7a

2la

TABLE OF CITATIONS

CASES:

Commonwealth v. Thompson, 335 Pa. Superior

Ct. 332, 484 A.2d 159 (1984) ..... 9, 8, Ll, 12,

Greene v. United States, 454 F.2d 783 (9th Cir.

ES nd

Hampton v. United States, 425 U.S. 484 (1976). 9,

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .....

Sorrells v. United States, 287 U.S. 435 (1932) .. 9,

Sherman v. United States, 356 U.S. 369 (1958) . 9,

United States v. Beverly, 723 F.2d 11 (3d Cir.

a 10,

United States v. Janotti, 673 F.2d 578 (3d Cir.

1982), cert. denied, 457 U.S. 1106 (1982) . . 10,

United States v. Johnson, 565 F.2d 179 (1st Cir.

1977), cert. denied, 434 U.S. 1075 (1978) .. 9.

United States v. Leja, 563 F.2d 244 (6th Cir.

United States v. Prairie, 572 F.2d i316 (9th

a 9,

United States v. Russell, 411 U.S. 423 (1973)... 9,

United States v. Smith, 538 F.2d 1359 (9th Cir.

es

United States v. Twigg, 588 F.2d 373 (3d Cir.

a 9,

13

United States v. West, 511 F.2d 1083 (3d Cir.

RD oon was Feet ee eee ener e aes ; 12

STATUTE:

18 Pa. C.S.A. §313(a)(2) .....--- +e eee eee 14

OTHER AUTHORITIES:

98 U.S.C. §1254(1) ......-- ee eee eee eee eee 2

- SIR ott)! | ee 4

PRR Tomy } | Se 4

42 U.S.C. §19B3 .........-- ee eee eeee: i, 3, 4, 9, 14

iv

Petition

IN THE SUPREME COURT OF THE

UNITED STATES

RUSSELL T. THOMPSON and LOIS L. THOMPSON.

his wife,

Petitioners

Vs.

LUCINDA HAMMOND), Individually and in her official

capacity as a Pennsylvania State Trooper, CORPORAL

RONALD PROUGH, Supervising Officer of the Pennsyl-

vania State Police, Individually and in his official capacity

and COMMONWEALTH OF PENNSYLVANIA, PENN-

SYLVANIA STATE POLICE,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

To the Honorable, the Chief Justice and the Associate Jus-

tices of the Supreme Court of the United States:

The Petitioner, Russell T. Thompson, respectfully

prays that a writ of certiorari issue to review the order of

the United States Court of Appeals for the Third Circuit,

entered in this proceeding on November 2, 1987.

lo

Opinions Below and Jurisdiction

REFERENCE TO OPINIONS DELIVERED IN THE

COURTS BELOW

Both the District Court for the Middle District of

Pennsylvania and the Third Circuit Court of Appeals is-

sued Opinions, which have not been officially reported.

The Slip Opinions are reproduced in the Appendix hereto

(App. pp. la and Ta).

The Superior Court of Pennsylvanias Opinion in the

criminal case of Commonwealth v. Thompson is reported

at 359 Pa. Superior Ct. 322, 484 A.2d 159 (1984), and is

included in the Appendix at p. 21a for the Courts conven-

ience.

JURISDICTION

The Third Circuit Court of Appeals entered its Order

affirming the decision of the District Court for the Middle

District of Pennsylvania on November 2, 1987. This Peti-

tion for Writ of Certiorari was filed within ninety (90) days

of that date. The jurisdiction of this Court is invoked under

28 U.S.C. §1254(1).

Constitutional Provision and Statute Involved

CONSTITUTIONAL PROVISION AND STATUTE

INVOLVED

Amendment XIV to the United States Constitution:

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or im-

munities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

42 U.S.C. §1983.

$1983. Civil Action for Deprivation of Rights.

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to the subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immu-

nities secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. For

the purposes of this section, any Act of Congress ap-

plicable exclusively to the District of Columbia shall

be considered to be a statute of the District of Colum-

bia.

Statement of the Case

STATEMENT OF THE CASE

This case was brought by the Plaintiff, Russell T.

Thompson, against Lucinda Hammond and others, alleging

violation of civil rights pursuant to 42 U.S.C. $1983. The

Federal Court for the Middle District of Pennsylvania was

granted subject matter jurisdiction pursuant to 25 U.S.C.

$1343. which gives the Federal Courts jurisdiction over

federal questions, and appellate jurisdiction in the Third

Circuit Court of Appeals was conferred by virtue of 25

U.S.C. $1291, since it involved an appeal from a final

judgment of the District Court granting the Defendant

summary judgment.

The controversy arises from an undercover investiga-

tion by the Pennsylvania State Police of Plaintiff, Russell T.

Thompson, a former police officer of the Carlisle Police

Department. As a result of the investigation and the con-

duct of Trooper Lucinda Hammond and her supervisor,

Russell Thompson was prosecuted for delivering a small

amount of marijuana to Lucinda Hammond. The appellate

courts of Pennsylvania found that he had been entrapped

as a matter of law. Some discussion of the underlying facts

is in order.

In 1980, at the request of the Carlisle Borough Police.

the Pennsylvania State Police began its investigation of

Russell Thompson. Both Defendants Ronald Prough, who

supervised the resulting investigation, and Lucinda Ham-

mond. who did the investigatory work, admitted that they

made no effort to substantiate any of the underlying allega-

Statement of the Case

tions. Mr. Thompson was, at that time, a police officer of

ten years standing with a good reputation.

Corporal Prough had been apparently told that

Russell Thompson might be offering drugs to women to

attract them. For this reason, and because the informant

was female, the Carlisle Police requested a female in-

vestigator. Corporal Prough complied with this request

and assigned Lucinda Hammond to the case.

Lucinda Hammond testified during her deposition

that it was Corporal Prough’s practice to inform her if a

woman investigator has been specially requested or was

needed. In this particular case, he neglected to do so.

Thus began a ten-month investigation of Russell

Thompson, which ultimately led to his arrest and convie-

tion on a charge of delivering a very small amount of mari-

juana to Lucinda Hammond. The marijuana was for her

personal use and Mr. Thompson neither made nor intend-

ed to make any money from the transfer. The conviction

was ultimately overturned by the Superior Court of Penn-

sylvania on the ground that Russell Thompson had been

entrapped as a matter of law. The Superior Court did this

despite the lack of any Pennsylvania precedent reversing a

jury finding that entrapment was not shown. The Pennsyl-

vania Supreme Court refused to grant the Common-

wealths Petition for Allowance of Appeal. See, Common-

wealth v. Thompson, reported at 335 Pa. Superior Ct. 332,

484 A.2d 159 (1984).

The Superior Court, in summarizing the undisputed

facts from the trial manuscript, also delineated the conduct

which forms the gravamen of this action:

A careful review of the record in this case reveals

no significant discrepancy in testimony of — the

6

Statement of the Case

Commonwealth's sole witness (Trooper Hammond)

and of appellant regarding the course of conduct be-

tween the two over a ten-month period. Appellant

was a middle-aged black male and the trooper was a

young, blonde, attractive female. A series of meetings

and telephone calls occurred over a ten month period,

all at the initiative of Trooper Hammond. Drugs were

constantly discussed. Although it is not always clear

who brought the subject up on each occasion; what is

clear is that beginning on September 29, 1980, Ham-

mond began requesting drugs from the appellant. By

early 1981, and perhaps earlier, Hammond began to

chide and criticize appellant for his consistent failure

to obtain or provide drugs. Beginning in late 1980 or

early 1981, the two began kissing after each meeting.

Hammond also permitted appellant to put his arm

around her, walked around in public with him, and

socialized with his friends.

This testimony regarding Hammonds course of

dealings is uncontradicted. In fact, testimony of Ham-

mond and appellant corroborate each other, as both

agreed as to dates and locations of meetings, the

clothes worn by Hammond on different occasions, the

approximate time the kissing began, her repeated

requests for drugs and criticism of his failure to pro-~

vide them, etc. The critical question, of course, is

whether or not this uncontradicted testimonial evi-

dence of police conduct establishes entrapment as a

matter of law. (Footnotes omitted. )

* * *

[3] In light of all this, and under the facts of this

case, we are convinced that the methods employed by

~

Statement of the Case

the Commonwealth constitute entrapment as a matter

of law. The Commonwealth, acting through Trooper

Hammond, pursued a long term, persistent course of

persuasion and inducement aimed at luring appellant

into delivering marijuana to Hammond. The use of a

young, blonde female to coax a middle age male, after

months of kissing and socializing, into committing a

minor crime is not police conduct which presents the

‘mere opportunity to commit a crime. As this case

clearly shows, opportunity and inducement are two

separate consequences of police activity. The latter

occurred here.

Furthermore, this is not a case like Manley

where the police were unaware of the importuning of

a government agent (often an informant) involved in

the investigation. Not only was Trooper Hammond ob-

viously aware of her actions and of appellant's interac-

tion with her, she also admitted to suspecting the ef-

fect her conduct was having on appellant, i.e.,

romantic or sexual desires.

We are satisfied that appellant has successfully

invoked the defense of entrapment by proving ‘by a

preponderance of evidence that his conduct occurred

in response to an-entrapment. 18 Pa.C.S. §313(b).

This burden was clearly met by the unconflicting tes-

timony of both appellant and Trooper Hammond. See,

Commonwealth v. Berrigan, supra, 234 Pa. Super. at

381, 343 A.2d at 361 (Hoffman, J., opinion in support

of reversal) (testimony of government informant suf-

ficient to meet defendant's burden).

The law enforcement authorities clearly strayed

beyond the limits of acceptable practice in this case.

Statement of the Case

We cannot sanction methods of inducement such as

this, which lure otherwise law-abiding citizens into

crime. Here the appellant has conceded his guilt, as

he must when the entrapment defense is invoked un-

der the objective test. Commonwealth v. Jones, supra,

242 Pa. Super. at 314, 363 A.2d at 1286. However, it

is the Commonwealth that is guilty of the greater evil

of playing an ignoble part. Sherman v. United States,

supra, 356 U.S. at 380, 78 S.Ct. at 824 (Frankfurter,

J., concurring).

Commonwealth v. Thompson, supra, 484 A.2d at 164,

166.

The trial transcript is, of course, much more descrip-

tive of Trooper Hammond's methods. It details the alluring

outfits she wore; her increasing persistence that he get

some drugs for her, and a corresponding increase in their

intimacy; and ultimately, a belief on his part that she de-

sired to be his mistress. This is not to say that the police-

woman shared his feelings, but she was aware of them and

willing to use them to her advantage. She also permitted

him to kiss and hold her, which is compelling evidence

that she wanted to make an arrest at any cost.

Although Thompson's sentence was small, and even

that was overturned, the practical effect upon his life was

devastating. He lost his job and was not able to recover it

despite recourse to the local Civil Service Board. His rep-

utation in the community took a sharp plunge and he be-

came the object of ridicule; in short, a lifetime of effort and

accomplishment was lost.’

' The Third Circuit characterized Mr. Thompsons civil rights claim

as one for backpay only (Slip Opinion, p. 4). However, this is not a correct

characterization of the damages sought, although the precise relief availa-

ble is not at issue.

9

Statement of the Case

The lower Court agreed that the material facts were

not in dispute, and characterized the issue as whether or

not, as a matter of law, the circumstances stated a constitu-

tional claim. The Court cited the admonition that the Fed-

eral Courts should “exercise scrupulous restraint before

... denounc{ing] law enforcement conduct as constitu-

tionally unacceptable.” See, p. 5 of the. District Court's

Opinion (App. p. 5a). The District Court concluded,

“lalfter having reviewed the facts of this case, we are una-

ble to conclude that the police conduct in the instant case

reached the level of outrageousness sufficient to constitute

a due process deprivation.” See, p. 5. of the District Court's

Opinion (App. p. 5a). No analysis of the facts or further

explanation were presented

The Third Circuit Court of Appeals reviewed this

Courts analysis of the relationship between due process

and the defense of entrapment, as contained in a line of

cases beginning with Sorrells v. United States, 287 U.S.

435 (1932), and which continues with Sherman v. United

States, 356 U.S. 369 (1958), United States v. Russell, 411

U.S. 423 (1973), and Hampton v. United States, 425 U.S.

454 (1976). The Third Circuit then conceded two points

vital to Russell Thompson’ claim: (1) that a majority of this

Court would recognize a due process defense if it were

shown that the police's over-involvement in the commission

of a crime could be characterized as “outrageous;” and (2)

that such a due process violation could presumably give

rise to a suit for damages under 42 U.S.C. §1983.

The Court of Appeals proceeded to compare the

states conduct in the Thompson investigation with that of

the governments agents in other cases, including United

States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States

v. Prairie, 572 F.2d 1316 (9th Cir. 1978); United States v.

10

Statement of the Case

Johnson, 565 F.2d 179 (Ist Cir. 1977), cert. denied, 434

U.S. 1075 (1978). United States v. Jannotti, 673 F.2d 578

(3d Cir. 1982) cert. denied, 457 U.S. 1106 (1982); United

States v. Beverly, 723 F.2d 11 (3d Cir. 1983). The Circuit

Court of Appeals concluded that the facts in this case more

closely resembled those cases in which the criminal defen-

dant’s right to be treated in a fundamentally fair manner

had not been abridged.

Petitioner believes that the Third Circuit's disposition

of this case is flawed, and the reason lies in the existence of

several questions left unresolved by the Supreme Court in

its prior decisions, as well as some new issues which have

not received much prior analysis.

1]

Reason for Granting the Writ

REASON FOR GRANTING THE WRIT

This case is fundamentally different from every prior

decision which has considered the relationship between

the defenses of deprivation of due process and entrap-

ment, because it is a civil case for money damages. The

question of whether a due process violation occurred can-

not be avoided by ordering reversal of a criminal convic-

tion by finding entrapment as a matter of law. In Sorrells,

supra, and Sherman, supra, the Court was presented with

facts directly analogous to those in this case. In each in-

stance, government agents developed a personal relation-

ship with the defendants, and played upon _ their

sympathies to overcome their initial reluctance to commit

an offense. In Thompson, the state police woman spent ten

months of sexually teasing the defendant before he capitu-

lated to her demand for drugs. He finally arranged to pro-

vide her with a small amount of marijuana for her personal

use and without any monetary benefit to himself.

The Supreme Court in Sorrells and Sherman conclud-

ed that the defendants had been entrapped and reversed

their convictions, but found it unnecessary to rule on

whether the reversals should rest on larger constitutional

principles. Similarly, in the Thompson criminal case, the

Superior Court of Pennsylvania found entrapment as a

matter of law and was not required to make any constitu-

tional pronouncements. See, Commonwealth v. Thompson,

335 Pa. Superior Ct. 332, 484 A.2d 157 (1984).

In two other decisions, Russell, supra, and Hampton,

supra, the majority of this Court apparently affirmed that

12

Reason for Granting the Writ

outrageous police conduct could give’ rise to a defense

based upon lack of fundamental fairness, but ultimately

decided that the defendants had been neither entrapped

nor deprived of due process. In fact, in Hampten, the de-

fendant had apparently conceded his predisposition to

commit the crime charged, and appealed solely on the due

process issue.

The Circuit Courts of Appeals which have considered

the due process defense have, for the most part, rejected it

as being factually inapplicable; but at the same time, these

courts have found that the defendants were not entrapped.

See, Jannotti, supra, Beverly, supra, Prairie, supra, and

Johnson, supra. See also, United States v. Leja, 563 F.2d

244 (6th Cir. 1977); United States v. Smith, 538 F.2d 1359

(9th Cir. 1976). These decisions are thus closely related

both in their facts and justification to this Court's rulings in

Russell and Hampton.

In a few instances, the Courts of Appeals have upheld

a due process defense regardless of the defendants

predisposition to commit a crime. In each of these cases,

evidence of government overinvolvement in the creation of

criminal activity was patent. See, United States v. Twigg,

supra, where the governments agents became almost

partners in crime, bankrolling and promoting drug opera-

tions and, thus, permitting the defendant to commit the

charged offenses. See also, Greene v. United States, 454

F.2d 783 (9th Cir. 1971) and United States v. West, 511

F.2d 1083 (3d Cir. 1975).

In the instant case, the Third Circuit compared the

governments activity in Thompson with that found in the

two classes of decisions represented by Jannotti and

Twigg, and concluded:

13

Reason for Granting the Writ

Given this background of case law, we conclude

that Thompson's constitutional right to due process

was not violated by the police conduct that entrapped

him. While we agree with the Superior Court of

Pennsylvania that the government's deliberate use of

sexual attraction to entice Thompson into committing

a crime was reprehensible, we clearly cannot charac-

terize the investigation of Thompson as ‘the most in-

tolerable [of] government conduct.’ This case is far

closer to the Jannotti case where the government only

‘created the fiction that it sought to buy the commodi-

ty ... that the defendants claimed they already

possessed, 673 F.2d at 608, than it is to the Twigg

case where the government initiated and helped

maintain a substantial enterprise that manufactured

illicit drugs using government-supplied ingredients

and distributed those drugs to government-supplied

customers. Nor does the governments misconduct in

this case involve the kind of invasion of personal

privacy found to violate due process in Rochin v. Cali-

fornia, supra.

Slip Opinion, pp. 12-13. (Emphasis in original.) (App. pp.

17a-18a. )

The Third Circuit has attempted to compare apples

with oranges and has, therefore, missed the point. It is not

Thompsons allegation that the Commonwealth of Pennsyl-

vania was overinvolved in the commission of the crime be-

cause it provided such technical support and equipment as

was necessary to perpetrate an offense. Rather, Thompson

contends that the Commonwealth was overinvolved be-

cause of the outrageous pressure brought to bear upon his

will, which in the end, overcame his reluctance to commit

14

Reason for Granting the Writ

even a very minor offense. This case presents the very

issues which the Supreme Court declined to decide in

Sherman and Sorrells: Can the government agents efforts

to overcome the defendants reluctance to commit a crime

constitute a violation of his right to due process of law?

Unlike in Sherman and Sorrells, that issue must be evalu-

ated in order to resolve the controversy at bar, which is a

civil cause of action premised upon 42 U.S.C. $1983.

The question is brought into sharper focus by the na-

ture of Pennsylvanias entrapment defense, which the

Third Circuit correctly characterized as “an objective one

which focuses on the conduct of the police and is not con-

cerned with the defendant's state of mind.” See, Slip Opin-

ion at p. 4 (App. p. 10a). However, the key concern is

whether such police conduct, objectively evaluated,

creates “a substantial risk that such an offense will be com-

mitted by persons other than those who are ready to com-

mit it.” See, 18 Pa.C.S.A. §313(a)(2), which is part of §313

of the Pennsylvania Crimes Code. Thus, in deciding that

Russell Thompson had been entrapped as a matter of law,

the Pennsylvania Superior Court decided that the police

woman's conduct, objectively evaluated, created a substan-

tial risk that Thompson would commit a crime he was not

otherwise prepared to commit.

The basis for reversing Thompsons conviction also

suggests two other questions which have not been finally

answered. First, if Pennsylvanias courts have determined

that the government's conduct was unlawful under an ob-

jective standard, can a federal trial judge decide, on a Mo-

tion for Summary Judgment, that the conduct simply was

not bad enough to constitute a due process violation? Both

the District Court and the Court of Appeals believed so,

Reason for Granting the Writ

although Petitioner believes that each used incorrect crite-

ria in evaluating the facts.

A second question raised, but not decided in either

Court below, was whether the police woman was entitled

to an official's qualified immunity, given the criteria an-

nounced in Harlow v. Fitzgerald, 457 U.S. 800 (1982). Pe-

titioner argued below that the violation of an entrapment

statute which objectively focused upon the police officer's

conduct gives rise to an issue which cannot be decided on

the defendants Motion for Summary Judgment.

CONCLUSION

This case presents important questions which require

tha Court's attention. The Supreme Court is asked to de-

cide whether the law recognizes a civil cause of action

based upon outrageous police investigation techniques,

which are calculated to overcome the resolve of an individ-

ual not disposed to commit an offense. Prior decisions have

all arisen in the criminal arena. There, the Court was not

required to rule on the due process claim because the gov-

ernments overreaching constituted entrapment under the

subjective test used in the federal system.

The issue of due process has persisted in the lower

Courts in those cases where the defendant was disposed to

commit the charged offense, but the government's role in

aiding the crime was disturbing. The Third Circuit ana-

lyzed this case in light of those decisions, which measure a

due process claim by the degree to which the government

aided a criminal venture. By this standard, Russell

16

Reason for Granting the Writ

Thompson's claim will fail; but if judged by a standard

which considers the police's methods in overcoming his re-

luctance to commit crime. his claim may well succeed.

Because this Court has never established in just what

way an individual under investigation is entitled to due

process of law, the Court of Appeals was confused about

the standard by which to evaluate Russell Thompsons

claim. It is respectfully requested that this Court finish the

work it began in Sorrells and Sherman.

Respectfully submitted,

ANGINO & Rovner, PC.

NEIL J. ROVNER

Josepn M. MELILLO

Attorneys for Petitioners

4503 North Front Street

Harrisburg, PA 17110-1799

(717) 238-6791

Certificate of Service

CERTIFICATE OF SERVICE

I, hereby certify that on this 23rd day of December,

1987, five (5) copies of the Petition for Writ of Certiorari

were mailed, postage prepaid, to John G. Knorr, IL, Es-

quire, Senior Deputy Attorney General, Office of Attorney

General, Strawberry Square, 15th Floor, Harrisburg.

Pennsylvania 17120. I further certify that all parties re-

quired to be served have been served.

ANGINO & RoVNER, P.C.

(S) New J. RovNER

JoserH M. MELILLO

Attorneys for Petitioners

4503 North Front Street

Harrisburg, PA 17110-1799

(717) 238-679]

Memorandum, U.S. District Court

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 85-1807

RUSSELL T. THOMPSON and

LOIS L. THOMPSON, his wite,

Plaintiths

VS.

LUCINDA HAMMOND), Individually and in her official

capacity as a Pennsylvania State Trooper; JOHN DOE, et

al., Supervising Officers of the Pennsylvania State Police,

the identity of whom is presently unknown to Plaintiff; and

COMMONWEALTH OF PENNSYLVANIA PENNSYL-

VANIA STATE POLICE,

Defendants

MEMORANDUM

Introduction and Background

Presently pending is the motion of defendants,

Lucinda Hammond, Corporal Prough and the Pennsylva-

nia State Police for summary judgment pursuant to Fed.

R. Civ. P. 56. This action arises from an undercover in-

vestigation by the State Police of plaintiff, Russell Thomp-

son, a former police officer of the Carlisle Police Depart-

ment. The investigation was conducted by Trooper Ham-

mond under the direction of her supervisor, defendant

Prough. The first contact between the parties occurred in

2a

Memorandum, U.S. District Court

June 1980, when Trooper Hammond traveled to Carlisle

for the purpose of forming a relationship with Mr. Thomp-

son. Thereafter, Trooper Hammond and Officer Thompson

had a number of meetings where they discussed drugs and

plaintiff's purported ability to obtain drugs for her. The in-

vestigation culminated on March 23, 1981 when Thomp-

son delivered 4.5 grams of marijuana to Trooper Ham-

mond. Thompson was arrested and charged with unlawful

delivery of a Schedule I controlled substance and conspira-

CK

At the state court criminal trial Thompson did not de-

ny giving Trooper Hammond the marijuana, but claimed

he had been entrapped. This defense was unsuccessful

and Thompson was convicted on September 23, 1951. He

appealed his conviction to the Pennsylvania “Superior

Court which reversed his conviction, holding that as a mat-

ter of law the conduct of Trooper Hammond constituted

entrapment. In this regard, the court stated that:

[W]e are convinced that the methods employed by

the Commonwealth constitute entrapment as a matter

of lav. The Commonwealth, acting through Trooper

Hammond, pursued a long term, persistent course of

persuasion and inducement aimed at luring appellant

into delivering marijuana to Hammond. The use of a

young, blonde female to coax a middle age male, after

months of kissing and socializing, into committing a

minor crime is not police conduct which presents the

“mere opportunity” to commit a crime. As this case

clearly shows, opportunity and inducement are two

For a more detailed account of the investigation the reader may

refer to Commonwealth v. Thompson, 335 Pa. Super. 332, 484 A.2d 159

(1984).

3a

Memorandum, U.S. District Court

separate consequences of police activity. The latter

occurred here.

Commonwealth v. Thompson, 335 Pa. Super. 332, 344. 484

A.2d 159, 166 (1984).

Armed with the Superior Court's decision, plaintiffs

initiated this action alleging a violation of Russell Thomp-

sons civil rights under 42 U.S.C. §1983. The complaint

also sets forth several state law claims which are not before

us.” It is plaintiffs’ contention that defendants’ conduct

was outrageous and hence repugnant to the principles of

due process. Defendants, on the other hand, have taken

the position that their conduct did not rise to the level of a

constitutional violation and that, in any event, they are im-

mune from damages. They also raised the statute of limita-

tions as a defense. The material facts are not in dispute and

we will grant the motion for summary judgment based up-

on the discussion which follows. '

Discussion

In order to state a cause of action under $1983 plain-

tiff must establish that (1) he was deprived of a constitu-

tionally protected interest (2) by a person acting under

color of state law. Parratt v. Taylor, 451 U.S. 527. 68

L.Ed. 2d 420, 101 S.Ct. 1908 (1981). The critical inquiry

here is whether plaintiffs have demonstrated that Russell

Thompson was deprived of a constitutionally protected in-

terest and we must weigh their assertion that Russell

* By our memorandum and order of February 19, 1986, we re-

manded the state law claims to the Dauphin County Court of Common

Pleas.

' The parties are in agreement as to the essential facts and any

disputed issues of fact are immaterial.

4a

Memorandum, U.S. District Court

Thompson’ due process rights were violated by defen-

dants allegedly outrageous conduct.

The seeds of the outrageous conduct doctrine or the

due process defense were sown by the United States

Supreme Court in United States v. Russell, 411 U.S. 423,

36 L.Ed. 2d 366, 93 S.Ct. 1637 (1973). There, the defen-

dant was convicted of unlawfully manufacturing, selling

and delivering methamphetamine. The court of appeals re-

versed the conviction because it found that the govern-

ment’s conduct (1) constituted entrapment and (2) offended

the due process clause. Although the Court ultimately de-

cided that the due process defense was not applicable un-

der the circumstances of the case, it left open the possibil-

ity of such a defense:

While we may some day be presented with a

situation in which the conduct of law enforcement

agents is so outrageous that due process principles

would absolutely bar the government from invoking

judicial processes to obtain a conviction, cf. Rochin v.

California, 342 US 165, 96 L Ed 183, 72 S Ct 205, 25

ALR2d 1396 (1952), the instant case is distinctly not

of that breed.

411 U.S. at 431-32, 36 L.Ed. 2d at 373, 93 S.Ct. at 1643.

According recognition to this principle, the Third Cir-

cuit in United States v. Twigg, 588 F.2d 373 (3d Cir. 1978)

reversed the defendants’ convictions on due process

grounds. The court held that the “nature and extent of po-

lice involvement . . . was so overreaching as to bar prose-

‘In their brief plaintiffs also assert constitutional claims for depri-

vation of a property interest in Russell Thompson's governmental employ-

ment and for abuse of process. These claims have not been adequately

stated in the complaint but in any event we find them without merit.

5a

Memorandum, U.S. District Court

cution of the defendants as a matter of due process of law.”

Id. at 377. Despite the decision in Twigg, the precise na-

ture of the due process defense is unclear. The Supreme

Court has admonished the federal judiciary not to exercise

‘a Chancellor's foot’ veto over law enforcement practices

of which it does not approve.” Russell, 411 U.S. at 435, 36

L.Ed. 2d at 375, 93 S.Ct. at 1637. “[A] successful due

process [claim] must be predicated on intolerable govern-

ment conduct” and a federal court should “exercise scrupu-

lous restraint before ... denouncfing| law enforcement

conduct as constitutionally unacceptable.” United States cv.

Gambino, 788 F.2d 938, 945 n.6 (1986) (quoting United

States v. Janotti, 673 F.2d 578, 607 (3d Cir.), cert. denied,

457 U.S. 1106, 73 L.Ed. 2d 1315, 102 S.Ct. 2906 (1982)).

After having reviewed the facts of this case, we are unable

to conclude that the police conduct in the instant case

reached the level of outrageousness sufficient to constitute

a due process deprivation. In reaching this decision, we do

not condone the defendant's conduct in this action, but

merely find that it was not so egregious as to offend the

United States Constitution. Accordingly, we find that

plaintiffs have failed to establish that Russell Thompson

was deprived of a constitutionally protected interest and

will grant summary judgment in favor of defendants. °

An appropriate order will be issued.

(s) William W. Caldwell

William W. Caldwell

United States District Judge

Date: January 7, 1986

* Because we conclude that plaintiffs cannot state a cause of action

under §1983 we will not address the remaining issues raised by defen-

dants.

ba

Memorandum, U.S. District Court

Order and Judgment

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CIVIL ACTION NO. 85-1507

RUSSELL T. THOMPSON and

LOIS L. THOMPSON, his wife.

Plaintiffs

VS.

LUCINDA HAMMOND, Individually and in her official

capacity as a Pennsylvania State Trooper; JOHN DOE, et

al., Supervising Officers of the Pennsylvania State Police,

the identity of whom is presently unknown to Plaintiff, and

COMMONWEALTH OF PENNSYLVANIA PENNSYL-

VANIA STATE POLICE,

Defendants

ORDER AND JUDGMENT

AND NOW, this 7th day of January, 1987, it is or-

dered that:

1) Defendants motion for summary judgment is

granted and judgment is hereby entered in favor of

defendants.

2) The pre-trial conference and trial scheduled

in this matter for January 8 and 12, 1987 are can-

celled.

3) The Clerk of Court shall close this file.

s/William W. Caldwell

William W. Caldwell

United States District Judge

Memorandum Opinion, U.S. Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5103

THOMPSON, RUSSELL T. and

THOMPSON, LOIS T., his wife,

Appellants

VS.

HAMMOND, LUCINDA, Individually and in her official

capacity as a Pennsylvania State Trooper; PROUGH,

CORPORAL RUSSELL, Supervising Officer of the Penn-

sylvania State Police, Individually and in his official capaci-

ty; and COMMONWEALTH OF PENNSYLVANIA,

PENNSYLVANIA STATE POLICE

On Appeal from the United States District Court For the

Middle District of Pennsylvania—Scranton

(Civil Action No. 85-1807)

District Judge: Honorable William W. Caldwell

Submitted Under Third Circuit Rule 12(6)

October 6, 1987

BEFORE: WEIS and STAPLETON, Circuit Judges, and

COHILL, District Judge’

“ Honorable Maurice B. Cohill, Jr., United States District Judge for

the Western District of Pennsylvania, sitting by designation.

Sa

Memorandum Opinion, U.S. Court of Appeals

MEMORANDUM OPINION OF THE COURT

STAPLETON, J., Circuit Judge

Appellant Thompson is a middle-aged married man

formerly employed as a police patrolman by the Borough

of Carlisle. The Carlisle chief of police, Giordamo,

“received a report” that Thompson was dealing in drugs.

No effort was made to substantiate this information. Be-

cause drugs were concerned, Giordamo asked the Drug

Unit of the Pennsylvania State Police to conduct an under-

cover investigation of Thompson. He requested that a

woman be chosen for the job; the undercover agent

assigned was an attractive young woman, State Trooper

Hammond. Hammond socialized with Thompson over a

ten-month period, permitting him to treat her almost as a

girlfriend, and pressuring him throughout to obtain drugs

for her. Despite Thompson's oft-asserted claims that he

could get drugs for her, Hammonds efforts were without

success until Thompson did finally get a friend of his to

provide Hammond with a very small amount of pot. For

this, Thompson was charged with unlawful delivery of

marijuana and with criminal conspiracy.

After the drug charges were brought, the State Police

reported back to Giordamo, who suspended Thompson

until the next meeting of the Borough Council, the only

entity with authority to dismiss a Carlisle police officer.

Giordamo and the mayor of Carlisle met and agreed that

Thompsons dismissal should be recommended to the

Council. When the Council met to consider the issue two

weeks later, in May of 1981, it had before it a letter from

Thompsons attorney. This letter requested that the charges

against Thompson not be publicly disclosed; it also said

>’ —

Ya

Memorandum Opinion, U.S. Court of Appeals

that Thompson and his attorney had requested and _re-

ceived from the Carlisle Civil Service Commission a con-

tinuance of any hearing concerning Thompson’ status until

after disposition of the criminal charges. The Council dis-

missed Thompson at this time. Thompson appealed to the

Commission, and, as he had requested, his hearing was

delayed.

Five months after his dismissal, Thompson was reem-

ployed by the Borough's Water and Sewer Department, at

a wage substantially below what he had made as a patrol-

man. However, Thompson was, upon re-employment, con-

sidered to be a Borough employee of nine years’ standing,

on the basis of his years in the police department.

Thompsons civil service hearing was held in April of

1986 pursuant to 53 Pa. Cons. Stat. Ann. §46191 (Purdon’s

1966 & 1987 Supp.). Back pay for the five-month interval

during which Thompson was unemployed was the only

issue before the Commission; Thompson had decided not

to ask for reinstatement because he had at some point

prior to the hearing been arrested and fined for soliciting a

prostitute. Thompson was denied back pay by the Com-

mission and did not appeal to the Pennsylvania state courts

from the Commission’ decision.

Thompson raised the defense of entrapment in

pretrial and post-trial motions, as well as at trial. All of his

motions were denied and the jury convicted him. On ap-

peal, however, a three-judge panel of the Pennsylvania

Superior Court held (one judge dissenting) that Thompson

had been entrapped as a matter of law. Commonwealth of

Pennsylvania v. Thompson, 335 Pa. Super. 332, 484 A.2d

159 (1984). The Pennsylvania statute under which Thomp-

son was exonerated reads, in part:

10a

Memorandum Opinion, U.S. Court of Appeals

A public law official . . . perpetrates an entrapment if

for the purpose of obtaining evidence of the commis-

sion of an offense, he induces or encourages another

person to engage in conduct constituting such offense

by .. . employing methods of persuasion or induce-

ment which create a substantial risk that such an of-

fense will be committed by persons other than those

who are ready to commit it.

18 Pa. Cons. Stat. Ann. §313 (Purdon’s 1966 & 1987 Supp.)

(eff. 1973). The Pennsylvania courts have said that this test

is an objective one which focuses on the conduct of the

police and is not concerned with the defendant's state of

mind. Commonwealth v. Jones, 242 Pa. Super. 303, 311,

363 A.2d 1281, 1285 (1976).

Thompson then filed this civil rights action, again

claiming only back pay. Summary judgment was granted to

defendants on the ground that Thompson had failed to es-

tablish a violation of his constitutional rights.

The initial inquiry in a §1983 action, as explained in

Parratt v. Taylor, 451 U.S. 527, 535 (1981), focuses on (1)

whether the conduct complained of was committed by a

person acting under color of state law and (2) whether this

conduct deprived a person of rights, privileges or immuni-

ties secured by the Constitution or laws of the United

States. The second part of this inquiry is at issue here.

Thompson alleges three bases for his claim that his consti-

tutional rights were violated. The first is that the police

conduct in entrapping him was a violation of due process;

the second is that deprivation of his employment as a po-

lice officer was done without due process; the third is that

there was abuse of process sufficient to support a §1983

claim.

lla

Memorandum Opinion, U.S. Court of Appeals

I. ENTRAPMENT AS A VIOLATION OF THOMPSON'S

RIGHTS

The first time entrapment was discussed at any length

by the Supreme Court was in Sorrells v. United States, 287

U.S. 435 (1932). The majority said that while “artifice and

strategem may be employed to catch those engaged in

criminal enterprises,” “[a] different question is presented

when the criminal design originates with the officials of the

Government, and they implant in the mind of an innocent

person the disposition to commit the alleged offense and

induce its commission in order that they may prosecute.”

287 U.S. at 441-42. The Sorrells majority chose to base

this doctrine of entrapment on an implied exception to

criminal statutes. Applying the rule that general terms in

statutes are to be “so limited in their application as not to

lead to injustice, oppression, or an absurd consequence’ (at

447), the majority said:

We are unable to conclude that it was the intention of

the Congress in enacting this statute that its processes

of detection and enforcement should be abused by the

instigation by government officials of an act on the

part of persons otherwise innocent in order to lure

them to its commission and to punish them. We are

not forced by the letter to do violence to the spirit

and purpose of the statute.

287 U.S. at 448.

Justice Roberts wrote a concurrence to the Sorrells

opinion in which he set forth an alternative base for the

entrapment doctrine. Saying that the majoritys theory

“seems a strained and unwarranted construction of the

statute; and amounts, in fact, to judicial amendment,”

Roberts would have justified reaching the same _ result

L2a

Memorandum Opinion, U.S. Court of Appeals

“based on the inherent right of the court not to be made

the instrument of wrong.” 287 U.S. at 456. According to

Roberts, the doctrine of entrapment rests on a fundamen-

tal rule of public policy:

The applicable principle is that courts must be closed

to the trial of a crime instigated by the governments

own agents. No other issue, no comparison of equities

as between the guilty official and the guilty deten-

dant, has any place in the enforcement of this overrul-

ing principle of public policy.

287 U.S. at 459. Roberts was joined in this opinion by Jus-

tices Stone and Brandeis, the latter of whom had taken a

similar view in his dissent in Casey v. United States, 276

U.S. 413 (1928). (The Casey majority did not discuss en-

trapment at any length.)

Sherman v. United States, 356 U.S. 369 (1958), picks

up from Sorrells. The majority in Sherman followed the

Sorrells majority; Justice Frankfurter, joined in his concur-

rence by Justices Douglas, Harlan, and Brennan, elo-

quently urged the adoption of Justice Roberts theory.

Next, in United States v. Russell, 411 U.S. 423 (1973),

the Court for the first time considered a claim of a due

process violation raised in connection with an alleged en-

trapment. Justice Rehnquist, writing for a 5-4 majority,

said:

- [T]he Government's conduct here violated no inde-

pendent constitutional right of the respondent.

While we may some day be presented with a situation

in which the conduct of law enforcement agents is so

outrageous that due process principles would

absolutely bar the government from invoking judicial

13a

Memorandum Opinion, U.S. Court of Appeals

processes to obtain a conviction, cf. Rochin v. Califor-

nia, 342 U.S. 165 (1952) [illegal break-in into

petitioners bedroom, attempt to force petitioners

mouth open to remove pills, and forcible pumping of

petitioners stomach was due process violation as

“conduct that shocks the conscience’ }, the instant case

is distinctly not of that breed. ... The law en-

forcement conduct here stops far short of violating

that “fundamental fairness, shocking to the universal

sense of justice,” mandated by the Due Process

Clause of the Fifth Amendment.

411 U.S. at 430-32 (quoting Kinsella v. United States ex

rel. Singleton, 361 U.S. 234, 246 (1960) on “fundamental

fairness”). According to Justice Rehnquist, it had been es-

tablished in Sorrells and Sherman that entrapment involv-

ing government misconduct that falls short of shocking the

conscience is not a matter of constitutional dimension, so

that adopting the contrary position would require overrul-

ing both of those cases.

Again, the majority f Russell took the view that en-

trapment was “rooted ... in the notion that Congress

could not have intended criminal punishment for a defen-

dant who has committed all the elements of a proscribed

offense, but was induced to commit them by the Govern-

ment (at 435). And again, a good part of the Court was in

disagreement. Justices Stewart, Brennan, Marshall, and

Douglas, in dissent, expressed agreement with the

Roberts/Brandeis/Frankfurter view; the first three of these

joined in an opinion which, ‘quoting the excerpt above

from Justice Roberts concurrence in Sorrells, said that

since “it does not matter whether the respondent was

predisposed to commit the offense of which he was con-

victed, the focus must be, rather, on the conduct of the

undercover government agent.” 411 U.S. at 446.

l4a

Memorandum Opinion, U.S. Court of Appeals

Finally, the Court dealt with entrapment and due

process in Hampton v. United States, 425 U.S. 484 (1976).

Justice Rehnquist, writing for a plurality that included

Chief Justice Burger and Justice White, held that there

could never be either entrapment or a valid due process

claim where the defendant was shown to have been

“predisposed” to commit the crime. This plurality read

Russell as already having established that proposition. Jus-

tices Powell and Blackmun concurred on the lack of en-

trapment in this particular case, but refused to agree on

the due process issue. They would leave open the possibil-

ity that if the government were guilty of outrageous con-

duct, fundamental fairness would permit the assertion of a

due process claim by the defendant despite proven

predisposition. 425 U.S. at 492-93. Powell noted, however,

that:

\Cjases, if any, in which proof of predisposition is not

dispositive will be rare. Police overinvolvement in

crime would have to reach a demonstrable level of

outrageousness before it could bar conviction. This

would be especially difficult to show with respect to

contraband offenses, which are so difficult to detect in

the absence of undercover Government involvement.

One cannot easily exaggerate the problems confronted

by law enforcement authorities in dealing effectively

with an expanding narcotics traffic. . . . Enforcement

officials therefore must be allowed flexibility adequate

to counter effectively such criminal activity.

425 U.S. at 495-96 n.7. Justices Brennan, Stewart, and

Marshall, in dissent, again advocated the “objective” ap-

proach to the defense of entrapment rather than the

“subjective” concern with predisposition, and would have

also have left open the possibility of a due process claim.

15a

Memorandum Opinion, U.S. Court of Appeals

Thus, the prevailing view on the Supreme Court

seems to be that a due process claim might indeed be

raised to bar indictment or conviction in cases of entrap-

ment involving police conduct so outrageous as to shock

the universal sense of justice referred to in Kinsella. Such

a claim exists, however, only in the rare case where there

has been truly outrageous misconduct by government

agents. While the due process aspect of entrapment has

not yet been brought before the Supreme Court in an ac-

tionunder 28 U.S.C. §1983, presumably the same consti-

tutional analysis applies.

There are several court of appeals decisions that are

also helpful in the present context even though they too

did not arise under Section 1983. One of the most impor-

tant of these is this courts decision in United States cv.

Twigg, 588 F.2d 373 (3d Cir. 1978), the only post-Hampton

court of appeals case in which it has been found that police

conduct barred prosecution on due process grounds. The

Twigg majority concluded:

The contention that defendants raise which we find

persuasive is that the nature and extent of police in-

volvement was so overreaching as to bar prosecution

of the defendants as a matter of due process of law.

Although no Supreme Court decision has reversed a

conviction on this basis, the police conduct in this

case went far beyond the behavior found admissible in

previous Cases.

588 F.2d at 377. In the Twigg case, the government pro-

vided the single essential, and most difficult to obtain, in-

gredient for the production of methamphetamine, as well

as 20% of the necessary glassware and an isolated farm-

house to serve as a laboratory. Hampton was distinguished

16a

Memorandum Opinion, U.S. Court of Appeals

as involving only the elusive, fleeting sale of an_ illegal

drug; in Twigg, where the establishment of a whole labora-

torv and large-scale drug distribution was involved, this

court was of the opinion that the government did not need

to use more extreme methods of investigation. According

to the Twigg majority:

The rule that is left by Hampton is that although proof

of predisposition to commit the crime will bar applica-

tion of the entrapment defense, fundamental fairness

will not permit any defendant to be convicted of a

crime in which police conduct was “outrageous.”

588 F.2d at 378-79. On this point, the court cited United

States v. Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978)

(“despite the lack of a majority opinion, we have read the

Hampton opinions as permitting a due process defense

based on the outrageous nature of the governments con-

duct,” but government employment of a prostitute was not

violative of due process) and United States v. Johnson, 565

F.2d 179, 182 (1st Cir. 1977), cert. denied 434 U.S. 1075

(1978) (government agents pressuring of defendant to pro-

cure cocaine for them was -not so outrageous as to consti-

tute due process violation under Hampton and Russell).

This court next addressed the due process issue in

United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982),

cert. denied 457 U.S. 1106 (1982). This court sitting in

banc there held that the constitutional argument raised by

the defendant in connection with his entrapment defense

should be accepted by a court only to “curb the most intol-

erable government conduct.” 673 F.2d at 608. The Jannotti

court distinguished Twigg on the ground that in the latter,

the government “initiated and was actively involved in the

criminal enterprise itself,” whereas in the former, an

i oe eal

l7a

Memorandum Opinion, U.S. Court of Appeals

ABSCAM case, the government merely “created the fic-

tion that it sought to buy the commodity—influence—that

the defendants claimed they already possessed.” The Jan-

notti court was troubled by the governments tactics, but

said that:

We must necessarily exercise scrupulous restraint be-

fore we denounce law enforcement conduct as consti-

tutionally unacceptable. . . . As citizens, we have dif-

fering views of the necessity or advisability of the en-

tire ABSCAM project. As judges, however, we rule

only on whether the limits which the Constitution

places on another branch of government have been ex-

ceeded.

673 F.2d at 607, 610.

Finally, in United States v. Beverly, 723 F.2d 11 (3d

Cir. 1983), we declined to reverse convictions for conspira-

cy to destroy and attempting to destroy a government

building by fire even though a government agent solicited

the defendant to burn the building and set the defendant

up to be arrested in the act of attempting arson. In that

case, although the court was again troubled by the

methods employed by the governments agents, _ it

nonetheless found that the police conduct did not suffici-.

ently shock the conscience of the court or reach the level

of outrageousness necessary to compel acquittal. 723 F.2d

at 13.

Given this background of case law, we conclude that

Thompsons constitutional right to due process was not vio-

lated by the police conduct that entrapped him. While we

agree with the Superior Court of Pennsylvania that the

governments deliberate use of sexual attraction to entice

Thompson into committing a crime was reprehensible, we

1Sa

Memorandum Opinion, U.S. Court of Appeals

clearly cannot characterize the investigation of Thompson

as “the most intolerable [of] government conduct.” This

case is far closer to the Jannotti case where the govern-

ment only “created the fiction that it sought to buy the

commodity ... that the defendants claimed they already

possessed,” 673 F.2d at 608, than it is to the Twigg case

where the government initiated and helped maintain a

substantial enterprise that manufactured illicit drugs using

government-supplied ingredients and distributed those

drugs to government-supplied customers. Nor does the

governments misconduct in this case involve the kind of

invasion of personal privacy found to violate due process in

Rochin v. California, supra. Nor are we persuaded by

Thompson's claim that “at a minimum, the jury should be

permitted to decide whether the Appellants Civil Rights

have been abrogated” (Br. at 15). We agree with the posi-

tion taken by the Court of Appeals for the First Circuit in

United States v. Johnson, 565 F.2d 179, 181 (Ist Cir.

1977), cert. denied 434 U.S. 1075 (1978), as it adopted Jus-

tice Brennans language in his dissent in Hampton:

[T]he determination of the lawfulness of the Govern-

ments conduct must be made— as it is on all ques-

tions involving the legality of law enforcement

methods—by the trial judge, not the jury.

425 U.S. 484, 497 (1976) (quoting Justice Stewart's dissent

in Russell, 411 U.S. at 441).

~~

Il. DEPRIVATION OF THOMPSONS EMPLOYMENT

WITHOUT DUE PROCESS

Thompson further argues that his Section 1983 claim

is sustainable on the ground that Hammond's conduct in-

terfered improperly with Thompson's property interest in

his employment. While there is no doubt that Thompson

ee ee aes

19a

Memorandum Opinion, U.S. Court of Appeals

did have such an interest, Thompson received all the

process due him under law before being finally deprived of

that interest.

Pennsylvania state law, 53 Pa. Cons. Stat. Ann.

§§46190 and 46191 (Purdon 1966 & 1987 Supp.), creates

a property interest in Thompsons employment, but also

provides for termination of that employment under specific

circumstances and with certain procedural safeguards that

clearly satisfy the minimum requirements of due process.

Thompson does not allege that the proper procedures were

not followed; he had a full hearing before the Civil Service

Commission with an attorney present, and he had the op-

portunity to present his own testimony and evidence and

to cross-examine witnesses against him. And as defendants

point out, Thompson does not say to what additional

process he should have been entitled.

Il. ABUSE OF PROCESS

Thompsons sole support for his abuse of process claim

is Hammonds testimony “that one object of her investiga-

tion was to provide the Carlisle Police with enough infor-

mation for the Borough to successfully dismiss him. (R.

252A). (Br. at 16.) We read Hammond’s testimony to as-

sert that the object of the investigation was to confirm or

refute the reports of Thompsons drug connections. More-

over, we have doubts as to whether police in-ostigative

techniques come within the concept of “process” referred

to in the abuse of process cases. In any event, even if we

shared Thompsons understanding of that concept and of

Hammonds testimony, we could not conclude that the con-

duct about which he complains rose to the level of a consti-

tutional violation. The case law on abuse of process es-

tablishes that an unconstitutional abuse of process occurs

20a

Memorandum Opinion, U.S. Court of Appeals

only “if the misuse of the legal procedure is so egregious as

to subject the aggrieved individual to a deprivation of con-

stitutional dimensions.” Newton v. Liddel, 620 F.2d 1375,

1378-79 (10th Cir. 1980). See also Lessman v. McCormick,

591 F.2d 605, 610 (10th Cir. 1979) (citing cases); Jennings

v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977) (misuse of

legal procedure, which is a state law tort, may deprive a

person of his federal constitutional right to procedural due

process in egregious circumstances).

The judgment of the district court will be affirmed.

TO THE CLERK:

Please file the foregoing Memorandum Opinion.

s/Walter K. Stapleton

Walter K. Stapleton

Circuit Judge

Dated:

2la

Opinion, Pa. Superior Court

COMMONWEALTH of Pennsylvania

Vv

Russell T. THOMPSON, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 22, 1984.

Filed Nov. 9, 1984.

’

Defendant was convicted in the Court of Common

Pleas, Cumberland County, Criminal Division, No. 413,

1981, Sheely, J., of unlawful delivery of a small amount of

marijuana and criminal conspiracy, and he appealed from

judgment of sentence. The Superior Court, No. 02297

Philadelphia 1982, Montemuro, J., held that defendant was

entrapped as a matter of law.

Reversed.

Wickersham, J., dissented and filed opinion.

1. Criminal Law [key] 37(1)

Test for entrapment is an objective one which focuses

on conduct of police and will not be concerned with defen-

dants prior criminal activity or other indicia of a predispo-

sition to commit crime. 18 Pa.C.S.A. § 313.

2. Criminal Law [key] 739.1(1)

Determination of whether police conduct constitutes

entrapment is for jury, unless evidence of police conduct

clearly establishes entrapment as a matter of law; after de-

fense of entrapment has been properly raised, trial court

should determine question as a matter of law wherever

there is no dispute as to operative facts relating to the de-

fense. 18 Pa.C.S.A. § 313.

Opinion, Pa. Superior Court

3. Criminal Law [key] 37(S8)

Defendant, who was subjected to persistent course of

persuasion and inducement by young, blonde female un-

dercover state trooper, after months of kissing and socializ-

ing, into delivering marijuana to her was entrapped as a

matter of law. 18 Pa.C.S.A. § 313.

Arthur L. Goldberg, Harrisburg, for appellant.

Gregory B. Abeln, Asst. Dist. Atty., Carlisle, for

Commonwealth, appellee.

Before WICKERSHAM, MONTEMURO © and

MONTGOMERY, JJ.

MONTEMURO, Judge:

This is an appeal from the judgment of sentence of

the Court of Common Pleas of Cumberland County. Be-

cause we find entrapment as a matter of law, we reverse.

On May 1, 1981, appellant, Russell Thompson, a for-

mer Carlisle policeman was arrested and charged with one

count of unlawful delivery of a small amount of marijuana’

and one count of criminal conspiracy.* Appellant was con-

victed by a jury on both counts on September 23, 1981.

After his post-verdict motions requesting a new trial or an

arrest of judgment were denied, he was sentenced on the

drug conviction to a term of imprisonment of not less than

fifteen (15) days nor more than thirty (30) days and was

fined fifty dollars; the sentence was suspended generally on

the conspiracy conviction. This timely appeal followed.

' 35 Pa.C.$. § 780—113(a)(31).

*18 Pa.C.S. § 903.

sas onde said se ith 2 enlace aciait taht

23a

Opinion, Pa. Superior Court

Appellant raises two issues:

Did the [l]ower [clourt err in finding that under

the facts in this case the police conduct in the in-

vestigation did not constitute entrapment as a matter

of law?

Did the lower court err in permitting the Com-

monwealth to elicit prejudicial, conjectural testimony

from the Commonwealth witness?

Brief for appellant at 3.

The first issue, whether the state police conduct in

question constituted entrapment as a matter of law, was

raised in pre-trial motions, during trial by demurrer

following the Commonwealth's case, in post-trial motions,

and now on appeal. Appellant does not deny giving

Trooper Lucinda Hammond a small amount of marijuana

on the evening of March 23, 1981. Rather, he argues that

the procurement and delivery of the marijuana were the

result of a romantic relationship that developed on the part

of the appellant, a relationship brought about by Ham-

monds conduct over a ten month period. Because we

agree with appellants contention that this conduct consti-

tuted entrapment, we need not reach the second issue he

has raged

Beginning on May 1, 1980, state police Trooper

Lucinda Hammond became involved in an undercover in-

vestigation of appellant,’ a 46-year-old black male who was

married and living with his wife and mentally retarded

daughter in Carlisle. At the time this investigation began,

‘It is not clear from the record why this investigation was ever

started. Trooper Hammond's testimony simply states there were “accusa-

tions’ regarding the appellant.

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Opinion, Pa. Superior Court

he was a ten-year veteran of the Carlisle Borough Police

Force. Trooper Hammond was a young, blonde, white fe-

male who apparently was very attractive.

The undercover officer came to Carlisle on May 2,

May 9, May 12, May 16, May 22, May 23, May 28, June

5, June 6, June 12, June 19, and June 25 of 1980 in an

attempt to make contact with appellant. Although Trooper

Hammond was unable to establish any direct communica-

tion with appellant, he did wave to her on May 22 and

May 28. Her purpose in making contact with appellant on

all these occasions was to determine if he would provide

her with drugs.

Trooper Hammond's first “face-to-face” contact with

appellant was on July 10, 1980 at the square in Carlisle.

He was on duty and she approached him with a question

about a false temporary drivers license which apparently

was used as a pretext for starting a conversation. She testi-

fied that at the time her hair was long and straight and she

wore mid-thigh cut-off shorts and a short-sleeved jersey.

During the conversation which ensued, the two began

talking about “partying” and having a good time. Appellant

discussed with Hammond his purported use of marijuana

and she let him know that she “partied” and “got high.” He

then told her he would be able to get drugs for her.

The second encounter between appellant and Ham-

mond occured on August 8, 1980 when she again walked

up to him while he was on duty. She was again dressed in

cut-offs and a jersey. There was a brief conversation, but

no mention of drugs. Sometime after this meeting, Ham-

mond began to telephone appellant at his place of work,

the Carlisle Police Station. These calls continued over the

course of the investigation, totaling at least eight to ten in

on.

LJa

Opinion, Pa. Superior Court

~

all. Appellant never contacted Hammond and she never

provided him with a means of doing so.

The third direct contact between them occurred on

September 3, 1980, when she again walked up to him

while he was working. She wore a blouse that was open in

the back and shoulders, as well as her now standard cut-

offs. Appellant recognized her immediately and started a

friendly conversation which included a discussion of drugs

and getting high. He tried to get her to meet him after

work at a tavern called the Oliver Plunkett,‘ but she de-

clined and instead arranged to meet him the next night at

another tavern called Yancy’.

As had been arranged, they met and had drinks to-

gether at Yancys on September 4. It was their fourth meet-

ing and first date. Again the discussion turned to partving

and getting high. Appellant stated to Hammond that he

kept marijuana in his locker at work which he would seize

during drug arrests and then use himself. This appears to

have been mere braggadocio.* She asked if he was going to

get some of this marijuana and he said no. He repeatedly,

on that evening and throughout the investigation, indicated

to her that he wanted her to trust him, that he might be a

policeman, but he liked fun too. He assured her that he

was not trying to set her up.

‘Trooper Hammond testified appellant repeatedly told her the

Oliver Plunkett was the bar where drugs could easily be gotten after

closing time. Despite appellant's constant requests that she meet him

there after midnight, and despite her apparent familiarity with the bar,

Hammond never went to the tavern with appellant.

*The record discloses no attempt by the state police to verify

whether there was in fact marijuana in appellant's locker, and further, it

appears uncontradicted on the record that during his tenure as a police

officer, appellant had never even made a drug arrest.

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Opinion, Pa. Superior Court

The fifth direct contact occurred on September 29, af-

ter she had called him at the police station. They met again

at Yancys for a date, and she then asked him to obtain

some marijuana for her personal use or “maybe make a lit-

tle money on the side.” (N.T., Trial at 28). He responded

by again trying to get her to go to the Oliver Plunkett after

hours with him, telling her she could get some marijuana if

she would go with him. She declined to do so and left

Yancy s.

The next and sixth personal contact did not occur un-

til December 17, 1980. She had talked to him, however,

on October 23 and 24, and, in another telephone conversa-

tion on November 25, had “point blank” asked him if he

could make a deal for some drugs. On November 26 and

December 3, she traveled to Carlisle looking for appellant

but could not find him. At the December 17 meeting,

when he was on duty, she again asked him about getting

drugs. As before, he wanted her to meet him after mid-

night and she would not do so.

She met with him briefly on January 6, 1982 and ar-

ranged to meet him at Yancys the next day. During that

date at Yancy’s, she began directly indicating to him that

he “wasnt coming across’ with any drugs. (N.T. Trial at

88). Possibly as early as October or November, but cer-

tainly by this date, she began chiding him, telling him he

was “all talk” and never produced anything for her. She

began to question appellant's ability to obtain drugs for

her. He stated he would get some for her if shed meet him

again the next night. They did meet the following night,

January 8, 1981, in a furniture store parking lot at the M.J.

Carlisle Mall. On this eighth meeting between the two,

she got into his car only to find he had no drugs. He in-

dicated he would get them later in the evening, so they

27a

Opinion, Pa. Superior Court

went to the Hamilton Lounge together. When she indicat-

ed to him she was interested in getting something for her-

self for later that night, he made no moves to get any

drugs, despite having earlier mentioned his “connection”

was in the Oliver Plunkett right across the street. Instead,

he questioned her about her social life. Before she left, she

asked about paying for the drugs, but he assured her the

drugs would not cost her anything.

It is clear from the testimony that on or about Decem-

ber 1980 or January 1981, they were kissing at the end of

their dates or meetings, either at her car or while in his

car. They were often seen together in public in Carlisle,

and appellant would put his arm around her and introduce

her to his friends. She concluded from his conduct that he

was possibly interested in a romantic or sexual relation-

ship,” although he always treated her respectfully. Howev-

er, she never offered and he never requested sexual

relations.

The telephone calls and meetings continued, with

Hammond constantly requesting drugs and appellant just

as consistently failing to provide them. She would insinuate

that he couldn't get any drugs, while he again assured her

no payment would be necessary for any drugs he pro-

* Her testimony was as follows:

A. When I left, he would come out and he would say, well, good

night. And he would give me a kiss good night

Q. Did you get the feeling at that time that there was something

more that interested him than the discussions about partying?

A. I cant say that I know what was going through his mind. I can

only draw some sort of a conclusion.

Q. What conclusion did you draw?

A. Perhaps that he had—I don't know, perhaps I guess that he

would have ideas of attemptimg to take me to bed, I don't know.

(N.T. Trial at 73)

28a

Opinion, Pa. Superior Court

duced. Appellant kept up his entreaties, asking her to

meet him after midnight and once to stay overnight, all of

which she declined. On one occasion, she mentioned she

felt ill and appellant offered to get her a motel room.

Around this time, he also started suggesting to Hammond

that she move to Carlisle.

Eventually, she arranged a meeting with him on the

evening of March 23 at the Hamilton Lounge. She testified

on direct examination that:

A. After he made these statements about being

able to take care of me as far as drugs were con-

cerned, seeing how this was something I had heard

from him on several occasions before I just really

didn't take it that seriously. And I just said to him,

well, you know, you are all talk. I have heard this

before. And that’s all I ever hear is just talk.

And he said, well, | am going to show you that I

am on the level here. He said I am going to get a

dime bag of grass this evening, And while I was talk-

ing with him another individual entered the bar. . . .

Q. The codefendant in this case?

A. Thats correct.

Q. Go ahead, what happened next?

A. And shortly afterwards [appellant] called over

to Mr. Coleman. And he took a $10.00 bill out of his

pocket and put it on the bar. And he said to Mr. Cole-

man, “I want you to get me a dime bag of grass.”

(N.T. Trial at 12).

Appellant thereafter obtained 4.5 grams of marijuana

from his friend. a Mr. Coleman, and gave it to Hammond.

t

29a

Opinion, Pa. Superior Court

Appellant and Hammond then left the bar and went to his

car where he rolled some marijuana cigarettes with papers

supplied by Hammond. She offered to pay for the marijua-

na, but he refused to accept any money.

The final meeting during the investigation was on

April 11, 1981 at the Hamilton Lounge. This date had

been pre-arranged by Hammond by phone. Appellant

asked her how the marijuana was and whether she had any

left. She replied that since it was such a little amount.

there was no more left. He then talked of obtaining more

drugs for her, but never produced any. The meeting ended

after the two of them drove around Carlisle looking at

apartments as appellant continued to talk about her mov-

ing there. Eventually, appellant offered to pay one-half of

her rent if she moved to Carlisle.

We now turn our attention to the issue of entrapment

The present test for entrapment is set forth in section

313 of the Pennsylvania Crimes Code. 1S Pa.C.S. § 313

That section states in pertinent part:

§$ 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 de-

signed to induce the belief that such conduct is not

prohibited; or

' Act of December 6, 1972, P.L. 1482, No. 334. § 1. effective June

6, 1973, 18 PaCS. § 313.

30a

Opinion, Pa. Superior Court

(2) employing methods of persuasion or in-

ducement 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 oc-

curred in response to an entrapment.

[1] The test for entrapment in Pennsylvania under

section 313 is an objective one which “focus[es] on the

conduct of the police and will not be concerned with the

defendant's prior criminal activity or other indicia of a

predisposition to commit crime.” Commonwealth v. Jones,

242 Pa. Super. 303, 311, 363 A.2d 1281, 1285 (1976); see

also Commonwealth v. Taylor, 299 Pa. Super. 113, 445

A.2d 174 (1982); Commonwealth v. Danko, 281 Pa. Super.,

97. 421 A.2d 1165 (1980); Commonwealth v. Stokes, 264

Pa. Super. 515, 400 A.2d 204 (1979); Commonwealth v.

Manley, 252 Pa. Super. 77, 380 A.2d 1290 (1977), vacated

on other grounds, 491 Pa. 461, 421 A.2d 636 (1980). This

statute represented a significant shift in Pennsylvania law,

in that it rejected the then-existing use of a subjective test

in entrapment cases, i.e., a test which focused on the

defendant's predisposition to commit the crime.”

> Commonwealth v. Jones, 242 Pa. Super. 303, 310 n. 5, 363 A.2d

1281. 1285 n. 5 (1976). See also Commonwealth v. Ferguson, 289 Pa.

Super. 163, 174 n. 3, 432 A.2d 1103, 1108 n. 3 (1951) (Hoffman, J.,

dissenting). The existence of these two tests demonstrates a sharp contro-

versy over the proper theoretical basis and application of the defense of

entrapment, a disagreement perhaps most clearly seen in a series of

United States Supreme Court decisions dealing with the defense. See

United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366

= -z

3la

Opinion, Pa. Superior Court

[2] While the judicial focus in entrapment cases had

changed, the case law has been consistent in Pennsylvania

in holding that the determination of whether police con-

duct constitutes entrapment is for the jury, unless the evi-

dence of police conduct clearly establishes entrapment as a

matter of law. Commonwealth v. Berrigan, 234 Pa. Super.,

370, 373-374, 343 A.2d 355, 357 (1975) (divided court) (ap-

plying subjective test); Commonwealth v. Manley, supra,

252 Pa. Super. at 87, 380 A.2d at 1294 (applying objective

test). Thus, after the defense of entrapment has been prop-

erly 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.

A careful review of the record in this case reveals no

significant discrepancy in testimony of the Common-

wealths sole, witness (Trooper Hammond) and of appellant

regarding the course of conduct between the two over a

ten month period. Appellant was a middle-aged black

male and the trooper was a young, blonde, attractive fe-

male. A series of meetings and telephone calls occurred

over a ten-month period, all at the initiative of Trooper

Hammond. Drugs were constantly discussed. Although it

is not always clear who brought the subject up on each

(1973); Sherman v. United States, 356 U.S. 369, 78 §.Ct. 819, 2 L. Ed.2d

545 (1955); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77

L.Ed. 413 (1932). This court, however, has clearly stated that the

“present codification of entrapment [§ 313] finds its origin in Mr. Justice

Frankfurters concurring opinion in Sherman. .. .” Commonwealth v.

Jones, supra, 242 Pa. Super. at 311, 363 A.2d at 1285. The objective test

set forth there “shifts attention from the record and predisposition of the

particular defendants to the conduct of the police and the likelihood,

objectively considered, that it would entrap only those ready and willing

to commit a crime.” Sherman v. United States, supra, 356 U.S. at 383-84,

78 S.Ct. at 826-27.

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Opinion, Pa. Superior Court

occasion: what is clear is that beginning on September 29,

1980, Hammond began requesting drugs from the appel-

lant. By early 1981, and perhaps earlier, Hammond began

to chide and criticize appellant for his consistent failure to

obtain or provide drugs. Beginning in late 1980 or early

1981, the two began kissing after each meeting. Hammond

also permitted appellant to put his arm around her, walked

around in public with him, and socialized with his friends.

This testimony regarding Hammonds course of

dealings is uncontradicted.” In fact, testimony of Ham-

mond and appellant corroborate each other, as both

agreed as to dates and locations of meetings, the clothes

worn by Hammond on different occasions, the approximate

time the kissing began, her repeated requests for drugs

and criticism of his failure to provide them, etc. The criti-

cal question, of course, is whether or not this uncontradic-

ted testimonial evidence of police conduct establishes en-

trapment as a matter of law.

As Mr. Justice Frankfurter noted, this, “crucial ques-

tion [is] not easy of answer.” Sherman v. United States,

supra, 356 U.S. at 382, 78 S.Ct. at 825. Answering that

question is made all the more difficult by the fact that we

“In rejecting appellant's motion for a new trial and motion in arrest

of judgment, the trial court found “some conflicting testimony as to the

extent of the parties’ emotional involvement or assumed emotional in-

volvement with each other and as to the effect this may have had on

defendant's actions.” Lower court opinion at 7-8. Without addressing

appellant's second contention in this appeal, we note that this “conflicting

testimony” relates not to the troopers conduct and appellant's response to

it, but rather to the supposed state of mind of this particular appellant.

By considering the testimony, thé tower Court focused subjectively on

appellant's mental state, and not on the conduct of the police as contem-

plated by the statute. Also, what appellant “thought” and what Hammond

supposed he “thought” are not “conflicting” but only different.

te rt eens

| a ——-

33a

Opinion, Pa. Superior Court

have found no cases where either this court, or our

supreme court, has found entrapment as a matter of law

under the objective test of section 313." Indeed the

supreme court has never addressed the section 313 entrap-

ment defense, except to intimate in passing that the

statute changed Pennsylvania law in this area. Common-

wealth v. Herron, 475 Pa. 461, 468 n. 2, 380 A.2d 1228,

1231 n. 2 (1977).

Some guidance can be found in the Sherman concur-

ring opinion.'' In that opinion, the objective test was said

to be necessary in order to advance the ultimate goal

which the doctrine of entrapment seeks to establish, i-e.,

“{plublic confidence in the fair and honorable administra-

tion of justice.” 356 U.S. at 380, 78 S.Ct. at 825. The test,

therefore, is aimed at condemning certain impermissible

police conduct which, regardless of who may be induced

by it to commit a crime, “falls below standards, to which

common feelings respond, for the proper use of govern-

ment power.” Id. at 382, 78 S.Ct. at 825. Although entrap-

ment necessarily must be decided on a case-by-case basis,

impermissible activity may include “[a]ppeals to sympathy,

friendship, the possibility of exorbitant gain and so forth.”

Id. at 383, 78 S.Ct. at 826.

"Further muddying the waters in this area of the law, there

appears to be some inconsistency in the way this court has applied the

objective test of § 313, an inconsistency which has not gone unnoticed.

Commonwealth v. Taylor, 299 Pa. Super. 113, 120-21 n. 2, 445 A.2d 174,

177-75 n. 2 (1982); see also Comment, Entrapment: The Myth of the

Model Penal Code in Pennsylvania, 86 DICK.L.REV. 115 (1981); Ranney,

The Entrapment Defense—What Hath Model Penal Code Wrought?, 16

DUQ.L.REV. 157, 158-61 (1977-1978), Park, The Entrapment Controver-

sy, 60 MINN.L.REV., 163, 168 n. 16 (1976).

' See note 5, supra.

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Opinion, Pa. Superior Court

Courts in other states which have also adopted the ob-

jective test provide additional insight into its application."

For example, in State v. Mullen, lowa, 216 N.W.2d 375,

382-383 (1974), the Supreme Court of Iowa stated:

In adopting an objective test we do not intimate

the transactional negotiations and conduct of the gov-

ernment official (or his agent) and the defendant shall

be ignored. What was said, and the defendant’ re-

sponse to the inducements, should all be considered

in judging what the effect of the government conduct

would be on normally law-abiding persons. Depend-

ing on an evaluation of the facts in each case, prohibi-

ted governmental activity might include extreme

pleas of desperate illness, appeals based primarily on

sympathy, pity or close personal friendship, and offers

of inordinate sums of money. (Citations omitted).

Finally, the opinions of this court addressing the en-

trapment defense provide us with direction in deciding,

even if not providing examples of, the existence of entrap-

ment. In Commonwealth v. Manley, supra, the appellant

acted as middle-man in four drug sales to an undercover

officer which occurred over a period of a month and a half.

The transactions had been set up by an informant who was

a friend of the appellant. Appellant argued entrapment,

contending that he was induced by the informant’s repeat-

ed requests for drugs. In finding no entrapment existed as

a matter of law, the Manley court noted that there was no

evidence indicating the undercover agent was aware of the

' In addition to Pennsylvania, the objective test has been adopted

by statute in Hawaii, New Hampshire and North Dakota. It has been

judicially adopted in Michigan, Iowa, California and Alaska. Comment,

Causation and Intention in the Entrapment Defense, 28 U.C.L.A.

L.REV. 859, 862 n. 16 (1981). See also Park, supra, at 168.

35a

Opinion, Pa. Superior Court

number or type of requests made by the informant, nor

that the agent had “encouraged [the informant’s] repeated

requests in order to wear down appellant’ resolve.” Com-

monwealth v. Manley, supra, 252 Pa. Super. at 87, 380

A.2d at 1294.

In Commonwealth v. Stokes, supra, we found no en-

trapment existed in a case where appellant sold heroin to

an undercover agent. However, there the facts showed the

officer had merely provided appellant with a market for the

drugs by letting the appellant know he was interested in

buying some heroin, and had never importuned appellant

to make a sale.

Hense, Stokes reaffirmed the position, which was held

in Pennsylvania prior to the enactment of section 313, that

mere opportunity does not constitute entrapment. See also

Commonwealth v. Tami, 309 Pa. Super. 341, 455 A.2d 641

(1982). We have also stated that “artifice and stratagem are

legitimate tactics that may be employed by law en-

forcement officials to detect and combat crime.” Common-

wealth v. Lee, 262 Pa. Super. 218, 396 A.2d 724 (1978).

[3] In light of all this, and under the facts of this case,

we are convinced that the methods employed by the Com-

monwealth constitute entrapment as a matter of law. The

Commonwealth, acting through Trooper Hammond, pur-

sued a long term, persistent course of persuasion and in-

ducement aimed at luring appellant into delivering mari-

juana to Hammond. The use of a young, blonde female to

coax a middle age male, after months of kissing and

socializing, into committing a minor crime is not police

conduct which presents the “mere opportunity” to commit

a crime. As this case clearly shows, opportunity and in-

36a

Opinion, Pa. Superior Court

ducement are two separate consequences of police activi-

ty. The latter occurred here.

Furthermore, this is not a case like Manley where the

police were unaware of the importuning of a government

agent (often an informant) involved in the investigation.

Not only was Trooper Hammond obviously aware of her

actions and of appellant's interaction with her, she also ad-

mitted to suspecting the effect her conduct was having on

appellant, i.e., romantic or sexual desires."’

We are satisfied that appellant has successfully in-

voked the defense of entrapment by proving “by a

preponderence of evidence that his conduct occurred in

response to an entrapment. 18 Pa.C.S. § 313(b). This bur-

den was clearly met by the unconflicting testimony of both

appellant and Trooper Hammond. See, Commonwealth v.

Berrigan, supra, 234 Pa. Super. at 381, 343 A.2d at 361

(Hoffman, J., opinion in support of reversal) (testimony of

government informant sufficient to meet defendants bur-

den).

The law enforcement authorities clearly strayed be-

yond the limits of acceptable practice in this case. We can-

not sanction methods of inducement such as this, which

lure otherwise law-abiding citizens into crime. Here the

appellant has conceded his guilt, as he must when the en-

rapment defense is invoked under the objective test.

Commonwealth v. Jones, supra, 242 Pa. Super. at 314, 363

A.2d at 1286. However, it is the Commonwealth that is

guilty of the greater evil of playing an ignoble part. Sher-

man v. United States, supra, 356 U.S. at 380, 78 S.Ct. at

§24 (Frankfurter, J., concurring).

" See note 6, supra.

Opinion, Pa. Superior Court sis

Judgment of sentence is reversed.

WICKERSHAM, J., files dissenting opinion.

WICKERSHAM, Judge, dissenting:

I would affirm on the opinion of the Cumberland

County Court en banc by Honorable Harold E. Sheely,

PJ.