Com. v. Benchino

• Decision Date: 25 October 1990
• Parties: COMMONWEALTH of Pennsylvania v. Louis R. BENCHINO, Appellant.
• Court: Pennsylvania Superior Court

Page 1067

582 A.2d 1067

399 Pa.Super. 521

COMMONWEALTH of Pennsylvania v. Louis R. BENCHINO, Appellant.

Superior Court of Pennsylvania.

Argued March 8, 1990.

Filed Oct. 25, 1990.

Reargument Denied Dec. 21, 1990.

Peter T. Campana, Williamsport, for appellant.

Robert W. Ferrell, III, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before WIEAND, TAMILIA and POPOVICH, JJ.

WIEAND, Judge:

In this appeal from a judgment of sentence ¹ imposed following a bench trial in which Louis R. Benchino was found guilty of possession of cocaine with intent to deliver, he contends that police conduct was so outrageous as to constitute a violation of due process and that he was entrapped as a matter of law. After careful review, we reject these arguments and affirm the judgment of sentence.

The facts upon which appellant was convicted were stated succinctly in the opinion of the learned trial judge as follows:

Evidence at trial showed that the defendant had been a heavy user of drugs, including cocaine, and during his period of heaviest use, had met a dealer named Tomas Dasso who has since been arrested and is cooperating with the Commonwealth. The defendant knew Dasso as a South American who was heavily involved in importing drugs, including cocaine. The defendant had not seen Dasso for more than a year and claims to have been attempting to extricate himself from involvement in the use of and dealing in drugs. According to the testimony of Agent Joseph Byerly of the Attorney General's Office, Dasso had mentioned the defendant as a potential target for investigation. Dasso had contacted the defendant and indicated that he wanted a large debt repaid to him, stating that the people behind him were concerned about it. The debt related to drug transactions which had occurred more than a year before. The defendant discussed with Dasso the possibility of purchasing between two and four ounces of cocaine, perhaps more, which he would resell in order to repay the debt. Dasso and the defendant agreed that a third party (Joseph Byerly, an undercover narcotics agent) would deliver the cocaine to the defendant.

When Agent Byerly met with the defendant, the defendant indicated that he and Dasso had done business in the past. The agent advised Benchino that the price was $50.00 for a gram or $1400.00 for [an] ounce[ ] of cocaine. The defendant asked Byerly to "front" him two ounces of cocaine because he did not have enough money to cover the purchase. He asked for an hour in which to obtain the money, and Agent Byerly agreed. After an hour, the defendant returned and asked Agent Byerly if he would accept $500.00 as partial payment for the two ounces, and defendant would pay the full amount later. Agent Byerly refused and asked the defendant to leave the $500.00 as good faith money that he would return later to take delivery of the cocaine. The defendant rejected Agent Byerly's request, and the two agreed that they would meet later, when the defendant would [purchase] between two and four ounces of cocaine.

Several days later, the defendant and Agent Byerly met again. At that time, the defendant offered the Agent $1400.00 for [an] ounce of cocaine and [an] additional ounce[ ] [was] fronted. The transaction occurred and the Agent immediately thereafter placed the defendant under arrest. Also arrested nearby was a co-defendant who had advanced the money to Benchino.

Instantly, appellant based his claim of a due process violation on an assertion that he had been implicitly threatened by efforts of the Commonwealth's informant to collect a drug debt which he had owed to the informant. According to appellant, it had been his fear of Dasso, the informant, which had caused him to pretend to go along with the scheme merely to avoid retaliation for not being able to pay the debt. Appellant argues further that the discussions about his obtaining cocaine, along with Agent Byerly's allowing him to sample a small amount of cocaine at their first meeting, had rejuvenated his desire to use the drug. From this appellant postulates that if he had not been fearful of the informant and had not had his appetite for cocaine rekindled, he would not have agreed to participate in the drug transaction which led to his conviction. ²

It is correct, as appellant argues, that the Superior Court held in Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), that "police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds." Id. at 321, 500 A.2d at 854. See: Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). See also: Commonwealth v. Bonace, 391 Pa.Super. 602, 607, 571 A.2d 1079, 1082 (1990); Commonwealth v. Delligatti, 371 Pa.Super. 315, 321, 538 A.2d 34, 37 (1988). "The question whether government conduct [has been] so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury." United States v. Engler, 806 F.2d 425, 430 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). See also: United States v. Swiatek, 819 F.2d 721, 726 (7th Cir.1987), cert. denied, 484 U.S. 903, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987); United States v. Salazar, 720 F.2d 1482, 1488 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105 S.Ct. 789, 83 L.Ed.2d 783 (1985); United States v. Prairie, 572 F.2d 1316, 1319 (9th Cir.1978); United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976); Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 403, 554 A.2d 62, 64 (1989). Before the conduct of law enforcement officials or government agents will be found to have violated due process, however, it must be shown that police conduct was " 'so grossly shocking and so outrageous as to violate the universal sense of justice.' " United States v. Ramirez, 710 F.2d 535, 539 (9th Cir.1983), quoting United States v. Ryan, 548 F.2d 782, 789 (9th Cir.1976), cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977). See also: United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir.1987), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir.1986), cert. denied, 481 U.S. 1071, 107 S.Ct. 2466, 95 L.Ed.2d 875 (1987). The establishment of a due process violation "generally requires 'proof of government overinvolvement in the charged crime and proof of the defendant's mere passive connection to the government orchestrated and implemented criminal activity.' " United States v. Duvall, 846 F.2d 966, 973 (5th Cir.1988), quoting United States v. Nations, 764 F.2d 1073, 1077 (5th Cir.1985). Moreover, for due process to bar a conviction, the government's involvement in the commission of the crime "must be malum in se or amount to the engineering and direction of the criminal enterprise from beginning to end." United States v. Citro, 842 F.2d 1149, 1153 (9th Cir.1988), cert. denied, 488 U.S. 866, 109 S.Ct. 170, 102 L.Ed.2d 140 (1988). See also: United States v. Williams, 791 F.2d 1383, 1386 (9th Cir.1986), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986); United States v. Gonzales, 539 F.2d 1238, 1239-1240 (9th Cir.1976).

Review of federal decisions reveals that the conduct of the government in conducting criminal investigations will be found to violate due process " 'only in the rarest and most outrageous circumstances.' " United States v. Arteaga, 807 F.2d 424, 426 (5th Cir.1986), quoting United States v. Yater, 756 F.2d 1058, 1066 (5th Cir.1985), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985). See also: United States v. Rubio, 834 F.2d 442, 450 n. 6 (5th Cir.1987); United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.1984), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). Thus, the Court of Appeals for the Third Circuit has said:

[A] successful due process defense must be predicated on intolerable government conduct which goes beyond that necessary to sustain an entrapment defense.... We must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable; the ramifications are wider and more permanent than when only a statutory defense is implicated.

United States v. Jannotti, 673 F.2d 578, 607 (3d Cir.1982), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). See: Hampton v. United States, supra 425 U.S. at 495 n. 7, 96 S.Ct. at 1653 n. 7, 48 L.Ed.2d at 122 n. 7 (Powell, J. Concurring) ("Police overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction."). See also: United States v. Ward, 793 F.2d 551, 553-555 (3d Cir.1986); United States v. Gambino, 788 F.2d 938, 945 n. 6 (3d Cir.1986), cert. denied, 479 U.S. 825, 107 S.Ct. 98, 93 L.Ed.2d 49 (1986); United States v. Beverly, 723 F.2d 11 (3d Cir.1983).

It has been held that the mere fact that an investigation has been begun without probable cause or reasonable suspicion does not violate due process. See: United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir.1983) ("Any absence of a reasonable basis for initiation of the undercover investigation does not bar the prosecution."); United States v. Jannotti, supra at 609 (commencement of investigation without probable cause "does not bar the conviction of those who rise to its bait"); United States v. Myers, 635 F.2d 932, 940-941 (2d Cir.1980), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980) (no constitutional requirement of reasonable suspicion before investigation may begin). See also: United States v. Driscoll, 852 F.2d 84, 87 (3d Cir.1988). But see: United States v. Luttrell, 889 F.2d 806, 812-814 (9th Cir.1989) (government should have some factual basis for suspicion prior to approaching an apparently innocent individual and offering opportunity to engage in criminal activity).

The...