Com. v. Clapps
| Citation | 355 Pa.Super. 80,512 A.2d 1219 |
| Parties | COMMONWEALTH of Pennsylvania v. Bob Allen CLAPPS, Appellant. COMMONWEALTH of Pennsylvania v. Elmer WEISKERGER, Appellant. |
| Decision Date | 17 July 1986 |
| Court | Pennsylvania Superior Court |
Charles P. Gelso, Wilkes-Barre, for appellants.
Robert A. Graci, Asst. Dist. Atty., Wilkes-Barre, for Com., appellee.
Before CAVANAUGH, McEWEN and CERCONE, JJ.
Appellants Clapps and Weiskerger were determined by a jury to be guilty of conspiracy, 1 1 bribery 2 and violating the Public Officials Ethics Act. 3 Appellant Clapps was sentenced to serve a term of imprisonment of from six months to twenty-three and one-half months to be followed by a one year term of probation. Appellant Weiskerger was sentenced to serve a term of three years probation. We reverse the judgments of sentence and direct that each appellant be granted a new trial.
Both appellants assert in this appeal that the trial court erred in its charge to the jury upon the defense of entrapment. Each of the two appellants provides separate further assertions: appellant Clapps asserts that the uncontradicted evidence in the case established entrapment as a matter of law and that, therefore, he should be discharged; appellant Weiskerger argues that the trial court erred by permitting the prosecutor in his closing argument to comment upon the fact that appellants invoked their constitutional right to remain silent.
The case focuses upon four individuals: Walter Placek, Barbara Placek, his wife, and, of course, the two appellants. The asserted role of each, as revealed by the evidence at trial, may be briefly summarized as follows:
WALTER PLACEK was a member of the Wyoming Area School Board during the years that preceded the general election of November, 1979, and, during the years preceding that election, was a member of the coalition that composed the majority of the School Board. While a member of that majority coalition, both he and his wife found themselves beneficiaries of improved professional opportunities.
BARBARA PLACEK was the wife of Walter Placek and, while he was a member of the majority coalition of the Wyoming Area School Board during the years preceding the general election of November, 1979, she was the recipient of special employment attention at the County of Luzerne senior citizen facility known as Valley Crest Nursing Home. She was granted a two year leave so as to secure a Bachelor's Degree and was thereafter appointed to the newly created position of Director of the Bureau of Aging at the County nursing home. When she was removed from that job by reason of her failure to meet the qualifications for that position, a further job was created at the County nursing home, that of Director of Program Development, and she was appointed to that position.
APPELLANT CLAPPS was a prominent political figure who held a position of leadership in area Democratic affairs, as well as membership upon the Exeter Borough Council.
APPELLANT WEISKERGER, a one-time member of the West Pittston Borough Council, unsuccessful candidate for election to the Wyoming Area School Board, and the treasurer of the local Republican organization, was a political ally of appellant Clapps.
The scenario which produced the charges we here review commenced with the general election of November, 1979, when four individuals aligned with appellant Clapps were elected to membership upon the nine member Wyoming Area School Board. The Clapps faction, if it was to compose a majority of the board, required, of course, the allegiance of a fifth member of the board. Placek asserted that appellant Weiskerger communicated with him on January 13, 1980, to determine whether Placek was interested in joining the Clapps coalition so that it would compose the majority on the school board. Appellant Weiskerger, during that discussion, left Placek with the impression that appellant Clapps, in return, might be able to provide job security for Mrs. Placek whose position was likely to be eliminated by reason of budgetary reductions which had caused the discharge of a number of employees at the county nursing facility. Placek testified that, as a result of that discussion with appellant Weiskerger, he contacted, two days later on January 15, 1980, the Federal Bureau of Investigation of the United States Department of Justice. As a result, Placek, in league with the FBI and through the use of FBI eavesdropping equipment, produced the evidence which resulted in the charges and convictions which are the subject of this appeal.
Once Placek had agreed to become their agent, the FBI, on January 17, 1980, installed wiretap equipment on the telephone in the Placek residence and from that date, for the next ten weeks, through March 25, 1980, recorded the many attempts by Placek to communicate with their targets by telephone. In addition, when Placek was to meet with appellants on March 24, 1980, the FBI equipped Placek with such electronic devices as would enable the FBI to eavesdrop upon and record all of the discussions between Placek and his associates, the appellants. All of the conversations recorded, whether by telephone interception or by the equipment worn by Placek, were transcribed so that the jury could follow the discussions while the tapes of the conversations were played for them by the prosecution. The testimony of Placek and the FBI recordings led the jury to determine that appellants were guilty as charged. Appellants do not urge that the evidence was insufficient to sustain the verdict, but instead assert the charges should be dismissed because Placek and the FBI solicited and induced the activity with which they are charged.
While appellants did not themselves testify, they undertook the presentation of the defense of entrapment by vigorous cross-examination of Placek, and by focus upon the enthusiastic manner in which Placek served the FBI, such as, for example, the fact that, within five days, he urged appellant Weiskerger on twenty different occasions to have appellant Clapps contact him. A collateral attack upon the prosecution was the effort of appellants to portray Placek as an unworthy individual who had used his vote to extract spoils from the system and only commenced the investigation to intimidate and coerce the county officials into preserving the position of his wife.
Our appellate role restricts our focus to the narrow legal issues that are presented to us. We may not be diverted by the asserted unworthiness of the individual who enlisted the FBI for the purpose of this prosecution. The use by political leaders of hostages to exercise political influence, manipulation and control is an ancient--and, in the present age, dishonored--practice which has, fortunately, in recent decades, been in decline. Such conduct as the prosecution here charges can only serve to erode the confidence of the people in their government and deserves, when properly uncovered, elimination and punishment. Appellants argue, however, that it was not uncovered in a proper and lawful fashion. Appellants assert that such chicanery as was practiced here is not such dread evil as would justify misuse of the federal police power that modern devices have made awesome, if not frightening. The record does not reflect the basis for the decision of the federal police to conduct the investigation without the assistance and coordination of county and state police agencies, but such usurpation by the federal police is not unusual and may not form any basis for defense. Nor may the assertion that the thrill of association with the federal police impelled their recruit to perform as a zealot--although, if there is to be the presumption that the FBI did not direct Placek to attempt to contact his quarry twenty times in five days, the question remains as to why the FBI did not maintain more effective control of their undercover agent. History has demonstrated that the performance of the centurion is more frequently witnessed in the excess. In the present time, legal philosophers express concern at the routine that finds the federal police initially targeting their prey, and then either luring or intimidating cohorts of their quarry to become informers and to conceal upon their person equipment that will broadcast conversations which, sooner than later if the agent/informant is to well serve his new masters, must include discussion of illegal activity. We need not here render judgment upon the validity of this concern nor give ear to advocacy that is more essentially the subject of a jury speech.
As we have noted, both appellants assert that the trial court erred in its instruction to the jury upon the defense of entrapment. There is, however, a threshold issue we must first address, namely, the contention of the Commonwealth that appellants were not entitled to any instructions upon entrapment because appellants did not admit to any of the elements of the offenses charged. Thus, the argument goes, any instruction upon entrapment was an unwarranted benefit to appellants and cannot constitute error. The prosecution relies for its position upon the ruling of this Court in Commonwealth v. McGuire, 339 Pa.Super. 320, 488 A.2d 1144 (1985). The defendant there testified on his own behalf and acknowledged that he had, at the insistence of undercover police, delivered a package which contained drugs, but denied that he had the requisite intent for guilt because he did not know the contents of the package. Thus, there was evidence to support either (1) the finding that the defendant lacked the requisite intent, or (2) the finding that the defendant was entrapped. As a result, the defendant was entitled to have the issue of entrapment submitted to and decided by the jury by reason of our ruling that "[t]he entrapment defense will be available to defendants ... who admit to at least some of the elements charged". Id. 339 Pa.Super. at 333, 488 A.2d at...
To continue reading
Request your trial