Com. v. Frank

• Decision Date: 09 October 1986
• Citation: 357 Pa.Super. 442,516 A.2d 64
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Patrick FRANK, Appellant.
• Court: Pennsylvania Superior Court

Page 64

516 A.2d 64

357 Pa.Super. 442

COMMONWEALTH of Pennsylvania, Appellee, v. Patrick FRANK, Appellant.

Superior Court of Pennsylvania.

Argued June 24, 1986.

Filed Oct. 9, 1986.

Arthur L. Goldberg, Harrisburg, for appellant.

John E. Feather, Jr., Asst. Dist. Atty., Lebanon, for Com.

Before WIEAND, BECK and WATKINS, JJ.

WIEAND, Judge:

Dr. Patrick J. Frank was tried by jury and was found guilty on three counts of unlawfully dispensing a controlled substance. On direct appeal from the judgment of sentence, he argues (1) that he was entrapped as a matter of law and (2) that the trial court should have suppressed electronic recordings of conversations between him and the undercover agent to whom the drugs were dispensed. These arguments are lacking in merit; therefore, we affirm the judgment of sentence. ¹

On July 20, 1984, Jeanne R. Berlin, an undercover agent employed by the Bureau of Narcotic Investigation and Drug Control, ² arrived at the office of Dr. Frank pursuant to appointment. Using the name Diane Winters, she told Dr. Frank that she wanted to lose weight. After conducting a physical examination, Dr. Frank dispensed medication. One type was to be used during the day and another type was intended for use at night.

On August 24, 1984, Agent Berlin again went to Dr. Frank's office. She told Dr. Frank that she had not been taking the nighttime medicine because she had not needed it. She said that her boyfriend had taken this medication and liked it. Berlin asked Dr. Frank for a supply of medication for her boyfriend. Dr. Frank responded that he could not lawfully prescribe medication for her boyfriend without examining him physically, but that he could prescribe medication for her and she could give it to her boyfriend. He then gave her additional medication.

On September 14, 1984, Agent Berlin again went to Dr. Frank's office. This time she was wearing an electronic device which enabled her conversation with Dr. Frank to be recorded. Once again she told Dr. Frank that she was not using the nighttime medicine but that her boyfriend was continuing to take it. Dr. Frank again responded that he could get into trouble if he dispensed medication for his patient's boyfriend, but that he would continue to provide medication for her and she could give it to her boyfriend. He gave her additional medicine.

Again, on October 2, 1984, Berlin went to Dr. Frank's office while wearing a recording device. She told Dr. Frank that she wanted more of the nighttime medication for her boyfriend and asked him if he could make the medication stronger. Dr. Frank responded that he would not give the medication to her boyfriend but he would give it to her and she could give it to anyone she wanted to give it to. He gave her a different kind of medication.

On October 12, 1984, still posing as Diane Winters, Agent Berlin went to Dr. Frank's office for the last time. She told Dr. Frank that she had not come to discuss weight control, but only to get more nighttime medication for her boyfriend. Again Dr. Frank suggested that he could get into trouble if he gave her more medication for her boyfriend. He asked her to have her boyfriend make an appointment so that he could give the boyfriend a physical examination and find a reason for the medication. Nevertheless, he gave Berlin a small amount of the nighttime medication and instructed her that if she were questioned by anyone, she should say that she had lost the medication previously given to her and that she had been given a physical examination before receiving the medication. This conversation was also recorded.

Appellant was charged in four complaints with having unlawfully dispensed controlled substances, i.e., Sodium Pentobarbital and Butabarbital, in violation of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, P.L. 233, § 13(14), 35 P.S. § 780-113(14). He defended on grounds that he had been entrapped. The issue of entrapment was submitted to the jury with instructions which the defendant has not challenged. The jury decided the issue of entrapment against Dr. Frank and found him guilty on three of the four charges.

The defense of entrapment is defined at 18 Pa.C.S. § 313 as follows:

(a) General rule.--A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:

(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or

(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

(b) Burden of proof.--Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment.

"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 the crime.' " Commonwealth v. Thompson, 335 Pa.Super. 332, 340, 484 A.2d 159, 163 (1984), quoting Commonwealth v. Jones, 242 Pa.Super. 303, 311, 363 A.2d 1281, 1285 (1976). See also: Commonwealth v. Clapps, --- Pa.Super. ----, ----, 512 A.2d 1219, 1224-1225 (1986).

In its effort to deter governmental conduct which "induces or encourages" citizens to commit crimes, the Legislature has defined improper conduct in two ways. Should law enforcement agents misrepresent the nature of the conduct encouraged, such that civilians are induced to believe that the encouraged behavior is lawful, an entrapment will have been perpetrated for purposes of § 313(a)(1)....

Entrapment is also defined as the use of "methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it." § 313(a)(2). Again, a particular defendant's attitude is not relevant; he need not prove that he was not "ready to commit" the crime. Rather, he must establish by a preponderance of the evidence that the methods of persuasion directed toward him, if utilized again, present a substantial risk that otherwise honest, law-abiding citizens may at some time be ensnared.

As the statutory definitions reveal, then, Pennsylvania's entrapment statute addresses the concern over "unconventional" investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the analysis only incidentally involves a particular defendant.

Commonwealth v. McGuire, 339 Pa.Super. 320, 328, 488 A.2d 1144, 1148-1149 (1985) (footnote omitted) (emphasis in original). "[T]he case law has been consistent in Pennsylvania in holding that the determination of whether police conduct constitutes entrapment is for the jury, unless the evidence of police conduct clearly establishes entrapment as a matter of law." Commonwealth v. Thompson, supra, 335 Pa.Super....