Com. v. Lindenmuth

• Decision Date: 02 March 1989
• Parties: COMMONWEALTH of Pennsylvania v. Steven LINDENMUTH, Appellant. COMMONWEALTH of Pennsylvania v. Bruce S. FENSTEMAKER Appellant. COMMONWEALTH of Pennsylvania v. Gary L. LOMISON, Appellant.
• Court: Pennsylvania Superior Court

Page 62

554 A.2d 62

381 Pa.Super. 398

COMMONWEALTH of Pennsylvania v. Steven LINDENMUTH, Appellant.

COMMONWEALTH of Pennsylvania v. Bruce S. FENSTEMAKER Appellant.

COMMONWEALTH of Pennsylvania v. Gary L. LOMISON, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 9, 1988.

Filed Jan. 3, 1989.

Reargument Denied March 2, 1989.

Michael J. Rudinski, Williamsport, for appellant in No. 737.

Peter T. Campana, Williamsport, for appellants in Nos. 738 and 739.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before BECK, KELLY and HESTER, JJ.

HESTER, Judge:

Steven Lindenmuth, Bruce Fenstemaker and Gary Lomison each appeal from the judgment of sentence entered against them on October 27, 1987, in the Court of Common Pleas of Lycoming County. They were convicted of criminal attempt to possess a controlled substance with intent to deliver following a consolidated jury trial. Their appeals were also consolidated. We affirm.

The evidence introduced at trial establishes the following. Agent Thomas Sokso of the Internal Revenue Service was investigating a large scale drug dealer by the name of Nicholas DiEspriella. A former companion of DiEspriella turned informant, named Dosso, aided in the investigation. Dosso had sold large quantities of marijuana to Scott L. Brown for DiEspriella in 1984 and 1985 and knew that Brown still owed money to DiEspriella from these deals. Agent Sokso, with the aid of Dosso and Agent Hollier of the Pennsylvania Attorney General's Office, began to gather evidence against DiEspriella by contacting Brown.

The plan was to have Dosso meet with Brown under the pretext of collecting the money. On July 14, 1986, Agents Sokso and Hollier accompanied Dosso as extra intimidation to collect the debt which Brown owed DiEspriella and which Dosso had been unable to collect from Brown. Since Brown did not have the money or any means to raise the money, he eventually agreed to sell marijuana supplied by Dosso to make a profit and repay the debt.

The agents returned to Brown's residence with Dosso to tell Brown that he must have the money before the marijuana would be delivered to him. Agent Hollier threatened Brown that one of his vehicles would be seized for payment of the debt if he did not come forward with the money to buy the marijuana. Brown, who had not been selling marijuana recently, agreed to collect the money from some friends and meet Sokso at a later date.

On July 28, 1986, agents Sokso and Hollier contacted Brown and arranged to meet him to discuss the deal further. They told Brown that they would provide him with seven pounds of marijuana for the sum of $3,000.00. Brown agreed to get the money from friends and to meet Sokso and Hollier the next day in a parking lot. Brown met with a number of friends from work and told them he would sell them a minimum quantity of one pound of marijuana for $600.00. Appellants were interested and gave their money to Brown since marijuana was not readily available in the Williamsport area at that time.

Brown met with Hollier and Sokso on July 29, 1986. He had only $2,600.00. They agreed to sell him only six pounds. He was arrested after he gave Hollier and Sokso $2,600.00. Brown was then transported to the civil defense building and later decided to cooperate in the investigation. No immunity was given, and no specific leniency was promised. Sokso interviewed Brown about DiEspriella. The investigation was turned over to agent Hollier.

Agent Hollier persuaded Brown to telephone each of his buyers to tell them that the deal had not gone through, that the money was stolen and that he would try to repay them. Each telephone conversation was tape recorded. Each appellant acknowledged that he had given Brown money for the purpose of purchasing a pound of marijuana.

Appellants were charged with criminal attempt to possess with intent to deliver and conspiracy to possess with intent to deliver. They were tried together following denial of their pretrial motions to sever. The jury found appellants not guilty of conspiracy, but did find them guilty of criminal attempt to possess with intent to deliver. This timely appeal followed.

Appellants first contend that the conduct of the agents in threatening Brown and inducing him to buy and sell marijuana was outrageous and so fundamentally unfair that it violated their due process rights under the Fourteenth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution. Appellants ask us to dismiss the charges against them on the basis that the veiled threats and conduct toward Brown by the agents was egregious in that government agents threatened force and induced a crime that otherwise would not have occurred. Appellants contend that dismissal is required in order to send a message that police involvement which creates criminal action is a perversion of the criminal justice system, and will not be condoned.

Appellants rely on United States v. Twigg, 588 F.2d 373 (3rd Cir.1978) and Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), to support their claim that conduct of government agents can be so outrageous as to bar prosecution even where entrapment is not shown. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). Appellants further posit that Brown's ignorance that he was aiding the government should not insulate it from penalty for outrageous conduct which resulted in its prosecution of appellants.

Initially, we note that, as it relates to due process guarantees, our state constitution affords no greater protection than the United States Constitution. Coades v. Commonwealth of Pennsylvania Board of Probation and Parole, 84 Pa.Cmwlth. 484, 480 A.2d 1298 (1984). Accordingly, our analysis below of the federal constitution applies to the state constitution.

Twigg and Mathews held that police involvement in criminal activity can be so outrageous that a prosecution will be barred on due process grounds. This is a legal question to be determined by the court, not the jury. United States v. Engler, 806 F.2d 425, 430 (3rd Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987).

Government agents in Twigg and Mathews supplied money, indispensable equipment and advice in a plan to manufacture drugs. It was held in both cases that the government's role in inducing and supporting the crime was so extensive that it was deemed to negate to the required criminal element of mens rea so that prosecution was barred.

Instantly, the agents' involvement was not as extensive nor as intrusive as that involved in Twigg and Mathews. Furthermore, and key, is the fact that police actions in this case did not affect appellants' mens rea, but Brown's mens rea. The police coerced Brown, not the appellants, into committing the crime through threats and intimidation. The evidence establishes that appellants offered Brown money for drugs merely because he asked them if they would like to buy some. Notes of Testimony, (N.T.), 5/21/87, at 126. No police coercion or influence contributed to the independent decision by any of the appellants to purchase narcotics. Twigg and Mathews, therefore, are distinguishable, and we will not extend the reasoning of those cases to a situation where the police initiated the criminal episode by encouraging a third party, not the defendant, to engage in criminal activity and where the third party was unaware that he was being used to further police actions. Appellants dealt with Scott Brown and not directly with the agents. The fact that Brown was induced to sell marijuana below the current market value does not give us cause to extend the lack of mens rea/due process defense to appellants on a principal similar to "prosecutorial taint." We agree with the trial court that the agents' involvement in this case does not rise to such a level that prosecution should be barred.

Appellant's second contention is that the conduct of the agents constituted entrapment and the question of entrapment should have been put before the jury. 18 Pa.C.S. § 313. The defense of entrapment, "focus[es] on the conduct of the police and will not be concerned with the defendant's prior criminal activity or other indicia or a predisposition to commit crime." Commonwealth v. Taylor, 299 Pa.Super. 113, 120, 445 A.2d 174, 177 (1982). Thus, we test for entrapment under the Code by objectively assessing police conduct rather than by considering the defendants' prior criminal activity or other indicia or focusing on a subjective evaluation of a defendant's motivations.

In Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977), we stated that courts have recognized that:

[w]hile it is true that under normal circumstances entrapment is usually a jury question, where the evidence points to only one conclusion the question may be decided as a matter of law, just as any other factual issues admitting of only one conclusion.

United States v. Klosterman, 248 F.2d 191, 195 (3rd Cir.1957), cited in, Commonwealth v. Mott, 234 Pa.Super. 52, 58, 334 A.2d 771, 774-75 (1975).

Id. 252 Pa.Super. at 87, 380 A.2d at 1294.

First, any police conduct in this case was directed toward Brown, not appellants. Second, we do not find the police conduct in this case to be overly intrusive or to have induced appellants to commit a crime that otherwise would not have occurred. Compare: Commonwealth v. Thompson, 335 Pa.Super. 332, 484 A.2d 159 (1984), in which a pretty blond "enticed" defendant, a police officer, over a ten month period to provide some marijuana to her; Commonwealth v. Berrigan, 234 Pa.Super. 370, 343 A.2d 355 (1975), in which a woman, new to town and an undercover agent, convinced the defendant, in order to earn her gratitude, to obtain some marijuana for her. Instantly, unlike these cases, appellants were not unduly swayed to...