Com. v. Sun Cha Chon

• Decision Date: 05 November 2009
• Docket Number: No. 473 EDA 2008,473 EDA 2008
• Citation: 983 A.2d 784
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. SUN CHA CHON, Appellee.
• Court: Pennsylvania Superior Court

983 A.2d 784

COMMONWEALTH of Pennsylvania, Appellant v. SUN CHA CHON, Appellee.

No. 473 EDA 2008

Superior Court of Pennsylvania.

Argued January 7, 2009.

Filed November 5, 2009.

Joseph R. Staufer, Asst. Dist. Atty., Allentown, for Commonwealth, appellant.

Maureen C. Coggins, Allentown, for appellee.

BEFORE: BENDER, PANELLA and KELLY, JJ.

OPINION BY BENDER, J.:

¶ 1 The Commonwealth of Pennsylvania appeals from the January 24, 2008 order that granted the "Motion to Dismiss Due to Outrageous Government Conduct" filed by the defendant in this case, Sun Cha Chon (Chon). We affirm.

¶ 2 On December 4, 2006, the Commonwealth charged Chon with one count of prostitution under 18 Pa.C.S. § 5902(a)(1) and two counts of promoting prostitution under 18 Pa.C.S. § 5902(b)(1) and (b)(2).¹ On July 31, 2007, Chon filed a "Motion to Dismiss Due to Outrageous Government Conduct" alleging, inter alia, that the actions of the Pennsylvania State Police and their confidential informant were outrageous to the level of violating her right to due process, and that the charges against Chon should therefore be dismissed.

¶ 3 The Honorable Robert L. Steinberg presided over two hearings held on Chon's motion to dismiss. Judge Steinberg set forth, in his opinion filed in conjunction with this appeal (Pa.R.A.P. 1925(a)), the following facts of the instant case, which are supported by the record and essentially undisputed by the parties in this appeal:

The testimony at the two hearings held on [Chon's] Motion to Dismiss Due to Outrageous Government Conduct revealed that the Pennsylvania State Police commenced a prostitution investigation at Shiatsu Spa based upon a complaint by a citizen. It appears that after receiving a massage, the citizen was offered manual sexual stimulation by "Coco," but he was not able to afford the additional fee. Instead, he reported the conversation with "Coco" to the state police, who, after concluding he was an "acceptable informant," provided him with the fees for sexual contact.

On June 8, 2006, the citizen volunteered his services to the police and was provided with $100 in pre-recorded money and equipped with a transmitter to visit Shiatsu Spa as a customer. The monies provided to the citizen were used to purchase sexual acts at the Spa, in the amount of sixty ($60) dollars, and to compensate the citizen for his "time", in the amount of forty ($40) dollars. The state police investigator provided instructions to the citizen, including taking "universal precautions regarding sexual contact with any employees." The citizen, in response, indicated that he had brought condoms. The citizen was also searched prior to entering the premises, and, according to the investigating trooper, no concealed weapons were uncovered.

Thereafter, he entered Shiatsu Spa, received manual sexual stimulation for sixty ($60) dollars and was permitted to fondle "Gina's" breasts. Testimony also revealed that after the activities inside Shiatsu Spa, the citizen was debriefed. The tape of the incident reveals both banter and laughter between the citizen and the police.

Law enforcement directed three additional visits to Shiatsu Spa after June 8th under similar circumstances, with the exception that the amount of money provided to the citizen was greater, and the sexual conduct escalated. On June 13, 2006, the citizen was provided one hundred ($100) dollars for sex and forty ($40) dollars for his "time." On this occasion, he had both oral sex and sexual intercourse in various positions with "Coco." Other sexual contact between the two is described in the Affidavit of Probable Cause for the Search Warrant.

On July 19, 2006, the citizen was provided with one hundred ($100) dollars for sex and forty dollars for his "time." On this occasion, he had both oral sex and sexual intercourse in various positions with "Coco."

Finally, on July 26, 2006, the citizen was provided one hundred ($100) dollars for sex and sixty ($60) dollars for his "time." On this occasion, "Gina" began performing oral sex on him, but was interrupted on two occasions by a phone call. The two then continued with oral sex and also had sexual intercourse.

The visits to Shiatsu Spa revealed almost nothing except that various sexual activity was available for a price inside the premises. A search warrant was secured after the above-described events. It was executed on July 27, 2006, at Shiatsu Spa, where money, condoms, and a few other items were recovered. It also appears that, prior to sending the citizen into Shiatsu Spa, the state police were aware that "Gina" rented the property. The conversation with the property owner revealed that "Gina" paid the rent as well as other miscellaneous items.

Trial Court Opinion (T.C.O.), 1/24/08, at 4-6 (footnotes omitted). The lead investigating state trooper on this case identified Chon as "Gina" at the hearing on her motion to dismiss. N.T. Hearing, 9/18/07, at 58.

¶ 4 On January 24, 2008, Judge Steinberg granted Chon's "Motion to Dismiss Due to Outrageous Government Conduct." The Commonwealth filed a timely notice of appeal from this order, certifying that the order would terminate or substantially handicap the prosecution.

¶ 5 The Commonwealth presents the following sole issue in this appeal:

WHETHER THE TRIAL COURT MISAPPLIED THE LAW BY DISMISSING THE COMMONWEALTH'S CASE FOR OUTRAGEOUS GOVERNMENT CONDUCT WHEN AN INFORMANT ENTERED A HOUSE OF PROSTITUTION ON FOUR OCCASIONS AND ENGAGED IN SEXUAL ACTS WITH TWO PROSTITUTES?

Commonwealth's brief at 7.

¶ 6 We note initially that Pennsylvania recognizes the defense of outrageous government conduct, which "is based on the theory that `police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds.'" Commonwealth v. Mance, 539 Pa. 282, 652 A.2d 299, 303 (1995) (quoting Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853, 854 (1985)). The question of whether due process is violated by outrageous police conduct is a "legal question to be determined by the court, not the jury." Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 554 A.2d 62, 64 (1989).

¶ 7 As Judge Steinberg recognized, "[t]he judiciary is extremely hesitant to find law enforcement conduct so offensive that it violates the Due Process Clause." T.C.O. at 2 (quoting U.S. v. Lakhani, 480 F.3d 171, 180 (3d Cir.2007)). Indeed, our Court has stated, "[b]efore the conduct of law enforcement officials or government agents will be found to have violated due process, ... it must be shown that police conduct was so grossly shocking and so outrageous as to violate the universal sense of justice." Commonwealth v. Benchino, 399 Pa.Super. 521, 582 A.2d 1067, 1069 (1990) (citation and internal quotation marks omitted).

¶ 8 In his analysis, Judge Steinberg relied largely on United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir.1998), when considering the issue of "[t]he use of sex as a weapon to fight crime." T.C.O. at 6. The defendant in that case, Angela Nolan-Cooper, was the target of an IRS investigation where she was suspected of laundering drug money. Nolan-Cooper, 155 F.3d at 224. She agreed to launder money for an undercover government agent posing as a wealthy drug dealer. Id. During the thirteen-month investigation, the undercover agent developed a social relationship with Ms. Nolan-Cooper, partying and treating her to expensive restaurants and the like in an effort to maintain his cover and develop a relationship with her. Id. at 226. Toward the end of the investigation, after an evening of clubbing, Ms. Nolan-Cooper and the agent had sexual intercourse. Id. at 227. It also appeared that the agent and his associate "failed to contact their supervisors at any time during the period of the evening" suggesting that they were attempting to shield the evenings' activities from their superiors. Id. After her arrest, Ms. Nolan-Cooper contended that the criminal indictment against her should have been dismissed due to outrageous government conduct in the use of sex in the investigation, which violated her due process rights. Id. at 228-29.

¶ 9 The Third Circuit agreed with the district court in Nolan-Cooper, which concluded that, under the "totality of the circumstances," there was no due process violation based on a single instance of sexual intercourse that occurred without the knowledge or approval of the agent's superiors, and where the agents did not use sex to induce, reward, or lure Ms. Nolan-Cooper into illegal activity. Id. In reaching this conclusion, the Third Circuit examined the history of the defense of outrageous government conduct, confirming its continued viability in this jurisdiction, id. at 230, and considered other cases involving sexual misconduct by government operatives in the course of their investigations, id. at 231-35.

¶ 10 The Third Circuit examined, for example, the Ninth Circuit's decision in United States v. Simpson, 813 F.2d 1462 (9th Cir.1987), a case "in which the FBI employed a known prostitute and heroin user as an informant in an undercover investigation of a suspected heroin dealer." Id. at 231. The informant became sexually involved with the target heroin dealer thereby "gaining his trust through intimacy." Id. Although the FBI later learned that the informant was having sex with the target, they did not terminate their investigation. Id. As explained in Nolan-Cooper, the Ninth Circuit concluded that the "betrayed suspect" may have felt "foolish" but that he was not coerced into the relationship and the "due process clause does not protect [the defendant] from voluntarily reposing his trust in one who turns out to be unworthy of it." Id. (quoting Simpson, 813 F.2d at 1466). In examining the holding in Simpson, the Nolan-Cooper court stated:

Although we agree that undercover agents cannot be deprived of the ability to develop strong bonds with their targets in order for investigations to proceed, and that it is exceedingly difficult...