Commonwealth v. Bonace
| Decision Date | 06 March 1990 |
| Citation | 391 Pa.Super. 602,571 A.2d 1079 |
| Parties | COMMONWEALTH of Pennsylvania v. Anthony James BONACE, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Oct. 11, 1989.
Wayne H. Hundertmark, Cranberry, for appellant.
William G. Martin, Jr., Dist. Atty., Franklin, for Com appellee.
Before WIEAND, TAMILIA and HESTER, JJ.
Anthony James Bonace was tried by jury and was found guilty of two counts of burglary, two counts of theft by unlawful taking, and one count of criminal conspiracy. Post-trial motions were denied and Bonace was sentenced to pay fines totalling three thousand ($3,000) dollars, to make restitution, and undergo imprisonment for a total of not less than twenty-five (25) months nor more than seventy-two (72) months. On direct appeal from the judgment of sentence, Bonace asserts that the trial court erred when it refused to hold, as a matter of law, that the police conduct in this case had been so outrageous as to prevent conviction on due process grounds. He contends also that the trial court erred when it denied defense motions for mistrial after the Commonwealth, on four separate occasions during trial, had elicited evidence of prior criminal activity. These issues are lacking in merit and, therefore, we affirm the judgment of sentence.
The evidence introduced by the Commonwealth at trial disclosed that on or about April 10, 1987, James Wheatcroft went to appellant's home in Youngstown, Ohio, where he was asked to participate with appellant in the commission of several burglaries. Wheatcroft purported to agree, but thereafter he contacted Joseph Ennett, of the Bureau of Alcohol, Tobacco and Firearms, and Detective Michael Hoza, of the Poland Township Police Department, and told them of appellant's plans. He said that appellant had referred specifically to the entry of a garden or tractor shop in Greenville, Mercer County, Pennsylvania. Wheatcroft agreed to inform Ennett and Hoza when a date was set for the burglaries and to wear a body wire on that date. Wheatcroft learned on the morning of April 15, 1987, that the burglaries were to be committed that night. Participating in the preliminary discussion, in addition to Wheatcroft and appellant, were James Miller and Jenny Keller. After this discussion, Wheatcroft contacted Ennett and Hoza and told them of the plans which had been made and that his pickup truck was to be used for the trip to Pennsylvania. He also told them that Miller would be armed. Ennett thereafter arranged for surveillance, which included participation by the Bureau of Alcohol, Tobacco and Firearms, the Department of the Treasury, the Poland Township and City of Youngstown Police Departments, and the Pennsylvania State Police. Later in the day, Wheatcroft was fitted with a body wire, and an electronic tracking device was placed in the taillight of his truck.
When the would-be burglars left Ohio, they were followed by law enforcement personnel in unmarked cars. They entered Pennsylvania on Interstate Route 80 and proceeded to Route 8, in Berkeyville, Venango County, where they exited the interstate highway. They then drove north, passed through the City of Franklin, and turned into Pone Lane in Sandycreek Township. After they had circled the area several times, Wheatcroft and Miller left the vehicle and broke into a home owned by Paul Lehman. While Miller and Wheatcroft were inside the home, appellant and Keller drove around the block. All the burglars remained in radio contact with each other, however, and actually discussed the items which were to be taken. When Miller and Wheatcroft left the Lehman home, they were directed by appellant to a second home located a distance of one hundred yards away. This home, which was owned by John Hricsina, was also entered, and various items of personal property were taken. The burglars were later apprehended in Franklin, with the help of local police.
At trial, appellant demurred to the Commonwealth's evidence; and when his demurrer was denied, he rested without offering evidence. The jury, although fully instructed on entrapment, rejected this defense and found appellant guilty of all charges. On appeal, appellant argues that police conduct was "outrageous" because they allowed the burglaries to occur despite prior knowledge that the crimes were to be committed. Inasmuch as the police knew of the intended burglaries, he argues, they must be deemed accomplices and guilty of an "outrageous" entrapment.
The evidence at trial was that the police had not intended to allow burglaries to occur but had contemplated an arrest as soon as their electronic surveillance produced evidence of a criminal conspiracy. Faulty equipment and hilly terrain, however, permitted the receipt of only an intermittent signal from Wheatcroft's truck and the wire which he was wearing. In addition, because of unfamiliarity with Venango County, the police lost the pickup truck which they were following. As a result, police did not become aware of the location of the first burglary until after Miller and Wheatcroft had already entered the Lehman home. They then decided not to interrupt the burglary in progress, because they had been told that Miller was armed and suspected that residents might be present in the home. The police also did not know that a second burglary was to be committed and became aware of it only after Miller and Wheatcroft had commenced their entry of the home. Again, an attempt to make an arrest was delayed.
The trial court evaluated appellant's contention that the police had violated his due process rights in the following manner:
Although the officers' conduct, by their own candid admission, fell short of the level of professionalism in communication and coordinating skills that one would expect from the various law enforcement agencies involved (Department of Treasury, Youngstown City Police, Pennsylvania State Police, inter alia), we do not find their conduct "outrageous". Before finding conduct "outrageous" we would be required to find extensive and nefarious police involvement in, and encouragement of, criminal activities. Com. v. Delligatti, , 538 A.2d 34 (Pa.Superior Ct.1988); Com. v. Mathews, 347 Pa.Superior Ct. 320, 500 A.2d 853 (1985); U.S. v. Twigg, 588 F.2d 373 (3d Cir.1978); U.S. v. West, 511 F.2d 1083 (3d Cir.1975); Hampton v. U.S., 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976) (plurality opinion); U.S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). No such evidence exists. On the contrary, the evidence supports the finding that Defendant was predisposed to committing these burglaries. He implemented the plans to do so. He was completely in charge of the operation. The fact that the police officers were unaware of the next move that the Defendant intended to make--actually enter a particular house--and [failed to] prevent that entry is not evidence of "outrageous" conduct on their part, but, rather, demonstrates the police role as an eavesdropper without control over the developments and undermines Defendant's entrapment defense.
This rationale, which we adopt, is dispositive of appellant's due process argument. Cf. Commonwealth v. Lee, 262 Pa.Super. 218, 221, 396 A.2d 724, 725 (1978) ().
Appellant's reliance upon Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), is misplaced. In that case, the Superior Court held that "[e]ven where entrapment is not proved, 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 also: 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); United States v. Twigg, 588 F.2d 373 (3d Cir.1978); Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988). In Mathews, where the defendants were convicted of attempting to manufacture methamphetamine, a controlled substance, the police had provided the defendants with money for the purchase of necessary chemicals to manufacture the substance and also for the rental of a residence where the methamphetamine could be manufactured. Police also had helped move necessary equipment into the home and instructed the defendants step-by-step in the manufacturing process. A majority of the Superior Court concluded that such "extensive police involvement in, and encouragement of" illegal activity was so outrageous as to violate due process. Id. at 327-328, 500 A.2d at 857. Police conduct had been comparable " 'to a burglar being instructed on a step-by-step turn of a vault dial by the police so he [might] consummate the act.' " Id. at 328, 500 A.2d at 857, quoting the trial court's opinion. These facts are not at all similar to the facts of the instant case. Here, the impetus for the several burglaries, as well as the planning thereof and the means for carrying out the same, came from the evil minds of the burglars themselves. The police did nothing more than allow them to commit their criminal acts before they were arrested. The poor quality of the police surveillance while the burglaries were being committed did not excuse appellant's criminal acts or constitute a bar to prosecution therefor.
Whether to declare a mistrial is a decision which rests within the sound discretion of the trial court, whose exercise thereof will not be reversed absent an abuse of such discretion. Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984). Clear references to prior unrelated criminal conduct by a defendant generally warrant the granting of a defense motion...
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