J-S22044-23
2023 PA Super 137
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY JORDAN WHITMIRE :
:
Appellant : No. 1302 WDA 2022
Appeal from the Judgment of Sentence Entered August 24, 2022
In the Court of Common Pleas of Butler County
Criminal Division at CP-10-CR-0000460-2021
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
OPINION BY MURRAY, J.: FILED: July 28, 2023
Troy Jordan Whitmire (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted him of two counts of driving
under the influence (DUI)—controlled substance.1 We affirm.
The trial court explained:
Pennsylvania State Police Trooper Nicholas Dahlstrom
testified [at Appellant’s non-jury trial] that he has been employed
by the Pennsylvania State Police [(PSP)] for approximately four
and a half years as a patrol trooper. He testified that on January
9, 2021, he encountered [Appellant] while investigating a report
of harassment between [Appellant] and his sister, Kara Whitmire.
Ms. Whitmire was granted an emergency [protection from abuse
order (]PFA[)]. Trooper Dahlstrom contacted [Appellant] via
phone and asked him to come to the Butler PSP barracks to be
served the emergency PFA, to which [Appellant] agreed. N.T.,
Non-Jury Trial, July 8, 2022, pg. 19. On cross-examination,
[Trooper Dahlstrom] explained that [Appellant] was asked to
come to the barracks to be served the emergency PFA because
when the trooper attempted to serve [Appellant] in the field, he
was unable to locate [Appellant]. Id. at 28.
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1 75 Pa.C.S.A. §§ 3802(d)(1)(i) and 3802(d)(2).
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According to [Trooper Dahlstrom’s] testimony, [Appellant]
arrived at the [PSP] barracks at approximately 10:30 p.m. The
trooper walked out to the lobby area to meet [Appellant] and
advised him of the PFA. While speaking with [Appellant, Trooper
Dahlstrom] observed [Appellant] rambling about the people listed
on the most wanted poster in the lobby and about the people in
Butler who use drugs. The trooper asked [Appellant] if he had
taken any drugs that day and [Appellant] responded that he
smoked marijuana earlier that day. Id. at 20.
[Trooper Dahlstrom] testified that he went to the
communications room to ask if Trooper Treadway was available
for a drug recognition evaluation. Trooper Dahlstrom testified that
[Appellant] drove himself to the [PSP] barracks that evening. He
based that on the fact that [Appellant’s] vehicle was outside with
nobody else inside and [Appellant] said he drove his vehicle [to
the barracks] from the Bruin area. Id. at 21. The Commonwealth
submitted Commonwealth’s Exhibit “3,” which is the [PennDOT]
DL-26 [chemical test warnings] form that Trooper Dahlstrom read
to [Appellant]. Both [Appellant] and [Trooper Dahlstrom] signed
the form and [Appellant] agreed to submit to a blood draw. The
Commonwealth also offered Commonwealth’s Exhibit “4,” which
is the paperwork provided by the phlebotomist at Butler Memorial
Hospital and shows that [Trooper Dahlstrom] witnessed
[Appellant’s] blood draw, signed [the accompanying form,] and
noted the date and time. Both exhibits were admitted without
objection.
Trooper Treadway did conduct a drug recognition evaluation
of [Appellant] approximately 20 to 25 minutes after [Appellant]
arrived at the barracks. Id. at 22. At approximately 11:30 p.m.,
Trooper Dahlstrom transported [Appellant] to Butler Memorial
Hospital for a blood test. [Trooper Dahlstrom] read the DL-26
blood test warnings to [Appellant]. The trooper testified that
[Appellant] understood the warnings, signed the document and
agreed to submit to a blood test. Id. The test was administered
at approximately 11:55 p.m. Id. at 23. The Pennsylvania State
Police sent the blood sample to NMS Labs for analysis. Id. at 24.
Trooper Dahlstrom received the lab results on February 1, 2021[;
the results] showed active and inactive ingredients of marijuana.
Id. at 25. [Trooper Dahlstrom] testified that he has encountered
and observed approximately 100 people under the influence of
marijuana over the course of [his] employment as a trooper and
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that [Appellant’s] behavior was consistent with those
observations. Id. at 26.
Next, Trooper Philip Treadway testified that he is a patrol
trooper, drug recognition expert and drug recognition expert
instructor. The parties stipulated that the trooper would testify as
an expert in drug recognition. Id. at 35-36. Trooper Treadway
testified to the 12-step evaluation conducted by a drug recognition
expert and specifically, his findings regarding [Appellant]. The
breath alcohol test [Appellant performed] eliminated alcohol as an
impairing substance. Next, [Trooper Treadway] interviewed the
arresting officer, Trooper Dahlstrom, who related that [Appellant]
was acting erratically in the lobby and [Trooper Dahlstrom] had
concerns that [Appellant] might be drug impaired. Next, Trooper
Treadway ruled out other potential reasons for [Appellant’s]
impairment, such as lack of sleep, food, drink, [or] medical
impairment. Id. at 37.
Trooper Treadway continued with his testimony, noting that
[Appellant’s] sense of time was off by more than an hour.
[Appellant] presented extreme mood swings[; Appellant was]
joking and relaxed one moment to being paranoid and
argumentative the next and having a very short attention span.
[Appellant] denied using prescription or illicit drugs. [Trooper
Treadway testified that Appellant’s] first pulse check was elevated
and his eye examination showed a lack of convergence. Id. at
38.
Next, Trooper Treadway testified that the modified Romberg
balance test indicated [Appellant’s] lack of time perception, i.e.,
[Appellant] estimated 13 seconds to be 30 seconds. [Appellant’s]
eyelids showed tremors[,] which points to potential recent
marijuana usage. [Appellant] proceeded to the walk and turn
test[,] which indicated eight out of eight possible clues of
impairment. The trooper noted[, with respect to the walk and turn
test,] that the decision point to arrest roadside only requires two
of the eight validated clues of impairment. Id. at 39.
The next test was the one leg test, which [Appellant]
demonstrated three out of four clues of impairment on his first
attempt and two out of four on the second attempt. [Appellant]
also demonstrated a great lack of attention to counting on this
test. Id. Next was the finger to nose test, which showed
[Appellant’s] lack of perception of distance. [Trooper Treadway]
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then checked [Appellant’s] vital signs, which indicated that his
pulse was elevated, blood pressure [was] elevated and body
temperature [was] normal. The eye exam showed that
[Appellant’s] eyes were dilated above the DRE (Drug Recognition
Evaluation) range and there was a yellow-green coating on his
tongue, both of which indicate recent cannabis usage.
[Appellant’s] third pulse check was elevated. The trooper asked
[Appellant] about his drug usage and explained the results of the
evaluation. [Appellant] stated that he smoked medical marijuana
four or five hours [before arriving at the PSP barracks]. Trooper
Treadway recommended to Trooper Dahlstrom that [Appellant] be
transported to the hospital for a blood test. Id. at 40.
Trooper Treadway also gave his opinion, as a DRE expert,
that [Appellant] “was not currently safe to operate a motor vehicle
in the Commonwealth and that was due to recent cannabis
usage.” Id. at 40-41. His opinion was rendered based on his
training and experience to a reasonable degree of DRE certainty.
Id. Commonwealth’s Exhibit “6,” the drug influence evaluation
report, was admitted without objection. Trooper Treadway
testified that [during Appellant’s arrest,] he overheard [Appellant]
and Trooper Dahlstrom talking about what would happen to
[Appellant’s] car since he drove [to the PSP barracks] and there
was no other driver to remove it from the barracks. Id. at 42.
Trooper Treadway testified that [Appellant] did acknowledge that
it was his car. Id. Trooper Treadway testified that he did not
have knowledge of [Appellant’s] admission to Trooper Dahlstrom
that [Appellant had] smoked marijuana earlier that day prior to
conducting the drug recognition evaluation. Id. at 47.
The Commonwealth called Donna Pepsun to testify. The
parties stipulated that Ms. Pepsun would testify as an expert in
toxicology. She is a forensic toxicologist with NMS Laboratories
and prepared a report on [Appellant’s] blood specimen in this
case. Id. at 4-5. The report was submitted into evidence as
Commonwealth’s Exhibit “2” with no objection. She testified that
she found 15 nanograms per milliliter of Delta-9 THC, 85
nanograms per milliliter of Delta-9 Carboxy THC and 3.7
nanograms per milliliter of 11-Hydroxy Delta-9 THC in the blood
specimen. Id. at 9-10. She testified that these levels indicate
acute use of marijuana, i.e., use of marijuana within a couple of
hours of the blood draw. Id. at 11. “Especially associated with
smoking marijuana.” Id. at 13.
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Trial Court Opinion, 1/3/23, at 2-3.
Appellant’s non-jury trial occurred on July 8, 2022.2 The trial court
found Appellant guilty of two counts of DUI—controlled substance. On August
24, 2022, the trial court sentenced Appellant to serve 72 hours to 6 months
in jail, and imposed a $1,000 fine.3
Appellant timely filed a post-sentence motion (PSM) on August 26,
2022. Appellant claimed he was entitled to judgment of acquittal because
the evidence was insufficient to convict him of DUI. PSM, 8/26/22, ¶¶ 8-11,
16. He further stated: “[Appellant] also asks the [c]ourt to reconsider the
affirmative defense that he was ‘entrapped’ by the State Police in actual
effect….” Id. ¶ 12; id. ¶ 13 (“The defense was not rebutted by the
Commonwealth.”). Finally, Appellant asked the trial court to “stay the
imposition of [] sentence pending post-sentence litigation.” Id. ¶ 21.
By order entered October 13, 2022, the trial court granted Appellant’s
request to stay the imposition of sentence, but denied the PSM in all other
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2 Appellant raised the affirmative defense of entrapment.
See N.T., 7/8/22,
at 65-66 (Appellant’s counsel arguing entrapment defense and asking trial
court to “consider” the Pennsylvania Suggested Standard Criminal Jury
Instruction on entrapment, Pa. SSJI (Crim.) 8.313).
3 The trial court imposed no penalty on Appellant’s DUI conviction at 75
Pa.C.S.A. § 3802(d)(2).
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respects.4 This timely appeal followed. Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant raises three issues for review:
I. Whether the Commonwealth presented sufficient evidence to
prove beyond a reasonable doubt that [Appellant] actually
drove or operated a motor vehicle while under the influence to
sustain his conviction?
II. Whether the Commonwealth presented sufficient evidence to
sustain [Appellant’s] conviction for driving under the influence
when it relied solely upon the mere presence of marijuana in
[Appellant’s] blood without proving any kind of impairment
since it was uncontested that [Appellant] had lawfully
prescribed medical marijuana?
III. Whether the trial court abused its discretion or erred as a
matter of law when it did not credit [Appellant’s] “entrapment”
defenses at his bench trial and subsequently denied
[Appellant’s] post-sentence motion asking for judgment of
acquittal?
Appellant’s Brief at 10 (capitalization modified).
Because Appellant’s first two issues are related, we address them
together. Appellant challenges the sufficiency of the evidence supporting his
convictions of DUI—controlled substance. See id. at 17-28. He initially claims
the Commonwealth failed to prove beyond a reasonable doubt that he “was
driving, operating, or in actual physical control of a motor vehicle.” Id. at 22.
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4 In its order, the trial court stated that it held a hearing on Appellant’s PSM
“on September 23, 2022.” Order, 10/13/22. However, the certified record
does not contain a docket entry or transcript of the hearing. See Order,
9/12/22 (scheduling hearing on the PSM for September 23, 2022).
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According to Appellant, the “Commonwealth relie[d] solely upon Appellant
appearing at the PSP [b]arracks as circumstantial evidence that he was driving
… or being in actual physical control of the movement of a vehicle.” Id. at
20. Appellant emphasizes the “Commonwealth presented no evidence of the
alleged vehicle driven, no evidence of ownership or operation, … [or] evidence
as to keys or other indicia of driving.” Id. at 22.
In his second issue, Appellant
challenges the legality and sufficiency of the evidence as to the
essential element of driving, operating, or being in actual physical
control of a motor vehicle while impaired. … Appellant has
averred that the evidence is insufficient to sustain his conviction
as the Commonwealth did not present any actual evidence of his
level of impairment and relied solely upon the per se illegal nature
of [m]arijuana.
Id. at 24 (emphasis in original). Appellant further claims there is an
impermissible conflict between Pennsylvania’s Medical Marijuana Act (MMA),
35 P.S. §§ 10231.101-10231.2110, and the statutory provisions under which
Appellant was convicted, 75 Pa.C.S.A. §§ 3802(d)(1)(i) and 3802(d)(2).
Appellant’s Brief at 27-28.
Contrary to Appellant, the Commonwealth claims the DUI convictions
are supported by “sufficient circumstantial evidence to prove [Appellant]
drove or operated his vehicle on the incident date[,]” including Appellant’s
admission to police that he drove to the PSP barracks. Commonwealth Brief
at 5. The Commonwealth emphasizes this Court’s holding in Commonwealth
v. Young, 904 A.2d 947 (Pa. Super. 2006), that “an eyewitness is not
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required to establish one was driving, operating, or in actual physical control
of a motor vehicle, but, rather, the Commonwealth may establish the same
through wholly circumstantial evidence.” Id. at 954; Commonwealth Brief at
11.
The Commonwealth also claims, “Regardless of whether the marijuana
[in Appellant’s system] was medical or not, the current state of the law in
Pennsylvania still prohibits one from driving with any amount of marijuana in
their system.”5 Id. at 6. According to the Commonwealth, “until the General
Assembly amends the Vehicle Code to address the conflict with the Medical
Marijuana Act, [Appellant] is not entitled to the relief he now seeks.” Id. at
14.
Appellant’s challenge to the sufficiency of the evidence presents a
question of law and is subject to plenary review under a de novo standard.6
Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing
a sufficiency challenge, we must determine whether the evidence admitted at
trial and all reasonable inferences drawn therefrom, viewed in the light most
____________________________________________
5 The Commonwealth accurately states: “While it is true that [Appellant] told
the state police he had a prescription for medical marijuana, there is nothing
in the trial record qualifying as veritable proof that [Appellant] actually is a
person authorized to obtain and use medical marijuana.” Commonwealth
Brief at 14-15 (citation and footnote omitted).
6 To the extent Appellant’s second issue implicates statutory interpretation,
we apply a de novo standard of review and plenary scope of review.
Commonwealth v. Watts,
283 A.3d 1252, 1255 (Pa. Super. 2022).
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favorable to the Commonwealth, was sufficient to prove every element of the
offense beyond a reasonable doubt. Commonwealth v. Mobley, 14 A.3d
887, 889 (Pa. Super. 2011). “[T]he facts and circumstances established by
the Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Bowens,
265 A.3d 730, 740 (Pa. Super. 2021) (en banc)
(citation omitted). “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.”
Id. (citation omitted). Finally, the trier of fact has
the authority to determine the weight of the evidence and credibility of the
witnesses and is free to believe all, part, or none of the evidence. Id. at 741.
With respect to DUI, the Motor Vehicle Code (MVC) provides:
(d) Controlled substances. – An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in …
The Controlled Substance, Drug, Device and Cosmetic
Act[.]
…
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in actual
physical control of the movement of the vehicle.
75 Pa.C.S.A. §§ 3802(d)(1)(i) and (d)(2).
Regarding Subsection 3802(d)(1)(i), this Court has stated, “for the
Commonwealth to meet its burden of proof [under this Subsection], it need[s]
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to prove: (1) that [a]ppellant was in actual physical control or operated the
motor vehicle and (2) that he had a schedule I controlled substance in his
blood.” Commonwealth v. May, 271 A.3d 475, 480 (Pa. Super. 2022).
There is no requirement under Subsection 3802(d)(1)(i) that the
Commonwealth establish the defendant was impaired while driving,
id., unlike
Subsection 3802(d)(2), which requires proof of impairment.
Commonwealth v. Hutchins,
42 A.3d 302, 307 (Pa. Super. 2012). With
respect to Subsection 3802(d)(2), our Supreme Court has explained that the
statute does not require “expert testimony to establish that the defendant’s
inability to drive safely was caused by ingestion of a drug, even if it is a
prescription drug, or drug combination.” Commonwealth v. Griffith,
32
A.3d 1231, 1238 (Pa. 2011).
In addition, the MVC provides: “The fact that a person charged with
[DUI] is or has been legally entitled to use alcohol or controlled substances is
not a defense to a charge of [DUI].” 75 Pa.C.S.A. § 3810.
The MMA permits qualifying individuals to lawfully consume marijuana
in Pennsylvania. See 35 P.S. §§ 10231.101-10231.2110. Notwithstanding,
the list of Schedule I controlled substances set forth in the Controlled
Substances Act (CSA) currently includes marijuana. See 35 P.S. § 780-
104(1)(iv); Commonwealth v. Dabney, 274 A.3d 1283, 1291 (Pa. Super.
2022) (“[M]edical marijuana remains a Schedule I controlled substance for
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purposes of Section 3802(d)(1).”); Watts, 283 A.3d at 1256 (applying
Dabney).
This Court has expressly held: “[B]ecause the MMA does not address
driving and marijuana, but the [MVC] does, these statutes are not
conflicting. Consequently, it is illegal to drive with any amount of
marijuana, medical or otherwise, in one’s system.” Watts, 283 A.3d at
1256 (emphasis added; footnote and citation omitted). Watts also relied
upon this Court’s en banc decision in Commonwealth v. Stone, 273 A.3d
1163 (Pa. Super. 2022) (en banc), where we noted that although
the MMA anticipates the removal of marijuana from Schedule I,
…[t]o date, the General Assembly has not enacted legislation
amending the MMA, CSA, or the DUI statutes to remove marijuana
from its Schedule I designation under state law.
Id. at 1172 (citation, footnotes, and brackets omitted). The Court continued:
Given the newness and temporary programmatic nature of the
MMA, its interpretation could change such that its juxtaposition
with Pennsylvania DUI statutes may be altered through legislative
action or other changes to federal and state law as well as the
appellate disposition of our Supreme Court. However, at this
juncture as an appellate court, we are charged to interpret the law
as it is now, not what we want it to be, or what it might be in the
future. See Commonwealth v. Ruffin, … 16 A.3d 537, 543 n.12
(Pa. Super. 2011). … [M]arijuana remains a Schedule I controlled
substance under current Pennsylvania law and, therefore, the
Commonwealth is not required to prove that the marijuana in an
individual’s bloodstream is non-medical marijuana for purposes of
proving DUI.
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Stone, 273 A.3d at 1174 (footnotes omitted);7 see also Watts, 283 A.3d at
1256 n.2 (“It is not within this Court’s authority to modify the law but only to
interpret it as written.”).
Instantly, the trial court concluded that Watts is controlling. Trial Court
Opinion, 1/3/23, at 4. We agree. Appellant acknowledges the holding in
Watts, Appellant’s Brief at 24-27, but claims it was wrongly decided,
“inconsistent with the law and science,” and results in the preposterous result
that “every user of medical marijuana is per se DUI regardless of the question
of impairment.” Id. at 26 (punctuation modified); see also id. at 27 (noting
the “Pennsylvania Legislature currently is working to remedy [the] conflict
[between the MMA and DUI statutes] through the introduction of Senate Bill
No. 363, Session of 2023”). However, unless and until our General Assembly
takes action to amend the statutes, we must apply existing law. Stone, 273
A.3d at 1174 (“as an appellate court, we are charged to interpret the law as
it is now, not what we want it to be, or what it might be in the future.”).
____________________________________________
7 We further observed:
“Other states have designated medical marijuana as a Schedule II
controlled substance for purposes of state law, while non-medical
marijuana remains classified as a Schedule I controlled substance.
See, e.g., MCL 333.7212(1)(c), 333.7214(e) (Mich.); R.C.
3796.01(B) (Ohio), Ohio Admin. Code 4729:9-1-01(D)(23).”
Stone, 273 A.3d at 1172 n.12 (emphasis in original).
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The trial court cogently explained its rationale for rejecting Appellant’s
claim that the Commonwealth failed to prove all elements of 75 Pa.C.S.A.
§§ 3802(d)(1)(i) and (d)(2):
The record reveals [Appellant] told Trooper Dahlstrom that he
drove to the barracks that evening. No one else was in the vehicle
or outside the vehicle when [Appellant] arrived. [Appellant] spoke
with the trooper about arranging to have someone drive the
vehicle off the barracks property. [Appellant] acknowledged that
it was his car and told Trooper Dahlstrom that he drove himself to
the barracks. This court viewed the evidence, along with all
reasonable inferences, in the light most favorable to the
Commonwealth. To that end, this court concluded [Appellant]
drove himself to the barracks that evening and that there is no
merit to this issue.
…
Contrary to [Appellant’s] argument, both troopers testified to
[Appellant’s] impairment. Trooper Dahlstrom’s first encounter
with [Appellant] in the barracks lobby alerted him to possible
impairment. Trooper Treadway’s lengthy drug evaluation led to
the conclusion that [Appellant] was impaired for purposes of
establishing DUI violations. The blood test results confirmed the
presence of acute use of marijuana.
Trial Court Opinion, 1/3/23, at 4 (emphasis added).
The trial court’s reasoning is supported by the record and the law. See
id. We thus conclude the trial court, sitting as fact-finder, did not abuse its
discretion in finding that the evidence sufficiently proved all elements of DUI—
controlled substance beyond a reasonable doubt. See Bowens, supra (fact-
finders are free to believe all, part, or none of the evidence); Young, 904
A.2d at 954 (for a DUI conviction, the Commonwealth can prove the
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defendant’s control of a vehicle through wholly circumstantial evidence).
Accordingly, Appellant’s first and second issues do not merit relief.
In his final issue, Appellant claims the trial court erred in rejecting his
entrapment defense at trial and in his PSM. See Appellant’s Brief at 29-34.
Appellant emphasizes Trooper Dahlstrom’s testimony about how he initiated
contact with Appellant:
We were told … [about] a possible residence [Appellant] was at
that [the PSP] went to. [Upon arriving at Appellant’s suspected
residence, PSP did not find Appellant, but spoke with] … some
associates of [Appellant,] who then agreed to call [Appellant] via
the [social media application] Snapchat[,] at which point
[Appellant] agreed he would meet us back at PSP Butler.
N.T., 7/8/22, at 27-28; Appellant’s Brief at 31.
According to Appellant:
Law enforcement sought out Appellant. Law enforcement
contacted Appellant through an unknown third-party Snapchat
user. … Law enforcement directed Appellant to appear at the
[PSP] barracks and directed him out of his house, enticed him to
put himself in the position to be DUI given his medical marijuana
usage. … Appellant avers that PSP employed a method of
persuasion and induced him to appear at the Barracks. The
actions of law enforcement created a substantial risk that, given
Appellant’s medical marijuana usage, he was violating Section
3802(d) when he was not otherwise committing an offense.
Id. at 32 (some capitalization modified). Appellant claims he “established the
[improper police] conduct, through cross-examination, to a preponderance of
the evidence standard.” Id. at 33.
The Commonwealth counters that the trial court properly rejected the
entrapment defense, which Appellant failed to prove beyond a preponderance
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of the evidence. See Commonwealth Brief at 18-21. According to the
Commonwealth,
the state police in no way entrapped [Appellant] into committing
a DUI offense. Trooper Dahlstrom merely asked [Appellant] to
come to the state police barracks in order to serve him with a PFA.
The trooper had no knowledge that [Appellant] had recently
smoked marijuana, or that he would even drive himself to the
barracks, all factors supporting the Commonwealth’s position that
police did not induce or encourage [Appellant] to drive while under
the influence of marijuana.
Id. at 18.
The Crimes Code defines the defense of entrapment, in pertinent part,
as follows:
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 … 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.
18 Pa.C.S.A. § 313(a)(2). Section 313 further provides that a defendant
raising an entrapment defense bears the burden of proving the defense
beyond a preponderance of the evidence. Id. § 313(b); see also
Commonwealth v. Watson, 292 A.3d 562, 567 (Pa. Super. 2023) (defining
“preponderance of the evidence” as “tantamount to a more likely than not
inquiry.” (citation omitted)).
Pennsylvania courts apply an objective test when evaluating an
entrapment defense. Commonwealth v. Marion, 981 A.2d 230, 239 (Pa.
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Super. 2009); see also Commonwealth v. Joseph, 848 A.2d 934, 939 (Pa.
Super. 2004) (“the inquiry focuses on the conduct of police, not the
predisposition of the defendant.”). This Court has explained:
Merely affording the opportunity, through police artifice and
stratagem, for the commission of a crime by a person who already
has the requisite intent is not entrapment. Rather, the defense of
entrapment is aimed at condemning certain impermissible
conduct which falls below standards for the proper use of
governmental power.
Joseph, 848 A.2d at 939 (citations, ellipses and quotation marks omitted).
“Where police do no more than afford appellant an opportunity to commit an
illegal act, their actions are not considered sufficiently outrageous police
conduct to support an entrapment defense.” Marion,
981 A.2d at 239
(citations and quotation marks omitted). Therefore, the availability of the
entrapment defense does not preclude police from acting “so as to detect
those engaging in criminal conduct and ready and willing to commit further
crimes should the occasion arise. Such indeed is their obligation.”
Id.
(citation omitted).
Instantly, the trial court, sitting as fact-finder, explained:
The testimony at trial reveals no evidence of entrapment. Trooper
Dahlstrom testified that he attempted to serve [Appellant] with
the emergency PFA in the field. When that was unsuccessful, he
was able to contact [Appellant] and asked him to come to the
barracks to be served. No trickery or deception is evident from
the record, nor do the tactics used by the police indicate that a
law-abiding person would be led to commit a crime.
Trial Court Opinion, 1/3/23, at 5.
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Again, our review reveals that the trial court’s reasoning is supported
by the record and the law, and we agree with its conclusion. See id. The
record belies Appellant’s claim that “PSP employed a method of persuasion
and induced him to appear at the [b]arracks.” Appellant’s Brief at 32. We
are also persuaded by the Commonwealth’s argument:
[Appellant] equates entrapment with the fact that the trooper
asked him to come to the barracks, which then left him no choice
but to drive himself while under the influence of his medical
marijuana. This argument misstates the entrapment analysis, as
[Appellant] attempts to characterize himself as entrapped
because he happened to use medical marijuana, not whether
Trooper Dahlstrom actually emboldened [Appellant’s] marijuana
usage.
Commonwealth Brief at 20; see also id. at 21 (correctly noting, “Trooper
Dahlstrom clarified at trial that he did not give [Appellant] any explicit
instruction on how to get to the barracks.” (citing N.T., 7/8/22, at 28-29, 32-
33)). The PSP did “no more than [to] afford [A]ppellant an opportunity to
commit an illegal act.” Marion, 981 A.2d at 239 (“Where police do no more
than afford appellant an opportunity to commit an illegal act, their actions are
not considered sufficiently outrageous police conduct to support an
entrapment defense.” (citations omitted)); see also Pa. SSJI (Crim.) 8.313
(“A defendant is not entrapped merely because the police gave him or her an
opportunity to commit a crime or merely because the police outwitted him or
her.”). For these reasons, Appellant’s third issue does not merit relief.
Judgment of sentence affirmed.
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J-S22044-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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