entrapment defense in Pennsylvania

2026See Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (“Where police ‘do no more than afford [a defendant] an opportunity’ to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.”) (citation omitted). - 10 - J-S04002-26 Having determined that there are no arguably meritorious issues “that counsel, intentionally or not, missed or misstated,” Dempster, supra, we affirm the PCRA court’s order and grant counsel’s application to withdraw.

2026“Where police do no more than afford a defendant an. opportunity to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.” Commonwealth v. Marion, 981 A.2d 230, 239 (Pa, Super, 2009) (citation omitted).

2019As a result of this unreasonable delay, defense counsel was subjected to a substantial prejudice in not being able to properly and effectively prepare a defense for trial. 16 To the extent Appellant asserts the actions taken by M.H. and Corporal Vilello established entrapment as a matter of law, we reject his assertion for reasons similar to those stated supra. See Commonwealth v. Weiskerger, 520 Pa. 305 , 554 A.2d 10, 14 (1989) (noting to prevail on an entrapment defense as a matter of law the defendant must prove that Lhe ev ::?nce of entrapment was so overwhelming tiiaz their:: could be no

2019As a result of this unreasonable delay, defense counsel was subjected to a substantial prejudice in not being able to properly and effectively prepare a defense for trial. 16 To the extent Appellant asserts the actions taken by M.H. and Corporal Vilello established entrapment as a matter of law, we reject his assertion for reasons similar to those stated supra. See Commonwealth v. Weiskerger, 520 Pa. 305 , 554 A.2d 10, 14 (1989) (noting to prevail on an entrapment defense as a matter of law the defendant must prove that Lhe ev ::?nce of entrapment was so overwhelming tiiaz their:: could be no

2023Commonwealth v. Marion, 981 A.2d 230 , 239 (Pa. - 15 - J-S22044-23 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.”).

2019An entrapment defense does not deny that the defendant committed the charged offense, but rather constitutes an affirmative defense. -4- J-S47006-19 Commonwealth v. Joseph, 848 A.2d 934, 938 (Pa. Super. 2004).

1994The inquiry does not address the predisposition of the defendant but instead focuses on the “conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Id. at 311, 554 A.2d at 13 (quoting Commonwealth v. Jones, 242 Pa.Super. 303 , 363 A.2d 1281 (1976)). *596 The entrapment defense is “aimed at condemning certain impermissible police conduct which ... falls below standards ... for the proper use of government power.” Commonwealth v. Thompson, 335 Pa.Super. 332 , 484 A.2d 159, 165 (1984) (citations omitted).

1994The inquiry does not address the predisposition of the defendant but instead focuses on the “conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.” Id. at 311, 554 A.2d at 13 (quoting Commonwealth v. Jones, 242 Pa.Super. 303 , 363 A.2d 1281 (1976)). *596 The entrapment defense is “aimed at condemning certain impermissible police conduct which ... falls below standards ... for the proper use of government power.” Commonwealth v. Thompson, 335 Pa.Super. 332 , 484 A.2d 159, 165 (1984) (citations omitted).

1977This means that where the defendant asserts the possibility of entrapment, he should present, in support of his contention that the informant may exculpate him, facts relating directly to the two elements of the entrapment defense, i. e., ‘(1) a defendant not disposed to commit the crime, and also (2) conduct likely to entrap the innocently disposed.’ Commonwealth v. Conway, 196 Pa.Super. 97, 104 , 173 A.2d 776 (1961).

1977This means that where the defendant asserts the possibility of entrapment, he should present, in support of his contention that the informant may exculpate him, facts relating directly to the two elements of the entrapment defense, i. e., ‘(1) a defendant not disposed to commit the crime, and also (2) conduct likely to entrap the innocently disposed.’ Commonwealth v. Conway, 196 Pa.Super. 97, 104 , 173 A.2d 776 (1961).

2021Commonwealth v. Zingarelli, 839 A.2d 1064 (Pa. Super. 2003) (where police use internet sting operation and pose as a 15-year-old, they merely provide defendant with an opportunity to commit a crime and do not engage in egregious behavior that would constitute entrapment).

2019A successful entrapment defense requires the defendant to prove by a preponderance of the evidence that the conduct of the police or an agent of the police reached such a “level of outrageousness” as to “make a reasonable person feel compelled to commit the crimes.” Commonwealth v. Zingarelli, 839 A.2d 1064, 1073-74 (Pa. Super. 2003).

2025Commonwealth v. Morrow, [ 650 A.2d 907, 913 (Pa.Super. 1994)], appeal denied, 540 Pa. 648 , 659 A.2d 986 (1995).

2011However, “[wjhere police ‘do no more than afford [a defendant] an opportunity’ to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.” Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (citing Commonwealth v. Morrow, 650 A.2d 907, 913 (Pa. Super. 1994).

2018Marsh , 606 Pa. at 261 , 997 A.2d at 322 . "[B]efore disclosure of an inform[ant's] identity is required in the face of the Commonwealth's assertion of privilege, more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense." Commonwealth v. Herron , 475 Pa. 461 , 466, 380 A.2d 1228 , 1230 (1977) (holding that the defendant failed to provide a "sufficient factual foundation to enable the trial judge to conclude that knowing the inform[ant]'s identity might be helpful in establishing an entrapment defense" where defendant fa

2018Marsh, 997 A.2d at 322 . “[B]efore disclosure of an inform[ant’s] identity is required in the face of the Commonwealth’s assertion of privilege, more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense.” Commonwealth v. Herron, 380 A.2d 1228, 1230 (Pa. 1977) (holding that the defendant failed to provide a “sufficient factual foundation to enable the trial judge to conclude that knowing the inform[ant]’s identity might be helpful in establishing an entrapment defense;” defendant failed to establish specific facts support

2026Commonwealth v. Spatz, 896 A.2d 1191, 1210 (Pa. 2006).

2021Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).

2019To establish an entrapment defense under the facts of the instant case, Defendant would have had the burden to demonstrate that the Commonwealth or the confidential informant employed methods of persuasion of inducement which created a substantial risk that such an offense would be committed by innocently disposed persons. 18 Pa. C.S.A. §313; Com. v. Mance, 619 A.2d 1378, 1380 (Pa. Super. 1993), aff’d 652 A.2d 299 (Pa. 1995).

2017See Commonwealth v. Mance, 619 A.2d 1378, 1381 (Pa. Super. 1993) (holding that the entrapment defense was properly submitted to jury where operative facts as to whether the defendant was induced into - 10 - J-S52014-17 participating in the scheme were disputed).

2016However, the government may only be held accountable for the acts of a third party if those acts were taken at the request or direction of law enforcement.” Commonwealth v. Willis, 990 A.2d 773, 775-76 (Pa. Super. 2010) (citations omitted).

2015However, the government may only be held accountable for the acts of a third party if those acts were taken at the request or direction of law enforcement.” Commonwealth v. Willis, 990 A.2d 773, 775-76 (Pa. Super. 2010).

1977See United States v. Waters, 288 F.Supp. 952 (D.Mass. 1968)." [Emphasis added.] With this standard in mind, [2] it is apparent that Herron failed to include in his offer a sufficient factual foundation to enable the trial judge to conclude that knowing the informer's identity might be helpful in establishing an entrapment defense.

1977See United States v. Waters, 288 F.Supp. 952 (D.Mass.1968).” [Emphasis added.] With this standard in mind, 2 it is apparent that Herron failed to include in his offer a sufficient factual foundation to enable the trial judge to conclude that knowing the informer’s identity might be helpful in establishing an entrapment defense.

1995“This means that where the defendant asserts the possibility of entrapment, he should present, in support of his contention that the informant may exculpate him, facts relating directly to the two elements of the entrapment defense, i.e., ‘(1) a defendant not disposed to commit the crime, and also (2) conduct likely to entrap the innocently disposed.’” Id. at 468, 380 A.2d at 1231 (emphasis in original) (citations omitted), quoting Commonwealth v. Pritchett, 225 Pa.Super. 401, 407-8 , 312 A.2d 434, 438 (1973).

1995“This means that where the defendant asserts the possibility of entrapment, he should present, in support of his contention that the informant may exculpate him, facts relating directly to the two elements of the entrapment defense, i.e., ‘(1) a defendant not disposed to commit the crime, and also (2) conduct likely to entrap the innocently disposed.’” Id. at 468, 380 A.2d at 1231 (emphasis in original) (citations omitted), quoting Commonwealth v. Pritchett, 225 Pa.Super. 401, 407-8 , 312 A.2d 434, 438 (1973).

1990The appellant in Clawson had never been a drug dealer, did not make a profit on the deal, and testified that he delivered the marijuana only because the informant was a friend. 4 In addition, this court sitting en banc in Commonwealth v. McGuire, 339 Pa.Super. 320 , 488 A.2d 1144 (1985), reviewed the evolution of the defense of entrapment and noted that by enacting section 313 the legislature rejected the subjective standard that formerly comprised the entrapment defense. 5 Id. 339 Pa.Super. at 327 , 488 A.2d at 1148 .

1990The appellant in Clawson had never been a drug dealer, did not make a profit on the deal, and testified that he delivered the marijuana only because the informant was a friend. 4 In addition, this court sitting en banc in Commonwealth v. McGuire, 339 Pa.Super. 320 , 488 A.2d 1144 (1985), reviewed the evolution of the defense of entrapment and noted that by enacting section 313 the legislature rejected the subjective standard that formerly comprised the entrapment defense. 5 Id. 339 Pa.Super. at 327 , 488 A.2d at 1148 .

1982But see Commonwealth v. Lee, 262 Pa.Super. 218 , 396 A.2d 724 (1978); Commonwealth v. Clawson, 250 Pa.Super. 422 , 378 A.2d 1008 (1977) (plurality opinion) (purporting to apply 18 Pa.C.S.A. § 313(a), but considering criminal predisposition of defendant); Commonwealth v. Jones, supra, 242 Pa.Super. at 309 , 363 A.2d at 1284 (stating, apparently inconsistently with its holding predisposition irrelevant to the entrapment defense, that “[ejvidence of a sale just two hours prior to the sale in question would be relevant on the issue of entrapment, and on appellant’s intent in general.” (Emphasis su

1982But see Commonwealth v. Lee, 262 Pa.Super. 218 , 396 A.2d 724 (1978); Commonwealth v. Clawson, 250 Pa.Super. 422 , 378 A.2d 1008 (1977) (plurality opinion) (purporting to apply 18 Pa.C.S.A. § 313(a), but considering criminal predisposition of defendant); Commonwealth v. Jones, supra, 242 Pa.Super. at 309 , 363 A.2d at 1284 (stating, apparently inconsistently with its holding predisposition irrelevant to the entrapment defense, that “[ejvidence of a sale just two hours prior to the sale in question would be relevant on the issue of entrapment, and on appellant’s intent in general.” (Emphasis su

2024See Harris, 636 A.2d at 213 (holding that when deciding whether to instruct on entrapment, the trial court must consider the possibility that the jury would credit the testimony of the defendant).

1996The court answered that “[t]he accused has the burden of proving the entrapment defense by a fair preponderance of the evidence.” Id.

1996Commonwealth v. Lightfoot, 538 Pa. 350, 354-55 , 648 A.2d 761, 764 (1994); Harris, supra (if a defendant presents evidence of entrapment, an entrapment instruction should be given no matter how unreasonable the court may believe the defendant’s claims to be).

1996Commonwealth v. Lightfoot, 538 Pa. 350, 354-55 , 648 A.2d 761, 764 (1994); Harris, supra (if a defendant presents evidence of entrapment, an entrapment instruction should be given no matter how unreasonable the court may believe the defendant’s claims to be).

2026See Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (“Where police ‘do no more than afford [a defendant] an opportunity’ to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.”) (citation omitted). - 10 - J-S04002-26 Having determined that there are no arguably meritorious issues “that counsel, intentionally or not, missed or misstated,” Dempster, supra, we affirm the PCRA court’s order and grant counsel’s application to withdraw.

2026It is well-settled that “upon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality’ of the sentence imposed[.]” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) (citation omitted).

2024Specifically, the trial court states, -4- J-S20044-24 [O]ur Supreme Court in Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005), held that “the mere submission and subsequent denial of proposed points for charge that are inconsistent with or omitted from the instructions actually given will not suffice to preserve an issue, absent a specific objection or exception to the charge or the trial court’s ruling respecting the points.” In this case, when the court inquired of counsel whether there were any special requests with respect to the charge, defense counsel stated, “I would ask that the

2023“In their zeal to enforce the law, government agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act and then induce commission of the crime so that the government may prosecute.” Commonwealth v. Borgella, 611 A.2d 699, 701 (Pa. 1992) (citation omitted). - 13 - J-S02027-23 Where police “do no more than afford [an] appellant an opportunity” to commit an illegal act, their actions are not considered sufficiently outrageous police conduct to support an entrapment defense.

2023Thus, generalizing the principle from Martell, we conclude that, in Pharm., 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (denying ineffective assistance claim in pharmacy board context where pharmacist alleged counsel erred in not arguing an entrapment defense and in saying pharmacist was lax in running his business). 25 Pre-Martell, we applied Johnson and Bickel in Mitchell v. Workmen’s Compensation Appeal Board (Neal Tree Service), 565 A.2d 224, 226 (Pa. Cmwlth. 1989) (finding that claimant’s scenario distinguishable from Bickel where an attorney had not entered an appearance and the claimant failed