Opinion
433 MDA 2023 J-S35025-23
01-10-2024
COMMONWEALTH OF PENNSYLVANIA v. CURTIS LEE MALONE, Appellant
Benjamin D. Kohler, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered January 5, 2023 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001613-2021
Benjamin D. Kohler, Esq. Prothonotary
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
McLAUGHLIN, J.
Curtis Lee Malone appeals from the judgment of sentence imposed following his jury-trial conviction for solicitation to commit homicide. Malone challenges the weight and sufficiency of the evidence. We affirm.
The trial court recounted the relevant facts as follows.
On April 19, 2021, Deputy Warden Mike Eichoff of the Cumberland County Prison received a report that an inmate, [Malone], was offering his cellmate David Deihl money in exchange for killing [Malone]'s estranged wife (hereinafter "Victim"). Of concern, Deihl reported receiving information including Victim's name, home
address, the hours that she would either be at home, travelling on foot in the vicinity of her home, and a specific requirement from [Malone] that the killing occur on the weekend, which was the time when their children would not be present. After consultation with the Cumberland County District Attorney's Office, including the county Criminal Investigation Division, the decision was made to have Deihl wear a wire for a consensual wiretap, speak with [Malone], and secure further information regarding the plot.
In the wiretap audio recording, which was played for the jury at trial, [Malone] again provided Deihl with Victim's name, address, and ideal times and locations for someone to attempt to kill her. [Malone] suggested ambushing her as she walked to or from a local grocery store, suggested that Deihl could disguise himself as a homeless person to gain better access to Victim, and noted that the police response time in the relevant area was slow, giving a perpetrator ample opportunity to flee. [Malone] further suggested that a stabbing would be a good way to carry out the crime, and that Victim's body could be covered with cardboard to disguise it and delay discovery of the crime. . . .
[Malone] also offered Deihl money in exchange for killing Victim, to be paid from any payout on Victim's life insurance policy. [Malone] expressed his wariness regarding his potential exposure to criminal charges following Victim's death if anyone were to connect him with Deihl. . . .
Deihl testified . . . that while he initially believed that [Malone] was joking about having Victim killed, eventually [Malone's] demeanor changed, and it became apparent that he was serious about the killing.Trial Court Opinion, 5/15/23, at 2-3, 7, 10 (footnotes omitted).
The trial court spells his last name "Diehl," while the parties, the trial transcript, and documents in the certified record spell it "Deihl." For the sake of consistency and clarity, we have followed the lead of the certified record and regularized the spelling where documents we quote have employed a different one.
In his defense, Malone argued entrapment. See 18 Pa.C.S.A. § 313. He claimed Deihl's testimony showed Malone had "only joked once about killing Victim, and that Deihl subsequently initiated all discussion on the subject." Trial Ct. Op. at 10.
The jury returned a guilty verdict for criminal solicitation to commit homicide. The court sentenced him to six to 15 years' incarceration. Malone filed a post-sentence motion, which the court denied. This appeal followed.
Malone raises the following issues:
I. Whether the evidence was insufficient to prove beyond a reasonable doubt that [Malone] committed the crime of solicitation to commit homicide, where [Malone] proved by a preponderance of the evidence the defense of entrapment, and where the Commonwealth failed to prove that [Malone] actually intended to promote or facilitate the commission of the crime of homicide?
II. Whether the verdict was against the weight of the evidence so as to shock one[']s sense of justice?Malone's Br. at 5 (suggested answers omitted).
Malone first argues the evidence was insufficient to support the conviction because he proved the defense of entrapment as a matter of law. He asserts that "Deihl's conduct as a police cooperator amounted to entrapment where he approached [Malone], proposed the idea of committing a crime, and discussed details of its commission to obtain evidence for [the] prosecution." Id. at 17. He claims, "Deihl originated a criminal design to kill [Victim], implanted the idea into the mind of [Malone], and subsequently induced [Malone] to engage in incriminating conversations by badgering him on the subject." Id. at 18. He contends that in the instant case, the police allowed Deihl "to initiate conversations with [Malone], more than fifteen times[.]" Id. at 17.
Malone contrasts his case with Commonwealth v. Lee, 396 A.2d 724 (Pa.Super. 1978). There, this Court rejected the defense of entrapment to commit promotion of prostitution where a police officer, acting as a decoy prostitute, did not initiate conversation with the defendant and limited her verbal response to his inquiry to the non-committal phrase, "What do you mean[?]" 396 A.2d at 725-26. Malone argues that here, in contrast, "Deihl mentioned specific dates and times that he planned to harm [Victim], discussed covering part of the costs associated with getting 'it done,' and spoke of specific weapons - namely, a knife, which were not initially mentioned by [Malone] himself." Malone's Br. at 17. Malone asserts Deihl testified that he "could not affirmatively say whether [Malone] ever provided any details of a crime, prior to Deihl's own inducement on the wiretap." Id. at 21. Malone also points out that he attempted to change the subject twice, and that Deihl himself testified that he repeatedly brought up the hypothetical killing for the purpose of obtaining evidence for law enforcement.
Malone also argues the evidence was insufficient to prove he had the requisite intent to commit the crime. He contrasts his case with an unpublished decision, Commonwealth v. Onesko, 494 WDA 2018, 2019 WL 2881531 (Pa.Super. July 3, 2019), in which a panel of this Court found the evidence sufficient to establish solicitation to commit involuntary deviate sexual intercourse. In Onesko, the victims asked the defendant whether he was joking about his sexual propositions, and the defendant responded that he was being truthful. 2019 WL 2881531 at *4. Malone argues that here, in contrast, Deihl testified "that following [Malone's] joke, it was [Malone] who asked Deihl - not vice versa [-] if he was serious about 'that' and if he would really do 'that.'" Malone's Br. at 20-21.
"When reviewing a challenge to the sufficiency of the evidence, we 'must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt.'" Commonwealth v. Clemens, 242 A.3d 659, 664-65 (Pa.Super. 2020) (quoting Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en banc)). "[T]he Commonwealth's evidence need not preclude every possibility of innocence in order to prove guilt beyond a reasonable doubt," and its evidence may be entirely circumstantial. Id. at 665. In conducting a sufficiency review, we may not weigh the evidence, as this is the province of the jury. Id.
To prove criminal solicitation, the Commonwealth must prove that the defendant commanded, encouraged, or requested that another person commit conduct that would constitute a crime or an attempt to commit it, or that would prove the defendant's complicity. The defendant must have acted with the intent of promoting or facilitating the commission of the crime solicited:
A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.18 Pa.C.S.A. § 902(a); see also Commonwealth v. Hacker, 15 A.3d 333, 336 (Pa. 2011) ("The purpose of the solicitation statute is to hold accountable those who would command, encourage, or request the commission of crimes by others").
However, a person may not be convicted of an offense "if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment." 18 Pa.C.S.A. § 313(b). To prove entrapment, the defendant must establish that
[a] public law enforcement official or a person acting in cooperation with such an official . . . for the purpose of obtaining evidence of the commission of an offense, . . . induce[d] or encourage[d] [the defendant] to engage in conduct constituting such offense by . . .
(2) 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.Id. at § 313(a)(2).
The defense of entrapment arises "only when a law enforcement officer, by employing methods of persuasion or inducement which create a substantial risk that persons not otherwise ready to commit the criminal act will do so, actually induces such a person to commit the act." Id. at Comment (1967) (citation omitted). "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. Marion, 981 A.2d 230, 238 (Pa.Super. 2009) (quoting Commonwealth v. Borgella, 611 A.2d 699, 701 (Pa. 1992)).
The entrapment defense "is based upon an objective standard intended to deter overreaching on the part of law enforcement and those individuals acting in cooperation with law enforcement[.]" Commonwealth v. Willis, 990 A.2d 773, 775 (Pa.Super. 2010). It "provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary rule." Marion, 981 A.2d at 238 (citation omitted).
Thus, an entrapment defense will not stand where the police "[m]erely afford[ed] the opportunity, through police artifice and stratagem, for the commission of a crime by a person who already ha[d] the requisite intent[.]" Commonwealth v. Joseph, 848 A.2d 934, 939 (Pa.Super. 2004) (ciiation omitted). It is without question that the police may act "to detect those engaging in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation." Marion, 981 A.2d at 239 (citation omitted).
First, we find no merit to Malone's argument that there was insufficient evidence that he intended to solicit Deihl to commit homicide. Even taking as true Malone's assertions that he was originally joking about the matter and tried to change the subject, this does not negate the evidence that was sufficient to prove that Malone had the requisite mens rea by the time he "sealed the deal." The defense of entrapment is an affirmative defense that does not negate the intent element of the charged offense. See Commonwealth v. Jones, 363 A.2d 1281, 1287 (Pa.Super. 1976).
Next, for an entrapment defense to prevail as a matter of law, the appellant "must demonstrate that the evidence was so overwhelming that no reasonable jury could fail to find entrapment." Commonwealth v. Lebo, 592 A.2d 353, 356 (Pa.Super. 1991). Otherwise, generally, the question of whether police conduct constitutes entrapment is for the jury. Marion, 981 A.2d at 239; see also Commonwealth v. Phillips, 654 A.2d 591, 594 (Pa.Super. 1995) ("where there is conflicting testimony on the subject of inducement, the matter is properly left for the jury to resolve") (citation omitted).
The burden is on the defendant to prove the defense by a preponderance of the evidence; the Commonwealth does not need to disprove the defense beyond a reasonable doubt for it to fail. Willis, 990 A.2d at 775.
Here, in rejecting Malone's sufficiency challenge, the court observed that "Deihl testified at trial that [Malone] first introduced the idea of the killing, and the audio recording of [Malone] provides ample examples of him volunteering pertinent information for the killing that was not solicited by Deihl." Trial Ct. Op. at 8. It further found, "[Malone] did not simply make an off-hand, joking remark about having Victim killed, but . . . he presented a detailed plan to David Deihl, including restrictions on when and where the killing should occur, in exchange for money to be paid out from the proceeds of Victim's life insurance." Id. at 16.
We agree that Malone did not present such overwhelming evidence of entrapment that the court should have granted an acquittal as a matter of law. The facts do not indisputably establish that Malone was an innocent bystander until Deihl implanted the idea of the killing in his mind and induced him to solicit that crime through overzealous and reprehensible behavior. Rather, Deihl testified that the idea for the killing began with Malone, and, while Malone was initially jesting, he turned serious. N.T., Oct. 17-18, 2022, at 23. Deihl also testified that Malone brought up the scheme more than once. Id. at 39. Next, there was conflicting evidence as to how much detail Malone provided to Deihl before Deihl wore the wire. While Deihl could not recall which details of the hypothetical killing he had discussed with Malone before wearing the wire, Detective Matas testified that Deihl had told him the Victim's name, address, and the best time and location. Id. at 24-25, 32, 66-67, 79, 82. Finally, while Deihl, then acting as an agent of the police, repeatedly steered the conversation back to the murder scheme, the evidence does not establish that these conversations were so manipulative as to have induced Malone to commit solicitation to commit murder. Therefore, whether the exchanges constituted entrapment was a question for the jury.
Next, Malone argues the conviction was against the weight of the evidence. He asserts the following evidence of entrapment was overwhelming:
(1) Deihl believed [Malone's] one-off remark about [Victim] to be a joke; (2) [Malone] never initiated a conversation about harming [Victim] following the joke; (3) Deihl continuously brought up the topic of harming [Victim], prior to law enforcement involvement; (4) Deihl specifically asked Detective Matas if he could continue
being the instigator considering [Malone] never raised the subject; and (5) after being wired, Deihl incessantly brought up his idea of killing [Victim] to [Malone], as [Malone] attempted to avoid the conversation.Malone's Br. at 24.
Malone likens his case to Commonwealth v. Lucci, 662 A.2d 1, 2, 4-6 (Pa.Super. 1995). There, a confidential informant induced the defendant to engage in criminal drug-related activity by appealing to the defendant's friendship and sympathy and by offering the defendant drugs when he was struggling with sobriety. Malone argues that here, like in Lucci, there was overwhelming evidence that he would not have attempted to commit the crime without Deihl's interference, including the following facts:
(1) Deihl developed a friendship with [Malone] during their time as cellmates; (2) Deihl was aware that [Malone] had been struggling with co-parenting and his interactions with his wife's family; (3) Deihl induced [Malone] to engage in criminal conversations by creating a plan to kill [Victim], whom he knew [Malone] to be frustrated with at the time; and (4) all of the criminal conversations that took place were repeatedly initiated by Deihl, not [Malone].Id. at 29. He argues, "it is clear that any intent [he] had to avoid crime was worn down by Deihl, a law enforcement cooperator." Id. at 30.
We review the denial of a challenge to the weight of the evidence for an abuse of discretion. Commonwealth v. Bright, 234 A.3d 744, 749 (Pa.Super. 2020). "Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence." Id. (citation omitted). The trial court should grant the motion only when "the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Fallon, 275 A.3d 1099, 1107 (Pa.Super. 2022) (citation omitted).
The court rejected the weight claim. It found the jury "disregarded [Malone's] entrapment argument, finding that rather than being an innocent person induced to commit a crime, [Malone] actively planned and solicited the killing of Victim." Trial Ct. Op. at 15-16. In noted that in the wiretap, "[Malone] offered Deihl unsolicited advice on what to say at his sentencing hearing the following day, so that he would have a better chance of receiving a time-served sentence, and therefore be available to conduct the killing. [Malone] then provided a detailed scenario for Deihl to ambush Victim, kill her, conceal the body and murder weapon, and escape[.]" Id. at 13 (footnote omitted). It also observed that Malone "candidly expressed both his desire that Victim be killed, and his concern that he could be tied to the crime if Deihl was not careful in orchestrating the killing." Id. at 10. The court concluded the jury's decision to reject the entrapment defense "was not shocking to this court's conscience." Id. at 17.
We discern no abuse of discretion. While Deihl initiated conversations with Malone about the hypothetical killing on the day that he wore the wire, the police took this approach because Deihl's sentencing hearing was scheduled for the next day, and this was the last day that Malone and Deihl would be cellmates. See N.T. at 70, 78. Deihl gave Malone open-ended prompts, not suggestions, and Malone provided lengthy answers in response. See id. at 90 (Detective Matas testifying, "No, it wasn't leading - it wasn't providing a lot of detail at all. It's kind of like - almost like an open narrative[-] type question. Like [Deihl] would ask[, 'I'm just trying to think of the best way to get this done,['] and then [Malone] would take it from there"), 92 ("Detailed answers, to me. I mean he was - like I said, it wasn't just a sentence. It wasn't yes or no, it was pretty graphic details"). There was no testimony that Deihl pressured or even advised Malone to hire him to kill Victim; Deihl simply provided repeated opportunities for Malone to decide whether he wanted to hire Deihl to kill Victim. The trial court did not commit an abuse of discretion in rejecting Malone's weight argument. Judgment of sentence affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.