Com. v. Fournier, B. ( 2020 )

J-S02038-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON SCOTT FOURNIER, :
:
Appellant : No. 754 MDA 2019
Appeal from the Judgment of Sentence Entered January 23, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005626-2017
BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 11, 2020
Brandon Scott Fournier (“Fournier”) appeals from the judgment of
sentence imposed following his convictions of unlawful contact with a minor
and criminal use of a communication facility.1 We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural
background as follows:
On August 24, 2017, Agent [Gordon] Goodrow [(“Agent
Goodrow”), a supervisory special agent with the Office of the
Attorney General’s Child Predator Section,] had an undercover
profile on Grindr, a mobile application that allows men to seek
other men. On this day, Agent Goodrow began to receive
messages on the Grindr app from [] Fournier[,] who [had]
initiated contact. Based upon the conversations between Fournier
and Agent Goodrow, Fournier was arrested.
____________________________________________
1 18 Pa.C.S.A. §§ 6318(a)(1), 7512(a).
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The following is the relevant dialogue exchanged between
Agent Goodrow, who was posing as a fourteen[-]year-old, and
Fournier[,] on August 24, 2017, that led to Fournier’s arrest[:]
Fournier: Cute pic U looking for a good time
Goodrow: Yeah this is my last week before school
starts
Fournier: Where u from and u have a clear face pic
what u in the mood for
Goodrow: Live in Harrisburg
Fournier: Tbats not far from me any more pics
Goodrow: [picture of boy sitting in driver’s seat of car
with his seatbelt on]
Fournier: How old are u
Goodrow: I’ll be 15 in December
Fournier: What u want to dO
Goodrow: I haven’t done anything
Fournier: How are u on here if your 15
[Fournier:] Does your parents no your gay
Goodrow: New to this and don’t know any guys my
age
[Goodrow:] No they do t
[Goodrow:] Don’t
[Goodrow:] It’s gotta be a secret
[Goodrow:] My mom would be so upset
[Goodrow:] And her boyfriend would probably be an
ass
Fournier: I’m 35 old enough to b your dad let me see
some more of you
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Goodrow: Mmmmm showed you a pic???
[Goodrow:] Gotta be careful
[Goodrow:] Don’t know you
[Goodrow:] Can’t get in trouble
***
Fournier: Ur parents let u out at 14
[Fournier:] By yourself
Goodrow: My mom works downtown and lets me
come with her
[Goodrow:] I went over to city island
[Goodrow:] She will drive me home at 5
[Goodrow:] When she gets off work
***
Fournier: If u got head from a guy would u cum fast
***
Fournier: Do you want to try it with a guy
Goodrow: Oh really
[Goodrow:] How?
Fournier: Some place outside
[Fournier:] Its up to you I just don’t want to get in
trouble for talki,g to u
***
Fournier: Would like to meet up some place
Goodrow: I can walk somewhere
Fournier: Where u want to walk to
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Goodrow: I’m at strawberry square right now getting
something to eat
[Goodrow:] I can walk to city island after
Fournier: Ok ill head their now
***
Fournier: I’m nervous about meeting up with u
because of your age
***
Goodrow: If your not into I can understand
Fournier: Ill come meet you quick
[Fournier:] U almost their
Goodrow: Not yet
[Goodrow:] What if your a cop? I’m screwed
Fournier: I’m on my way
[Fournier:] I’m not a cop
[Fournier:] When’s the last time u came
***
Goodrow: What if people see us?
Fournier: Ill b their in 6 min
Goodrow: I saw security there this morning
[Goodrow:] I’m just finishing my lunch
Fournier: Ok
Goodrow: What if people see us
Fournier: No one will
[Goodrow:] Really?
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[Fournier:] Ill meet u on 3rd st by stsilons
Goodrow: Where’s that????
***
Fournier: I’m here behind stsilons
Goodrow: Where we go then?
Fournier: I know places
Goodrow: Ok cool
[Goodrow:] Can’t get caught
Fournier: Were not going to
Goodrow: Oh man
[Goodrow:] I’m excited
Fournier: U coming or what
Goodrow: Leaving now
Fournier: Hurry up
Goodrow: What you want to do first [smirking face
emoji]
[Goodrow:] Damn
[Goodrow:] On my way
Fournier: look at you see what u think of me and see
what u want to do
***
Fournier: Ur not going to get into trouble and I’m not
going to hurt u
Goodrow: But you won’t even tell me what you want
to do and you could def hurt me
Fournier: Lets just meet first so I know your for real
and not trying to set me up
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[Fournier:] U almost here
***
[Fournier:] Hurry up
[Fournier:] Where u at
Goodrow: I’m walking
Fournier: Ok well if u want to do something it needs
to happen quick
Goodrow: Kk
Fournier: U want me to blow u
Goodrow: Umm ok. How
[Goodrow:] Where r u
Fournier: I’m behind stallions theirs an alley way in
between 704 and stallions
Goodrow: OkAy
[Goodrow:] Blue car ?
Fournier: Yea I’m at the end of the parking lot
Goodrow: Okay
Fournier: How close are u
Goodrow: Almost there
[N.T., 5/17/18, at 24 (wherein Commonwealth’s Exhibit 3A was
admitted).2]
____________________________________________
2 The trial court corrected grammatical errors in the original, perhaps
inadvertently, without adding brackets or otherwise making note of the
changes. We have reverted the changes to comport with the original, as it is
found in the certified record.
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On August 24, 2017, [Fournier] was arrested and charged
with [u]nlawful [c]ontact with [m]inor-[s]exual [o]ffenses and
[c]riminal [u]se of a [c]ommunication [f]acility.
On February 8, 2018, [Fournier] filed a [“]Motion for Judicial
Finding of Entrapment As a Matter of Law.[”] The Commonwealth
responded and a hearing was held before the [trial court] on May
17, 2018. After hearing the testimonial evidence of [Agent]
Goodrow, the [trial c]ourt found that entrapment was not proven
as a matter of law[,] but allowed [Fournier] to pursue the defense
at trial.
A jury trial was held before [the trial c]ourt on September
27 and September 28, 2018, and [Fournier] was found guilty of
[the above-mentioned offenses]. The jury also found no
entrapment by [Agent Goodrow].
On January 23, 2019, [Fournier] was sentenced to [an
aggregate term of] 48 to 96 months [in prison] with a consecutive
five years [of] probation…. [Fournier] was given credit for time
served. He was mandated to register under Megan’s Law[3] and a
fine was imposed.
Trial Court Opinion, 7/8/19, at 1-2, 4-7 (citations to record omitted;
paragraphs reordered; errors in original; footnote added). Fournier filed a
timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of errors
complained of on appeal.
On appeal, Fournier raises the following question for our review:
Did not the trial court err in refusing to find entrapment as a
matter of law, where the court correctly found that the issue of
entrapment had been properly raised, and there was no dispute
as to the operative facts relating to the defense?
____________________________________________
3Our review of the record discloses that Fournier was sentenced pursuant to,
and given notice of his registration requirements under, the Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10-
9799.41, and not Megan’s Law.
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Brief for Appellant at 5.
Fournier claims that the trial court erred in not concluding that, as a
matter of law, the evidence at trial established the defense of entrapment.
See id. at 18-24. Fournier points out that in order to create his Grindr
account, Agent Goodrow must have provided a date of birth designating him
as at least eighteen years old. Id. at 23. Fournier states that he was aware
of this fact when he initiated the conversation with Agent Goodrow. Id.
Fournier further claims that (1) the communication that constituted a criminal
act did not occur until the 112th minute of the conversation; (2) at one point,
Fournier ceased messaging, and Agent Goodrow reinitiated the conversation
twenty minutes later; (3) Fournier wanted to meet the purported child in the
daytime, at a public location, with the intent to “walk and talk,” but Agent
Goodrow expressed a reluctance to meet at that location, forcing Fournier to
suggest another place to meet; and (4) the picture Agent Goodrow sent
Fournier, purportedly of himself, showed a person in the driver’s seat of a car
with a seat belt on, which led Fournier to believe the person was at least 16
years old. Id. at 23-24. Fournier argues that these factors establish
entrapment as a matter of law. Id. at 24.
“Our standard of review regarding questions of law is de novo.”
Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa. Super. 2019).
In its Opinion, the trial court concisely set forth the law, and addressed
Fournier’s claim as follows:
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The Crimes Code defines the defense of entrapment[,] in relevant
part[,] as:
§ 313. Entrapment
(a) General rule.--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 either:
(1) making knowingly false representations designed to
induce the belief that such conduct is not prohibited; or
(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.
(b) Burden of proof.--Except as provided in subsection
(c) of this section, a person prosecuted for an offense
shall be acquitted if he proves by a preponderance of
evidence that his conduct occurred in response to an
entrapment.
….
18 Pa.C.S.A. § 313.
“The burden is on the defendant to establish entrapment
and the inquiry focuses on the conduct of the police, not the
predisposition of the defendant.” Commonwealth v. Joseph,
848 A.2d 934, 939 (Pa. Super. 2004). “The test with regard to
police conduct is an objective one. 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.”
Id. “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.” Commonwealth v. Marion, 981 A.2d
230, 239 (Pa. Super. 2009).
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“The trial court may consider, when there is no dispute as
to the operative facts, whether it can reject an entrapment
defense as a matter of law.” Id. “Operative facts are those that
are necessary for appellant to prove by a preponderance of the
evidence that he was entrapped. Under the objective test for
entrapment, these would be facts that go to the course of conduct
of a government officer or agent that would fall below standards
to which common feelings respond, for the proper use of
government power.” Id.....
The conduct of Agent Goodrow did not rise to the requisite
level of outrageousness that would justify a finding of entrapment
as a matter of law. The texts reveal that Agent Goodrow merely
afforded [Fournier] with the opportunity to commit a crime.
[Agent Goodrow] did not initiate contact with [Fournier]. During
the conversation, [Fournier] asked [Agent Goodrow] how old he
was and [Agent Goodrow] responded that he was fourteen years
old. Even after [Fournier] was informed that the individual he was
conversing with was underage, [Fournier] continued to pursue the
conversation, arranged a meeting with [the purported fourteen-
year-old boy], and traveled to the prearranged location to meet
with the minor for sex. [Fournier] was then arrested.
Trial Court Opinion, 7/8/19, at 7-9 (some quotation marks omitted; paragraph
break added). The record supports the trial court’s findings and we agree with
the trial court’s sound rationale and determination. We therefore affirm on
this basis in rejecting Fournier’s claim. See id.- 10 -
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2020
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