Com. v. Shay, E.

J-S17021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC WILLIAM SHAY :
:
Appellant : No. 714 MDA 2020
Appeal from the PCRA Order Entered March 18, 2020,
in the Court of Common Pleas of Lackawanna County,
Criminal Division at No(s): CP-35-CR-0000276-2015.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: NOVEMBER 22, 2021
Eric William Shay appeals pro se from the order denying his first timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.
§§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts as follows:
The charges in this case arose on February 3 and 4, 2015,
when [Shay], using an online service called “Grindr” and his
cell phone, communicated with an undercover special agent
of the Pennsylvania Attorney General’s Office, who he
believed to be a 14-year-old boy, for the purpose of
engaging in involuntary deviate sexual intercourse. [Shay]
sent the agent obscene pictures and arranged to meet him
at the Turkey Hill in Dunmore on February 2, 2015, for the
purpose of engaging in sexual intercourse. When he
arrived, he was approached by law enforcement. He
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* Retired Senior Judge assigned to the Superior Court.
J-S17021-21
admitted that he was there to meet a 14 or 15-year-old boy
in order to have sex with him, and was arrested.
Rule 907 Notice, 2/4/20, at 1.
On February 17, 2016, a jury convicted Shay of unlawful contact with a
minor, criminal attempt to commit involuntary deviate sexual intercourse, and
related charges. On June 29, 2016, the trial court sentenced Shay to an
aggregate term of 6½ to 19 years of imprisonment, and a consecutive 4-year
probationary term. Although, Shay did not originally file an appeal, he
subsequently filed a PCRA in which he sought the reinstatement of his
appellate rights nunc pro tunc. The PCRA court granted Shay’s petition on
August 1, 2017.
Shay filed a timely appeal to this Court. On September 18, 2018, this
Court affirmed Shay’s judgment of sentence. Commonwealth v. Shay, 198
A.3d 463 (Pa. Super. 2018) (non-precedential decision). On March 12, 2019,
our Supreme Court denied Shay’s petition for allowance of appeal.
Commonwealth v. Shay, 201 A.3d 361 (Pa. 2019).
On August 19, 2019, Shay filed a pro se PCRA petition, and the PCRA
court appointed counsel. Thereafter, the Commonwealth filed an answer. On
October 23, 2019, PCRA counsel filed a petition to withdraw as counsel and a
“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). The PCRA court granted Shay leave to file an amended PCRA petition.
Shay filed the amended petition on December 16, 2019.
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On February 4, 2020, the PCRA court issued a Rule 907 notice of its
intent to dismiss Shay’s petition without a hearing. The PCRA court also
granted PCRA counsel’s petition to withdraw. Shay filed a pro se response.
By order entered March 18, 2020, the PCRA court denied Shay’s PCRA petition.
This timely appeal followed. Both Shay and the PCRA court have complied
with Pa.R.A.P. 1925.
Shay raises the following issue on appeal:
1. Was trial counsel ineffective by failing to raise the
entrapment defense to the jury and for never developing
a defense strategy at trial?
Shay’s Brief at 4.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Moreover,
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
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Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Shay contends that his trial counsel provided him with ineffective
assistance. To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish by a preponderance of the
evidence that counsel’s ineffectiveness so undermined the truth determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Shay contends that counsel should have raised an entrapment defense
at trial. The defense of entrapment is set forth in the Crimes Code as follows:
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§ 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 the evidence that his conduct
occurred in response to an entrapment.
(c) Exception.—The defense afforded by this section is
unavailable when causing or threatening bodily
injury is an element of the offense charged and the
prosecution is based on conduct causing or
threatening such injury to a person other than the
person perpetrating the entrapment.
18 Pa.C.S.A. § 313.
This Court has noted the differences in the present statute from the
former section. We explained:
Prior to 1972, when the new Crimes Code was enacted, the
law employed a “subjective” test to determine whether a
defendant had been entrapped. The focus was on the
defendant’s predisposition to committing the crime, rather
than the conduct of law enforcement. As such, the burden
fell on the Commonwealth to disprove entrapment (or lack
of intent) beyond a reasonable doubt. However, upon the
enactment of 18 Pa.C.S.A. § 313 as part of the 1972 Crimes
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Code, the burden, along with the nature of the test to
determine entrapment, shifted. The focus of the fact-
finder’s inquiry became the conduct of the police and the
burden shifted to defendants to prove, by a preponderance
of the evidence, that they had been entrapped.
***
The defense of entrapment, as defined in the
Commonwealth of Pennsylvania, is based on an objective
standard intended to deter overreaching on the part of law
enforcement and those individuals acting in cooperation
with law enforcement such as confidential informants.
Commonwealth v. Willis, 990 A.2d 773, 775 (Pa. Super. 2010) (citations
omitted).
The police generally are permitted to use artifice and deception to catch
criminals. “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). Rather, the defense of entrapment is “aimed at condemning certain
impermissible conduct which falls below standards for the proper use of
governmental power.” Commonwealth v. Joseph, 848 A.2d 934, 939 (Pa.
Super. 2004) (citation omitted).
Here, the PCRA court found Shay’s claim that trial counsel was
ineffective for failing to raise an entrapment defense lacked arguable merit.
The PCRA court explained:
[Shay] asserts that his trial counsel was ineffective
because she did not raise an entrapment defense. As [PCRA
counsel] concluded, trial counsel did not raise an
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entrapment defense because there was no basis to raise this
defense. At the sentencing hearing, [Shay’s] sentencing
counsel made an oral motion for extraordinary relief and
requested a new trial because the entrapment defense was
not raised by trial counsel. The Commonwealth replied that
trial counsel likely did not raise an entrapment defense
because it would have failed miserably, because [Shay]
initiated the contact with the individual who then indicated
that they were a 14-year-old boy, and it was [Shay] who
suggested to the minor that they meet. The court found
that the Commonwealth did not advertise that they were a
14-year-old until after the contact by [Shay], and the agent
told [Shay] that he was 14 years old and [Shay] knew he
was dealing with a 14-year-old. The court denied the
motion.
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. 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). Here, [the special agent] testified
that [Shay] reached out to him initially, and [the agent]
then told [Shay] he was 14 years old and asked if [Shay]
was “chilz” with his age, and [Shay] stated that he was.
Thus, the Commonwealth merely provided [Shay] with the
opportunity to commit the crimes here and did not engage
in behavior that would constitute entrapment. Since
counsel will not be deemed ineffective for failing to raise a
baseless claim, this argument is without merit.
Rule 907 Notice, 2/4/20, at 5-6 (citations to record omitted).
Our review of the record supports the PCRA court’s conclusion that the
facts, as presented by the Commonwealth, would not support a defense of
entrapment. In arguing to the contrary, Shay relies largely on older federal
and Pennsylvania case law which focused on a defendant’s predisposition to
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commit the crime, placed the burden on the Commonwealth to disprove an
entrapment defense, or otherwise involved disputed facts regarding the extent
of inducement by government agents. See Shay’s Brief at 17-19.
Shay also asserts that his case is “similar to” U.S. v. Senke, 2017 WL
4159795 (M.D Pa. 2017). Initially, we note that federal decisions are not
controlling. “Absent a United States Supreme Court pronouncement, the
decisions of federal courts are not binding on state courts.” Commonwealth
v. Walker, 139 A.3d 225, 230 (Pa. Super. 2016) (citations omitted).
In Senke, the government filed a motion in limine to prevent the
defendant from raising an entrapment defense at trial. Like the instant case,
Senke involved a government agent posing online as a minor on an adult-
only internet site. However, this is where the similarity ends. After discussing
in detail the protracted investigation involving the many interactions—several
which were initiated by the government—the federal district court found
“ample evidence exist[ed] that the government induced [Senke] to commit a
crime that he was not predisposed to commit.” Id. at 9. Thus, the court
denied the government’s motion, and permitted Senke to present an
entrapment defense at trial.1
Here, by contrast, and as explained above, there was no evidence of
improper inducement by the Commonwealth; at the beginning of his
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1 Ultimately, a jury rejected Senke’s entrapment defense and convicted him
of attempted sex offenses involving a minor. See U.S. v. Senke, 986 F.3d
300 (3rd Cir. 2021).
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interaction with the agent, Shay was told that the person with whom he was
corresponding was a minor. Despite this knowledge, Shay continued his
contact with the “minor,” via Grindr and text message, for the purpose of
meeting the minor so that they could engage in sexual activity. Because the
agent did no more than provide Shay an opportunity to commit a crime he
wished to commit, Marion, supra, Shay’s ineffectiveness claim that trial
counsel was ineffective for failure to raise an entrapment defense fails.
Additionally, Shay argues that trial counsel failed to present any defense
at all. Shay’s Brief at 8. A review of Shay’s trial transcript refutes this claim.
Indeed, our reading reveals trial counsel raised as a defense Shay’s failure to
take the substantial step needed to establish that he attempted to commit
offenses at issue. Although ultimately unsuccessful on each occasion, this was
the same defense raised in Zingarelli, supra, and Commonwealth v.
Jacob, 867 A.2d 614 (Pa. Super. 2005). Here, trial counsel raised a viable
defense, but the jury rejected it.
In sum, because trial counsel had no basis upon which to raise an
entrapment defense, she cannot be deemed ineffective for failing to raise it at
trial. Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).
Additionally, our review of the record refutes Shay’s claim that trial counsel
failed to present any defense on his behalf. Thus, we affirm the PCRA court’s
order denying Shay post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2021
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