J-S08041-18

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

ANDRE IKARD 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1425 WDA 2017

Appeal from the Judgment of Sentence August 30, 2017

In the Court of Common Pleas of Beaver County Criminal Division at 

No(s): CP-04-CR-0002086-2016

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 16, 2018

Appellant, Andre Ikard, appeals from the judgment of sentence entered 

in the Court of Common Pleas of Beaver County after a jury convicted him of 

delivery of a noncontrolled substance in contravention of 35 Pa.C.S. § 780-

113(a)(35)(ii). We affirm.

The trial court aptly sets forth the procedural and factual histories of the 

case as follows:

On October 5, 2017, a Criminal Complaint was filed in this case 

charging Defendant [hereinafter “Appellant”] with unlawful 

delivery of crack cocaine, possession with intent to deliver crack 

cocaine, and criminal use of a communications facility. The case 

was scheduled for a non-jury trial on March 31, 2017. On March 

31, 2017, Appellant informed the court that he now wanted a jury 

trial, and that he no longer wanted the private attorney he had 

hired. The case was scheduled for a jury trial and Appellant’s 

attorney withdrew from representing him.
J-S08041-18

- 2 -

Appellant was then represented by the Public Defender’s Office. 

Voir dire began and a jury was selected on July 10, 2017. Trial 

commenced on July 11, 2017. By agreement of the parties, the 

charges at trial, contained in the Amended Information filed on 

April 19, 2017, were limited to Count 1, for criminal use of a 

communications facility, Count 3 for unlawful delivery of crack 

cocaine, and Count 4 for distribution or sale of a noncontrolled 

substance.1

_____________________________________________________________________________

1 Count 4 was amended from unlawful delivery of crack cocaine to 

distribution or sale of a noncontrolled substance after the 

Pennsylvania Crime Lab determined that the substance delivered 

on August 11, 2016, was not a controlled substance.

The Commonwealth presented the testimony of Agents 

Christopher Burnell and Sean Gelchion from the Pennsylvania 

Office of Attorney General, as well as the testimony of the 

confidential informant (hereinafter, “CI”). The Commonwealth’s 

case-in-chief alleged that Appellant delivered crack cocaine to the 

CI on July 25, 2017. Appellant was found not guilty by the jury 

on Counts 1 and 3, which related to that incident.

The Commonwealth’s evidence also showed that on August 11, 

2016, a controlled buy for crack cocaine was attempted. The CI 

called and spoke to Appellant who agreed to meet him at Tank 

Alley in Beaver Falls, Pennsylvania for the purpose of selling him 

crack cocaine. 

The CI was searched prior to and after the purchase and no 

contraband was found. The CI was provided pre-recorded U.S. 

currency in the amount of $80.00.

The completion of a hand-to-hand transaction from Appellant to 

the CI was witnessed by Agent Gelchion and captured on video by 

the agents for the Office of Attorney General. The white chalky 

substance which was purchased appeared to the agents and to 

the CI to be crack cocaine, and the packaging was consistent with 

crack cocaine. Further, the amount of the substance that 

appeared to be crack cocaine was consistent with a sale for 

$80.00. The substance was not field tested, but was submitted to 

the Pennsylvania crime lab for testing, where it was determined 

not to be a controlled substance.
J-S08041-18

- 3 -

In his case-in-chief, Appellant testified on his own behalf. In his 

testimony, Appellant admitted all of the essential elements of the 

distribution or sale of a noncontrolled substance, but claimed that 

he only did it in order to get the CI to stop calling him.

Appellant testified that on July 25, 2016, the CI called to meet him 

and, upon meeting him, asked to by crack cocaine from him. N.T., 

7/11/17, at 240-44. Appellant stated that he did not sell crack 

cocaine to the CI, but instead introduced him to Quincy Roberts, 

known as “Q,” who lived in the same apartment building, and who 

he knew could sell cocaine to the CI.2 N.T. 7/11/17, at 244-46. 

Appellant testified that afterward the CI called him numerous 

times, and that Appellant placed [the CI’s] number under “do not 

answer” in his cell phone, in order to block his calls. N.T., at 246-

47.

2 This incident, which the Commonwealth charged under Counts 1 

and 3, and [for] which the jury found Appellant not guilty, 

occurred inside an apartment building and out of sight of the 

agents.

Regarding the controlled buy that occurred on August 11, 2017, 

Appellant testified that the CI called Appellant’s girlfriend, whose 

phone number was listed on Appellant’s Facebook page. N.T, at 

250. Appellant testified that he already made up his mind what 

he would do, that he would put something in a baggie that was 

not drugs so that afterward the CI would not call him anymore. 

N.T., at 251-53. 

Appellant admitted giving the noncontrolled substance to the CI 

and taking the $80.00 from him in exchange. Id. He stated that 

he filled a plastic baggie with drywall that he found in Tank Alley 

prior to the CI’s arrival. N.T., at 251-53, 264-65. He explained 

that he had seen crack cocaine in person before and knew how it 

is packaged, and that the substance which he gave the CI did look 

like drugs. N.T., at 263-64. He said that he kept the $80.00 that 

he received from the CI because he wanted the CI to think the 

plastic baggie contained drugs. N.T., at 265. He testified that he 

sold the noncontrolled substance to the CI because the CI kept 

calling him, and he believed that when the CI tried to use the 
J-S08041-18

- 4 -

noncontrolled substance and discovered that it was not drugs that

the CI would not call him anymore. N.T., at 265-66.

Appellant’s attorney argued a defense of entrapment, and the jury 

was instructed by the court on entrapment. After deliberations, 

the jury found Appellant not guilty on Counts 1 and 3 for the 

unlawful delivery [of controlled substances] that was alleged to 

have occurred on July 25, 2017, but found Appellant guilty on 

Count 4, distribution or sale of a noncontrolled substance for the 

incident that occurred on August 11, 2017. 

Appellant was sentenced on August 30, 2017, to, inter alia, 

twenty-one months to sixty months in a state correctional 

institution. Appellant filed a Notice of Appeal on September 27, 

2017. On September 29, 2017, the court entered an Order 

directing Appellant to file a Concise Statement, per Pa.R.A.P. 

1925(b). Appellant filed his Concise Statement on October 20, 

2017.

Trial Court Opinion, filed November 2, 2017, at 1-4.

Appellant presents the following question for our review:

I. WHETHER THE APPELLANT’S CONVICTION OF 

DISTRIBUTION/SALE OF A NON CONTROLLED 

SUBSTANCE, 35 PA.C.S.A. 780-113(A)(35)(II),

SHOULD BE REVERSED BECAUSE THE 

COMMONWEALTH FAILED TO PRESENT SUFFICIENT 

EVIDENCE TO REBUT THE PRESUMPTION OF 

ENTRAPMENT ESTABLISHED BY THE APPELLANT?

Appellant’s brief, at 8.

Initially, we note that Appellant misconstrues the allocation of 

evidentiary burdens when he posits that the Commonwealth failed to rebut a 

presumption of entrapment established by Appellant. As explained below, 

Appellant, alone, bore the burden of proving by a preponderance of the 

evidence that his illegal conduct—which he concedes the Commonwealth 

proved beyond a reasonable doubt—was the product of an entrapment carried 
J-S08041-18

- 5 -

out by law enforcement officials. If Appellant met this burden, he was entitled 

to an acquittal. To the extent Appellant contends that he carried his burden 

of proof in this regard, we address that portion of his question presented. 

The Crimes Code defines the defense of entrapment in relevant part as 

follows:

§ 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.

18 Pa.C.S.A. § 313(a)-(b). 

Pennsylvania courts apply an objective test for entrapment:

[T]he test for entrapment has shifted in emphasis from a 

consideration of a particular defendant's readiness to commit 

crime, a subjective test, to an evaluation of the police conduct, an 

objective test, to determine whether there is a substantial risk 

that the offense will be committed by those innocently disposed. 

To determine whether an entrapment has been perpetrated in any 

particular case, therefore, the inquiry will focus on the conduct 

of the police and will not be concerned with the defendant's prior 
J-S08041-18

- 6 -

criminal activity or other indicia of a predisposition to commit 

crime.

Commonwealth v. Marion, 981 A.2d 230, 238 (Pa. Super. 2009), (quotation 

and citation omitted; emphasis added). As we explained in Marion:

[T]he objective approach conceives the entrapment defense as 

aimed at deterring police wrongdoing. The defense provides a 

sanction for overzealous and reprehensible police behavior 

comparable to the exclusionary rule. The focus of the defense is 

on what the police do and not on what kind of person the particular 

defendant is—whether he is innocent or predisposed to crime.

Id., at 238 (quotation and 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. Borgella, 611 A.2d 699, 

701 (Pa. 1992) (citing Jacobson v. United States, 503 U.S. 540, (1992) 

(holding evidence supported entrapment instruction where paid police 

informant used false pretenses to secure defendant's confidence, encouraged 

defendant to buy drugs, and offered defendant lucrative job on condition that 

defendant provide drugs)).

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. 

Thus, the availability of the entrapment defense under the statute 

does not preclude the 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.”

Pennsylvania case law has consistently held:
J-S08041-18

- 7 -

[T]he determination of whether police conduct 

constitutes entrapment is for the jury, unless the 

evidence of police conduct clearly establishes 

entrapment as a matter of law.... Thus, after the 

defense of entrapment has been properly raised, the 

trial court should determine the question as a matter 

of law wherever there is no dispute as to the operative 

facts relating to the defense.

Marion, 981 A.2d at 239 (citations omitted).

Here, the entirety of Appellant’s argument consists of the following 

statement: “The Appellant proved to a preponderance of the evidence the 

defense of entrapment in that [the CI] continually called him requesting drugs 

after the Appellant told him he did not sell drugs. [The CI’s] testimony 

confirmed that multiple phone calls occurred between the time period of the 

controlled buys.” Appellant’s brief, at 16. Assuming, arguendo, Appellant has 

developed his argument adequately to gain merits review, we discern no merit 

to his claim.

At Appellant’s trial, Appellant testified that the C.I.’s unsolicited calls for 

crack became so bothersome that he agreed to the August 11, 2016, drug buy 

only to carry out a sham sale as a means to deter the CI from calling him 

again. 

The C.I. denied the suggestion that he had to harass Appellant before 

Appellant agreed to transact with him. Specifically, the C.I. testified that 

Appellant always welcomed the phone calls from him and, on August 11, 2016,

instantly agreed to the proposed drug buy between them:

Q: [C.I.], the phone calls that you made to Andre Ikard when 

you were with the agents?
J-S08041-18

- 8 -

A: Yes.

Q: Do you remember talking to him and the agents listening?

A: Yes.

Q: How would you describe those, the tone of those 

conversations? By that I mean, were they friendly, were they 

unfriendly, were they hostile?

A: No, “Hey, what’s up.” “You gave me the number.” “Can I 

come through?” “Yes.”

Q: Okay.

A: “I’m in Rochester. If you can get a ride over come over.”

Q: Okay. And who always picked the meeting [place] on those 

two occasions?

A: If he was somewhere I went to him.

Q: And as well on August 11th during those phone calls, what 

was the tone?

A: Same as always.

Q: Okay.

N.T., 7/11/17, at 235-36. 

In light of this conflicting evidence, the court instructed the jury as to 

the entrapment defense, and the jury was required to determine whether the 

preponderance of the evidence established that law enforcement agents, 

through their use of the C.I., engaged in overzealous behavior that created a 

substantial risk of inducing an innocent person to commit crime. We conclude 

that a reasonable jury could have found, given the evidence before it and 

acting within its exclusive province as finder of fact, that the C.I.’s phone calls 
J-S08041-18

- 9 -

to Appellant did not constitute egregious conduct creating an impermissible 

risk of inducing Appellant to commit crime. Accordingly, we reject Appellant’s 

contention that he proved his claim of entrapment.

Judgment of sentence is AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2018