J-S17021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC WILLIAM SHAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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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 61⁄2 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 Super. 2018) (non-precedential decision).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 factfinder’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 adultonly 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