J-S77004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS D. RICE

Appellant No. 2211 MDA 2015

Appeal from the Order Entered November 23, 2015

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000522-2014

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 18, 2016

Appellant, Thomas D. Rice, appeals1, pro se, from the order that 

granted him a new trial but failed to bar his retrial on double jeopardy or 

entrapment grounds. Additionally, he has filed in this Court an “application 

for relief for the purpose of obtaining an accurate record.” After reviewing 

the parties’ briefs and the certified record, we conclude that the relief Rice 

requests in his application to this Court is collateral to his issues on appeal.2

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Rice’s appeal is an interlocutory appeal as of right. See Pa.R.A.P. 

311(a)(6).

2

In his application, Rice requests that we enter an order compelling the trial 

court to hold a hearing on the accuracy of certain transcripts, recuse itself 

from the re-trial, appoint “non-bias[ed] counsel,” and compel release of 

(Footnote Continued Next Page)
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We therefore deny relief on his application, without prejudice towards his 

right to raise the same issues in the trial court before his re-trial. Regarding 

the two issues Rice has raised on appeal, we conclude that neither double 

jeopardy concerns nor his affirmative defense of entrapment bar his re-trial, 

and therefore affirm.

A jury convicted Rice of six counts of criminal use of a communication 

facility and three counts of conspiracy to deliver heroin. The trial court 

sentenced Rice to a term of imprisonment of 21 to 42 years.

In post-sentence motions, Rice argued, among others, that the trial 

court erred in finding that he had waived his right to counsel, that the 

Commonwealth had not committed a Brady3violation, and that he had not 

established entrapment as a matter of law. In an exhaustive 37-page 

opinion, the trial court concluded that the record did not support a finding 

that Rice had knowingly and voluntarily waived his right to counsel at trial 

and granted him a new trial. The trial court further found that, while the 

(Footnote Continued) _______________________

certain audio recordings of proceedings. Rice does not link these requests to 

the two issues he raises on appeal, both of which seek to prevent re-trial as 

a matter of law. We have already denied Rice’s request for counsel of choice 

for purposes of this appeal, and our review of his application and all other 

materials relevant to this appeal has convinced us that, while the remaining 

relief requested by Rice may arguably be relevant to his re-trial, it is not 

relevant to the determination of whether Rice’s re-trial is barred as a matter 

of law.

3

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme 

Court declared that due process is offended when the prosecution withholds 

evidence favorable to the accused.
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Commonwealth had failed to disclose the plea agreement it had with an 

informant, this failure did not prejudice Rice at trial. Finally, the trial court 

concluded that while Rice had raised a triable issue of entrapment, he had 

not established his right to relief as a matter of law.

The Commonwealth did not appeal from the order granting a new trial. 

Rice did, but has limited his issues on appeal to two. First, he argues that 

principles of double jeopardy prohibit his re-trial. Second, he argues that the 

trial court erred in not granting him a directed verdict on all charges due to 

entrapment as a matter of law. We will address these issues in sequence.

In his first argument, Rice contends that the rule against double 

jeopardy contained in the Pennsylvania and United States Constitutions bars 

his re-trial. Our scope and standard of review of this claim is as follows:

An appeal grounded in double jeopardy raises a question of 

constitutional law. This court’s scope of review in making a 

determination on a question of law is, as always, plenary. As 

with all questions of law, the appellate standard of review is de 

novo. 

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (citations 

and quotation marks omitted).

“The Double Jeopardy Clause of the Fifth Amendment protects a 

criminal defendant from repeated prosecutions for the same offense.” 

Oregon v. Kennedy, 456 U.S. 667, 679 (1982). The United States 

Supreme Court has recognized a relevant exception to this rule:

[T]he circumstances under which such a defendant may invoke 

the bar of double jeopardy in a second effort to try him are 
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limited to those cases in which the conduct giving rise to the 

successful motion for a mistrial was intended to provoke the 

defendant into moving for a mistrial. 

Id., at 679. The Pennsylvania Supreme Court has determined that the 

Pennsylvania Constitution provides parallel protections:

[T]he double jeopardy clause of the Pennsylvania Constitution 

prohibits retrial of a defendant not only when prosecutorial 

misconduct is intended to provoke the defendant into moving for 

a mistrial, but also when the conduct of the prosecutor is 

intentionally undertaken to prejudice the defendant to the point 

of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). 

This Court has recognized that

[p]rosecutorial misconduct includes actions intentionally 

designed to provoke the defendant into moving for a mistrial or 

conduct by the prosecution intentionally undertaken to prejudice 

the defendant to the point where he has been denied a fair trial. 

The double jeopardy clause of the Pennsylvania Constitution 

prohibits retrial of a defendant subjected to the kind of 

prosecutorial misconduct intended to subvert a defendant's 

constitutional rights. However, Smith did not create a per se bar 

to retrial in all cases of intentional prosecutorial overreaching. 

Rather, the Smith Court primarily was concerned with 

prosecution tactics, which actually were designed to demean or 

subvert the truth seeking process. The Smith standard 

precludes retrial where the prosecutor’s conduct evidences intent 

to so prejudice the defendant as to deny him a fair trial. A fair 

trial, of course is not a perfect trial. Errors can and do occur. 

That is why our judicial system provides for appellate review to 

rectify such errors. However, where the prosecutor’s conduct 

changes from mere error to intentionally subverting the court 

process, then a fair trial is denied. A fair trial is not simply a lofty 

goal, it is a constitutional mandate, ... [and][w]here that 

constitutional mandate is ignored by the Commonwealth, we 

cannot simply turn a blind eye and give the Commonwealth 

another opportunity. 
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Commonwealth v. Chmiel, 777 A.2d 459, 463-464 (Pa. Super. 2001) 

(citations and quotation marks omitted).

Here, a new trial was granted not due to any conduct by the 

Commonwealth, but due to the trial court’s failure to assiduously ensure that 

Rice had knowingly and voluntarily waived his right to counsel at all critical 

stages of the proceeding. See Trial Court Order, 11/23/15, at 20-21. Thus, 

double jeopardy principles do not act to bar the re-trial, and Rice is due no 

relief on his first claim on appeal.

In his second claim, Rice argues that the trial court erred in failing to 

grant him a directed verdict on his affirmative defense of entrapment. 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
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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 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:

[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)).
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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:

[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). In other words, to prevail on an 

entrapment defense as a matter of law, the defendant must prove that the 

evidence of entrapment was so overwhelming that it could admit of no other 

conclusion. See Commonwealth v. Weiskerger, 554 A.2d 10, 14 (Pa. 

1989).

Rice’s defense centers on the cover story utilized by the undercover 

officer when he first approached Rice to purchase heroin. The undercover 

officer testified that he utilized a cover story that he wanted to purchase 

heroin for his girlfriend. See N.T., 1/18/14, at 63. “I don’t use heroin, I have 

a girlfriend that has an addiction. There had been some relationship 

problems between her and I because of it.” Id.

The informant that the undercover officer utilized to introduce him to 

Rice testified to an almost identical cover story. The first difference in the 
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story was that, instead of a girlfriend, it was the undercover officer’s wife 

that was addicted to heroin. See id., at 184. Of most importance to this 

appeal, however, is that the informant testified that he told Rice that the 

undercover officer’s wife needed heroin because she was “dope sick.” Id. 

The informant further testified that Rice had responded that he didn’t deal 

heroin anymore, but he might be able to get some from his old supplier. See 

id.

Rice argues that this testimony establishes entrapment as a matter of 

law. We disagree. Even giving credence only to the testimony that supports 

Rice’s argument, we conclude that a reasonable jury could find that the 

cover story provided by the informant was not such egregious conduct that it 

created a substantial risk that it would induce an innocent person to commit 

the crime. A rational jury could conceivably find that Rice, if he were truly 

innocent, would decline to involve himself in the illicit transaction, and 

instead refer the undercover officer to a treatment center for his significant 

other. The trial court correctly determined that this question is best left in 

the hands of the jury, as the ultimate trier of fact. Rice is due no relief on 

this argument.

After reviewing Rice’s arguments and his application for relief, we 

conclude that none of his requests have merit, and therefore affirm.

Order affirmed. Application for relief denied without prejudice to raise 

the arguments in the trial court. Case remanded. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2016