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March 2, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Sackie, D.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1687 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Lazarus

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (810)

• PDF

Combined Opinion

                        by [Anne E. Lazarus](https://www.courtlistener.com/person/8236/anne-e-lazarus/)

J-S04002-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAKINS RONESS SACKIE :
:
Appellant : No. 1687 EDA 2025

Appeal from the PCRA Order Entered June 9, 2025
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003442-2022

BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.

MEMORANDUM BY LAZARUS, P.J.: FILED MARCH 2, 2026

Dakins Roness Sackie appeals from the order, entered in the Court of

Common Pleas of Lehigh County, following the dismissal, after a hearing, of

his Post Conviction Relief Act (PCRA) petition. See 42 Pa.C.S.A. §§ 9541-

1. Sackie’s counsel, Kimberly F. Makoul, Esquire, has also filed an

application seeking to withdraw from this collateral appeal. After careful

review, we affirm on the basis of the thorough PCRA opinion authored by the

Honorable Anna-Kristie M. Marks and grant counsel’s motion to withdraw.

In 2022, Sackie was arrested and charged with several sexual offenses

stemming from his communication with an undercover agent, whom he

believed was a 19-year-old girl arranging for him to receive a “BBBJ”

(bareback blowjob) from a 15-year-old girl. Using an online escort service

called “Skipthegames.com,” Sackie and the agent discussed prices, ages of

girls, and his interest in receiving oral sex from a 15-year-old girl in exchange
J-S04002-26

for fast food and Pepperidge Farm goldfish. Law enforcement officers, which

included members from the Allentown Police Department’s Homeland Security

Human Trafficking Task Force, set up surveillance units at the Upper Macungie

Township Motel 6, where Sackie had agreed to meet the girls. While law

enforcement officers were in the process of apprehending Sackie at the Motel

6, Sackie forcefully attempted to flee from the agents, resulting in several

officers being injured and Sackie, himself, being “body check[ed] . . . into the

corner of the exterior wall of the [motel] hallway[.]” PCRA Court Opinion,

6/9/25, at 18. Sackie fell out of a second-floor hallway window through

broken glass and landed on the parking lot. Sackie was transported to Lehigh

Valley Hospital-Cedar Crest with a deep laceration on his left upper arm, a

neck fracture, and two broken legs. See id. at 19-20.

Sackie was arrested and charged with one count each of unlawful

contact with a minor (F-1),1 attempted involuntary deviate sexual intercourse

with a person less than 16 years of age (F-1), 2 and two counts of resisting

arrest.3 On February 9, 2023, Sackie filed a pre-trial motion seeking to

suppress data obtained from his cell phone and the passcode for the cell phone

that he gave to police officers in the hospital’s emergency room when he was

being treated for his injuries. The motion also asserted that the evidence was

---

1 18 Pa.C.S.A. § 6318(a)(1).

2 Id. at § 901(a); id. at § 3123(a)(7).

3 Id. at § 5104.

-2-
J-S04002-26

insufficient to prove the charge of resisting arrest. Following a hearing and

after receiving memoranda from the parties, the court denied the motion. A

jury trial was held in the matter in February 2024. Prior to deliberations,

defense counsel requested that the court give an entrapment instruction to

the jury, which the court denied. Ultimately, the jury returned a guilty verdict

on the sexual offenses and acquitted Sackie of resisting arrest.

Following the verdict, the court revoked Sackie’s bail and ordered the

preparation of a presentence investigation report. On May 2, 2024, the court

sentenced Sackie to an aggregate term of incarceration of 84-168 months.

Sackie was classified as a Tier III offender under our Commonwealth’s Sexual

Offender Registration and Notification Act, requiring him to register with the

Pennsylvania State Police for his lifetime. See 42 Pa.C.S.A. § 9799.10, et.

seq. Sackie did not meet the criteria to be classified as a sexually violent

predator. At the conclusion of sentencing, Sackie indicated that his attorney

had gone over his appeal rights with him and that he did not have any

questions about those rights. See N.T. Sentencing Hearing, 5/2/24, at 16.

On the date of sentencing, Sackie signed a document titled “Important

Post-Sentence Information” which included details on his right to a file post-

sentence motion and notice of appeal, the time within which to file same, his

right to the assistance of counsel to prepare a post-sentence motion or any

appeal, and a notice that his attorney’s representation would terminate in 30

days if he did not file a post-sentence motion or appeal. See Important Post-

-3-
J-S04002-26

Sentence Information, 5/2/24, at 1-2. Sackie did not file a post-sentence

motion or direct appeal.

On December 31, 2024, Sackie sent a pro se letter to the trial court,

which the court treated as a timely pro se PCRA petition, seeking

reinstatement of his direct appeal rights and the appointment of PCRA counsel.

On January 8, 2025, the PCRA court appointed counsel who filed an amended

petition. The petition alleged that trial counsel, Charles E. Dutko, Jr., Esquire,

failed to file a direct appeal, despite: Sackie informing counsel prior to trial

that if he were convicted he wished to file a direct appeal to this Court; counsel

not explaining to Sackie his appellate rights or possible areas of appeal; Sackie

attempting to contact Attorney Dutko several times after sentencing to

request he file a direct appeal; and Sackie writing to Attorney Dutko seeking

information regarding an appeal. See Amended PCRA Petition, 3/31/25, at ¶

1. The amended PCRA petition also raised several other issues, including

challenges to the suppression court’s rulings and the court’s refusal to give

the jury an instruction on entrapment, as well as a claim that the evidence

was insufficient to convict Sackie of unlawful contact of a minor. See id. at ¶

12.

Following a hearing, at which Attorney Dutko, Sackie, and Sackie’s

mother testified, the court denied his petition. Sackie filed a timely notice of

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Subsequently, PCRA counsel filed an application to

withdraw in this Court. Sackie raises the following issues for our review:

-4-
J-S04002-26

(1) Whether the PCRA court abused its discretion by holding
that trial counsel adequately informed [Sackie] regarding
his post[-]sentence and appeal rights and [Sackie]
knowingly decided not to appeal.

(2) Whether [Sackie] is entitled to PCRA relief due to the failure
of trial counsel to object to the trial court’s jury instructions,
which omitted an instruction regarding entrapment, by filing
to object following the court’s jury charge.

(3) May appointed counsel be permitted to withdraw after a
conscientious review of the issues and the facts pursuant to
[] Anders[.4]

Anders Brief, at 4.

The standard of review of an order denying a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

error. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record. Id.

Before we address the merits of Sackie’s issues on appeal, we must first

review counsel’s application to withdraw. Our Supreme Court has stated that

independent review of the record by competent counsel is required before

withdrawal from PCRA representation is permitted. Such independent review

---

4 See Anders v. California, 386 U.S. 738 (1967). It is well-established that
counsel seeking withdraw from PCRA representation should proceed under the
dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
However, because an Anders brief provides greater protections to the
defendant, we will accept counsel’s Anders brief in the instant matter. See
Commonwealth v. Fusselman, 866 A.3d 119, 111 n.3 (Pa. Super. 2004).
Sackie’s final issue on appeal is merely a restatement of this Court’s obligation
to independently review his application to withdraw. Thus, it is addressed first
and separately from his substantive legal issues raised on appeal.

-5-
J-S04002-26

requires proof of: (1) a “no-merit” letter by PCRA counsel detailing the nature

and extent of his review; (2) the “no-merit” letter by PCRA counsel listing each

issue the petitioner wished to have reviewed; (3) PCRA counsel’s explanation,

in the “no-merit” letter, as to why the petitioner’s issues are meritless; (4)

independent review of the record by the PCRA or appellate court; and (5)

agreement by the PCRA or appellate court that the petition was meritless.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012).

In Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),5 this

Court imposed an additional requirement for counsel seeking to withdraw from

collateral proceedings:

PCRA counsel who seeks to withdraw must
contemporaneously serve a copy on the petitioner of
counsel’s application to withdraw as counsel, and must
supply to the petitioner both a copy of the “no-merit”
letter and a statement advising the petitioner that, in the
event that the court grants the application of counsel to
withdraw, he or she has the right to proceed pro se or
with the assistance of privately retained counsel.

Id. at 614.

After determining that counsel has satisfied the above technical

requirements, this Court must then “conduct a simple review of the record to

---

5 This Court’s holding in Friend was subsequently overruled on other grounds

by the Supreme Court in Commonwealth v. Pitts, 981 A.2d 875, 876 n.1
(Pa. 2009). However, the additional requirement that counsel provide copies
of the relevant documentation to the petitioner remains intact.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011).

-6-
J-S04002-26

ascertain if there appears on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.” Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

Here, counsel has substantially complied with the Turner/Finley and

Friend requirements. Counsel has detailed the nature and extent of his

review, served a copy of his petition to withdraw and brief upon Sackie,

informed Sackie of his right to proceed pro se or with privately retained

counsel, raised Sackie’s issues in the form of a brief, and explained why

Sackie’s claims are meritless. We now turn to an independent review of the

record to determine whether Sackie’s claims merit relief.

In his first issue, Sackie claims that counsel was ineffective for failing to

advise him of his post-sentence and direct appeal rights. Specifically, Sackie

testified at the PCRA hearing that Attorney Dutko did not discuss with him the

possibility of filing post-sentence motions or an appeal, or the issues that could

be raised on appeal. See N.T. PCRA Hearing, 5/12/25, at 6.

Pursuant to [Roe v. Flores-Ortega, 528 U.S. 470 (2000) and its
Pennsylvania expression, Commonwealth v. Touw, 781 A.2d
1250 (Pa. Super. 2001)], counsel has a constitutional duty to
consult with a defendant about an appeal where counsel has
reason to believe either (1) that a rational defendant would want
to appeal (for example, because there are non[-]frivolous grounds
for appeal), or (2) that this particular defendant reasonably
demonstrated to counsel that he was interested in appealing.
[Id.] at 1254 (quoting Roe[, supra] at 480[.]

Commonwealth v. Bath, 907 A.2d 619, 623 (Pa. Super. 2006) (some

quotation marks omitted). Moreover,

-7-
J-S04002-26

[W]here there is an unjustified failure to file a requested direct
appeal, the conduct of counsel falls beneath the range of
competence demanded of attorneys in criminal cases, denies the
accused the assistance of counsel guaranteed by the Sixth
Amendment to the United States Constitution and Article I,
Section 9 of the Pennsylvania Constitution, as well as the right to
direct appeal under Article V, Section 9, and constitutes prejudice
for purposes of [subs]ection 9543(a)(2)(ii). Therefore, in such
circumstances, and where the remaining requirements of the
PCRA are satisfied, the petitioner is not required to establish his
innocence or demonstrate the merits of the issue or issues which
would have been raised on appeal.

Commonwealth v. Lantzy, 736 A.2d 564, 572 (Pa. 1999) (internal footnote

omitted). “Differently put, if counsel neglects to file a requested direct appeal,

‘counsel is per se ineffective[,] as the defendant was left with the functional

equivalent of no counsel.’” Commonwealth v. Markowitz, 32 A.3d 706,

715 (Pa. Super. 2011).

“Nonetheless, even if a defendant does not expressly ask counsel to file

a direct appeal, counsel still has a duty ‘to adequately consult with the

defendant as to the advantages and disadvantages of an appeal where there

is reason to think that a defendant would want to appeal.’” Bath, 907 A.2d

at 623. “Where the defendant did not request counsel to file a direct appeal[,]

but counsel failed to consult with the defendant, counsel is not per se

ineffective and the court applies the traditional three-prong test ‘to decide

whether counsel rendered constitutionally ineffective assistance by failing to

advise [the] client about his appellate rights.’” Markowitz, supra at 716.

After a comprehensive review of the parties’ briefs, the relevant case

law, and the record on appeal—in particular the notes of testimony from the

-8-
J-S04002-26

PCRA hearing—we rely upon Judge Marks’ PCRA opinion in which she correctly

concluded that counsel was not ineffective for failing to file post-sentence

motions or a direct appeal for Sackie. See PCRA Court Opinion, 6/9/25, at 4-

1. Instantly, the PCRA court found Attorney Dutko credible and did not find

Sackie either credible or able to support his vague assertions that he asked

Attorney Dutko to file either post-sentence motions or an appeal on his behalf.

Moreover, the record supports the conclusion that there were no issues that

Attorney Dutko could have raised post-sentence that would have entitled

Sackie to relief; thus, he suffered no prejudice as a result of Attorney Dutko’s

actions or inaction.

Here, Attorney Dutko testified at the PCRA hearing that in February

2024, he reviewed a post-sentence colloquy with Sackie, had no concerns

about Sackie understanding his post-sentence rights, including what he would

need to do in order to file an appeal, contacted Sackie over the phone “when

it got close to his post-sentence motion date” at which time he discussed his

appellate rights and whether Sackie wanted to file post-sentence motions.

N.T. PCRA Hearing, 5/12/25, at 19. Sackie told counsel “that he did not want

to appeal anything, a post-sentence [motion] or a direct appeal.” Id.

Attorney Dutko advised Sackie that he only “had a few days to get it in if he

wanted it filed [and that] it was during that call that he told me he did not

want to file anything.” Id. at 21. Attorney Dutko had a partner in his firm

write a letter memorializing that phone call and mail it to Sackie in prison. Id.

at 19-22. Finally, counsel testified that he called Sackie’s mother and advised

-9-
J-S04002-26

her that he could file a notice of appeal, but that she told him that they did

not want to file one. Id. at 26-27. At the end of direct examination, Attorney

Dutko testified that he did not recall Sackie ever asking him to file a notice of

appeal or post-sentence motion. Id. at 30-31.

Next, Sackie claims that trial counsel was ineffective for failing to object

to the trial court not giving the jury an entrapment instruction. Again, we rely

upon Judge Marks’ PCRA opinion to affirm the court’s determination on this

issue. See PCRA Court Opinion, 6/9/25, at 25-27. At the PCRA hearing,

Attorney Dutko testified that he remembered asking the judge to give an

entrapment instruction and that he knew he had spoken to Sackie about the

instruction. Id. at 33. Moreover, the court correctly concluded that the

defense of entrapment was not supported by the evidence where Sackie failed

to present evidence showing that the “police[’s] conduct would have induced

an innocent individual to commit a crime.” See Commonwealth v. Harris,

636 A.2d 210, 211 (Pa. Super. 1994). Here, Special Agent Kathryn Murray

“did not engage in any act of overreaching that would have induced or created

a substantial risk that a law-abiding citizen who did not have an intent to have

oral sex with a 15[-]year[-]old [would be coerced to] engage in oral sex with

a young girl of this age.” PCRA Court Opinion, 6/9/25, at 26. See

Commonwealth v. Marion, 981 A.2d 230, 239 (Pa. Super. 2009) (“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.”) (citation omitted).

• 10 - J-S04002-26

Having determined that there are no arguably meritorious issues “that

counsel, intentionally or not, missed or misstated,” Dempster, supra, we

affirm the PCRA court’s order and grant counsel’s application to withdraw. We

instruct the parties to attach a copy of Judge Marks’ decision in the event of

further proceedings in the matter.

Order affirmed. Application to withdraw granted. Jurisdiction

relinquished.

Date: 3/2/2026

• 11 - Circulated 02/04/2026 Filed Pied 02:14 PM 69/2025 2:34 6/9/2025 2.34 PM PM Clerk of Judicial Judicial Records Lehigh Lehigh County, County, PA IN IN THE THE COURT COURT OF COMMON COMMON PLEAS OF LEHIGH COUNTY, PLEAS OF LEHIGH COUNTY, PENNSYLVANIA PENNSYLVANIA CRIMINAL DIVISION CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs. Case No.
No. 3442/2022

DAKINS RONESS SACKIE,
SACKIE,
Defendant
Defendant

APPEARANCES:
APPEARANCES:
CHRISTINE F.
CHRISTINE F. MURPHY,
MURPHY, ESQUIRE,
ESQUIRE,
CHIEF DEPUTY DISTRICT ATTORNEY,
ATTORNEY,
On behalf
behalf of the Commonwealth

JEFFREY G.
G. VELANDER, ESQUIRE,
VELANDER, ESQUIRE,
DEPUTY PUBLIC
PUBLIC DEFENDER,
DEFENDER,
On behalf
behalf of the Defendant
Defendant

OPINION
OPINION

ANNA-KRISTIE M.
ANNA-KRISTIE M, MARKS,
MARKS, J.
J,

After a jury
jury trial conducted from February
conducted from February 5,
5, 2024 through February 7,
February 7,

2024,
2024, Defendant Dakins Sackie was
was found guilty
guilty of Unlawful Contact with
Unlawful Contact with a Minor'
Minor' and

Attempted Involuntary Deviate Sexual
Sexual Intercourse,7
Intercourse, 2 and not guilty
guilty on
on two
two (2)
(2) counts of

Resisting
Resisting Arrest.
Arrest.33 Thereafter,
Thereafter, on May
May 2, 2024,
2024, this Court
Court sentenced
sentenced the Defendant to the
Defendant to

following: On the charge of Unlawful
following: On Contact with
Unlawful Contact with a Minor
Minor to
to a term
term of imprisonment
imprisonment of

not
not less than
than four
four (4)
(4) years nor more than eight (8)
than eight (8) years;
years; on
on the count
count of Attempted

1 18 Pa.
18 C.S.A. §
Pa. C.S.A. 6318(a)(1).
$6318((1).
2 18Pa.CS.A. 901(a); 18
6901(a);
18 Pa. C.S.A. § CS.A. §8 3123(a)(7)
18 Pa. C.S.A. 3123(a(7) (the
(the complainant is less
complainant is less than 16
16 years
of age)
age).
Involuntary Deviate Sexual
Sexual Intercourse to term of imprisonment
to a term imprisonment in state correctional
in a state

facility
facility of not
not less than
than three
three ((3)
3) years nor more than
than six (6) years, followed
(6) years, followed by
by three
three (3)
(3)

years of consecutive probation.
probation. These sentences were ordered
ordered to
to run
run consecutively to
consecutively to

other. The aggregate sentence ordered
each other, ordered was
was not
not less than
than seven
seven (7)
(7) years nor
nor more

than
than fourteen ((14)
14) years.
years. Thereafter,
Thereafter, on
on December
December 31,
31, 2024,
2024, the Defendant
Defendant filed
filed a pro

Post Conviction Collateral
se Post Collateral Relief Petition.
Petition. Then,
Then, on January 8, 2025, Jeffrey
8, 2025, G.
Jeffrey G.

Velander,
Velander, Esquire,
Esquire, Deputy Public Defender,
Defender, was
was appointed to represent
represent the Defendant
Defendant

on his Motion
Motion for Post Conviction Collateral
Post Conviction Collateral Relief.
Relief. Presently before this Court
Court is
is the

Defendant's
Defendant's counseled Amended Motion for Relief Under
Under Post Conviction
Conviction Relief Act
Act filed
filed

on March 31, 2025.
2025. An evidentiary
evidentiary hearing relative to
to Defendant's
Defendant's Motion was
was

conducted before this Court
Court on May
May 12,
I2, 2025.
2025. At
At the evidentiary
evidentiary hearing,
hearing, the Defendant
Defendant

asserted that
asserted that his trial counsel,
counsel, Charles E. Dutko, Jr.,
E. Dutko, Jr., Esquire,
Esquire, was
was ineffective for ((I)
1)

failing to
failing to file
file an appeal
appeal and
and (2)
(2) not
not objecting
objecting to
to this Court's jury
jury instructions.
instructions. For
For the

reasons stated
stated below,
below, the Defendant's
Defendant's arguments are without
without merit.
merit.

Initially
Initially we
we note that
that in
in order to
to be eligible for relief under
under the Post
Post

Conviction Collateral Relief Act,
Conviction Act, 42 Pa. C.S.A. §
Pa. C.S.A. $ 9541,
9541, et.
et. seq,
seq, the Defendant
Defendant must
must have

"been convicted
"been convicted of a crime under
under the laws of this Commonwealth and is
is at the time

relief is granted, currently serving
is granted, serving a sentence of imprisonment,
imprisonment, probation
probation or parole for

the crime." 42 Pa. C.S.A. $
Pa. C.S.A. § 9543(a)(1)(i).
9543(a)(1)(i). In
In addition,
addition, the Defendant
Defendant must
must demonstrate

that the conviction
that conviction or sentence resulted
resulted from
from one or more of the following:
following: ([l)
1) a

violation of the Constitution
violation Constitution of this Commonwealth or the Constitution
Constitution or laws
laws of the

United States which,
which, in
in the circumstances of the particular case,
case, so undermined the

truth- determining process that
truth-determining that no reliable adjudication
adjudication of guilt or innocence could
could

3 18 Pa. C.S.A. § 5104.
I8Pa.CS.A.$5104.

2
have place; (2)
have taken place; (2) ineffective assistance of counsel which,
of counsel which, in
in the circumstances of

the particular case,
case, so undermined the truth-determining process that no reliable
reliable

adjudication of guilt or innocence could have
adjudication have taken place;
place; or (3)
(3) the imposition
imposition of a

han the lawful
sentence greater than maximum. 42 Pa.
lawful maximum. Pa. C.S.A.
C.S.A. §$ 9543(a)62();
9543(a)(2)(i); 42 Pa. C.S.A.
Pa. C.S.A.

$§9543(a)(2(ii);
9543(a)(2)(ii); 42 Pa. C.S.A. §g 9543(a)(2)(vii).
Pa. C.S.A. 9543(a)(2)(vii). This Court
Court furthermore recognizes

that,
that, applying Strickland v.
applying Strickland y. Washington,
Washington, 466 U.S.
U.S. 668,
668, 104
104 S.Ct.
S.CL. 2052
2052 ((1984),
1984), the

Pennsylvania Supreme Court
Court has held
held that
that claims of
of ineffective assistance of counsel
counsel

are
are subject to a threc-part
subject to three-part analysis:
analysis: ((l)
1) the underlying legal
legal issue has arguable merit;
merit; (2)
(2)

counsel's actions lacked
counsel's lacked an objective reasonable basis; and (3)
basis; and (3] actual
actual prejudice befell
befell the

defendant or omission.
defendant as a result of counsel's act or omission. Commonwealth v. Tedford, 960 A.2d
v. Tedford, A.2d

12 (Pa.
1, 12 2008) (adopting
(Pa. 2008) (adopting U.S. Supreme Court'is
Court's holding in
in Strickland).
Strickland). Counsel is
Counsel is

presumed effective and the Defendant
Defendant. bears the burden of
of proving all three prongs
prongs of

standard.
this standard. Id;
Id.; Commonwealth y,Dennis,
v. Dennis, 950 A.2d 945, 954 (Pa.
A.2d 945, (Pa. 2008);
2008);

Commonwealth ,
v. Meadows, Pa. 344,
Meadows, 567 Pa. 344, 787 A.2d
A.2d 312, 319-320 (2001).
312, 319-320 (2001). A failure to
to

satisfy any prong of the test for
for ineffectiveness requires rejection of the claim.
rejection of

Commonwealth v.
Commonwealth v. Martin, 5A. 34
Martin, 5 A.3d 177,
177, 183
183 (Pa.
(Pa. 2010).
10)

Additionally,
Additionally, this Court
Court recognizes that
that the unjustified
unjustified failure
failure to file
file a

requested
requested direct appeal
appeal is
is per
per se
se ineffective assistance of counsel.
counsel. Commonwealth v. v
Lantzv,
Lantzy, 736 A.2d 564, 571 ((Pa.
A.2d 564, Pa. 1999).
1999). However,
However, "[ blefore a court
"[before court will
will find
find

ineffectiveness of counsel
counsel for failing
failing to
to file
file a direct appeal,
appeal, the defendant must
must prove

that
that he requested an appeal
appeal and the counsel
counsel disregarded
disregarded the request."

Commonwealth v.
Commonwealth v. Knighten,
Knighten, 742 A. 24
A.2d 679, 682 (Pa.
679, 682 Super. 1999).
(Pa. Super, 1999. Where no direct

appeal request
appeal request was
was made,
made, the defendant must
must establish
establish that a duty to
to consult was

owed.
owed. Boc.
Roe v.
y. Flores- Ortega, 528 U.S.
Flores-Ortega, U.S, 470,
470, 480 (2000).
(2000). Pursuant to Roe
Pursuant to Roe and

3
Commonwealth v.
v, Touw,
Touw, 781 A.2d 1250, 1254
A.2d 1250, 1254 ((Pa.
Pa. Super.
Super. 2001),
2001), a duty to
to consult

can be established
can established by setting
setting forth
forth issues of merit
merit for further review. Roe, 528 U.S.
review. Roe, U.S. at

480; 'Touw,
480; Touw, 781 A.2d
A.2d at 1254.
1254. Moreover,
Moreover, ""consult"
consult" was defined as "advising
was defined "advising the

defendant about
defendant about the advantages
advantages and disadvantages of taking
taking an appeal,
appeal, and making a

reasonable effort
effort to
to discover the Roe, 528 U.S.
the defendant's wishes." Roe, U.S. at 478; Tow, 781
478; Touw,

1. Finally, A.2d at 1254. Finally, ""a a deficient failure on the part part of counsel counsel to consult with to consult with the

defendant does not
defendant not automatically
automatically entitle defendant to
entitle the defendant to reinstatement
reinstatement of his or her

rights; the defendant must
appellate rights; show prejudice"
must show prejudice" by demonstrating that
that "there
there is
is a

reasonable probability that,
that, but
but for counsel's deficient failure to consult with
failure to with him
him

about appeal, he would have timely appealed." Roe,
about an appeal, Roe, 528 U.S.
U.S. at
at 480;
480; Touw,
TOuw, 781
A.2d at 1254.
1254. With
With these standards in
in mind,
mind, we
we address the Defendant's issues.
issues.

The
The testimony
testimony presented at the evidentiary
evidentiary hearing on May
May 12,
12, 2025 and

the record evidence establish
establish that
that Charles Dutko,
Dutko, Jr., Esquire,
Esquire, a private
private criminal
criminal defense

attorney, represented
attorney, represented the Defendant
Defendant from
from the time of the preliminary
preliminary hearing
hearing through

the time of trial.
trial. After being
being sentenced
sentenced on May 2, 2024,
May 2, 2024, the Defendant
Defendant was
was advised
advised by

Attorney Dutko of his rights to
to file
file either a Post
Post Sentence Motion
Motion with
with the trial court
court or a

direct appeal
appeal to
to the Superior Court
Court of Pennsylvania.
Pennsylvania. In that same vein,
In that vein, Attorney Dutko

advised the Defendant
advised Defendant of the relevant time frames in
in which he would
would need to
to file
file either a

Post
Post Sentence Motion or a direct
direct appeal.
appeal. Attorney Dutko was
was confident that
that the

Defendant
Defendant understood these post
post sentence rights.
rights. In
In addition,
addition, the Defendant
Defendant executed
executed

his Post
Post Sentence Rights form
form and indicated
indicated to
to the Court
Court that
that he did
did not
not have
have any

questions regarding same.
same. Despite being advised of his post
post sentence rights and the

relevant time
time frames,
frames, the Defendant did not
Defendant did not request
request that
that Attorney
Attorney Dutko file
file either aPost
Post

Sentence Motion
Motion or a Notice of Appeal
Appeal with
with the Superior
Superior Court
Court of Pennsylvania after he

4
was sentenced. In
was sentenced. In fact,
fact, at
at no time did
did the Defendant,
Defendant, whether
whether verbally
verbally or in
in writing,
writing,

indicate to Attorney
Attorney Dutko that
that he wanted to
to file appeal.
file an appeal. 4

Indeed, immediately after sentencing on May 2, 2024,
Indeed, 2024,5 Attorney
Attorney Dutko

spoke with
with the Defendant's mother
mother in
in the courthouse.
courthouse. He explained
explained that
that his fee
fec for

pursuing an appeal
appeal would be $9,500.00,
9,500.00. When the Defendant's mother expressed
mother expressed

concern over being able to afford
afford this fee,
fee, Attorney Dutko indicated
indicated that
that "there's another

way." He then
way." explained that
then explained that he could
could file
file a timely
timely Notice of Appeal
Appeal and then
then withdraw
withdraw

from the case,
from case, which allow the Defendant
which would allow Defendant an opportunity to
to apply for a public

to represent
defender to represent him
him on appeal.
appeal. Attorney Dutko indicated that he provides this
indicated that

option to
to all of his clients.
clients. The Defendant's mother
mother did
did not
not express a desire
desire that
that a Post

Sentence Motion or appeal be filed
appeal be filed at that
that time,
time, despite being advised of this
this option.
option.

Consequently, on
Consequently, on May 6, 2024,
May 6, 2024, Attorney Dutko called
called the Defendant's

mother with
mother with regards to
to filing
filing Post
Post Sentence Motions or an appeal. As
As she did
did not answer
not answer

telephone, Attorney Dutko left a voice mail
the telephone, mail message for
for her.
her. Shortly thereafter,
thereafter, on

May 8, 2024,
May 8, 2024, the Defendant's mother
mother returned Attorney Dutko's
Dutko's telephone call.
call. At
At that

time, Attorney Dutko reiterated
time, reiterated to
to the Defendant's mother
mother the legal
legal avenues that
that could

be pursued following
following sentencing,
sentencing, including the fee that
the fee that he charges for an appeal
appeal should

he continue to
to represent
represent the Defendant.
Defendant, The Defendant's
Defendant's mother
mother indicated
indicated that did
that she did

+
4 The Defendant
Defendant testified
testified that he had told
told Attorney
Attorney Dutko,
Dutko, at some unspecified
unspecified time prior
to trial,
to in the event that he was
trial, that in convicted, he wanted to
was convicted, appeal. Attorney Dutko testified
to appeal. testified
that he had no recollection
that recollection of this conversation,
conversation. Moreover,
Moreover, this Court
Court notes thatthat the
Defendant's testimony was was extremely vague with with regard
regard to
to this assertion,
assertion, as he provided
provided no
timing of
details nor the timing of this conversation
conversation other than "prior
prior to trial."
to trial" As such,
such, this Court does
Court
not
not find
find the Defendant's statement to to be
be credible.
credible
$
5 Prior toto sentencing,
sentencing, Attorney Dutko reviewed the Defendant's Pre Pre- Sentence
Investigation
Investigation Report with with the Defendant.
Defendant. At
At this time, Attorney
time, Dutko explained to to the
Defendant
Defendant the possible sentences that he could could face,
face, as well
well as the issues that had been
preserved appeal. In
preserved for appeal. addition, on February
In addition, February 14, 2024, when Attorney Dutko visited
14, 2024, visited the
Defendant at the Lehigh
Lehigh County Jail,
Jail, Attorney Dutko discussed with with the Defendant
Defendant the issues

5
not
not want
want to
to pursue Post
Post Sentence Motions nor
nor an appeal.
appeal. Attorney Dutko was
was surprised
surprised

by the Defendant's
Defendant's mother's
mother's response and, consequently, wanted to
and, consequently, to follow
follow up by

personally
personally speaking with Defendant himself.
with the Defendant himself.

Therefore,
Therefore, on
on May
May 8,
8, 2024,
2024, Attorney Dutko requested
requested that
that his office
office staff

reach to the Lehigh
reach out to Lehigh County Jail to
County Jail to schedule a phone
phone call with
with the Defendant
Defendant on May
May

9, 2024. On that
9,2024. that date,
date, Attorney Dutko spoke directly
directly with
with and consulted
consulted the Defendant.
Defendant.

In
In this conversation, Attorney Dutko reiterated
this conversation, to the Defendant the different time lines
reiterated to

in which to
in to file Post Sentence Motion
file a Post Motion and an appeal,
appeal. Attorney Dutko explained that
that he

thought that
thought that a Motion to
to Reconsider Sentence should be pursued in
in which they
they would

argue for
for alower sentence. Although Attorney
lower sentence. Attorney Dutko did not go over the specifics of what
did not what

could be appealed during this phone call,
call, Attorney Dutko had prior discussions with
with the

Defendant on February 14,
Defendant 14, 2024 and at
at the time that the
the Pre-
Pre- Sentence Investigation
Investigation

was reviewed by them
report was together. Attorney Dutko also explained
them together. explained to
to the Defendant
Defendant

that he could file
that file a timely Notice of Appeal
Appeal and then
then withdraw
withdraw from
from the case,
case, which

would allow
allow the Defendant
Defendant an opportunity
opportunity to
to apply for a public defender
defender to represent

him on appeal,
him appeal. However,
However, the
the Defendant
Defendant clearly
clearly indicated
indicated that
that he did
did not
not want
want to
to file
file an

appeal
appeal or Post
Post Sentence Motions.
Motions. This telephone call lasted
lasted between
between ten ((I0]
10) and fifteen
fifteen

(15) minutes.
(I5) minutes. As Attorney
Attorney Dutko was
was traveling
traveling at
at the time of the
the phone
phone call
call and did not
not

have access to computer and printer,
to a computer printer, he contacted
contacted his law
law partner
partner and requested
requested that
that

he prepare a letter to
to memorialize the conversation
conversation that
that occurred between him
him and the

Defendant. Dutko's law
Defendant. Attorney Dutko's drafted the requested
law partner drafted requested letter and mailed
mailed it
it to
to the

Defendant
Defendant at
at Lehigh County Jail.
Jail. (PCRA C. Ex.
(PCRA C. Ex. 1).
I). At no time,
At time, either during the phone

conversation
conversation or
or thereafter, did the Defendant
thereafter, did Defendant request
request that Attorney
Attorney Dutko file
file Post
Post

that could
that could be
be pursued on appeal.
appeal.

6
appeal. 6
Sentence Motions or an appeal."

In
In addition,
addition, the record
record and testimonial establish that prior to
testimonial evidence establish to trial,

on February 9,
9, 2023,
2023, Attorney Dutko filed
filed Omnibus Pretrial
Pretrial Motions in
in the nature of a

Motion to Suppress Defendant's
Motion to Statements (both
Defendant's Statements (both at the scene and at the hospital),
hospital), a

Motion to Suppress Evidence,
Motion to Petition for Writ
Evidence, and a Petition Writ of Habeas Corpus with
with regard
regard to
to

the two
two (2)
() counts of Resisting
Resisting Arrest. An evidentiary
Arrest. An evidentiary hearing
hearing relative to
to Defendant's

Omnibus Pretrial Motion was
was conducted before this Court
Court on July 20,
20, 2023.
2023.

Thereafter, on October
Thereafter, October 12, 2023, this Court
12, 2023, Court denied the Defendant's Omnibus
Omnibus Pretrial

Motion. The Defendant
Motion. Defendant argues that
that he wanted the denial
denial of his Omnibus Pretrial Motion

to have been challenged
challenged on
on appeal
appeal as it
it contained issues that
that merited
merited further review.
review. We
We

cannot agree with
cannot with the Defendant's assertion.
assertion.

Specifically,
Specifically, in
in Defendant's Omnibus Pretrial Motion,
Motion, the Defendant
Defendant

contended that
that at
at the time of the Defendant's
Defendant's statement
statement regarding the ownership of

his cellular phone in
in the parking lot of the Upper
Upper Macungie Township Motel 6, the
Motel 6,

Defendant was in
Defendant was custody, thereby requiring
in custody, requiring Miranda warnings to
to be read to him. The
to him,

Defendant
Defendant argued that
that the conduct
conduct of the
the police and their
their interrogation
interrogation and extraction
and extraction

of statements of the Defendant violated
the Defendant violated his
his rights
rights under
under the
the Fifth, Sixth and
Fifth, Sixth

Fourteenth to the United
Fourteenth Amendments to United States Constitution
Constitution and Article 1, Section 9 of
I, Section

the Pennsylvania Constitution.
Constitution.

This Court
Court noted that
that Miranda rights
rights are only required
required prior to a
prior to

6
6 After sentencing and while he was was still housed in
in the Lehigh County Jail,
Jail, the Defendant
Defendant
did not reach
did not reach out to
to Attorney Dutko,
Dutko, either by
by phone or correspondence. Although the
Defendant testified that he wrote a letter to Attorney Dutko while he was in
Defendant testified in state prison,
prison,
Attorney Dutko credibly testified
testified that no such letter was ever received
received by him or staff at his law
by him law
office. The Defendant explained
office. The Defendant explained that that this letter merely requested that Attorney
that Attorney Dutko contact
contact
him did not
him and did request that
not request that Post Sentenee
Sentence Motions nor an appeal
appeal be filed behalf.
filed on his behalf.

7
custodial interrogation. Commonwealth v. iousman,
custodial interrogation. Housman, 986 A.2d 822, 839
A.2d 822, 839 ((Pa.
Pa. 2009).
2009)

In
In In
In re V.H.,
V.H., 788 A.2d 976
976 (Pa.
(Pa. Super. 2001), a custodial
Super. 2001), custodial interrogation
interrogation and the need

for Miranda warnings were explained in
in the following
following fashion:
fashion:

is well-settled
It is settled that
that the police
police are only required
required to
to advise a
person of
person of his Miranda rights if if that
that person
person is
is subjected to
subjected to
custodial interrogation.
custodial interrogation. The test for determining whether a
suspect is
suspect is being subjected
subjected to custodial
custodial interrogation
interrogation so as
to necessitate Miranda warnings
to warnings is is whether
whether he isis physically
physically
deprived of his freedom
freedom inin any significant way or or is
is placed
in a situation
in situation inin which he reasonably believes that that his
freedom of action
freedom action or movement
movement is is restricted
restricted by such
interrogation.
interrogation.

Id. at 980.
Id. 980. "Custodial
Custodial interrogation
interrogation is
is questioning initiated
initiated by law
law enforcement
enforcement

officers after a person has been taken
taken into
into custody or
or otherwise deprived
deprived of his

freedom of
freedom of action
action in v. Gonzalez,
Commonwealth v.
in any significant way." Commonwealth Gonzalez, 979 A.2d 879,
879,

887 (Pa.
(Pa. Super. 2009).
Super, 2009). In
In that
that regard,
regard, not
not every statement made by an individual
every statement individual

during a police encounter
encounter constitutes an interrogation.
interrogation. Commonwealth v. Williams,
y, Williams,

941 A.2d
A.2d 14,
14, 30 (Pa. Super. 2008).
(Pa. Super. 2008). Additionally,
Additionally, volunteered or spontaneous
volunteered

utterances by an individual
individual are admissible without the administration
administration of Miranda
Miranda

warnings. Id. See also
warnings. Id. also Commonwealth ,
v. Bracey,
Bracey, 461 A.2d 775 (Pa.
A.24 775 1983). "When
(Pa. 1983). "When a

defendant gives a statement
defendant statement without
without police interrogation,
interrogation, we
we consider the statement
statement to

be 'volunteered' not subject
volunteered' and not subject to suppression.
to suppression. Interrogation
Interrogation is
is police conduct
conduct

`calculated to,
calculated to, expected to, likely to
to, or likely v. Schwing,
to evoke admission'." Commonwealth v. Schwing,

8, 12
964 A.2d 8, 12 (Pa.
(Pa. Super. 2008); Sec
Super 2008; See also Commonwealth v,
v. Brown,
Brown, 711
711 A.2d 444,
A.2d 444,

451 ((Pa.
451 Pa. 1998)
1998) (citations Commonwealth_.
omitted); Commonwealth
(citations omitted); Bess, 789 A.2d 757,
v. Bess, 757, 762
762 (Pa.
(Pa.

Super.
Su 2000). Furthermore,
per, 2000). Furthermore, "Miranda
Miranda warnings are not
not required
required in
in certain
certain situations

where the police ask
ask questions to
to ensure public safety
safety and not to elicit incriminating
and not incriminating

8
responses." New York v.
, Ouarles,
Quarles, 467 U.S. 649, 655
U.S. 649, 655 ((1984)
1984) (explaining
(explaining that
that the need

for answers to
to questions in
in a situation
situation posing a threat
threat to
to public safety
safety outweighs the

need for
for the Miranda warnings).
warnings).

In
In the instant case,
case, when Special
Special Agent
Agent Murray ran
ran down to
to the parking
parking

lot of the Motel to assist in
Motel 6 to in rendering aid
aid to
to the Defendant,
Defendant, she observed gold
observed a gold

Apple iPhone on the ground within
within a foot of where the Defendant lying.
Defendant was lying. In
In an

effort to gather his belongings,
belongings, Special
Special Agent
Agent Murray asked,
asked, ""Is
Is this your cell phone?,"
phone?,"

to which the Defendant
to Defendant replied
replied in
in the affirmative. Court found this
affirmative. This Court this inquiry
inquiry to
to be

investigatory, not
investigatory, accusatory. Williams,
not accusatory. Williams, 941 A.2d at 31-33.
31-33. Indeed,
Indeed, Special
Special Agent
Agent

Murray's inquiry
Murray's inquiry was
was not calculated to
not calculated to elicit an incriminating
incriminating response.
response. As
As a result,
result,

Court concluded that
this Court that there was custodial interrogation
was no custodial interrogation and Miranda warnings

were not
not required.?
required."

In
In addition,
addition, the Defendant also
also argued in
in his
his Omnibus Pretrial
Pretrial Motion that
that

the statements he made to Special
made to Special Agent
Agent Murray and Detective Lobach
Lobach at
at Lehigh
Lehigh Valley
Valley

Hospital need to
Hospital to be suppressed.
suppressed. Specifically,
Specifically, the Defendant contended that he did not
he did not

voluntarily, knowingly, and intelligently
voluntarily, knowingly, intelligently waive the Miranda warnings.
warnings. This Court
Court found

argument to
this argument to be without merit.
without merit.

Court noted
This Court noted that to safeguard an uncounseled individual's Fifth
to safeguard Fifth

Amendment
Amendment against self-incrimination,
privilege against self-incrimination, suspects subject to
to custodial

interrogation by law
interrogation enforcement officers
law enforcement officers must
must be warned that they have the right to
to

7 This Court
Court noted that after the Defendant
Defendant was
was Mirandized at Lehigh
Lehigh Valley Hospital,
Hospital, the
Defendant
Defendant admitted ownership of of the cell phone.
phone. Commonwealth v. v, Charleston,
Charleston, 16
16 A.3d
A.3d 505
505
(Pa. Super,
(Pa. Super. 2015),
2015), abrogated
abrogated on other grounds,
grounds, (holding
(holding that
that the
the failure
failure to
to give
give Miranda
Miranda
warnings did not invalidate statements made
warnings did made byby defendant
defendant after subsequently being advised
advised of
and waiving his Miranda rights).
rights).

9
remain silent,
silent, that
that anything they say may
may be used against
against them
them in
in court,
court, and that
that

they are entitled
entitled to
to the presence of
of an attorney.
attorney. In re K.Q.M.,
In K.QM,, 873 A.2d
A.2d 752, 755 (Pa.
752, 755 (Pa

Super.
Super. 2005), citing, Thompson v.
2005), citing, v. Keohane,
Keohane, 516
516 U.S. 99,
99, 107
107 ((1995),
1995), citing
citing Miranda v.
v,

Arizona,
Arizona, 384 U.S.
0.S. 436, 444 ((1966)).
436, 1966)). A confession
confession obtained custodial
obtained during a custodial

interrogation is admissible where
interrogation is where the accused's
accused's right to
to remain
remain silent and right to
to

counsel have been explained and the accused has knowingly
counsel knowingly and voluntarily waived

those rights.
rights. The test for determining the voluntariness of a confession
confession and whether
whether

accused knowingly waived his rights looks to
an accused to the totality
totality of the circumstances

surrounding the giving of the confession. v. Jones,
confession. Commonwealth v. Jones, 546
546 Pa.
Pa. 161,
161, 170,
170,

683 A.2d
A.2d 1181,
1181, 1189
1189 ((1996).
1996). See also Commonwealth , Watkins, 843 A.2d
v. Watkins, A.24 1203,
1203,

1213 ((Pa. 2003)
2003) ((stating
stating that
that "the waiver of Miranda rights must
must be the product
product of free

and deliberate choice rather than
than intimidation,
intimidation, coercion,
coercion, or deception").
deception"]

In case, when Special
In the instant case, Special Agent
Agent Murray and Officer Devery

entered the Emergency Room
Room triage bay in
in which the Defendant
Defendant was situated, they
was situated,

observed the Defendant
Defendant lying back, wearing a neck
lying flat on his back, neck brace which
which impeded

the movement
movement of his lower jaw (and
(and thereby impeded his speech).
speech). The Defendant
Defendant was

awake, his eyes were open,
awake, open, and he made
made appropriate eye contact
contact with Special Agent
with Special Agent

Devery.
Murray and Officer Devery. Officer Devery Mirandized the Defendant
Defendant and the

Defendant verbally waived those rights.
Defendant rights. Officer Devery explicitly
explicitly asked the Defendant
Defendant

if he wished to
to talk with them
talk with them and the Defendant
Defendant unequivocally responded in
in the

affirmative.
affirmative. No threats were made to the Defendant
Defendant at any time during the

conversation that
conversation that occurred at
at Lehigh Valley Hospital.
Hospital., Both
Both Special
Special Agent
Agent Murray and
and

Officer Devery were dressed in
in plain
plain clothes
clothes and neither displayed their firearm.
firearm.

Moreover,
Moreover, the Defendant
Defendant was
was not unrealistically asked to execute a physical
not unrealistically physical Miranda

10
10
waiver form
waiver form because his right arm
arm was
was handcuffed
handcuffed to
to the hospital
hospital bed and his left arm
arm

was wrapped with
was tourniquet. The Defendant
with a tourniquet. Defendant did
did not appear
appear to
to be under
under the

influence of medication
medication.

Special
Special Agent Murray and Officer Devery were confident that
Agent that the

Defendant
Defendant understood his Miranda
Miranda warnings
warnings and all
all of the questions posed to
to him.
him.

Indeed, he answered all
Indeed, all questions appropriately and coherently,
coherently, as well
well as appeared

upset, respectful,
upset, respectful, remorseful,
remorseful, and nervous that
that he would be reported
reported or placed
placed on a

registry for his earlier actions.
registry actions. The Defendant
Defendant cogently explained
explained that
that his girlfriend
girlfriend

was pregnant and due in
was pregnant January.
in January. Furthermore, the Defendant
Furthermore, Defendant indicated
indicated that
that the

reason that
reason that he went
went to
to the Motel
Motel 6 was
was to "get
get [his] sucked" by a 15
[his] dick sucked" 15 year old girl
year old

and that he knew
knew that
that this
this was illegal. He
was illegal. He confirmed that
that he had brought
brought a bag of

Wendy's
Wendy's food with him,
food with him, along with
with a bag of Pepperidge Farm
Farm goldfish
goldfish crackers.
crackers. He

also recounted
also recounted that
that he ran
ran down the hallway of the Motel
Motel 6 and fell out the window.
window.

Finally,
Finally, the Defendant
Defendant identified
identified his cell phone when shown by Officer Devery,
Devery, as well
well

Special Agent
as provided Special Agent Murray and Officer Devery with
with the security passcode for

his cellular telephone.
telephone.

Court found that Detective Lobach appropriately and adequately
This Court

provided
provided the Defendant
Defendant with
with his Miranda
Miranda warnings.
warnings. Moreover, at the conclusion
Moreover, at conclusion of his
his

recital of the Miranda
Miranda rights,
rights, Detective Lobach properly inquired
inquired if
if the Defendant
Defendant wanted

to speak with
to speak them, to which the Defendant
with them, replied in
Defendant replied in the affirmative.
affirmative. During the

interview,
interview, the Defendant
Defendant was oriented, appropriate,
was oriented, appropriate, and coherent.
coherent. A review
review of the

interview established that both
interview established both Detective Lobach and Special
Special Agent
Agent Murray were calm
calm

conversational, and they did
and conversational, did not
not threaten
threaten or coerce the Defendant.
Defendant. This Court
Court

concluded, based on
concluded, on the totality
totality of the circumstances,
circumstances, the
the Defendant
Defendant knowingly,
knowingly,

11
voluntarily, and intelligently
voluntarily, intelligently waived his Miranda rights.
rights. Furthermore,
Furthermore, this Court noted
this Court noted

that
that only after the Defendant indicated his willingness to
Defendant indicated speak, did
to speak, did Detective Lobach
Lobach

and Special
Special Agent
Agent Murray ask the Defendant
Defendant for the passcode to
to his cellular phone.
phone.

Based on the evidence introduced
introduced at
at the evidentiary
evidentiary hearing and the
the totality
totality of the

circumstances, this
circumstances, this Court
Court found that
that the Defendant
Defendant was
was legally
legally Mirandized
Mirandized and he

knowingly, voluntarily,
knowingly, voluntarily, and intelligently
intelligently waived his Miranda rights. Therefore, this Court
rights. Therefore, Court

legally and appropriately denied the Defendant's Motion to
legally to Suppress Defendant's
Defendant's

Statements.
Statements.

Furthermore, the Defendant
Furthermore, Defendant avers in
in his Amended Motion for Relief Under
Under

Conviction Relief Act
Post Conviction Act that the evidence presented at trial
trial was
was insufficient as a matter
matter

law and that
of law that he wanted the verdict
verdict to
to have
have been
been challenged appeal, as this issue
challenged on appeal,

merited further review. We cannot
review. We cannot agree
agree with
with the Defendant's
Defendant's contention.
contention.

claim challenging the sufficiency
A claim sufficiency of the evidence is
is a question
question of law
law

is insufficient evidence to support
which asserts that there is support at least
least one material
material

element of
element of the
the crime for Defendant was
for which the Defendant was convicted. v. Lyons,
Commonwealth v.
convicted. Commonwealth Lyons,

833 A.2d 245, 258 ((Pa.
A.2 245, Pa. Super.
Super. 2003).
2003). The standard for reviewing sufficiency
sufficiency

was explained in
challenges was in the following
following manner
manner by the Superior Court
Court of

Pennsylvania:
Pennsylvania:

standard we
The standard we apply in
in reviewing sufficiency of the
reviewing the sufficiency
evidence isis whether
whether viewing all the
the evidence admitted at at
trial
trial in
in the light
light most to the
most favorable to verdict winner,
the verdict winner, there
is
is sufficient
sufficient evidence
evidence to
to enable
enable the
the fact-finder
fact-finder to
to find
find every
every
element
clement of the crime beyond a reasonable doubt.
doubt.

Commonwealth_y,v. Taylor,
Taylor, 831 A.2d
A.2d 661, 663 ((Pa.
663 Pa. Super.
Super. 2003),
2003), quoting
quoting

Commonwealth v. DiStefano, 782 A.24
v. DiStefano, A.2d 574, 582 ({Pa.
574, 582 Pa. Super.
Super. 2001).
2001). In
In addition,
addition, the

facts and circumstances established
established by the Commonwealth need not
not preclude every
every

12
12
possibility of innocence.
possibility innocence. Commonwealth
_v. v. Hunzer,
Huner, 868 A.2d
A.2d 498,
498, 505
505 (Pa.
(Pa. Super.
Super.

2005). Any doubts regarding a defendant's guilt are properly resolved by
2005). by the finder of

fact unless the evidence is
is so weak and inconclusive that,
that, as a matter
matter of law,
law, no

probability of fact may be drawn from
from the combined circumstances.
circumstances. Id.
[d. Finally,
Finally, the
the

trier of fact,
fact, while passing upon the credibility
credibility of witnesses and the weight
weight of the

evidence produced,
produced, is
is free to evidence. Id. If the finder
to believe all, part or none of the evidence.

of fact reasonably could have
have determined
determined from
from the evidence adduced that
that all of the

necessary
necessary elements of the crime were established,
established, then the evidence will be deemed

to support
sufficient to support the verdict. Id. at 506.
verdict. Id. 506.

This Court
Court noted that a person
person commits the offense of Unlawful Contact
Unlawful Contact

with a Minor
with Minor "if
if he is intentionally in
is intentionally in contact
contact with
with a minor,
minor, or a law
law enforcement

officer acting
acting in
in the performance
performance of
of his duties who
who has assumed the identity
identity of a

minor,
minor, for the purpose of engaging in
in an activity prohibited under any of the following,
activity prohibited following,

and either the person
person initiating
initiating the contact
contact or the person
person being
being contacted is
is within
within the

Commonwealth;
Commonwealth; any
any of the offenses enumerated in
in Chapter
Chapter 31
3I (relating
(relating to sexual
to sexual

offenses)." 18
18 Pa. C.S.A. §
Pa. C.S.A. 6318(a)(1).
$6318(a)(1). In
In addition,
addition, a "person attempt
"person commits an attempt

when, with
when, with intent to commit a specific
to commit crime, he does any act
specific crime, act which
which constitutes a

substantial step towards the commission of that
commission of crime."
that crime." 18
18 Pa. C.S.A. §
Pa. C.S.A. S 901(a).
901(a)

Finally,
Finally, a person
person commits Involuntary Deviate Sexual
Sexual Intercourse "when
"when the person
person

engages
engages in sexual intercourse with
in deviate sexual with a complainant
complainant who
who is
is less than
than 16
l6 years of

age
age and the person is four or more years older than
person is than the complainant and the
the complainant

complainant and the person
complainant not married to
person are not to each other." 18
18 P. C.S.A. §
P. CS.A. $ 3123(a)(7).
3123(a)(7].

In
In the within matter, trial was
within matter, was conducted from
from February
February 5,
5, 2024 through

February 7, 2024. The evidence at the trial
7, 2024. established that on July
trial established 6, 2022 through
July 6, through

13
13
7, 2022,
July 7, Special Agent Kathryn Murray,
2022, Special in her capacity as an undercover
Murray, in undercover agent
agent

in
in the Allentown Office for the Department
Department of Homeland Security and the Human

Trafficking Task Force,
Trafficking Force, engaged in
in a proactive
proactive investigation
investigation in
in which
which she posted
posted ads

on ""Skipthegames.com," an online escort service.
service. Special
Special Agent
Agent Murray posted two
two ((2)
2)

ads, one
ads, one ((I)
1) entitled "2
2 Girl
Girl Special" which advertised 2) girls (one
two (2)
advertised two (one of whom was 19
whom was 19

years old),"8 as well
well as an ad encaptioned
encaptioned ""Bad Foster Mom"
Mom" in
in which the services of a

13 year old
13 advertised. Special
old girl were advertised. Special Agent
Agent Murray provided the phone
phone number to
number to

her federally
federally issued
issued undercover
undercover cell phone number
number and atext number associated with
number associated with

this cell phone on the ads.
this cell ads.

Many people expressed
expressed an interest
interest in
in the ""Skipthegames.com"
Skipthegames.com" ads and

Special Agent
Special Agent Murray attempted to set up "dates"
dates" with
with the interested
interested people.
people.

Specifically, one
Specifically, one ((l)
1) individual,
individual, the Defendant,
Defendant, Dakins Sackie,
Sackie, responded to
to both
both of

Special Agent Murray's
Special posts. ((C.
Murray's posts. C. Ex.
Ex. A); (C.
(C. Ex. 1);
1); ((C.
C. Ex.
Ex. 5). Via
Via text
text

in which the Defendant
communications in Defendant referred
referred to
to himself
himself as "Amazon
Amazon guy,
guy," they "9

discussed prices, the ages
discussed prices, ages of the girls,
girls, and the Defendant's interest in
in receiving
receiving oral

from the
sex from 15 year
the 15 year old
old girl.
girl. ((C.
C. Ex.
Ex. AJ; C. Ex.
A); ((C. Ex. 1);
1J; (C. Ex. 5).
(C. Ex. 5), In
In particular,
particular, the

Defendant requested
requested a "BBBJ"
BBBJ"("(Bareback blowjob")
blowjob") from
from the
the minor.
minor. ((C.
C. Ex.
Ex. A);
AN; ((C.
C. Ex.
Ex.

1J; ((C.
1); C. Ex. 5].
5). Ultimately, it
Ultimately, it was determined that
was determined that payment
payment would be chicken
chicken nuggets

s
8 The ad did did not
not specifically
specifically provide that
that the other girl was
was fifteen
fifteen ((15)
15) years old,
old, because
skipthegames.com does not permit
skipthegames.com permit an ad with
with minors.
minors. The age
age of the fifteen
fifteen ((15)
15) year oldold was
elicited through text messages between the interested
elicited interested party and Special
Special Agent Murray. ((C.
Agent Murray. C. Ex.
Ex.
A); C. Ex.
AN; (C. Ex. 1);
IJ; ((C.
C. Ex. 5). Special
Ex. SJ, Agent Murray posed
Special Agent posed as the 19I9 year old girl who offered sex
who offered
with the 15
with IS year oldold girl to
to the Defendant
Defendant inin exchange for compensation.
compensation. (C. (C. Ex.
Ex. A);
AN; ((C.
C. Ex.
Ex. 1);
(C. Ex.
(Cc. Bx. 5).
5)
¢
9 In
In his
his response to one ([l)
to one 1) of the ads,
ads, he claimed that
that he was an employee at the Amazon
warehouse,
warehouse, whichwhich explained his nickname of of "Amazon
Arazon guy."

14
14
and French fries
fries from
from Wendy's
Wendy's and
and a bag of Pepperidge Farm goldfish crackers!°
Farm goldfish 10

because the Defendant did
the Defendant did not have any money and would not
not have not receive
receive his paycheck

until after 3.00
until 3:00 A.M.
A.M, the next day. (C.
next day. (C. Ex.
Ex. A);
AJ; ((C. Ex. 1);
C. Ex. 1J; (C.
(C. Ex.
Ex. 5).
5). Moreover,
Moreover, through
through

the
the texts that Special Agent
that Special Agent Murray and the Defendant
Defendant exchanged,
exchanged, a meeting
meeting time on
on

7, 2022,
July 7, 2022, was
was arranged and Special
Special Agent
Agent Murray provided
provided the Defendant
Defendant with
with the

name
name of the motel,
motel, specifically,
specifically, the Motel
Motel 6 located
located at 681 Blue Barn Road,
Road, Allentown,
Allentown,

Upper Macungie Township,
Upper Township, Lehigh County, as well
Lehigh County, well as the floor in
in which she

purportedly was staying." Also,
was staying.' Also, the Defendant
Defendant texted
texted a photograph
photograph of himself to
to

Special Agent
Special Agent Murray so that
that she would know
know what
what he looked
looked like. ((C.
C. Ex.
Ex. A);
A}; (C.
(C. Ex.
Ex.

1); ((C.
C. Ex.
Ex. 5); ((C.
C. Ex.
Ex. 10).
10). Special
Special Agent
Agent Murray also
also texted
texted a photograph
photograph of herself

that was photoshopped so that she looked
that was looked like
like a 19
I9 year old girl.
year old girl.12 (C.
(C. Ex.
Ex. A);
AN; (C. Ex.
(C. Ex.

1); ( C. Ex.
1;(C. 5).
Ex. 5)

o
10 Originally Doritos were requested,
Originally requested, but but the Defendant
Defendant could not obtain them and
obtain them
substituted
substituted Pepperidge Farm Goldfish crackers instead.
Farm Goldfish instead, ((C. Ex.
Ex. A);
A}; (C.
(C. Ex. 5).
Ex. 5).
11 Officer Drew
Drew Devery of the Upper Upper Macungie Township Police Department Department and assigned
to the Lehigh
to Lehigh County Joint Human Trafficking Task Force
Huran Trafficking Force was
was responsible for procuring the
motel room
motel room in in which the operation
operation would take place, place, as well
well as coordinating
coordinating with
with the
Department of Homeland Security,
Department Security. Off@erOfficer Devery was was with
with Special
Special Agent
Agent Murray when she
received the text communications from
received from the Defendant with with regards to to the ads posted on on
"Skipthegames.com."
Sipthegames.com."
a
12 The text exchange on July 7, 7, 2022 between Special
Special Agent
Agent Murray's
Murray's 19 I9 year old
old persona
persona
and the Defendant
Defendant is as follows:
is as follows:
Defendant:
Defendant: Imma just
rma just use my my real
real number
number cause the other ones tweaking but is the
but yes this is
Amazon guy.guy. So if u interested
interested still respond back fast please. please
Agent:
Agent: How
How oldold are you?
Defendant:
Defendant: 22
Agent:
Agent: Send me I`ll send you one of
me a selfie. I'll of me. You're
Youre confusing me me.
Defendant:
Defendant: Aight
Aight send one.one. (Photos exchanged) ((C.
(Photos exchanged C. Ex.
Ex. 10).
10)
Agent:
Agent That's me. My friend is
My friend is 15 you ok with
15 you with that?
Defendant:
Defendant: What
What she looklook like? Whatever
Whatever I don't really
really care I I just
just want
want my
my dick
dick sucked by
one of ya so do ya know know what
what ya want
want toto eat? U there?
Agent:
Agent: Yeah.
Yeah. Ok so it's $
it's $80 for the bbbj.
bbbj. Anything more you need to to wear
wear a condom.
condom.
My friend'
friend' can't get preg preg cuz she's too young.
young. All
All good?
Defendant:
Defendant: U told
told meme that already. Isaid
that already. said III
Ill get us both
both food
food remember?
Agent:
Agent: Just making sure we're on the same
Just same page
page cuz your
your texting me from
texting me from all these diff

15
numbers.
numbers
Defendant:
Defendant: We
We agreed that if Igot ya
that if ya food
food I'll get head.
head. Remember?
Remember?
Agent:
Agent. Wendy's.
Wendy's. Can you get me me chix
chix nuggets and fries? You don't have a $20 20 or
anything?
Defendant:
Defendant: Nah Idon't
don't Ionly got mymy credit card.
card. Is
Is that all u want
want chicken nugget
nugget and fries?
fries?
U want
want me to get and then
me to then wewe go or want
want me
me to
to get it
it first
Agent:
Agent: Oh and can you get me me some chapstick from
some Doritos and chapstick from the Wawa
Wawa it's
it's like
like right
there? Nah bring
bring it to
to me.
me. So Icancan eat while mymy friend
friend gives you
you head.
head.
Defendant:
Defendant: Aight gimme
gimme the addy again.
addy again.
Agent:
Agent: Motel
Motel 6 off Blue barn.
barn. When can you
you get
get here?
Defendant:
Defendant. I'm
l'm going to
to get the stuff now.
Agent:
Agent Ok text me
me when you're
you're on the way here. Or
Or like
Like 5 min away.
away And I'll
III give you
the room #.
the #.
Defendant:
Defendant. Aight don't try
Aight just dont try to scam me.
to scam me.
Agent:
Agent: No way!
way!
Defendant:
Defendant: Can you send me me a pic m if if you in
in the hotel
hotel so ik
ik u not
not playin? ((Defendant
Defendant sent
sent
exterior photo of Motel Motel 6)6)
Agent:
Agent: (Sent
(Sent photo of the back of Motel Motel 6 door of room
room 219)
Defendant:
Defendant: And you too Nigga
Agent:
Agent: Sent photo
photo of the Motel 6 door of room
the back of Motel room 219)
Defendant:
Defendant: I said you too not
l said not just the door
Agent:
Agent: I
l just sent
sent you one of me. me. First ones free.
free. Don't
Don't show
show up
up here all angry.
angry. I don't
need that thankthank you.
you.
Defendant:
Defendant: Itrying
trying toto negotiate
negotiate
Agent:
Agent: You did.
did. It's $
It's $300 for the both
both isis us and Isaid
said ok for just foog
foog [[sic].
sic]. I think
think that's
negotiating
enough negotiating
Defendant:
Defendant: Ijust
just wanted to to know
know if u official
Agent:
Agent: You gotgot a pic of me me and the hotel.
hotel. That's more thanthan Isend other people.people. I don't
need to to get inin trouble
Defendant:
Defendant: In
[n trouble?
Agent:
Agent: Cuz you askin
Cua askin meme all these questions and picturespictures and shit.
shit. Idk. And my friend
my friend
is young so
is so Idon't knowknow who
who you are.are. I'm
I'm takin
takin a chance just like you.
like you.
Defendant:
Defendant: Oh my my bad nah I'm I'm just
just making sure for my my safety too so u rightright ((sent a photo of
the Pepperidge Farm Goldfish crackers),
Farm Goldfish crackers). There was no Doritos so I got you this this
is it
is it cool?
Agent:
Agent: Yes!
Yes! Thank you!youl
Defendant:
Defendant: I cum in
I can cum in her
her mouth right?
Agent:
Agent: Yes.
Yes cool with
She's cool that. Cleanin
with that. Cleanin up up in quick. You here?
in the shower quick.
Defendant:
Defendant. Yeah.
Yeah. PiePic up
Agent:
Agent: Alright
Alright room
room 219. Just Just come up
Defendant:
Defendant: Pick up the
Pick the phone first
Agent:
Agent: I just called you
just called
Defendant:
Defendant: Tell
Tell her open
open the doordoor. What room number
What room number was it? it? There's no 219 here
Agent:
Agent: 2»d floor
2M
Defendant:
Defendant: Mad sketchy
Agent:
Agent: Yes there is. is. Ly
By stairwell.
stairwell, Doors open open yo. I'mI'm gonna close it in 2 min
it in
Defendant:
Defendant. Tell her to
Tell to call me.
me, ((Sent
Sent photo of the food)
food)
Agent:
Agent: Idon't let her talk talk to
to anyone. Come Come up babe
Defendant:
Defendant. So u come down for the food
So food

16
16
stationed outside of the Upper Macungie
Surveillance units were stationed

Township Motel 6, and law
Motel 6, law enforcement
enforcement officers
officers were positioned
positioned inside of two
two (2)
(2) of the

motel
motel rooms
rooms ((Room
Room 224 Room 222)
and Room 222) which were located from the
located across from

undercover
undercover room (Room 219) where the meeting was
(Room 219) was to
to occur.
occur. ((C.
C. Ex. A); ((C.
Ex. AJ; C. Ex.
Ex. 6);
6); ((C.

Ex. 7). The undercover
Ex. undercover room, Room 219,
room, Room 219, was
was located
located near the end of the second-floor
second- floor

north hallway, next
north hallway, next to
to the stairwell.
stairwell. ((C,
C. Ex.
Ex. A);
A); ((C.
C. Ex.
Ex. 6); (C.
(C. Ex. 7). Special
Special Agent
Agent

Murray,
Murray, Detective Damein
Damein Lobach of the Allentown Police Department
Department Vice and

Intelligence Unit and
Intelligence Unit and assigned to
to the Department
Department of Homeland Security Human

Trafficking Task Force,
Trafficking well as Detective Lou Tallarico
Force, as well Tallarico of the Lehigh County Drug

Task Force were positioned
positioned in
in Room
Room 219.
219. ([C.
C. Ex. A);
A); (C.
(C. Ex.
Ex. 6); ((C,
C. Ex.
Ex. 7).
7). Detective

Lobach
Lobach and Detective Tallarico
Tallarico were part
part of the arrest team
team for
for customers soliciting
soliciting

sex acts from
scx from minors
minors and donned badges around their necks.
necks. ((C.
C. Ex.
Ex. A);
A); (C.
(C. Ex. 7).
Ex. 'T)

The outside surveillance units notified
notified Special
Special Agent
Agent Murray when the

Defendant arrived in
Defendant arrived in the parking lot of the Motel 6. 13 The
Motel 6,13 The Defendant texted
texted when he

Agent:
gent: (Sent
Sent photo of the floor plan plan delineating
delineating where room
room 219 is is located).
located). I'm
I'm not
not
negotiating withwith you anymore.
anymore. You're too needy.
needy.
Defendant:
Defendant: Just do it or send her down.
Just down. UU getting
getting free food
food
Agent:
Agent: She doesn't
doesn't leave my my side.
side. And your gettin
gettin head for a aWendy's
Wendy's meal ... It's not
meal...It's not
safe for us.
safe us. Idon't wanna get get kidnapped or whatever.
whatever.
Defendant:
Defendant: So where is
So is she
Agent:
gent: She with
with meme inin the room. The room
room waswas propped open
open soon as you asked.
asked. It's
open now.
0pen now.
Defendant:
Defendant: Yo can u at least comecome to the lobby? That's fair.
fair.
Agent:
Agent: No more negotiating.
negotiating. We have the room
We have room ready and we're
we're not
not even
even fully dressed.
fully dressed.
Sorry. You
Sorry. You'rere wasting our time.
time. Idon't
don't want
want to
to keep
keep doing
doing this back and forth. forth. I
have other customers.
have customers.
Defendant:
Defendant; Fine at least
Rine least peep your head out the door Im
door when I'm there.
there. You still there
Agent:
Agent: Ok fine.
Ok fine.
(C. Ex.
(C. A); (C.
Bx. AJ; C. Ex.
Ex. 1);
IJ; (C.
(C. Ex.
Ex. 5).
n
13 Detective Lobach,
Lobach, fromfrom his position
position in
in Room
Room 219,
219, observed the Defendant
Defendant exit his
vehicle
vehicle and walk
walk towards the Motel Motel 6.
6. Detective Lobach thenthen viewed
viewed the Defendant
Defendant walk back back
towards his vehicle,
vehicle, remain there for approximately ten ((10) 10) minutes
minutes (during
(during which
which time text
messages continued to to be exchanged with with the 19 19 year old girl persona),
persona), and thenthen proceed
proceed

17
17
arrived and sent her
arrived her a photograph
photograph of the exterior of the Motel
Motel 6 to
to confirm same. ((C.
confirm same. C.

Ex.
Ex. A);
A); (C.
(C. Ex.
Ex. 1); ((C. Ex.
Ex. 4); ((C.
C. Ex.
Ex. 5). Defendant also
The Defendant also confirmed that he could
could

cum in "her"
cum in her" mouth, referring to
mouth, referring to the 15
15 year old
old girl.
girl. (C. Ex. A);
(C. Ex. 1J; ((C.
Ex. 1);
(C. Ex.
A]; (C. C. Ex.
Ex. 4);

(C. Ex.
(C. Ex. 5). Throughout
Throughout the exchange of text
text messages
messages while the Defendant
Defendant was
was in
in the

parking lot of the Motel
Motel 6,
6, he also
also requested that Special Agent
that Special Agent Murray, believing her
Murray, believing

to
to be the I9
19 year old girl, direct the I5
year old 15 year old
old girl to call him,
to call him, meet
meet him
him in
in the lobby
lobby

of the Motel
Motel 6,
6, and to
to open the motel room door.
motel room door. ((C.
C. Ex.
Ex. A);
A); ((C.
C. Ex. 1; (C.
Ex. 1); (C. Ex.
Ex. 4); (C.
(C.

Ex. 5). Finally,
Ex. Finally, the Defendant
Defendant requested that
that the 19
I9 year old girl
year old girl peek her head out of

the motel room. (C.
motel room. (C. Ex.
Ex. A);
A; (C.
(C. Ex.
Ex. 1);
IJ; (C. Ex. 4);
(C. Ex. 4); ((C.
C. Ex.
Ex. 5).
5].

The Defendant
Defendant emerged from
from the
the northern
northern stairwell on
on the second
second floor

and Special
Special Agent
Agent Murray,
Murray, dressed in
in jeans and a yellow
yellow tee-shirt,
tee-shirt, poked
poked her
her head out

as he had requested.
requested. ((C.
C. Ex. A); ((C.
Ex. AJ; C. Ex.
Ex. 6). She observed the Defendant
Defendant walking

motel room
towards the designated motel room with
with the bag of Wendy's
Wendy's food
food and Pepperidge Farm
Farm

Goldfish crackers in
Goldfish in his right hand and his
his Apple iPhone in
in his left hand.
hand. ([C.
C. Ex.
Ex. A);

Ex. 6); ((C.
(C. Ex. C. Ex. 7). When he approached the
the undercover motel
motel room door, Special
room door, Special

Agent Murray identified
Agent identified herself as a police officer and immediately attempted to
to bring
bring

the Defendant inside the
the motel
motel room
room in
in order to
to take him
him into custody. 14 (C.
into custody.I C. Ex.
Ex. A);
AN; ((C.
C.

Ex. Special Agent
Ex. 6). Special Agent Murray grabbed the Defendant's right shoulder with
with her left

hand (while
hand (while facing him),
him), but
but the Defendant
Defendant broke free from
from her
her grasp
grasp by forcefully
forcefully

pushing her arms away and bringing
bringing his hands above her head,
head, thereby striking
striking

towards the lobby of the motel.motel, Supervising Special Agent
Supervising Special Agent Brent Morral
Morral observed the
Defendant's actions, as well.
Defendant's actions, well.
14 Detective Lobach was one ((l)
was standing approximately one 1) foot behind Special
Special Agent
Agent Murray
when the Defendant
Defendant was
was looking into
into Room 219 from
Room 219 from the threshold of the doorway.
doorway, Detective
Lobach was
was donned in plain clothes,
in plain clothes, but
but had his police badge
badge prominently displayed around
his
his neck on his
his cheat.
chest.

18
18
Special Agent
Special Agent Murray in
in the face despite Special
Special Agent
Agent Murray yelling
yelling "police"
"police" and

identifying
identifying herself.
herself.is
15 Upon freeing
freeing himself from
from Special
Special Agent
Agent Murray's grip, the
Murray's grip,

Defendant
Defendant ran
ran down the hallway towards the south
south end.
end. (C. Ex. A); ((C.
(C. Ex. C. Ex.
Ex. 6); ((C.
C. Ex.
Ex.

7). The
The Defendant
Defendant ran
ran past
past the stairwell
stairwell located
located at the southern end
end of the hallway.
hallway."16

(C. Ex.
(C. Ex. A);
A); ((C.
C. Ex.
Ex. 6); (C.
(C. Ex.
Ex. 7).
7). He near the end of the hallway
He abruptly stopped near

where he put
put his hands by
by his waistline and quickly turned
turned towards the police officers

who
who had been pursuing him
him down the hall.
hall. ((C.
C. Ex.
Ex. A);
A); ((C.
C. Ex.
Ex. 7).
7). When the Defendant
Defendant

turned to face the police officers, he was
police officers, was still moving
moving and he had his hands raised
raised

towards his upper
upper body region.
region. ((C.
C. Ex.
Ex. A);
A]; ([C.
C. Ex.
Ex. 7).
7]. As Detective Lobach
Lobach was
was running

immediately behind
behind the Defendant
Defendant in
in pursuit of him,
him, Detective Lobach
Lobach placed
placed his

arms up towards his face to
to protect, did not
protect, as he did know if
not know if the Defendant
Defendant had any

weapons on him
him or if the Defendant
Defendant was
was going engage him
him in
in a fight.
fight. ((C.
C. Ex.
Ex. A);
AN; (C.
(C. Ex.
Ex.

7). The Defendant
Defendant and Detective Lobach made contact in
made contact in which Detective Lobach

ended up "body
body checking"
checking" the Defendant
Defendant into
into the corner
corner of the exterior wall
wall of the

hallway with
with the intention
intention of creating distance between him
him and the Defendant.
Defendant. ((C.
C.

Ex. A);
Ex. A]; ((C.
C. Ex. 7).
Ex. T). However, Detective Lobach could
However, could not
not stop due to
to the momentum
momentum

that
that had been building as a result of his speed
been building speed and his weight.
weight. ((C.
C. Ex.
Ex. A);
AJ; ((C.
C. Ex.
Ex. 7).

The Defendant against the closed
Defendant fell against closed window
window at the end of the southern
southern hallway,
hallway,

which
which caused the
the window to break
window to break and the Defendant
Defendant to
to fall out the window.
window. (C.
(C. Ex.
Ex.

A);
AJ; ((C.
C. Ex.
Ex. 8). Detective Lobach,
Lobach, despite going partially
partially out
out of the window,
window, was
was able to
to

s
15 Special Agent
Agent Murray indicated
indicated that it
it felt as if
if she had been struck
struck in
in the face with
with an
open hand,
hand, but
but recognized that Defendant was
that the Defendant was holding
holding the
the food
food in
in his
his right
right hand
hand and
and his
hie
Apple iPhone in
in his left hand,
hand, and consequently his hand could not have been open.
could not open. ((C.
C. Ex.
Ex. A);
A);
(C. Ex.
(C. Ex. 6).
6).
6
36 Special Agent
Both Special Agent Murray and Detective Lobach believed
believed that the Defendant was
southern stairwell
running towards the southern to escape.
stairwell to escape

19
19
stop himself from
from falling
falling by grabbing jagged, broken
grabbing the left side of the jagged, broken glass window
window

frame with
with his left arm
arm and by planting
planting his left leg
leg against the exterior wall.
wall. 17

The Defendant
Defendant fell onto the macadam
macadam of the parking lot of the Motel
Motel 6

below the second-
below window and was
second-floor window was injured.
injured. (C.
(C. Ex. A); ((C.
Ex. A); C. Ex.
Ex. 8). Special
Special Agent
Agent

Murray's supervisor, Special Agent
supervisor, Special Morral, who
Agent Morral, who was
was positioned
positioned outside of the Motel
Motel 6

in
in the front parking lot,
lot, immediately arrived in
in his vehicle to
to render aid,
aid, along with
with

Officer Deveryl
Deveryis8 and Detective Jamie Leauber
Leauber of the Lehigh County Drug Task Force

Task Force Officer for Lehigh County Human Trafficking Task Force and
and Task

Department of Homeland Security.
Department Security. ((C.
C. Ex.
Ex. A);
AJ; (C.
(C. Ex.
Ex. 8).
8]. EMS was
was called
called and law
law

enforcement attempted to keep the Defendant calm and stationary.
Defendant calm stationary. Detective Leauber
Lauber

placed
placed a tourniquet on the Defendant's left upper arm to aid
upper arm aid in
in stopping the bleeding
bleeding

from laceration on his lower left arm.
from a deep laceration arm. (C.
(C. Ex.
Ex. A);
AJ; ((C.
C. Ex.
Ex. 8).
8). The Defendant's

Apple Whone 13 Pro was
iPhone 13 was recovered within
within a foot of the Defendant
Defendant lying
lying on the ground.
ground

(C. Ex.
(C. 1); (C. Ex.
Ex. IJ;(C. 3). Ultimately,
Ex. 3. Ultimately, Detective Leauber
Leauber obtained
obtained a search warrant
warrant for the

cell phone and federal
cell federal agents executed
executed same.
same. ((C. Ex.
Ex. 1);
1; ((C.
C. Ex. 2)
2).

The Defendant was transported
Defendant was transported to
to Lehigh
Lehigh Valley Hospital Cedar Crest
Hospital - Cedar Crest

campus by EMS/ambulance
EMS/ambulance for medical
medical treatment.
treatment. The Defendant suffered a neck
Defendant suffered neck

fracture,
fracture, as well
well as two
two ([2)
2) broken
broken legs and a severe laceration
laceration of the left arm.
arm.

n
17 did not
Detective Lobach did not expect
expect the
the glass to break
glass to break and did
did not want the
not want the Defendant
Defendant to
to
fall out of the window.
window.
18 Defendant ran
When the Defendant ran down towards the southern
southern end of the hallway,
hallway, Officer Devery
exited Room
exited Room 222 and utilized
utilized the
the stairwell
stairwell on
on the
the northern
northern end to
to go down
down to the
the motel
motel lobby
lobby inin
case the Defendant
Defendant attempted
attempted to to escape
escape byby descending the southern stairs. (C.
southern stairs, (C. Ex. A);
A]; (C. Ex.
(C. Ex.
However, when Officer Devery heard glass breaking,
7). However, breaking, he exited
exited the motel,
motel, rounded the
southern end of the building,
southern building, and encountered the Defendant
Defendant lying
lying on the ground.
ground. (C. Ex. A;
(C. Ex. A);
(C. Ex.
(C. 8). The Defendant
Ex. 8]. Defendant attempted to to sit up and Officer Devery advised him
Devery advised him to
to lie
lie back down
and stay still.
still. ((C.
C. Ex.
Ex. A);
A]; (C.
(C. Ex. 8),
8). The Defendant
Defendant was alert and speaking
speaking and apologized for
his actions.
actions. (C.(C. Ex.
E. A);
A); (C. 8).
(C. Ex. 8)

20
Detective Lobach also suffered
suffered injuries as a result of
of the events. In
events. In

particular, he sustained
particular, sustained a left ankle sprain,
sprain, a sprain
sprain of the
the ligament
ligament in
in his left knee,
knee,

two ((2)
and two 2) lacerations
lacerations near
near his left elbow
elbow region, one ({l)
region, one 1) in
in which involved
involved an arterial

bleed. Detective Lobach sought
bleed. sought treatment
treatment at Lehigh Valley
Valley Hospital
Hospital - Cedar
Cedar Crest
Crest

campus. Medical personnel
campus. Medical personnel cauterized the artery
artery in
in his left arm
arm to stop
stop the bleeding,
bleeding,

as well
well as stitched
stitched up the wound.
wound. Detective Lobach missed approximately four
missed approximately four (4)
(4)

weeks of work
work as a result of his
his painful
painful injuries. The treated
treated area arm
arca of his left arm

remains numb/tingly due to
to the injury
injury that
that he sustained.
sustained.

Additionally, Special Agent
Additionally, Special Agent Murray suffered
suffered injuries as a result of what
what

transpired
transpired at the Motel
Motel 6.
6. Specifically,
Specifically, the Defendant
Defendant struck Special Agent
struck Special Agent Murray in
in

the face
face when breaking free from her
free from her grasp.
grasp. Also,
Also, when Detective Lobach attempted
attempted to
to

pursue the Defendant,
Defendant, he knocked Special
Special Agent
Agent Murray out of the way
way (inadvertently
(inadvertently

against the wall
wall of the hallway)
hallway) which caused an abrasion on her
her left arm.
arm.

Consequently, Special Agent
Consequently, sought medical
Agent Murray sought medical attention
attention at Lehigh Valley
Valley

Hospital - Cedar
Hospital Cedar Crest
Crest campus.
campus. ((C.
C. Ex.
Ex. A);
A); (C.
(C. Ex.
Ex. 6);
6); ((C.
C. Ex.
Ex. 7). After Special.
Special Agent
Agent

Murray was cleared
Murray was cleared by the
the medical
medical personnel, approximately one
personnel, and approximately one ((l)
1) hour
hour after

the Defendant
Defendant had arrived at the Motel 6, Special
Motel 6, Agent Murray
Special Agent Murray and Officer Devery
Devery

went to
went to speak with
with the Defendant
Defendant in
in the Emergency Room
Room of Lehigh
Lehigh Valley Hospital -
Valley Hospital

Cedar Crest campus about
Cedar about the events of the day.
day. Special
Special Agent
Agent Murray and Detective

Devery with a nurse
Devery spoke with nurse and asked
asked permission
permission to
to speak
speak with
with the
the Defendant.
Defendant. The

nurse tending to
to the Defendant
Defendant indicated
indicated that
that they
they could speak
speak with
with him.
him.

When Special
Special Agent
Agent Murray and Officer Devery entered the Emergency

Room
Room trauma triage bay in
in which the Defendant
Defendant was
was situated,
situated, they
they observed
observed the

Defendant
Defendant lying
lying flat on his back,
back, handcuffed
handcuffed to
to the bed with
with his right hand,
hand, and

21
wearing a neck brace which impeded the movement
movement of his lower
lower jaw ((and
and thereby

caused his speech
speech to
to be quieter). The Defendant was awake,
Defendant was awake, his eyes were open,
open, and

he made appropriate cye
eye contact
contact with
with Special
Special Agent
Agent Murray
Murray and Officer Devery who
who

both
both had their badges visibly displayed. Officer Devery Mirandized the Defendant
visibly displayed. Defendant and
and

the Defendant
Defendant verbally
verbally waived
waived those rights. ((C.
C. Ex. A);
AJ; (C.
(C. Ex.
Ex. 9).
9). Officer Devery

explicitly asked the Defendant
explicitly Defendant if he wished to
to talk
talk with
with them
them and the Defendant
Defendant

unequivocally responded in the affirmative. ((C,
responded in C. Ex.
Ex. A);
A); (C.
(C. Ex.
Ex. 9). No threats
thrcats were

made to the Defendant
made to Defendant at
at any time during the conversation that
that occurred at Lehigh
occurred at Lehigh

Valley Hospital.
Hospital. ((C.
C. Ex.
Ex. A);
A); ((C.
C. Ex.
Ex. 9). Both Special
Both Special Agent
Agent Murray and Ofieer
Officer Devery

were dressed in
in plain
plain clothes and neither displayed their firearm.
firearm, Officer Devery was
was

that the Defendant
confident that Defendant understood his Miranda warnings
warnings and all of the

questions posed to
to him. Indeed, he answered all questions appropriately and
him. Indeed,

coherently, as well
coherently, well as appeared upset,
upset, respectful,
respectful, remorseful,
remorseful, and nervous that
that he

would be reported
reported or placed on a registry
placed on registry for his
his earlier actions.
actions. ((C.
C. Ex.
Ex. A);
A); ((C.
C. Ex. 9).
Ex. 9)

The
The Defendant
Defendant cogently explained that
that his girlfriend was
girlfriend pregnant and due in
was pregnant in

January. ((C.
January. C. Ex. A); (C.
Ex. AJ; Ex. 9). Furthermore,
(C. Ex. Furthermore, the Defendant indicated that
Defendant indicated that the reason
reason

that he went
that went to
to the Motel
Motel 6 was
was to
to "get
get [his] dick sucked"
[his] dick sucked" by a 15
I5 year
year old
old girl and that
that

he knew
knew that this was illegal. (C.
was illegal. Ex. A);
(C. Ex. AJ; ((C.
C. Ex.
Ex. 9). He confirmed
confirmed that
that he
he had brought
brought

a bag of food from
from Wendy's with him,
Wendy's with him, along
along with
with a bag of Pepperidge Farm goldfish
Farm goldfish

crackers. ((C.
crackers. C. Ex.
Ex. A);
A); (C.
(C. Ex.
Ex. 9). He also
also recounted that he ran
ran down the hallway of the

Motel
Motel 6 and fell out the window.
window. ([C.
C. Ex.
Ex. AN;
A); (C. Ex. 9).
(C. Ex. 9), Finally,
Finally, the Defendant
Defendant

identified
identified his
his cell phone when shown by Officer Devery,
Devery, as well provided Special
well as provided Special

Agent
Agent Murray and Officer Devery with
with the security
security passcode for his
his cellular telephone.
telephone.

(C. Ex.
(C. A); ((C.
Ex. A); C. Ex.
Ex. 9)
9).

22
Viewing all the evidence and all reasonable inferences arising
arising therefrom
therefrom

in
in the light most
most favorable to
to the Commonwealth,
Commonwealth, it is
is clear that the evidence was
was

sufficient to
to enable a finder of fact to
to conclude that
that all the elements of the offenses

established beyond a reasonable doubt.
were established doubt. Indeed, at
Indeed, at the conclusion
conclusion of the jury
jury

trial, the jury had no doubt
trial, doubt that
that the Defendant
Defendant was
was intentionally
intentionally in contact with
in contact with

Special Agent
Special Agent Murray,
Murray, who
who had assumed the secondary persona of a 15
I5 year
year old
old girl,

via
via text
text messaging,
messaging, for the purpose of engaging in oral intercourse.
in oral intercourse. Also,
Also, based on
on the

evidence, the jury
evidence, also concluded that
jury also that the Defendant,
Defendant, with
with the intent of engaging in
in

oral intercourse with
oral with a 15
15 year old
old girl,
girl, took
took a substantial
substantial step
step toward committing

involuntary
involuntary deviate sexual
sexual intercourse. Thus, a challenge to
intercourse. Thus, to the sufficiency
sufficiency of the

was without
evidence was without merit.
merit.

Based on
on the foregoing,
foregoing, this Court
Court finds that
that the Defendant did not
Defendant did not

request that an appeal
request that appeal or Post
Post Sentence Motion be filed
filed and that Attorney Dutko did
did not
not

fail to
to consult with
with the Defendant about same.
Defendant about same. Also,
Also, this Court
Court finds that
that there is
is no

basis for
for relief,
relief, and consequently no prejudice suffered
suffered by the Defendant,
Defendant, as a result of

any action omission of Attorney Dutko with
action or omission with regard
regard to
to the pretrial and post-trial issues

raised by the Defendant
raised Defendant (supra)
supra) and the entrapment
entrapment issue (infra).
infra). Indeed,
Indeed, the evidence

established that
presented established that Attorney
Attorney Dutko did
did reach
reach out to
to and consult
consult with
with both
both the

Defendant's mother
mother and the Defendant,
Defendant, not
not only to counsel them
to counsel them with
with regard to filing
regard to filing

Post
Post Sentence Motions and/or appeal, but
and/or an appeal, but also
also to
to determine their wishes with
with

regard to same.
to same. Options were provided
provided to
to them
them with
with regard
regard to
to legal
legal avenues to
to

pursue,
pursue, including Attorney Dutko filing
filing a timely Notice of Appeal
Appeal and then
then withdrawing
withdrawing

from the case,
from the case, thereby allowing
allowing the Defendant to apply for a public
Defendant an opportunity to

to represent
defender to him on
represent him appeal. Despite advising
on appeal. advising them
them of this option,
option, the Defendant
Defendant

23
mother clearly and directly
and his mother directly conveyed to Attorney Dutko that they
conveyed to they did
did not
not wish
wish

to Post Sentence Motion
to pursue a Post Motion nor an appeal.
appeal. Moreover,
Moreover, Attorney Dutko expressed
Dutko expressed

that
that he thought that filing
thought that filing a Post
Post Sentence Motion in the form
Motion in form of a challenge to
to the

sentence imposed would be appropriate,
appropriate, but
but the Defendant
Defendant remained firm
firm that he did
did

not
not want
want to
to file
file such a Motion.
Motion, Although Attorney Dutko did
did not
not go
go over
over specifics as to
to

what could
what could be appealed during the telephone call of May 9, 2024,
May 9, 2024, Attorney Dutko did
did

have prior discussions with
have Defendant on February
with the Defendant February 14,
14, 2024 and at the time that
that the

Pre- Sentence Investigation
Pre-Sentence Investigation report
report was
was reviewed by them
them together with
with regard to
regard to

appealable issues. Indeed,
Indeed, on those dates,
dates, the Defendant
Defendant had been
been apprised
apprised by

Attorney Dutko
Dutko of the issues that could be pursued on
that could on appeal. Despite having been
been

counseled by Attorney Dutko with
with regard
regard to the advantages of filing
filing Post
Post Sentence

Motions and/or appeal, during the telephone call of May
and/or an appeal, May 9, 2024 the Defendant
Defendant

explicitly expressed
explicitly to Attorney Dutko that he did
expressed to did not
not wish
wish to
to file
file an appeal
appeal or Post
Post

Sentence Motions. Consequently, Attorney Dutko followed the Defendant's wishes and
Motions. Consequently,

instructions and did
did not
not file
file Post Sentence Motions nor
nor an appeal.
appeal. Moreover, this
Moreover, this

Court notes that
Court that the Defendant
Defendant completed a Post
Post Sentence Information
Information form
form at the

time of his sentencing. The Defendant
Defendant did
did not
not have
have any questions about
about this form,
form, as

he posed no questions to the Court,
Court. This form
form includes specific language
language stating that
stating that

"You have the right to
You to assistance of counsel
counsel in
in the preparation
preparation of a post- sentence
post-sentence

motion appeal. If
motion or an appeal. If you are indigent,
indigent, you have the right to proceed
proceed without
without the

payment
payment of costs and with counsel appointed to
with counsel to represent you without charge." As
As

such, this
such, this Court
Court cannot
cannot find
find that Attorney Dutko rendered ineffective assistance to
to

counsel.
counsel 19
19

to
19 While this Court does not
this Court not find
find that Attorney Dutko was
was ineffective with
with regard
regard to
to

24
Finally,
Finally, the Defendant
Defendant argues that
that Attorney Dutko rendered ineffective

counsel when he failed
assistance of counsel failed to
to object
object to
to the
the Court's
Court's non-inclusion jury
non-inclusion of a jury

instruction
instruction explaining the entrapment defense. o At
entrapment defense.29 At the time of trial,
trial, Attorney
Attorney Dutko

that the entrapment
argued that entrapment jury charge, Standard Jury Instruction
jury charge, Instruction 8.313(4)(a)-(b),

applied to the case based on the facts elicited
applied to elicited at trial and should be provided
provided to
to the

jury.
jury.'2i However,
However, as Commonwealth
Commonwealth v. Shay, 268 A.3d
Shay, A.34 445 (Pa.
(Pa. Super.
Super. 2021)
2021) and

Commonwealth v. Zingarelli, 839 A.2d
v, Zingarelli, A.2d 1064
1064 (Pa.
(Pa. Super.
Super. 2003)
2003) make
make clear,
clear, Pennsylvania
Pennsylvania

courts apply an objective test
test (that must be proven by a preponderance of the evidence)
(that must evidence)

consulting with
with the Defendant
Defendant about
about filing
filing an appeal
appeal or post
post sentence motions,
motions, this Court
notes that the record is void of evidence to
is void to demonstrate a reasonable probability that,
that, but for
for
consultation with
counsel's deficient consultation with the Defendant,
Defendant, the Defendant
Defendant would have
have timely
appealed.
appealed. Thus,
Thus, the Defendant
Defendant has failed
failed to show prejudice.
to show prejudice.
2o
20 The Defendant
Defendant also contends that this Court's refusal to Defendant's motion
to grant the Defendant's motion
requesting that the Court instruction to
Court provide an instruction jury regarding the defense of
to the jury
entrapment is
entrapment is an issue merit that
issue of merit that he desired
desired to appeal. However,
to raise on appeal. Court finds
However, this Court
that
that the Defendant's
Defendant's request
request for entrapment instruction
for the entrapment instruction was not relevant or applicable in
was not in
light of the facts
facts and evidence elicited
elicited at trial.
21 Entrapment
Entrapment is is an affirmative defense that that must
must be be proven by a preponderance of the
evidence. The defense of entrapment
evidence. entrapment is is set forth
forth in 18 Pa.
in 18 Pa. CS.A.
C.S.A. S§ 313:
313:
§313. Entrapment.
$313. Entrapment.

General rule.--A public law
(a) General law enforcement official or a person
acting
acting in
in cooperation
cooperation with
with such an official perpetrates an
entrapment
entrapment if if for the purpose of obtaining evidence of the
commission of an offense, offense, he induces or encourages anotheranother
person to
to
person engage engage in
in conduct
conduct constituting
constituting such
such offense by either:
either:
(1) making knowingly false
(l] false representations designeddesigned to to induce
the belief that such conductconduct isis not
not prohibited;
prohibited, or
(2) employing methods of persuasion inducement which create
persuasion or inducement
a substantial risk that
substantial risk that such such an offense will
will bebe committed by
persons other than those who are ready to commit it.
to commit
(b)
(b) Burden of Except
proof.--Except as provided in (c
in subsection (c) of this
section, a person prosecuted
section, person prosecuted for an
an offense shall be acquitted
shall acquitted if
if
he proves by a preponderance of evidence that his conduct conduct
occurred
occurred in in response to an entrapment.
entrapment.
(c) Exception.--The
(c) Exception,The defense afforded afforded by this section
section is is unavailable
when causing or threatening bodily injury
threatening bodily injury is is an element of the
element
charged and the prosecution
offense charged prosecution is is based on conduct
conduct causing
or threatening
threatening such such injury
injury toto a person
person other than than the person
entrapment.
perpetrating the entrapment.

25
in if a defendant has been entrapped. Commonwealth v.
in determining if y, Willis,
Willis, 990 A.2d

773, 775 (Pa.
773,775 (Pa. Super.
Super, 2010).
2010). The purpose of the test it to
to identify
identify police overreaching that
that

would lead
lead a law-abiding
law-abiding person to commit
person to commit a crime and to
to prohibit a defendant from
from

being
being held
held responsible
responsible for such outrageous and impermissible police conduct. Zingarelli,
conduct. Zingarelli,

839 A.2d 1073. Both Shay.and Zingarelli
A.2d at 1073. Zingarelli establish
establish that
that merely
merely offering
offering an opportunity

for a defendant to commit a crime is
to commit is not sufficiently outrageous to
not sufficiently support an
to support

entrapment defense.
entrapment v. Marion,
defense. Commonwealth v. Marion, 981 A.2d 230,
230, 239
239 (Pa.
(Pa. Super. 2009).
Super. 2009).

Without question, police are permitted
Without question, permitted to
to utilize deceptive tactics and artifice in
in

apprehending criminals. Shay,
apprehending criminals. Shay, 268 A.3d 445.
445.

In the within
In within matter,
matter, the Defendant
Defendant had substantial
substantial opportunity to
to

chat/text messaging
terminate the chat/text messaging with Special Agent
with Special Agent Murray.
Murray. He did not.
He did not. The

Defendant acknowledged that
Defendant knew that
that he knew that the one
one ((I)
1) of the girls
girls being
being offered
offered in
in the ad

was
was 15
I5 years old.
years old. is not
It is not relevant
relevant that initially the Defendant
that initially Defendant was
was interested
interested in
in the ad

when he knew
knew that one of them
them was
was 19
19 years old.
old. When the idea of a 15
I5 year old
old girl

was mentioned,
was Defendant expressed
mentioned, the Defendant expressed interest,
interest, and his interest sustained into
into the

following
following day.
day. This Court
Court found
found that
that Special
Special Agent
Agent Murray did not
not engage in
in any act
act of

overreaching that would have induced or created
overreaching created a substantial
substantial risk
risk that
that a law-abiding
law-abiding

citizen who
citizen did not
who did not have
have an intent
intent to
to have
have oral
oral sex with
with a 15
I5 year
year old
old to in oral
to engage in

sex with
with a young girl of this
young girl age. In
this age. In this
this situation,
situation, while Special
Special Agent
Agent Murray's
Murray's purpose

was to
was crime, the facts elicited
to obtain evidence of a crime, elicited at trial did
did not
not demonstrate that

Special Agent
Special Agent Murray
Murray induced or encouraged the Defendant
Defendant to engage in
in the conduct
conduct

constituting the crime.
constituting crime. She merely
merely presented opportunity and the Defendant
presented an opportunity Defendant availed
availed

himself
himself of it. As such,
such, this decision not
this Court's decision not to provide an entrapment
entrapment instruction
instruction

18
18 Pa. C.S.A. 8313.
Pa. C.8.A. § 313.

26
was
was legal
legal and appropriate.
appropriate. Therefore, this Court
Therefore, this Court cannot find
find Attorney Dutko ineffective

failing to
for failing object to
to object to the Court's
Court's non-inclusion
non-inclusion of a jury
jury instruction
instruction explaining
explaining the

entrapment defense after the issue
issue was
was argued
argued and
and fleshed
fleshed out in Court.
in Court.

Accordingly,
Accordingly, the Defendant's Motion for Post
Motion for Conviction Collateral
Post Conviction Collateral Relief is
is

denied.
denied.

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