Com. v. Scott, O.

J-S01008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OBATAIYE KAREE SCOTT :
:
Appellant : No. 1400 WDA 2021

Appeal From the Judgment of Sentence Entered November 9, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000963-2021

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 15, 2023

Obataiye Karee Scott, Appellant, appeals pro se from the judgment of

sentence of 42 to 120 months of incarceration imposed following his jury trial

convictions for contraband, possession of a controlled substance, and one

count of conspiracy to possess. We discharge Appellant’s conviction for

conspiracy. As Appellant was sentenced to no further penalty at this count,

our discharge does not disrupt the sentencing scheme. Finding no merit in

Appellant’s remaining claims, we affirm Appellant’s judgment of sentence in

all other respects.

On February 14, 2020, Appellant was an inmate at the Fayette County

Jail and had his cell searched after a female inmate tested positive for drugs,

prompting the correctional officers to initiate a lockdown procedure. During

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* Retired Senior Judge assigned to the Superior Court.
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lockdown, all inmates must return to their cells. Correctional Officers Nick

Covert and Ron Isler began a search, starting with the female block located

on the third floor. Officer Covert explained that jail cells are stacked on top

of each other. Each floor of the prison is comprised of two “ranges,” with each

range having eleven cells. The ranges are back-to-back, and there is “a pipe

walk in between, with all the plumbing system going up.” N.T., 11/3/21, at

92. The plumbing is located at the back of the cell. Id. He explained that

inmates are known to take their sheets or clothing which they will “rip … into

strips and then tie them off. And then they get a hole through their vents and

they create a weight system with like a mini toothbrush or something and

then they’ll send the line down, through the ventilation system.” Id. at 65.

At the other end, another inmate will use an object with a hook “and then pull

it in and that’s how they pass things through the pipe walk.” Id. While

traversing the pipe walk, Officer Covert heard Appellant “hollering up to E

range to get a fishing line ready.” Id. at 55. Specifically, Officer Covert heard

Appellant say “he’s gonna be sending his shit up.” Id. at 59. When the

officers made their way to the second floor, they immediately proceeded to

cell D8, where Appellant and his cellmate Rasheme Jones were housed.

Officer Covert found in the toilet “a small plastic baggie with strips of

paper in it.” Id. at 60. The item was sealed in evidence packaging and

processed by the Pennsylvania State Police laboratory. The paper strips tested

positive for synthetic marijuana. Id. at 108.

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The Commonwealth filed a criminal information charging Appellant and

Jones with an identical set of crimes: contraband, conspiracy to commit

contraband, possession of a controlled substance, and conspiracy to commit

possession. The jury acquitted Jones of all charges, and acquitted Appellant

of conspiracy to commit contraband. The jury, however, found Appellant

guilty of contraband, possession of a controlled substance, and criminal

conspiracy to possess a controlled substance. Appellant timely filed a court-

ordered Pa.R.A.P. 1925(b) statement, and the trial court subsequently filed

its Rule 1925(a) opinion. Appellant raises six issues for our review:

I. Whether the prosecution committed misconduct where they
knowing[ly] failed to disclose identification evidence of [A]ppellant
during discovery then ambushed [A]ppellant at trial during
correctional officer Nick Covert’s testimony as a strategy to
wrongfully prejudice the minds of the jury to render a verdict of
guilt.

II. [The] trial court committed an error of law and abus[]ed its
discretion by not providing [a] remedy and/or issuing a[n] order
of mistrial for the prosec[u]tion’s misconduct for trial by ambush
strategy that did prejudice and made the jury biased against
[A]ppellant.

III. [The] prosecution committed an error of law and abuse of
power and discre[]tion by trying Appellant with false evidence,
after learning, through Officer Vernail’s testimony that [Officer]
[C]overt was the witness who provided information to Vernail who
wrote [the] affidavit of probable cause based off such allegations.

IV. The trial court committed an error [by] denying [A]ppellant’s
right to confront certain important key witnesses.

V. [The] trial court committed an error of law for allowing the
Commonwealth to prosecute based on hearsay evidence.

VI. [The] trial court committed an error of law and abuse of
discretion by failing to grant Appellant’s motions for mistrial and

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motion to dismiss where evidence presented by the
Commonwealth is insufficient and physical evidence does not
support the Commonwealth’s theory of the crime.

Appellant’s Brief at 8 (unnecessary capitalization omitted; reordered for ease

of disposition).

Appellant’s first three issues all involve a common theme, that the

Commonwealth provided intentionally false testimony and/or ambushed

Appellant at trial with this purported false testimony.

To understand these claims, we set forth the relevant testimony and

surrounding facts adduced at trial in greater detail.1 Officer Covert testified

that he immediately took the seized evidence to the jail’s evidence locker.

N.T., 11/3/21, at 63. His corresponding police report was dated February 14,

2020. However, at the bottom of the document, Officer Covert wrote “2-15-

20” next to his signature. Id. at 80. This document did not reference

overhearing any conversation between Jones and Appellant, nor did it include

any details.

The Uniontown City Police Department has jurisdiction over crimes

committed at the jail. Approximately once a week, an officer goes to the jail

and opens the evidence locker with a secure key. In this case, Officer Vernail

made the trip. He then filed an affidavit of probable cause which stated, in

relevant part, “Covert stated that inmates Rasheme Jones and [Appellant]

were being taken out of their cells for an unrelated reason and Covert stated

____________________________________________

1 Appellant represented himself.

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he could hear the inmates talking about having something in their cell.”

Affidavit of Probable Cause, 10/27/20.

On cross-examination by Appellant, Officer Covert denied speaking to

Officer Vernail. N.T., 11/3/21, at 74 (“A: My report is what was in there. I

didn’t and, ever [sic] have a conversation with Officer Vernail.”). He also

admitted that his own report does not reference overhearing Appellant make

statements. Id. at 75 (“Q: So it doesn’t say that you ever heard me speaking

through the vents[?] A: In the report, no it does not.”). On Appellant’s cross-

examination of Officer Vernail, Appellant established that Officer Vernail went

to the jail on February 28, 2020. When asked if he had a conversation with

Officer Covert, Officer Vernail replied, “I don’t recall if I spoke to him [on] the

day in question. I picked [the evidence] up but I had spoken to him prior to

the charges being filed, correct.” Id. at 117.

Appellant asked for dismissal and/or a mistrial on the grounds “it was

clear that … when Covert was testifying … he offered false testimony under

oath … it was as clear as day that he had … lied.” Id. at 132. The trial court

responded that inconsistent statements “may affect the credibility for the

witness. But it’s not a reason for me to dismiss the case.” Id. at 133.

Appellant then stated, “I think that … the inflammatory statements … [were]

false, [and] prejudiced the minds of the jury in that I don’t think that I could

have a fair trial at this point in time.” Id. The trial court asked, “And

specifically what are you saying was an inflammatory statement that deprived

you of a fair trial?” Id. Appellant replied, “just about the dates and then

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whenever we put Vernail on the stand, Vernail actually … he said that he did

talk to him but [Covert] just sat there and told the jury that he didn’t talk to

uh, Vernail.” Id. The trial court again informed Appellant that this was “a

perfectly good argument for you to make in your closing but it’s not a reason

to dismiss. … Is that what you’re saying, … that he is unable to identify your

voice?” Id. Appellant stated, “it was so many people talking in the vent. …

Your Honor, I could hear inmates all the way down the A range[.]” Id. at 134.

Following more discussion, Appellant stated, “I think that it would have been

more proper if he said I think it was [my] voice, not yeah, I know. He didn’t

see me talkin[g], he didn’t see my mouth movin[g]. How does he know?” Id.

at 136. The Commonwealth responded that “this is a credibility issue for the

jury to make,” and the judge agreed. Id.

Beginning with the first claim, Appellant maintains that the

Commonwealth was required to supply Officer Covert’s voice identification

pursuant to Rule of Criminal Procedure 573, which states in pertinent part:
(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.

...

(d) the circumstances and results of any identification of the
defendant by voice, photograph, or in-person identification;

...

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Pa.R.Crim.P. 573.

The Commonwealth responds that it satisfied its discovery obligations

and points out that the affidavit of probable cause included references to

Officer Covert hearing a conversation. Thus, Appellant “was certainly aware

prior to trial that the Commonwealth was going to introduce before the jury

evidence that Covert overheard Appellant through the ventilation system.”

Commonwealth’s Brief at 6.

We first set forth our determination that any challenge to the trial court’s

decision not to grant dismissal and/or a mistrial based on the Commonwealth’s

alleged discovery failures is waived. Appellant’s objection did not cite any

failure to supply discovery. Instead, Appellant argued that Officer Covert was

not qualified to render an opinion:

[Officer Covert:] ... I could hear [Appellant] from D8, hollering up
to E range to get a fishing line ready--

[Appellant]: Objection, Your Honor. I’d like to object to that.
He’s, he’s not a voice forensic analyst to testify that that was my
voice that he heard. Or even [Jones’] voice, he’s, there’s no way
that he could tell--

THE COURT: So normally we would have a foundation in terms of
how often he’s heard a person speak. He doesn’t have to be a
scientific expert but there’s got to be a foundation for his being
able to recognize the voice, before we get into the specifics of
what was said.

N.T., 11/3/21, at 55.

The Commonwealth then elicited testimony from Officer Covert

establishing how long he had worked in the jail, how many times he had

previously encountered Appellant, and the fact he had spoken with Appellant

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“[a]t least 50” times. Id. at 56. Appellant did not make any other objection,

nor did he claim that the Commonwealth violated its discovery obligations.

Thus, Appellant’s objection was limited to whether Officer Covert had a

sufficient basis to recognize Appellant’s voice, not whether the Commonwealth

had violated its discovery obligations or committed misconduct. As a result,

the trial court had no basis to grant a remedy for a discovery violation that

was not brought to its attention. See Pa.R.Crim.P. 573(E) (authorizing a

variety of remedies for discovery violations when “it is brought to the attention

of the court that a party has failed to comply with this rule”).

Even if Appellant had preserved this claim, we alternatively conclude

that Appellant could not prevail on the merits. We agree with the trial court

that Appellant has misconstrued the purpose of Rule 573, and that it does not

apply to this “identification.” Trial Court Opinion (“TCO”), 3/2/22, at 5-6.

Thus, there was no basis to grant a mistrial. By way of example, in

Commonwealth v. Jennings, 630 A.2d 1257 (Pa. Super. 1993), the

Commonwealth charged Jennings with selling drugs on the street. The

Commonwealth supplied discovery indicating that Jennings was observed

“from a ‘confidential location’” but declined to specify the exact location. Id.

at 1259. Jennings asked the trial court to force its disclosure, and the

Commonwealth disclosed the evidence to the trial court in an ex parte hearing.

The court ruled that the Commonwealth did not need to disclose the location.

On appeal, this Court held that the material was not subject to

mandatory disclosure. Citing the Comment to Rule 573, we explained that

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“identification” refers to “the defendant’s person being in some way exhibited

to a witness for the purpose of an identification: e.g., line-up, stand-up, show-

up, one-on-one confrontation, one-way mirror, etc.” Id. at 1260 (emphasis

in original). The officer’s observations were not for identification, nor was the

defendant exhibited for that purpose. “Rather, [the] observations occurred

as the result of his investigation of criminal activity purportedly taking place

in the immediate vicinity.” Id.

The same point applies here. Officer Covert did not identify Appellant

by voice for purposes of linking him to the crimes, nor was Appellant exhibited

to Officer Covert for that purpose. Appellant and his co-defendant were

identified by Officer Covert based on the discovery of suspected contraband

in their prison cell. The testimony concerning Appellant’s voice was used to

supply circumstantial evidence of his guilt, i.e., asking the jury to infer that

Appellant had constructive possession of the drugs and intended to conceal

them from the search process. As the Comment to the Rule states, the

purpose of this discovery rule is to “make possible the assertion of a rational

basis for a claim of improper identification….” Comment to Rule 573. Thus,

the Commonwealth did not violate its mandatory discovery obligations with

respect to voice identifications.2

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2 In response to the Commonwealth’s appellate argument that it complied with
its discovery obligations, Appellant has requested a remand to the trial court
to pursue a claim that the Commonwealth has now “lied to this Court[,]” and
that the District Attorney of Fayette County “is running a corrupt and illegal
organization[.]” See Application for Relief, 9/1/22. We deny the application.

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Turning to Appellant’s second point of error, he claims that he was

“ambushed” at trial and that the Commonwealth deliberately waited until trial

to elicit Officer Covert’s testimony about Appellant’s statements. We disagree,

and the case he relies upon is readily distinguishable. Appellant asserts that

Commonwealth v. Shelton, 640 A.2d 892 (Pa. 1994), is “similar to [the]

case at hand.” Appellant’s Brief at 15. Shelton involved trial by ambush.

There, the affidavit of probable cause related that “Officer Cunningham bought

drugs from an unidentified ‘black man in his late twenties’ at a suspected ‘drug

house’ located at 207 E. Penn Street, Philadelphia, Pennsylvania.” Shelton,

640 A.2d at 893. This led to a search warrant for that location. Officer

Cunningham did not participate in that search, and Shelton and several other

men were arrested. Shelton was charged with several crimes, none of which

involved the sale of drugs to Officer Cunningham.

Officer Cunningham apparently disclosed to the prosecutor on the day

of trial that Shelton was the unidentified black male who had sold the drugs.

The Commonwealth did not disclose this information to Shelton. In fact,

during pre-trial motions that took place after the prosecution learned of the

identification, the Commonwealth objected when Shelton attempted to

ascertain whether anyone had ever linked him to any drug activity prior to the

execution of the search warrant. “It was not until his opening statement that

the prosecutor mentioned that Officer Cunningham would testify that

[Shelton] had sold drugs to Officer Cunningham on August 29, 1989.” Id. at

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895. Shelton moved for mistrial or a continuance on the basis that the

Commonwealth violated its discovery obligations concerning identifications.

Our Supreme Court held that the trial court erred by not granting a

mistrial, agreeing that the Commonwealth “deliberately withheld such

information …. then used the information to ambush” Shelton. Id. at 893.

None of the discovery material provided to Shelton “generated either before

or after [Shelton]’s arrest alleged that the police or anyone had ever seen

[him] selling drugs at any time.” Id. at 896. Shelton was prejudiced because

“much of defense counsel’s strategy … was designed to show that no one had

associated [Shelton] with any previous drug sales at the house.” Id.

This case does not involve any comparable type of ambush that

implicated Appellant’s ability to present his defense. The Commonwealth is

correct that the discovery material informed Appellant that he and his co-

defendant participated in a conversation that was overheard by Officer Covert.

Unlike Shelton, where the defendant was truly ambushed by the prosecutor

suddenly linking Shelton to an unrelated crime, Appellant was always linked

to the conversation. Appellant is correct that the material supplied in

discovery does not reveal the nature of the conversation. See Pa.R.Crim.P.

573(B)(1)(b) (mandating disclosure of “the substance of any … inculpatory

statement”). However, Appellant did not cite that failure as a basis for his

objection, does not raise any prejudice in that regard, and does not claim that

additional investigation would have accomplished anything; e.g. that it was

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physically impossible to send material through the pipe walk.3 Thus, any claim

premised on the failure to provide the nature of the incriminating statements

would not entitle Appellant to relief.

Turning to the third issue, we agree with the Commonwealth that

Appellant’s arguments that Officers Covert and Vernail lied due to their

conflicting police reports involves an attack on their credibility. “A mere

conflict in the testimony of the witnesses does not render the evidence

insufficient because it is within the province of the fact[-]finder to determine

the weight to be given to the testimony and to believe all, part, or none of the

evidence.” Commonwealth v. Rabold, 920 A.2d 857, 859 (Pa. Super. 2007)

(quotation marks and citation omitted). The trial court was not authorized to

determine on its own that the witnesses were lying and dismiss the case on

that basis. Thus, no relief is due on Appellant’s claim that the Commonwealth

tried him with ‘false evidence.’

Appellant’s fourth and fifth issue address the introduction of the

Pennsylvania State Police laboratory results without the testimony of the

forensic analyst who performed the test. Officer Vernail read the lab results

into evidence, and Appellant objected on the basis that his Confrontation

Clause rights were violated, which is the subject of his fourth issue. The fifth

____________________________________________

3 The trial court stated that it was familiar with the jail layout. N.T., 11/3/21,
at 134 (“I have been in [the jail] and through it[.] … I know exactly how big
the [pipe walk] is, yeah.”).

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issue is related, as Appellant contends that Officer Vernail’s statement was

inadmissible hearsay. See Appellant’s Brief at 30.

Appellant is correct that the underlying document was testimonial in

nature and therefore falls under the coverage of the Confrontation Clause.

See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009) (holding

that document “reporting the results of forensic analysis which showed that

material seized by the police and connected to the defendant was cocaine”

was a testimonial statement by an accusatory witness).

The Melendez-Diaz decision recognized, however, that “notice and

demand” statutes are constitutional. “In their simplest form, notice-and-

demand statutes require the prosecution to provide notice to the defendant of

its intent to use an analyst’s report as evidence at trial, after which the

defendant is given a period of time in which he may object to the admission

of the evidence absent the analyst’s appearance live at trial.” Id. at 326.

Because a defendant "always has the burden of raising his Confrontation

Clause objection,” these statutes are constitutional as they “simply govern the

time within which he must do so.” Id. at 327 (emphasis in original). These

“pure” notice-and-demand schemes are constitutional. Id. at 327 n.12.

Rule of Criminal Procedure 574 establishes a pure notice-and-demand

procedure and was enacted following Melendez-Diaz. Comment to

Pa.R.Crim.P. 574. The Commonwealth replied to Appellant’s objection about

his Confrontation Clause rights being violated by citing its compliance with

Rule 574. Appellant claims that the Commonwealth lied, because the rule

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requires the Commonwealth to “file and serve, as provided in Rule 576, upon

the defendant’s attorney or, if unrepresented, the defendant a written notice.”

Pa.R.Crim.P. 574. The filing provisions of Rule 576 state, inter alia, that “any

notices … for which filing is required, shall be filed with the clerk of courts.”

Pa.R.Crim.P. 576(a)(1). The clerk of courts, upon receipt, “shall time stamp

it with the date of receipt and make a docket entry reflecting the date of

receipt, and promptly shall place the document in the criminal case file.”

Pa.R.Crim.P. 576(a)(3).

Appellant correctly states that the docket does not reflect a Rule 574

notice. When Appellant claimed at the close of the Commonwealth’s case that

he never received a notice, the Commonwealth represented to the trial court

that its notice “was dated June 7th of 2021[] to [Appellant,] and to the Public

Defender’s Office, same date[ of] June 7, 2021.” N.T., 11/3/21, at 107.

Jones’ attorney informed the court, “In any case, Judge, we have it marked

received … 6/17/21.” Id.4 The trial court credited the Commonwealth’s

representations that the notice was sent. Id. at 126 (“[T]he [c]ourt’s

persuaded the Commonwealth provided the notice[.]”). Appellant does not

cite any authority for the proposition that the failure to comply with the

procedural requirements of Rule 574 precludes the admission of the report.

See Commonwealth v. Johnson, 985 A.2d 915 (Pa. 2009) (concluding

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4The criminal docket for Jones’ case is unavailable on the Common Pleas Case
Management System. We therefore cannot determine whether Jones’ docket
contained a notation that the notice was sent.

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argument that a prosecutor’s comment deprived the appellant of a fair trial

was waived for failing to cite and develop argument). Appellant does not

explain why actual notice would not suffice. Thus, we deem this argument

waived.

Due to our disposition, Appellant’s separate claim that the evidence was

inadmissible hearsay necessarily fails. Pa.R.Crim.P. 574(B)(3) (“Except as

provided in paragraph (C), the laboratory report and accompanying

certification are admissible in evidence to the same effect as if the person who

performed the analysis or examination had personally testified.”).

Appellant’s final claim raises various challenges to the sufficiency of the

evidence for each conviction. Our standard of review is well-settled:
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the [fact-finder] to find every element
of a crime beyond a reasonable doubt.

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations

and quotation marks omitted).

Appellant’s overarching argument is that the Commonwealth failed to

establish possession of the synthetic marijuana, which is a common element

to his convictions for contraband and possession of a controlled substance.

Because Appellant did not possess the items on his person, the

Commonwealth was required to establish constructive possession.
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. Constructive
possession is an inference arising from a set of facts that

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possession of the contraband was more likely than not. We have
defined constructive possession as conscious dominion. We
subsequently defined conscious dominion as the power to control
the contraband and the intent to exercise that control. To aid
application, we have held that constructive possession may be
established by the totality of the circumstances.

Commonwealth v. Hopkins, 67 A.3d 817, 820 (Pa. Super. 2013) (citation

omitted).

Beginning with his conviction for possession of controlled substances,

we conclude that the Commonwealth presented sufficient evidence. Appellant

first contends that the items may have been planted, based on his earlier (and

rejected) arguments that the Commonwealth’s witnesses lied. See

Appellant’s Brief at 46 (“Appellant did not have the contraband on his person

nor[] … knowledge the contraband was in his cell (if contraband was truly

f[o]und at all).”). We may not override the jury’s credibility findings.

Appellant separately argues that the Commonwealth failed to establish

constructive possession because his cell was accessible to several other

inmates. Significantly, Officer Covert, the only eyewitness presented by the

Commonwealth, testified that the door to Appellant and Jones’ cell was

broken. The “sliding mechanism was broken[,]” and the maintenance staff

simply used “a chain and a padlock and [kept] it open.” N.T., 11/3/21, at 51.

During a lockdown, the inmates are locked in their cells, and the doors are

locked. Appellant and Jones’ door remained open “at all times … due to

emergency evacuation procedures and what not, it’s always open.” Id. at 67.

Thus, “anybody could have gone in or out” of Appellant and Jones’ cell. Id.

at 68. Office Covert agreed that he could not answer whether any other

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inmate went in and out of the cell before his arrival. Id. However, while

Appellant and Jones’ cell remained open, all other doors were locked. Id. at

70.

We agree that it is plausible that another inmate, either at some point

during the day or upon initiation of the lockdown procedure, could have thrown

the items into Appellant and Jones’ open cell. The Commonwealth failed to

present any evidence concerning how many inmates were milling about the

open area prior to the lockdown, did not review nor preserve video evidence

that showed Appellant’s cell, and did not establish whether the inmates were

supervised as they made their way back to their cells. In the absence of any

other circumstantial evidence, Officer Covert’s concession that any inmate

could have gone in or out of the cell would support a strong argument that

the evidence was insufficient to establish constructive possession. But

Appellant entirely disregards the circumstantial evidence tying him to the

contraband, namely Officer Covert overhearing Appellant’s statements. Those

statements supplied sufficient evidence to establish Appellant’s conscious

dominion over the controlled substances. As the trial court remarked in its

opinion, Officer Covert’s testimony was critical as Appellant had a distinctive

voice. “Officer Covert testified that he knew the Appellant’s voice. The [c]ourt

noted that the Appellant’s voice is very distinctive.” TCO at 5. Appellant’s

statements established that he intended to send the contraband up to another

inmate, which establishes Appellant’s awareness of the substances and his

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intent to conceal them from Officer Covert’s search. The evidence is therefore

sufficient to establish constructive possession.

Regarding Appellant’s conviction for contraband, Appellant also argues

that the Commonwealth failed to present any evidence that he brought the

synthetic marijuana into the jail. Appellant is correct that a charge under

subsection (a) of contraband would fail. That statutory language reads:

(a) Controlled substance contraband to confined persons
prohibited.--A person commits a felony of the second degree if
he sells, gives, transmits or furnishes to any convict in a prison,
or inmate in a mental hospital, or gives away in or brings into any
prison, mental hospital, or any building appurtenant thereto, or
on the land granted to or owned or leased by the Commonwealth
or county for the use and benefit of the prisoners or inmates, or
puts in any place where it may be secured by a convict of a prison,
inmate of a mental hospital, or employee thereof, any controlled
substance included in Schedules I through V of the act of April 14,
1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act, (except the ordinary hospital
supply of the prison or mental hospital) without a written permit
signed by the physician of such institution, specifying the quantity
and quality of the substance which may be furnished to any
convict, inmate, or employee in the prison or mental hospital, the
name of the prisoner, inmate, or employee for whom, and the
time when the same may be furnished, which permit shall be
delivered to and kept by the warden or superintendent of the
prison or mental hospital.

18 Pa.C.S. § 5123(a) (footnote omitted). Appellant is correct that the

Commonwealth presented no evidence to establish that Appellant himself

brought the contraband into the jail, or sold, gave, furnished, or transmitted

the controlled substances. However, the contraband statute separately

codifies mere possession of controlled substances by an inmate.

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(a.2) Possession of controlled substance contraband by
inmate prohibited.--A prisoner or inmate commits a felony of
the second degree if he unlawfully has in his possession or under
his control any controlled substance in violation of section
13(a)(16) of The Controlled Substance, Drug, Device and
Cosmetic Act. For purposes of this subsection, no amount shall
be deemed de minimis.

18 Pa.C.S. § 5123(a.2) (footnote omitted).

The criminal information does not reference Section 5123(a.2). Instead,

it cites and quotes Section 5123(a). However, the information adds the

following language after the last sentence of Section 5123(a): “to wit, the

defendant[,] an inmate at the Fayette County Prison[,] did possess K2[,] … a

Schedule I Controlled Substance.” Criminal Information, 5/6/21, at 1. The

trial court’s instructions to the jury specified the crime as “Contraband

Possession by an Inmate.” N.T., 11/3/21, at 70. The instructions for this

charge were given after the charge for possession of a controlled substance,

and the judge informed the jurors that “[p]ossession by an Inmate is the same

as possession with the additional element that the person possessing it was

an inmate at a correction[al] institution.” Id. The court then again defined

possession. Finally, the verdict slip for count 1 states at the top “Count 1

Charge: Possess Contraband/Inmate.” Verdict Slip, Count 1, 11/4/21.

This situation involves a potential variance between the criminal

information and the verdict slip. We conclude that Appellant has waived any

claim regarding any variance, as he did not object to the jury instructions or

the verdict slip. See Commonwealth v. Bickerstaff, 204 A.3d 988, 997

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(Pa. Super. 2019) (holding that trial counsel was ineffective for failing to

object to variance).

Even if preserved, we would deem the claim is meritless. In

Commonwealth v. Lohr, 468 A.2d 1375 (Pa. 1983), our Supreme Court

examined a similar variance. There, the criminal information charged the

defendant with a count of forcible rape under 18 Pa.C.S. § 3121, but the jury

found him guilty of statutory rape, then codified at 18 Pa.C.S. § 3122. The

key fact was that the criminal information included averments that the victim

was thirteen years old (a fact relevant to statutory rape) and that the actor

engaged in sexual intercourse with the victim by forcible compulsion or threat

of same (a fact relevant to forcible rape). The Court denied relief, finding that

there was no variance:
We have determined that the information effectively charged both
statutory rape and forcible rape and, as such, the information was
not at variance with the proof of statutory rape adduced at trial.
The information charged that [the] appellant had engaged in
sexual intercourse with a thirteen[-]year[-]old female. The
additional allegation that the rape was nonconsensual merely
preserved the right of the Commonwealth to present evidence at
trial that the rape was forcible; it did not foreclose proof of
statutory rape. That the information refers to a specific section
number of the Crimes Code is unfortunate but not fatal. The
offense charged and on what statute it is founded is to be
determined from the allegations in the information.

Id. at 1378 (citation omitted).

We would apply the same logic here. The information effectively

charged Appellant with violating 18 Pa.C.S. § 5123(a.2), as the

Commonwealth stated that Appellant violated the statute by “possessing” the

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synthetic marijuana. Possession is relevant only to Section 5123(a.2). The

evidence presented at trial concerned possession, the jury was charged on

possession, and both subsections are graded as a felony of the second degree.

The Commonwealth’s failure to cite the correct subsection “is unfortunate but

not fatal.” See id. Thus, there was no variance. Accordingly, the

Commonwealth needed only to establish that he was an inmate and possessed

controlled substances. There is no dispute that Appellant was an inmate nor

that the substances were controlled substances as defined by law. Our

foregoing analysis of the constructive possession issue applies here, and

Appellant’s challenge fails.

However, we agree with Appellant that his conviction for conspiracy

must be discharged. Appellant argues the “mere fact that Appellant shared a

cell with Jones [does not per se] establish conspiracy.” Appellant’s Brief at

49. Additionally, the “[j]ury did not believe the Commonwealth established a

conspiracy between Appellant and Jones[.] … [T]he jury found [J]ones not

guilty of all charges.” Id. We are guided by the following principles:
To convict a defendant of conspiracy, the trier of fact must find
that: (1) the defendant intended to commit or aid in the
commission of the criminal act; (2) the defendant entered into an
agreement with another (a “co-conspirator”) to engage in the
crime; and (3) the defendant or one or more of the other co-
conspirators committed an overt act in furtherance of the agreed
upon crime. 18 Pa.C.S. § 903. The essence of a criminal
conspiracy, which is what distinguishes this crime from accomplice
liability, is the agreement made between the co-conspirators.

Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to establish
that a defendant was part of a conspiratorial agreement to commit

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the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or
the conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is
almost always proven through circumstantial evidence, such as by
the relations, conduct or circumstances of the parties or overt acts
on the part of the co-conspirators. Once the trier of fact finds that
there was an agreement and the defendant intentionally entered
into the agreement, that defendant may be liable for the overt
acts committed in furtherance of the conspiracy regardless of
which co-conspirator committed the act.

Commonwealth v. Dunkins, 229 A.3d 622, 633 (Pa. Super. 2020) (quoting

Commonwealth v. Golphin, 161 A.3d 1009, 1018-19 (Pa. Super. 2017)).

With respect to the effect of Jones’ acquittal, we note that our Supreme

Court has rejected the common law “rule of consistency,” which acts as an

exception to the usual precept that juries may return inconsistent verdicts.

The rule had “steadily been narrowed to apply only to the type of case before

us now, where the acquittal and conviction are decided in the same trial.”

Gov't of Virgin Islands v. Hoheb, 777 F.2d 138, 140 (3d Cir. 1985).

However, the rule was effectively eliminated by our Supreme Court in

Commonwealth v. Campbell, 651 A.2d 1096 (Pa. 1994) (holding that

“consistency in verdicts in a joint trial for conspiracy is not necessarily

required”). We thus do not determine that the jury’s acquittal of Jones

requires discharge of Appellant’s conspiracy conviction. Nor do we determine

that the jury’s acquitting Appellant of conspiracy to commit contraband

requires discharge, for that same reason. We simply conclude that the

Commonwealth has failed to establish that Jones acted as a co-conspirator.

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Campbell, 651 A.2d at 1099 (stating that “the convicted conspirator can

always challenge his conviction upon sufficiency of the evidence grounds”).

In terms of criminal conspiracy, the alleged agreement between the

conspirators must be designed to commit a particular crime. In these

circumstances, the only crime alleged by the Commonwealth via the two

separate conspiracy charges was a conspiracy to commit mere possessory

offenses. As the jury acquitted Appellant of a conspiracy to commit

contraband, the remaining conspiracy was an agreement to commit the crime

of possession.

Since the Commonwealth’s conspiracy charge limited the scope of the

conspiracy to possessing the synthetic marijuana, the Commonwealth was

required to establish that Jones, the only other potential participant, entered

into an agreement with Appellant relating to possession. We agree with

Appellant that the Commonwealth failed to establish any such agreement

between co-conspirators. Simply put, the Commonwealth presented

insufficient evidence to establish that Jones had any involvement in these

crimes beyond his mere presence in the cell. As elaborated upon supra, the

Commonwealth’s case was significantly weakened by the fact that Appellant

and Jones’ cell door was inoperable and always remained open.

As with Appellant’s possessory conviction, to establish the conspiratorial

agreement alleged herein, the Commonwealth was required to establish that

Jones constructively possessed the controlled substances. It is well-settled

that “where more than one person has equal access to where drugs are stored,

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presence alone in conjunction with such access will not prove conscious

dominion over the contraband.” Commonwealth v. Davis, 480 A.2d 1035,

1045 (Pa. Super. 1984) (citation omitted). In Commonwealth v. Mercado,

617 A.2d 342 (Pa. Super. 1992), this Court deemed the evidence insufficient

to support a finding of constructive possession:
In the present case, the Commonwealth’s evidence consisted of
the following: the police observation of [the] appellant, leaning
out the third floor window of the house where a planned “buy” was
made, watching a drug transaction transpire between police and
[the] appellant’s alleged co-conspirator; the observation of [the]
appellant and his alleged co-conspirator in the same position
fifteen minutes later, at which time there was no sight of criminal
dealing; and the presence of [the] appellant between the first and
second floor of the house at the time police uncovered contraband
in the third floor apartment. We find this evidence insufficient to
support a finding of constructive possession.

Id. at 345. We determined that “[Mercado]’s silent observation of a previous

drug transaction is not enough to transform his presence in the house at the

time of the search into an exercise of conscious dominion over the drugs

confiscated by the police.” Id.

Similarly, the mere presence of contraband in Jones’ cell could not

establish constructive possession. We obviously cannot speculate as to why

the jury totally acquitted Jones, but whatever its rationale, the jury reached

the correct result. We conclude that nothing tied Jones to the contraband

beyond his mere presence. Accordingly, Jones could not be a co-conspirator

of a conspiracy to possess contraband. Appellant is therefore entitled to

discharge. Because the trial court did not impose any sentence at this count,

we need not remand for resentencing.

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Judgment of sentence for conspiracy to commit possession reversed.

Judgments of sentence for contraband and possession of a controlled

substance affirmed. Motion for remand denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2023

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