Com. v. Scott, O.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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