J-S01008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

OBATAIYE KAREE SCOTT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

* 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 courtordered 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 crossexamination 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, showup, 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 codefendant 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-anddemand 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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4 The 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 coconspirators 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 coconspirator. 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