This is a discussion about the defense of impossibility with conspiracy. Please note that when a person is charged with conspiracy, factual impossibility does not bar nor diminish the capacity and the intent to agree to accomplish the criminal act. In the Commonwealth v. Timer, from 1990, the appellant argued that the Commonwealth's evidence was insufficient because it failed to disapprove impossibility. The crux of the argument, which appellant raised without support, is that since the undercover agent did not intend to actually sell the drugs to appellant, he and his companions could not have conspired to possess them. The Superior Court determined that the argument was wholly without merit. The Court commented, the evil against which the conspiracy law is aimed is the agreement of two or more persons to act in concert for a criminal purpose. The fact that the criminal purpose would not be accomplished as a factual matter does not bar nor diminish the capacity and the intent to agree to accomplish the criminal act. The police officers knowledge that he would not relinquish the drugs to the appellant does not present a defense to the formation of the conspiratorial agreement and the overt steps the conspirators took towards its accomplishment.
In the case of Commonwealth v. Ohle, from 1986, the Supreme Court rejected an appellant's argument that he should have been permitted to raise the defense of impossibility to the crimes of bribery and conspiracy. The appellant argued that the factual impossibility was based on the asserted lack of power on the part of the bribe offerer to perform the desired favor. The Court again concluded that factual impossibility is not an available defense under the crimes code for conspiracy crimes.