Commonwealth v. Cassell, III, C., Aplt. - No. 22 MAP 2025

[J-12A-2026 and J-12B-2026]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
CHARLES CLAYTON CASSELL III,
Appellant
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No. 22 MAP 2025
Appeal from the Order of the
Superior Court at No. 993 MDA
2023 dated September 24, 2024,
Affirming the Judgment of
Sentence of the York County
Court of Common Pleas, Criminal
Division, at No. CP-67-CR-
0000378-2022 dated May 1,
2023.
ARGUED: March 12, 2026
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
JERROD AARON SCOTT,
Appellant
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No. 23 MAP 2025
Appeal from the Order of the
Superior Court at No. 1247 MDA
2023, dated October 1, 2024,
Affirming the Judgment of
Sentence of the York County
Court of Common Pleas, Criminal
Division, at No. CP-67-CR-
0000858-2021 dated June 1,
2023.
ARGUED: March 12, 2026
OPINION
JUSTICE McCAFFERY DECIDED: October 13, 2026

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The crimes of drug delivery resulting in death (DDRD)1 and possession with intent
to deliver controlled substances (PWID)2 both require proof that the defendant “delivered,”
or intended to deliver, drugs to another. In these discretionary appeals, we consider
whether the fact that the defendant and the decedent jointly acquired and used the drugs
together is a defense to the element of “delivery.” As will be discussed, we conclude that
the General Assembly’s broad definition of “delivery” in the Controlled Substance, Drug
Device, and Cosmetic Act (the Drug Act)3 does not permit such a defense because the
Drug Act does not differentiate between drug dealers and co-users for purposes of
delivery of illegal narcotics. Accordingly, in both cases, we affirm the judgments of
sentence.
I. FACTS & PROCEDURAL HISTORY THROUGH SENTENCING
A. Commonwealth v. Cassell, 22 MAP 2025
On October 22, 2020, Angelique Smith left a drug rehabilitation facility in
Lancaster, Pennsylvania. She had no money or cell phone. Around midday, Smith met
Jena Parrish at a local convenience store. Parrish, who did not know Smith before this
encounter, described Smith as “really anxious” and “pacing back and forth like she
needed something.” N.T., 3/20-22/2023, at 255. Smith told Parrish that she “wanted to
go back to York” and was “looking to get high[.]” Id. at 262, 265. She asked Parrish to
get her “dope” but Parrish declined. Id. Parrish, who lived near the store, allowed Smith
to stay on her front porch and use her cell phone periodically throughout the night and
next morning.
1 18 Pa.C.S. § 2506.
2 35 P.S. § 780-113(a)(30).
3 35 P.S. §§ 780-101-780-144.

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Parrish’s cell phone logs revealed Smith texted and called Appellant, Charles
Clayton Cassell, III, multiple times that evening and into the next morning. Cassell, who
was 30 years older than Smith, described himself as “more than just a boyfriend[;]” he
was her “protector.” Commonwealth Exhibit 34 (Cassell Police Interview, 10/26/2020) at
7, 14. In the text messages, Smith told Cassell she did not have any money and needed
someone to pick her up so she could meet up with him in York. He texted that he would
“have a guy get” her and asked, “do u want to use[?]” Commonwealth Exhibit 24(a)
(Cellebrite Extraction Report) at 3. Smith responded, “Yes [I] want to use[.]” Id. Mid-
morning on October 23rd, Cassell arranged for an Uber driver to transport Smith to a
supermarket parking lot in York, where Cassell was waiting for her in his car.
Cassell’s cell phone records revealed he had “multiple conversations” with other
individuals — one of whom was Chase Smith4 — in an “attempt to get drugs.” N.T., 3/20-
22/2023, at 184. At 1:16 p.m., Cassell sent the following text message to Chase: “Where
can I meet you, I have $40. And I’m sick[.]” Commonwealth Exhibit 24(b) at 2. Chase
responded, “My house sorry man[.]” Id. Cassell texted that he was “on [his] way[.]” Id.
The location data from Cassell’s cell phone revealed he then drove in a “direct
route” toward Chase’s house. N.T., 3/20-22/2023, at 245. Chase did not testify at trial,
but he was charged with, and ultimately pled guilty to, the sale of drugs to Cassell. See
id. at 187. From there, Cassell parked his car behind an apartment building, and he and
Smith “got high” for the first time that day, sharing a bag of what they believed to be
heroin.5 Cassell Police Interview at 9, 36. About two and one-half hours later, Cassell
and Smith “shot … up” again near a park. Id. at 14-15, 37. Cassell told police that Smith
4 It appears that Chase Smith was not related to Angelique Smith. For ease of reference,
we will refer to him as “Chase.”
5 Post-mortem testing of Smith’s blood revealed only fentanyl.

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“used more than [he] did [b]ecause [he] always let her … take as much as she wants.”
Id. at 14.
Although initially Smith was happy and screaming, she soon took a turn — her
“head went down” and her lips started turning blue. Cassell Police Interview at 15-16.
Cassell stopped the car, pulled Smith out, and attempted to resuscitate her. When Smith
appeared to be breathing on her own, Cassell returned her to the car and drove to a
nearby parking lot. He explained he did not call for help because Smith had outstanding
warrants and told him she would kill herself if she had to go back to jail. Soon thereafter,
“everything shut down” and Smith stopped breathing. Id. at 17. Although Cassell tried to
give her CPR again, he was unsuccessful. When he saw “bile coming out of her mouth
and … nose[, he] realized … that she drowned.” Id. at 18. Although he claimed he was
distraught, Cassell still did not call for help or drive Smith to a nearby hospital. Instead,
he ingested the remaining drugs and drove around until he discarded the paraphernalia.
He finally called 911 about an hour later.
Cassell was subsequently charged with third-degree murder, DDRD, criminal use
of a communication facility, tampering with evidence, recklessly endangering another
person, and PWID.6 The third-degree murder charge was based on his purported delivery
of the drugs to Smith, which led to her death, as well as the fact that he prevented her
from receiving medical assistance when he knew she was in need of care. See Criminal
Information, 2/10/2022, at 1 (unpaginated).
Cassell proceeded to a jury trial. Before the court charged the jurors, Cassell
requested an instruction on joint acquisition and use of narcotics similar to a charge
approved by the United States Court of Appeals for the Third Circuit in U.S. v. Semler,
6 See 18 Pa.C.S. §§ 2502(c), 2506(a), 7512(a), 4910(1), and 2705, and 35 P.S. § 780-
113(a)(30), respectively.

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858 Fed App’x 533 (3d Cir. 2021) (unreported). See N.T., 3/20-22/2023, at 271-272. The
trial court refused the request, concluding that Semler was based on federal law. See id.
at 272. The jury convicted Cassell of all charges, and on May 1, 2023, the trial court
imposed an aggregate sentence of 23½ to 47 years’ imprisonment.
B. Commonwealth v. Scott, 23 MAP 2025
During the week leading up to June 28, 2019, Melissa Wandell and her friend, Zack
Savage, planned to purchase heroin from Wandell’s dealer, “Ro Ro.” N.T., 3/27-30/2023,
at 120-127. Savage provided the funds, and Wandell intended to trade some of her
prescription medications for drugs. See id. On Friday, June 28th, Savage arrived at
Wandell’s apartment in Dillsburg, Pennsylvania at approximately 11:00 a.m. Wandell
called Ro Ro several times but was unable to reach her. Eventually, an individual who
identified himself as Ro Ro’s son “J” answered the phone. Id. at 129. “J” later was
identified as Appellant Jerrod Aaron Scott. Scott told Wandell he could help her get drugs
if she picked him up at Hershey Medical Center. See id. at 129-130.
Savage gave the money for the drugs to Wandell and drove the two of them to
Hershey to pick up Scott. Scott got in the backseat of Savage’s car and directed him to
drive to a convenience store in Harrisburg. When they arrived, Scott went into the store
and came out with another individual. They both got in the backseat of Savage’s car.
Wandell then handed the money to Scott, who, in turn, handed it to the dealer in exchange
for fentanyl. Scott then directed Savage to drive him to several other locations, including:
another dealer to purchase crack cocaine, a Rite Aid to fill his prescription for Suboxone,7
and a third dealer to trade the Suboxone for heroin. See N.T., 3/27-30/2023, at 133-136.
The heroin, however, turned out to be more fentanyl.
7 Suboxone is a prescription medication that helps those addicted to opioids manage
cravings and reduce withdrawal symptoms. See American Addiction Centers,
https://americanaddictioncenters.org/suboxone (last accessed Jun. 25, 2026).

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Scott next led Savage to a park where the three of them could “get high[.]” N.T.,
3/27-30/2023, at 136. By this time, it was close to 7:00 p.m. Once they arrived, Scott,
Wandell, and Savage walked to a secluded location. Wandell carried the drugs and
paraphernalia for her and Savage. Scott, who carried his own drugs, got high first,
followed by Wandell. Scott soon began to overdose, and Savage had to find his way
back to the car to retrieve Narcan,8 which Scott had in a backpack he left in the car. Once
Savage returned, he and Wandell revived Scott.
At that point, Savage was angry because he purchased the drugs and had not yet
gotten high. He proceeded to snort “roughly … two bags worth of the fentanyl.” N.T.,
3/27-30/2023, at 140. Savage soon began to stumble and slur his words before passing
out. Wandell and Scott had to carry him back to the car. Scott, who was angry because
he believed Savage stole some of his drugs, dropped Savage, and Savage’s head
“slammed on the pavement.” Id. at 143.
Eventually, Scott and Wandell got Savage to the car and propped him up in the
backseat. Wandell drove to a nearby minimart, looking for water to revive Savage;
however, the store was closed. Wandell then drove Scott to another location so he could
“get a hit of crack” before they proceeded to her apartment in Dillsburg. N.T., 3/27-
30/2023, at 147. Once they arrived, Wandell checked on Savage again. However, she
left him in the backseat when she and Scott went into her apartment to continue to get
high. Wandell went back outside to check on Savage, who was passed out but still alive,
three or four more times before falling asleep around 2:30 a.m. See id. at 150-151.
8 Narcan, a brand name for Naloxone, “is a medicine that rapidly reverses an opioid
overdose.” National Institute on Drug Abuse,
https://nida.nih.gov/publications/drugfacts/naloxone (last accessed Jun. 26, 2026). It can
be purchased over-the-counter at a pharmacy. See id.

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The next morning, Wandell checked on Savage again and “thought [she] felt a
pulse.” N.T., 3/27-30/2023, at 153. She then left for an appointment at a methadone
clinic before returning about 45 minutes later. Wandell’s mother9 told her Savage “didn’t
look right.” Id. When Wandell could not feel a pulse, her mother called 911. Although
paramedics attempted to revive Savage, he was pronounced dead.
Scott was charged with third-degree murder, DDRD, access device fraud, theft,
receiving stolen property, tampering with evidence, and PWID.10 The theft-related
charges were based on allegations that, while Savage was unconscious, Scott stole
Savage’s credit card and attempted to use it.
Scott proceeded to a jury trial. During the charging conference, Scott’s counsel
(like Cassell’s counsel) requested a Semler instruction concerning “joint possession,”
because “the facts of the case support that three addicts went out to get drugs to use
together.” N.T., 3/27-30/2023, at 406-407. After reviewing the case law cited by both
defense counsel and the Commonwealth, the trial court declined to give the requested
instruction. See id. at 466 (“I don’t have any appellate Pennsylvania case law to rely on
to say that … I should give some special instruction that if they were all doing drugs
together, there couldn’t be a delivery.”). The jury convicted Scott of DDRD, PWID, access
device fraud, theft, and receiving stolen property, and acquitted him of third-degree
murder and tampering with evidence. On June 1, 2023, the trial court sentenced Scott to
an aggregate term of 9 to 18 years’ imprisonment, following by one year of probation.
9 Wandell lived with her mother.
10 See 18 Pa.C.S. §§ 2502(c), 2506(a), 4106(a)(1)(ii), 3921(a), 3925(a), and 4910(1), and
35 P.S. § 780-113(a)(30), respectively.

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II. POST-SENTENCE MOTIONS & APPEALS
Both Cassell and Scott (collectively Appellants) filed timely, nearly identical, post-
sentence motions based upon their proposed defenses of joint acquisition, possession,
and use of the controlled substances.11 They both argued the evidence was insufficient
to support their convictions of DDRD and PWID because they jointly acquired, possessed,
and used the drugs with the decedents that ultimately led to the decedents’ deaths.12 See
Cassell’s Post-Sentence Motion, 5/11/2023; Scott’s Post-Sentence Motion, 6/6/2023. For
support, Appellants cited a then-recent, unpublished Superior Court decision,
Commonwealth v. Brown, 297 A.3d 755 (Pa. Super. 2023) (unpub. memo.), which
concluded that “there could be no conveyance of possession [of narcotics] between two
parties ‘where possession was jointly acquired at the outset by both a defendant and
another user/possessor who were equal participants in the purchase.” Cassell’s Post-
Sentence Motion, at 3 (emphasis in original); Scott’s Post-Sentence Motion, at 3
(emphasis in original). Thus, Appellants argued that their joint acquisition and use of the
drugs with the decedents defeated any claim that they delivered drugs to the decedents,
a requisite element of both DDRD and PWID. Relying again on Brown and the Third
11 Although Cassell and Scott were represented by different attorneys, both attorneys
were employed by the York County Office of Conflict Counsel.
12 Cassell made this same argument in support of vacating his conviction of third-degree
murder. See Cassell’s Post-Sentence Motion, 5/11/2023, at 7. Notably, however, when
charging the jury on the offense of third-degree murder, the trial court instructed that
“[m]alice can be inferred from the failure of the defendant to seek medical care for a
victim.” N.T., 3/20-22/2023, at 321. The court never told the jury that it could find Cassell
guilty of third-degree murder simply because he allegedly delivered drugs to Smith that
led to her death. Thus, Cassell’s purported delivery of drugs to Smith might not have
been a factor in the jury’s guilty verdict on the charge of third-degree murder — instead,
the jury may have concluded that Cassell acted with malice when he drove around for
several hours while Smith was experiencing an overdose, and failed to seek aid for her.
Regardless, because we ultimately conclude joint acquisition and use of drugs is not a
defense to the element of delivery, we need not address Cassell’s third-degree murder
conviction further.

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Circuit’s decision in Semler, Appellants asserted, alternatively, that the trial court should
have granted their requests for a jury instruction on joint acquisition and use. See
Cassell’s Post-Sentence Motion, at 8-9; Scott’s Post-Sentence Motion, at 8-9. In both
cases, the trial court judge denied the post-sentence motions.
Present counsel, Anthony J. Tambourino, Esq., entered his appearance for
Appellants and filed timely direct appeals. In both appeals, counsel argued: (1) the
evidence for DDRD and PWID (and in Cassell’s case, third-degree murder) was
insufficient because the Commonwealth failed to prove the defendant delivered the drugs
which led to the decedent’s death; and (2) the trial court erred by failing to provide a jury
instruction on joint acquisition and use of controlled substances. See Commonwealth v.
Cassell, 328 A.3d 516 (Pa. Super. 2024) (unpub. memo. at *3); Commonwealth v. Scott,
325 A.3d 844, 849 (Pa. Super. 2024). In both cases, the same panel of the Superior
Court unanimously affirmed the judgments of sentence.13 See Cassell, 328 A.3d at *8;
Scott, 325 A.3d at 854.
Addressing the sufficiency claim first, the Superior Court observed that a conviction
of DDRD requires proof that the defendant intentionally delivered controlled substances
in violation of the Drug Act, and someone died as a result of using those substances. See
Scott, 325 A.3d at 850 (citing 18 Pa.C.S. § 2506(a)). Nevertheless, the Commonwealth
is not required to prove the defendant “intended to cause the death of another” — rather,
it must prove the defendant intentionally delivered the drugs and had “a reckless
disregard of death from the use of the contraband.” Id. (citation and internal quotation
marks omitted). The Court opined that the inherent dangerousness of consuming
13 Notably, the Superior Court issued an unpublished decision in Cassell and a published
opinion in Scott. With the exception of reference to the individual facts in each case, the
Superior Court opinions are virtually identical. They were both authored by Judge Beck
and joined by Judge Dubow and President Judge Emeritus Stevens. Therefore, we will
refer to the published opinion in Scott, unless discussing the specific facts in Cassell.

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fentanyl, which carries a high possibility of death, satisfies the required element of
recklessness. See id. (citing Commonwealth v. Storey, 167 A.3d 750, 758 (Pa. Super.
2017) (defendant’s sale of heroin to a third party who then gave the heroin to the decedent
was sufficient to establish recklessness for DDRD conviction)).
The Court observed, however, that Appellants specifically challenged the delivery
element of their convictions. Relying on Brown and Semler, they argued that because
they “mutually planned to acquire … and use the drugs together” with the decedents,
neither Appellant delivered the drugs to the decedent within the meaning of the DDRD
and PWID statutes. Scott, 325 A.3d at 850-851. Scott focused on the fact that each
“addict” — he, Wandell, and Savage — “had equity in the efforts to obtain drugs: Savage
contributed funds and his vehicle, Wandell contributed her contact with Scott’s mother,
… and Scott contributed his knowledge of where to get drugs in furtherance of their plan.”
Id. at 851 (citation and some internal quotation marks omitted). Scott characterized
himself as “a personal joint user, not a drug dealer.” Id. (citation omitted). Similarly,
Cassell described his relationship with Smith as personal and non-commercial —
according to him, they were “two addicts … who mutually planned to acquire and use the
drugs together.” Cassell, 328 A.3d at *5 (citation omitted).
The Superior Court refuted Appellants’ focus on joint acquisition and use by turning
to the definition of “deliver” and “delivery” in the Drug Act. Scott, 325 A.3d at 851. It noted
the Act defines the terms as “the actual, constructive, or attempted transfer from one
person to another … whether or not there is an agency relationship.” Id. (emphasis
added) (citing 35 P.S. § 780-102). The Superior Court observed that this Court has
defined “transfer” pursuant to its plain meaning — that is, a person “transfers” drugs when
they “physically convey drugs to another person” whether or not money or something of

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value is exchanged. Id. at 851-852 (citing Commonwealth v. Murphy, 844 A.2d 1288 (Pa.
2004); Commonwealth v. Metzger, 372 A.2d 20 (Pa. Super. 1977)).
Although the Court acknowledged that Appellants’ argument had “some
commonsense appeal[,]” it ultimately concluded the facts in each case were sufficient to
support the convictions, particularly considering this Court’s broad interpretation of the
term “delivery.”14 Cassell, 328 A.3d at *6; Scott, 325 A.3d at 852. With respect to Scott,
the Commonwealth proved that Scott obtained the drugs from his dealer, using Savage’s
money. See Scott, 325 A.3d at 852. He then conveyed the drugs to Wandell, Savage’s
agent. The Superior Court explained that even if there was a plan to obtain and use drugs
together, that plan was between Savage and Wandell, not Savage and Scott. In fact,
there was no evidence Savage ever intended to use drugs with Scott. See id.
With respect to Cassell, the Court focused on Cassell’s control of the situation —
he described himself as Smith’s protector, he asked if she wanted to use drugs, he paid
for her transportation, he called the drug dealer and provided the funds for the drugs, and
he “let Smith take as much as she wanted before using himself.” Cassell, 328 A.3d at *6
(citation and some punctuation omitted). To the extent Cassell argued that he and Smith
had joint “constructive possession” of the drugs, the Court concluded that “Smith may
have had access to the drugs, but she did not have control over them.” Id. (emphasis
added).
14 The Superior Court explicitly rejected Appellants’ reliance on Brown and Semler. The
Court noted Brown was a “split non-precedential decision” which affirmed the dismissal
of the charges because the Commonwealth failed to preserve its issue for review. Scott,
325 A.3d at 850 n.4. As for the unpublished Third Circuit decision in Semler, the Superior
Court explained that decision interpreted the term “distribute” in the federal drug statute.
Scott, 325 A.3d at 851 n.5. Moreover, like Brown, Semler was not unanimous — Judge
Porter issued a “lengthy concurring and dissenting opinion,” which “critiqued the majority
… for failing to abide by the plain language of the statue in favor of its own policy analysis.”
Id. (citing Semler, 858 Fed. App’x at 543-545 (Porter, J., concurring in part and dissenting
in part)).

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Next, the Superior Court rejected Appellants’ claim that the trial court erred by
denying their requests for a jury instruction on joint acquisition and use. See Scott, 325
A.3d at 853. The Court noted that the trial courts’ instruction on delivery was an accurate
reflection of the law, and the facts in each case did not support a “joint acquisition/use
charge.” Id. at 853-854; see also Cassell, 328 A.3d at *7. Accordingly, the Superior Court
declined to interfere with the trial court’s discretion to deny the requested instruction.
After rejecting the sufficiency and jury instruction claims, the Superior Court
affirmed the judgments of sentence. See Cassell, 328 A.3d at *8; Scott, 325 A.3d at 854.
III. ISSUE
Appellants petitioned this Court for allowance of appeal. In granting allocatur
review, we directed the Prothonotary to consolidate the cases and list them together. We
also rephrased the issue as follows:
When two or more persons jointly and constructively acquire and use drugs,
is that a defense to the element of “delivery” for charges of possession with
intent to deliver, drug delivery resulting in death, and third-degree murder
(where delivery of drugs was a stated element of the Information)? If so, is
the defense (1) sufficient for an acquittal of those charges, or (2), in the
alternative, is the defense sufficient to obtain a “constructive possession”
style of jury instruction?
Commonwealth v. Cassell / Commonwealth v. Scott, 336 A.3d 937, 937-938 (Pa. 2025).
IV. DISCUSSION
Before the Superior Court, Appellants framed the issue as a challenge to both the
sufficiency of the evidence supporting their convictions of DDRD, PWID, and in Cassell’s
case, third-degree murder, and the trial courts’ refusal to instruct their respective juries
on the potential defense of joint acquisition and use of controlled substances. See
Cassell, 328 A.3d at *3; Scott, 325 A.3d at 849. However, as evident in our per curiam

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order granting allocatur review, the primary — and perhaps, preliminary — question is
much broader: Is the joint acquisition and possession of controlled substances between
co-users a defense to the element of delivery necessary to prove the crimes charged?
In other words, is the Commonwealth required to disprove the defendant jointly acquired
possession of the controlled substances with the decedent for their personal use?
A. DDRD and PWID
Our analysis begins with the relevant statutory provisions, which we interpret
through the lens of the Statutory Construction Act. See 1 Pa.C.S. §§ 1501-1991.
Because statutory interpretation presents a question of law, “our standard of review is de
novo, and our scope of review plenary.” Commonwealth v. Lehman, 311 A.3d 1034, 1044
(Pa. 2024) (citation omitted).
As Section 1921(a) commands, our predominant goal is to “ascertain and
effectuate the intention of the General Assembly[,]” which is generally best expressed
through the plain language of the statute. Lehman, 311 A.3d at 1044 (citing 1 Pa.C.S. §
1921(a)-(b); Miller v. County of Centre, 173 A.3d 1162, 1168 (Pa. 2017)). When the
statutory language is clear and unambiguous, we may not disregard it “under the pretext
of pursuing its spirit.” 1 Pa.C.S. § 1921(b). It is only when the language is ambiguous
that we utilize the statutory construction factors in Section 1921(c) to determine the
General Assembly’s intent. See 1 Pa.C.S. § 1921(c). Moreover, because the statutes
here are penal provisions, we must construe them strictly, and, if there is an ambiguity,
we view the provisions “in the light most favorable to the accused.” Commonwealth v.
Booth, 766 A.2d 843, 846 (Pa. 2001) (citations omitted).
The crimes of DDRD and PWID are inextricably bound. PWID is codified in Section
780-113(a)(30) of the Drug Act, and prohibits “the manufacture, delivery, or possession
with intent to manufacture or deliver, a controlled substance by a person not registered

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under [the] act[.]” 35 P.S. § 780-113(a)(30) (emphasis added). The Act defines “deliver”
or “delivery” as “the actual, constructive, or attempted transfer from one person to
another of a controlled substance, other drug, device or cosmetic whether or not there is
an agency relationship.” 35 P.S. § 780-102 (emphasis added). Merriam Webster
Dictionary defines “transfer” as “to convey from one person, place, or situation to another”
and “to cause to pass from one to another[.]” Merriam-Webster (“TRANSFER”),
https://merriam-webster.com/dictionary/transfer (last accessed Jun. 25, 2026).
Alternatively, transfer is defined as “to make over the possession or control of[.]” Id.
Under our case law, the delivery of controlled substances may be accomplished in
several different ways. “A defendant actually transfers drugs whenever he physically
conveys drugs to another person[.]” Commonwealth v. Murphy, 844 A.2d 1228, 1234
(Pa. 2004) (citation and footnote omitted). In addition, “a defendant constructively
transfers drugs when he directs another person to convey drugs under his control to a
third person or entity.” Id. (citation omitted). In fact, a defendant need not even have an
agency relationship with the seller. Rather, an individual, acting on a buyer’s behalf, who
physically conveys drugs to a buyer may be liable as “a principle for delivering drugs[.]”
Id. at 1234 n.9 (citation omitted). As this Court found in Murphy, a defendant may also
be guilty of PWID if he is an accomplice to the drug dealer, despite the fact that he never
physically possesses or handles the drugs. In that case, the defendant aided “the
principal drug deliverer, in transferring drugs to the” buyer when he screened the buyer
to determine if the buyer was a police officer and confirmed to the dealer that the buyer
was “okay to sell drugs to.” Murphy, 844 A.2d at 1237.
A conviction of DDRD requires proof that the defendant “intentionally
administer[ed], dispense[d], deliver[ed, gave], prescribe[d, sold] or distribute[d] any
controlled substance or counterfeit controlled substance in violation of [S]ection

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13(a)(14) or (30) of [the Drug Act,15] and another person die[d] as a result of using the
substance.” 18 Pa.C.S. § 2506(a) (emphasis added).16 Thus, “a violation of one of the
specifically referenced provisions of the Drug Act is an element of the crime of DDRD.”
Commonwealth v. Peck, 242 A.3d 1274, 1281 (Pa. 2020). PWID is one of those
referenced provisions.
Accordingly, to obtain a conviction for DDRD, the Commonwealth must prove the
defendant violated the Drug Act by actually or constructively transferring controlled
substances to another person17 and the decedent died as a result of using those
controlled substances. The crime does not require proof that the defendant physically
handed the controlled substances to the decedent, or that he intended to cause the
decedent’s death. While the Commonwealth must prove the defendant intentionally
delivered the drugs to another, the mens rea required for the resulting death is
recklessness, that is, the decedent’s death must have been “a natural or foreseeable
15 See 35 P.S. § 780-113(a)(14), (30).
16 DDRD is graded as a first-degree felony but provides for a term of imprisonment up to
40 years. See 18 Pa.C.S. § 2506(b)(1). This is twice the maximum sentence permitted
for most first-degree felony convictions. See 18 Pa.C.S. § 1103(1). Presumably, the
enhanced penalty is a holdover from the provision’s enactment in 1989, when the offense
was designated as third-degree murder and carried a mandatory minimum sentence of
five years’ imprisonment. See Act of Dec. 22, 1989, P.L. 773, No. 109, imd. effective ( “A
person commits murder of the third degree who administers, dispenses, delivers, gives,
prescribes, sells or distributes any controlled substance … in violation of [the Drug Act],
and another person dies as a result of using the substance.”) (emphasis added).
However, a 2011 amendment to the Crimes Code reclassified the offense as a first-
degree felony, removed the mandatory minimum sentence, and added the maximum
penalty of 40 years’ imprisonment, the same maximum penalty for third-degree murder.
See Act of July 7, 2011, P.L. 220, No. 40, § 1, effective in 60 days; see also 18 Pa.C.S.
§ 1102(d).
17 This delivery must constitute a violation of the Drug Act. See Commonwealth v. Peck,
242 A.3d 1274, 1285 (Pa. 2020) (evidence was insufficient to convict defendant of
DDRD when the death occurred in Pennsylvania, but the underlying drug delivery was in
Maryland; “the Drug Act, by its express terms, is violated only by a drug delivery that
occurs within Pennsylvania”).

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consequence of [the defendant’s] conduct.” Commonwealth v. Kakhankham, 132 A.3d
986, 995 (Pa. Super. 2015).
Despite our broad interpretation of the term “delivery” in the PWID and DDRD
statutes, Appellants urge this Court to embrace a defense to the element of delivery which
has been recognized by some state and federal appellate courts as a derivative of
constructive possession — joint acquisition and use.18
B. Constructive Possession
“The purpose of the constructive possession doctrine is to expand the scope of
possession statutes to encompass those cases where actual possession at the time of
arrest cannot be shown but where the inference that there has been actual possession is
strong.” Commonwealth v. Carroll, 507 A.2d 819, 820 (Pa. 1986) (emphasis added)
(citing Whitebread and Stevens, To Have and To Have Not, 58 U. VA. L. REV. 751, 755
(1972)). For years, the Commonwealth utilized this “legal fiction” to establish a
defendant’s possession of contraband recovered from an area where the defendant
“shared access and control” with another, as opposed to exclusive access.
Commonwealth v. Murdick, 507 A.2d 1212, 1213-1214 (Pa. 1986). “Constructive
possession is an inference arising from a set of facts that possession of the contraband
was more likely than not.” Id. at 1213. A defendant constructively possesses contraband
if he has “the ability to exercise a conscious dominion over the illegal substance” — in
other words, “the power to control the contraband and the intent to exercise that control.”
Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983) (citations omitted). Our
decision in Macolino illustrates the doctrine in use — contraband was recovered from a
bedroom shared by the defendant and his wife. We opined that the jury could reasonably
18 Cassell and Scott, both represented by Attorney Tambourino on appeal, filed nearly
identical appellate briefs, with the exception of reference to the specific facts in each case.
Thus, to the extent their arguments align, we will address them together.

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conclude the defendant was aware of the contraband found in his bedroom, and “he
exercised a conscious dominion over [it,] and … he intended to possess it.” Id. at 136.
The fact that his wife had equal access to the bedroom was of no moment because
“[p]ossession of an illegal substance need not be exclusive; two or more can possess the
same drug at the same time.” Id.
We never have considered whether the judicially-created doctrine of constructive
possession may be employed as a defense. That, however, is exactly what Appellants
desire. According to Appellants, “the doctrine of joint constructive possession captures
the reality that individuals can share drugs without effecting a ‘delivery’ under” Section
780-102. Cassell’s Brief at 25; Scott’s Brief at 29. They maintain: “While the
Commonwealth more often invokes this ‘legal fiction’ as a sword to obtain convictions, its
use as a defendant’s shield is just as appropriate.” Cassell’s Brief at 22; Scott’s Brief at
26.
C. Joint Acquisition and Use
The argument that a defendant cannot deliver (i.e., transfer) drugs to another with
whom he has joint possession of those drugs is not novel. In fact, it has been recognized
in at least two federal Circuit Court decisions, and one unpublished Superior Court
decision.
In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit
interpreted the federal Controlled Substances Act,19 which provides that it is “unlawful for
any person knowingly or intentionally … to … distribute … a controlled substance.” 21
U.S.C. § 841(a)(1). The Controlled Substance Act defines “distribute” as “to deliver” and
— similar to our Drug Act — further defines “deliver or delivery” to mean “the actual,
constructive, or attempted transfer of a controlled substance … whether or not there
19 21 U.S.C. §§ 801-904.

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exists an agency relationship.” 21 U.S.C. § 802(8), (11) (some internal punctuation
omitted).
The Swiderski Court considered “whether joint purchasers and possessors of a
controlled substance, who intend to share it between themselves as users, may be found
guilty of the felony of possession ‘with intent to distribute’ … as distinguished from simple
possession … which is a misdemeanor.” Swiderski, 548 F.2d at 447. In that case, the
co-defendants were husband and wife who arranged to purchase cocaine for a later sale.
Both co-defendants sampled the cocaine before the purchase and commented that while
the quality “was not good enough for their personal use, … they had a buyer who would
take it.” Id. at 448. After they paid for the drugs and left the apartment where the
transaction took place, they were stopped by Drug Enforcement Agents, who had them
under surveillance. They were both charged with possession with intent to distribute
controlled substances. Despite the fact that the agents recovered drugs and a large
amount of cash from the co-defendants at the time of the stop, the co-defendants denied
that they purchased the drugs with the intent to later sell them. Rather, they claimed they
went to the apartment to get “high” and someone slipped the cocaine in the wife’s purse
when they left. Id. During their joint trial, the jury asked the court for the definition of
intent to distribute, and, in particular, whether the co-defendants could distribute the drugs
to each other, or whether there must be a third party involved. Over objection, the court
instructed the jury “that distribution could be satisfied solely by a transfer between” the
co-defendants. Id. at 449. The jury found both defendants guilty of possession with intent
to distribute.
The Second Circuit reversed on appeal. Emphasizing that Congress prescribed
more severe penalties for the commercial distribution of narcotics than for mere personal
use, the Court opined:

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[W]here two individuals simultaneously and jointly acquire possession of a
drug for their own use, intending only to share it together, their only crime
is personal drug abuse simple joint possession, without any intent to
distribute the drug further. Since both acquire possession from the
outset and neither intends to distribute the drug to a third person,
neither serves as a link in the chain of distribution. For purposes of the
Act they must therefore be treated as possessors for personal use rather
than for further distribution. Their simple joint possession does not pose
any of the evils which Congress sought to deter and punish through the
more severe penalties provided for those engaged in a “continuing criminal
enterprise” or in drug distribution.
Swiderski, 548 F.2d at 450 (emphasis added). Thus, the Second Circuit concluded the
term “transfer” in the Controlled Substances Act “was not intended to include the
exchange of physical possession between two persons who jointly acquire and hold the
drug for their own use.” Id.
More recently, two judges on the Third Circuit agreed with this line of reasoning in
Semler. See Semler, supra. In that case, Semler was charged with, inter alia, distribution
of heroin resulting in death under the federal Controlled Substances Act. Semler and the
decedent were both addicts who met in a rehabilitation center. One night, the decedent
contacted Semler asking if they could “get some” heroin. Semler, 858 Fed. App’x at 534.
Semler replied that “she knew of somewhere close,” but the decedent would have to drive
them. Id. The decedent asked Semler if she could advance the decedent “$10 worth of
heroin and provide a syringe and water bottle for injection, and Semler agreed.” Id.
(footnoted omitted). Thereafter, the decedent picked up Semler and Semler’s sister, and
drove them to West Philadelphia, where they purchased the heroin. They then proceeded
to a Kentucky Fried Chicken restaurant, where all three injected the drugs. When the
decedent began to overdose, Semler and her sister left and did not tell anyone about the
decedent’s condition. An employee later found the decedent unresponsive in the
bathroom.

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During her trial, Semler requested the court instruct the jury, inter alia, that
“individuals who jointly and simultaneously acquire possession of a controlled substance
for their shared personal use can be guilty only of simple possession.” Semler, 858 F.
App’x at 535 (footnote omitted). The court denied her request, and Semler was found
guilty of, inter alia, distribution of heroin resulting in death,20 the federal equivalent of
DDRD.
On appeal, Semler challenged the trial court’s denial of her requested instruction.
The majority first considered the language of the Controlled Substances Act, and in
particular, the meaning of the term “distribute,” which the Act defines as “to deliver.”
Semler, 858 F. App’x at 536. The majority then observed the Controlled Substances Act
defines “deliver” as “the actual constructive, or attempted transfer of a controlled
substance … whether or not there exists an agency relationship.” Id. (footnote omitted).
Accordingly, the majority stated the dispositive question was the meaning of the word
“transfer” — the government argued that it constituted “any physical handoff of drugs from
one person to another[,]” while Semler maintained there could be no transfer when “there
has been a joint acquisition or purchase of a controlled substance by a group of users to
share among themselves.” Id.
The majority decided on the latter interpretation. It emphasized the Third Circuit’s
Model Jury Instructions which defines “[d]istribute” for purposes of drug offenses as “to
deliver or to transfer … possession or control of a controlled substance from one
person to another.”21 Semler, 858 Fed. App’x at 536 (footnote omitted and emphasis in
20 See 21 U.S.C. § 841(b)(1)(C).
21 Pennsylvania’s Suggested Standard Criminal Jury Instructions for the crime of PWID
do not include this additional “possession or control” language. Rather, the Suggested
Standard Instructions for PWID state: “The term ‘deliver’ includes the [actual]
[constructive] [attempted] transfer from one person to another of a controlled substance.
(continued…)

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original). It also relied upon the “well-established” sharp distinction that Congress drew
in the Controlled Substances Act between drug traffickers and drug users. Id. at 538.
Accordingly, finding no such indication in the Act, the majority “decline[d] to find that every
physical divvying up of a small quantity of jointly purchased and shared drugs must
constitute a distribution.” Id. at 539. Based on the facts of the case before it, the majority
concluded that Semler was entitled to a joint acquisition and use jury instruction like the
charge approved in Swiderski. See Semler, 858 Fed. App’x at 540-541. Accordingly, the
majority vacated the conviction and remanded for a new trial.
Judge Porter authored a concurring and dissenting opinion, sharply criticizing the
majority’s reliance on unpersuasive policy considerations when the language of the
statute — specifically, the word “transfer” — is plain and unambiguous. See Semler, 858
Fed. App’x at 544-546 (Porter, J., concurring in part and dissenting in part). Judge Porter
highlighted the facial incongruity of the majority’s argument — the majority admitted that
“Congress intended ‘distribute’ to be construed broadly” but then employed a more narrow
construction. Id. at 545. By reading the phrase “of possession or control” into the
definition of delivery, the majority added language to the statute that Congress never
supplied or intended. Id. at 548.
As for Swiderski, Judge Porter characterized that decision as an “extreme outlier”
to which other courts have given “little weight.” Semler, 858 Fed. App’x at 551. He
asserted the Swiderski Court ignored the plain meaning of the statute and focused solely
on Congress’s intent in enacting the statute. See id. Judge Porter observed “no court in
the fifty years since the enactment of the Controlled Substances Act has held that
physically handing someone drugs is not distribution under the Act.” Id. at 552 (footnote
[A delivery may take place between two persons even though one of them is acting as
agent for the other.]” Pa. SSJI (Crim), § 16.13(a)(30)B (2024).

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omitted). Nevertheless, even if the Swiderski decision was persuasive, Judge Porter
concluded it was distinguishable because Semler “actively steered the drug transaction
from beginning to end, and [the decedent] was not an equal participant.” Id. at 554.
More recently, in Brown, Superior Court President Judge Emeritus Bender
authored a memorandum decision signaling his agreement with the Third Circuit’s
decision in Semler. See Brown, supra. In Brown, the defendant and decedent decided
to “pool[ ] their money” to purchase heroin to use together. Brown, 297 A.3d at *1 (citation
omitted). Brown contacted a high school friend who told her he could facilitate the
transaction. The decedent drove Brown to Pittsburgh to meet up with Brown’s friend.
Once there, Brown left with her friend to purchase the drugs while the decedent waited
for her in his car. After she returned, Brown and the decedent used the heroin together
in the car, and later, at the decedent’s home. The next morning, Brown discovered the
decedent had overdosed. See id. at *1-*2.
Brown was charged with, inter alia, PWID and DDRD. However, the trial court
granted her pretrial petition for a writ of habeas corpus and dismissed the charges related
to her purported delivery of drugs to the decedent. The Commonwealth appealed,
arguing the evidence was sufficient to prove Brown delivered drugs to the decedent,
which later resulted in his death. Writing for the majority, P.J.E. Bender concluded the
Commonwealth waived its sole issue on appeal because it failed to comply with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement. See Brown, 297 A.3d at *2.
Nevertheless, despite the clear finding of waiver, P.J.E. Bender cited significant
portions of the trial court’s opinion and explained — in dicta — why he agreed with the
trial court’s decision. He concluded the facts demonstrated the decedent “jointly
constructively possessed the drugs before” Brown gave him the drugs. Brown, 297 A.3d
at *9 (emphasis in original). P.J.E. Bender expressed that he was “persuaded by Semler’s

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rationale … that this joint acquisition and possession of the heroin precludes a finding
that [Brown] delivered the drugs to” the decedent. Id. at *10 (noting Brown and the
decedent “jointly and simultaneously acquired possession of a small amount of heroin for
their shared, personal use, which unfortunately killed” the decedent).
However, in addition to being non-binding dicta in an unpublished decision, P.J.E.
Bender’s approval of Semler — and its joint acquisition and use defense — is the musing
of a single judge. Judge Kunselman concurred in the result in Brown, and Judge Colins
authored a concurring and dissenting statement. Judge Colins agreed with the majority’s
determination that the Commonwealth waived the only issue presented on appeal. See
Brown, 297 A.3d at *10 (Colins, J., concurring and dissenting). However, he did “not
agree with the majority’s analysis on the merits of the Commonwealth’s appeal.” Id.
Rather, Judge Colins opined there was no evidence the decedent had constructive
possession of the heroin when it was purchased outside of his presence; instead, the
Commonwealth presented a prima facie case that Brown “delivered the drugs” to the
decedent when she “physically conveyed” them to him. Id.
While Semler and Brown applied Swiderski’s joint acquisition and use defense,
few other courts have fully adopted that line of reasoning. Indeed, most courts that have
considered the issue have distinguished Swiderski on its facts, observing that Swiderski’s
holding was “expressly limited to the passing of a drug between joint possessors who
simultaneously acquired possession at the outset for their own use.” United States
v. Wallace, 532 F.3d 126, 130 (2d Cir. 2008) (internal quotation marks omitted; emphases
added) (citing Swiderski, 548 F.2d at 450-451). See United States v. Taylor, 638 F.2d
18, 21 (1st Cir. 1982) (concluding Swiderski did not apply due to the “complex nature” of
the defendant’s marijuana operation); United States v. Washington, 41 F.3d 917, 920 &
n.2 (4th Cir. 1994) (declining to determine whether Swiderski “is good law in this Circuit”

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when facts established that although the defendant and his friends were “clearly engaged
in a joint venture[,]” the defendant collected money from his friends and went himself to
purchase cocaine, which he intended to distribute to them); United States v. Speer, 30
F.3d 605, 609 (5th Cir. 1994) (declining to “pass on the validity of the Swiderski doctrine”
when the facts established the defendants intended to distribute some of the cocaine to
another co-user who was “not at or near the scene” of the drug buy); United States v.
Clark, 634 F.3d 874, 877 (6th Cir. 2011) (explaining that “even if [the Court] were to accept
Swiderski,” the facts established that the defendant gave the drugs he stole to others, in
addition to his accomplices); United States v. Pearson, 391 F.3d 1072, 1075-1076 (9th
Cir. 2004) (explaining that “[u]nder the law of this circuit, the sharing of drugs constitutes
a distribution[;]” the Swiderski doctrine is applicable only when the “defendant acted as a
link because both [he and his co-user] had acquired possession of the controlled
substance jointly and simultaneously from the drug supplier”) (emphasis added).
Courts that have embraced the Swiderski doctrine focus on the fact that the
defendant and his co-user “were participants in the same transaction.” Weldon v. United
States, 840 F.3d 865, 867 (7th Cir. 2016) (emphasis added) (defense counsel may have
rendered ineffective assistance when he induced the defendant to plead guilty by insisting
the defendant had no defense to distribution charge; the defendant and two others pooled
their money together to purchase drugs from defendant’s dealer and one died after using
the narcotics). The California Supreme Court adopted a Swiderski-like defense to a
charge of furnishing heroin in People v. Edwards, 702 P.2d 555 (Ca. 1985). The Court
held that a person cannot be guilty of supplying heroin to another when the individuals
were “equal partners in the purchase and the purchase [was] made strictly for each
individual’s personal use.” Id. at 114 (footnote and internal quotation marks omitted;
emphasis added). Nevertheless, the California Supreme Court acknowledged that cases

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involving co-purchases by “truly equal partners” are rare. Id. at 114 n.5. The Court
explained: “Where one of the co[-]purchasers takes a more active role in instigating,
financing, arranging or carrying-out the drug transaction, the ‘partnership’ is not an equal
one and the more active ‘partner’ may be guilty of furnishing to the less active one.” Id.
D. Joint Acquisition and Use as a Defense to DDRD and PWID
Bearing in mind the broad definition of “delivery” in the Drug Act, we conclude the
General Assembly did not intend for the joint acquisition of narcotics for personal use
between two individuals to constitute a defense to PWID or — when one of those
individuals overdoses — DDRD. The one caveat to our holding is set forth clearly in the
Drug Act — the distribution of a small amount of marijuana not for sale. See 35 P.S. §
780-113(a)(31)(iii).
As explained above, the Drug Act defines the “delivery” of controlled substances
as “the actual, constructive, or attempted transfer from one person to another … whether
or not there is an agency relationship.” 35 P.S. § 780-102. The “actual” transfer of
narcotics is easy to recognize — one person physically hands drugs to another.
Importantly, however, this constitutes factual possession, not constructive possession.
A constructive transfer encompasses several scenarios. Drug dealers
constructively transfer narcotics to a buyer if they direct an underling to conduct the sale,
although the dealer never handles the drugs or the money. However, an individual also
may constructively deliver drugs to another when they intentionally facilitate the sale —
in other words, as the Swiderski Court stated, they serve “as a link in the chain of
distribution.” Swiderski, 548 F.2d at 450. This “link” may be providing the funds for the
drugs, or the transportation to the dealer. Without these actions, the transaction cannot

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occur. Thus, the General Assembly’s broadly-worded definition of delivery does not
require the Commonwealth to disprove joint acquisition and use.22
More importantly, however, the General Assembly explicitly provided a lesser
penalty for the distribution of a small amount of marijuana, not for sale in Subsection
(a)(31). See 35 P.S. § 780-113(a)(31). The delivery of a Schedule I controlled
substance23 — marijuana, heroin or fentanyl — is graded as a felony and carries a
maximum sentence of 5, 10 or 15 years’ imprisonment and a maximum fine of $15,000,
$100,000, or $250,000, depending upon the type and weight of the controlled substance
at issue.24 See 35 P.S. §§ 780-113(f)(1), (1.1), (2). However, Section 780-113(a)(31) of
the Drug Act designates a separate offense for “(i) the possession of a small amount of
marihuana only for personal use; (ii) the possession of a small amount of marihuana with
the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of
marihuana but not for sale.” 35 P.S. § 780-113(a)(31) (emphasis added). The Act
defines a “small amount” of marijuana as 30 grams or less. Id. Unlike Subsection (a)(30),
a violation of Subsection (a)(31) is graded as a misdemeanor and carries a maximum
22 Neither Cassell nor Scott assert joint acquisition and use is an affirmative defense for
which the defendant would bear the burden of proof.
23 The Drug Act defines a Schedule I controlled substance as one that has “a high
potential for abuse, no currently accepted medical use in the United States, and a lack of
accepted safety for use under medical supervision.” 35 P.S. § 780-104(1). The Act
designates heroin, fentanyl, and marijuana as Schedule I controlled substances. 35 P.S.
§ 780-104(1)(ii)(10), (23), and (iv). Despite the enactment of Pennsylvania’s Medical
Marijuana Act, which “legalized marijuana for medical purposes under Pennsylvania law,
… marijuana otherwise remains illegal” and is still denoted as a Schedule I narcotic under
the Drug Act. Green Analytics N., LLC v. Pa. Dep’t of Health, 343 A.3d 1086, 1089 (Pa.
2025). See 35 P.S. §§ 10231.101-10231.2110.
24 Notwithstanding the sentencing provision in the Drug Act, Section 7508 of the Crimes
Code provides mandatory minimum sentences for drug delivery convictions. See 18
Pa.C.S. § 7508. However, in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018), we
declared Section 7508 unconstitutional “in light of Alleyne[ v. United States, 570 U.S. 99
(2013)] and its Pennsylvania progeny.” DiMatteo, 177 A.3d at 191.

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sentence of 30 days’ imprisonment and a maximum fine of $500. See 35 P.S. § 780-
113(a)(31), (g).
The General Assembly’s inclusion of Subsection (a)(31) in the Drug Act clearly
conveys its intention to reduce the liability of individuals who share (or co-use) a small
amount of marijuana with others. The fact the General Assembly limited this exception
to possession of a small amount of marijuana speaks volumes. It could have crafted a
lesser penalty for those who share (or co-use) other controlled substances, such as
heroin or fentanyl, but it did not. Thus, considering the General Assembly’s broad
definition of delivery — both actual and constructive — as well as its reduced criminality
for the sharing of a small amount of marijuana, we conclude the General Assembly did
not intend for this Court to extend our judicially-created doctrine of constructive
possession as a defense to the delivery element of PWID and, by extension, DDRD.25
Moreover, the Commonwealth is not required to disprove joint acquisition and use, nor is
a defendant entitled to a jury instruction on joint acquisition and use as a potential
defense.
25 In her Concurring Opinion, Justice Donohue criticizes our reference to Section
113(a)(31)(iii) as an “exception” to the broad definition of delivery in the Drug Act. See
Concurring Opinion at 2. She aptly highlights that the Section 113(a)(31)(iii) prohibits the
“‘distribution’ of a small amount of marijuana but not for sale[,]” and that the Act defines
“distribute” as “to deliver[.]” Id. at 3 (citations omitted). Therefore, the definition of
“delivery”— whether pursuant to Section 113(a)(31)(iii) or Section 113(a)(30) — remains
the same.
We agree. Our discussion of Section 113(a)(31)(iii) is included solely to highlight
the fact that if the legislature intended to craft a defense, or lesser penalty, for the
“delivery” of drugs between co-users, it would have done so explicitly. Indeed, while the
Drug Act does not provide a defense to co-users of a small amount of marijuana, it does
significantly reduce the penalty for those guilty of that offense. This supports our broad
reading of “delivery” throughout the statute.

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E. Application to Appellants
Because joint acquisition and use is not a defense to the delivery element of PWID
and DDRD, we agree the trial courts properly rejected Appellants’ requests for a Semler
jury instruction. Furthermore, pursuant to the plain language of the provisions at issue,
we conclude the evidence presented in both cases supports Appellants’ convictions of
DDRD and PWID.
With regard to Cassell, the evidence established that he constructively, if not
actually, delivered the fentanyl to Smith, which resulted in her death. Smith had no
money, cell phone, or transportation. Cassell not only paid for her Uber ride to meet him
in York, he also coordinated and paid for the drugs that resulted in her overdose. He
bought the drugs from his dealer and “let [Smith] take as much as she want[ed].” Cassell
Police Interview at 14. Thus, Cassell provided the funds and transportation to acquire the
drugs that Smith used — the same drugs that later caused her death. While Cassell
argues the Commonwealth failed to prove to whom Chase physically handed the drugs26
— implying that if it were Smith, Cassell could not have delivered the drugs to her — that
fact is not controlling. As explained above, the delivery of drugs may be accomplished
by the actual or constructive transfer from one person to another. Here, Smith could
not have obtained the fentanyl at issue without Cassell. While Cassell maintains he jointly
26 Relying on the fact that Chase did not testify at his trial, Cassell argues the
Commonwealth failed “to present evidence of how the transaction occurred at Chase[’s]
residence[.]” Cassell’s Brief at 31. In Cassell’s view, therefore, there was no evidence
that he actually delivered or handed the drugs to Smith — and particularly, no evidence
he had “‘sole control’ of the drugs[.]” Id. at 32 (citation omitted). However, the facts
presented at trial established that: (1) Smith had no money, no transportation, and no cell
phone; (2) Cassell paid for Smith’s Uber ride to York; (3) Cassell repeatedly contacted
drug dealers to purchase drugs for both Smith and himself; and (4) Cassell texted Chase
that he had $40 for drugs and was on his way to Chase’s house. At the very least, Cassell
— through his actions — facilitated the delivery of drugs to Smith. Moreover, he admitted
he controlled the drugs when he told police that he “let [Smith] take as much as she
want[ed].” Cassell Police Interview at 14.

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purchased the drugs with Smith for their own personal use, he clearly took “a more active
role in instigating, financing, arranging [and] carrying-out the drug transaction[.]”
Edwards, 702 P.2d at 114 n.5. Accordingly, even absent evidence of a physical transfer,
Cassell constructively transferred the drugs to Smith. Because we agree the
Commonwealth established Cassell delivered drugs to Smith, which resulted in her death,
we conclude the evidence was sufficient to support Cassell’s convictions of PWID and
DDRD.
The evidence against Scott is even more compelling. Scott’s claim that he,
Wandell, and Savage jointly acquired the drugs that resulted in Savage’s death is
misleading. Wandell and Savage agreed to jointly purchase drugs for their own personal
use. In that relationship, both took an active role — Savage provided funds and
transportation, while Wandell provided prescription medications to trade and her drug
dealer contact. Scott was not part of this original plan. Rather, he acted as an
intermediary between Wandell and Savage and his drug dealer — Scott obtained the
drugs from his dealer and physically transferred them to Wandell, who was acting as
Savage’s agent. See N.T., 3/27-30/2023, at 132, 201. We agree with the Superior
Court’s determination that even assuming Wandell and Savage had “a mutual plan to
obtain and use drugs together[,] the facts did not establish that such a plan existed
between Savage and Scott.” Scott, 325 A.3d at 852 (citation omitted; emphasis added).
Thus, the evidence was sufficient to prove Scott (constructively) delivered the drugs to
Savage, which resulted in his death.
V. CONCLUSION
We cannot ignore the fact that Appellants’ proposed defense makes sense —
some believe drug dealers should be punished more harshly than drug users.

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Nevertheless, this type of policy determination is for the General Assembly, not the courts.
The General Assembly’s broad definition of “delivery” in the Drug Act contemplates the
crime of PWID is accomplished when one individual physically or constructively transfers
drugs to another, without regard to whether those drugs are acquired jointly for the
individuals’ personal use, with the exception of a small amount of marijuana. That is
where our legislature drew the proverbial line. While the doctrine of constructive
possession of narcotics may be used by the Commonwealth to establish that a defendant
has “the ability to exercise a conscious dominion over” a controlled substance recovered
in an area of shared access,27 it is evident our General Assembly did not intend this
judicially-created doctrine to operate as a defense to the element of delivery, when two
individuals jointly acquire drugs for their own personal use. Accordingly, we affirm the
judgments of sentence in both appeals.
Justices Donohue, Dougherty, Mundy and Brobson join the opinion.
Justice Wecht files a concurring opinion in which Chief Justice Todd joins.
27 Macolino, 469 A.2d at 134.

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