Philadelphia Criminal Defense Blog

Zak Goldstein 10/14/26 Zak Goldstein 10/14/26

PA Supreme Court Rejects Joint Acquisition and Use Defense to Drug Delivery Resulting in Death

Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided Commonwealth v. Cassell and Commonwealth v. Scott, Nos. 22 and 23 MAP 2025 (Pa. Oct. 13, 2026), holding that two people who buy drugs together and use them together have no defense to the delivery element of possession with intent to deliver or drug delivery resulting in death. The Commonwealth does not have to disprove joint acquisition and use, and the defendant is not entitled to a jury instruction on it. Under the Court’s reading of the Drug Act, a drug user who chips in money or drives a friend to the dealer has delivered the drugs. If the friend dies, the drug user faces up to 40 years in prison.

The Facts of Cassell and Scott

A. Smith left a drug rehabilitation facility in Lancaster with no money and no phone. She texted Cassell, her boyfriend, and asked for a ride to York. Cassell paid for an Uber to bring her to York, texted a dealer that he had $40, and drove to the dealer’s house. He and Smith used together twice, and Cassell told police that he let her take as much as she wanted. Smith overdosed, and Cassell did not call 911 until about an hour after she stopped breathing. A York County jury convicted him of third-degree murder, drug delivery resulting in death, PWID, and related charges, and the court sentenced him to 23.5 to 47 years in prison.

In the second case, M. Wandell and her friend Z. Savage planned to buy heroin from Wandell’s dealer, and Savage put up the money. When Wandell could not reach the dealer, the dealer’s son, defendant Scott, answered and said he could help if they picked him up. Savage drove the three of them to Harrisburg, where Scott took the money from Wandell, handed it to a dealer, and came back with fentanyl. The three went to a park and used. Savage passed out and died the next morning in the back seat of his car. The jury acquitted Scott of third-degree murder but convicted him of drug delivery resulting in death and PWID. He received 9 to 18 years.

Both defendants asked for a jury instruction that people who jointly acquire drugs for their shared personal use do not deliver drugs to each other, relying on United States v. Semler, 858 F. App’x 533 (3d Cir. 2021), and United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977). Both trial judges refused, and the Superior Court affirmed. The Supreme Court granted allocatur and accepted the case for review.

The Supreme Court’s Ruling

The Supreme Court affirmed, rejecting the proposed defenses that they could not be guilty of drug delivery resulting in death (homicide) because they had purchased and consumed drugs together. The Drug Act defines delivery as “the actual, constructive, or attempted transfer from one person to another of a controlled substance … whether or not there is an agency relationship.” 35 P.S. § 780-102. Because the definition covers constructive transfers, the Court read it to reach anyone who helps the deal happen:

However, the Court also suggested in a broad opinion that 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.” This “link” may be providing the funds for the drugs, or the transportation to the dealer. Without these actions, the transaction cannot occur. That language is largely dicta, however, and may not be binding on future cases. There could also be causation issues with that type of analysis which were not addressed in this opinion.

The Court also relied on Section 780-113(a)(31), which makes the distribution of a small amount of marijuana not for sale a misdemeanor with a 30-day maximum. In the Court’s view, the General Assembly knew how to protect co-users and chose to protect only marijuana users:

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.

The Court admitted that the defense “makes sense” and that some believe dealers deserve harsher punishment than users. It then held that “this type of policy determination is for the General Assembly, not the courts.”

The Court found the evidence sufficient in both cases. Cassell paid for Smith’s ride, contacted the dealer, paid for the drugs, and controlled how much she took. Scott was never part of the plan between Wandell and Savage; he was a go-between who got the drugs from his dealer and handed them to Wandell, who was acting as Savage’s agent.

The Takeaway

This is a terrible decision for anyone charged after a friend’s overdose. Prosecutors rarely find the dealer in these cases. They charge the person who was in the room, usually another addict who drove, made the call, or put in a few dollars. The Court has now held that each of those acts is a delivery. The Second and Third Circuits drew a line between traffickers and users under a federal definition of delivery nearly identical to Pennsylvania’s. The Superior Court had leaned towards accepting that potential defense, as well, in a prior unpublished case. The Pennsylvania Supreme Court refused to draw it and told defendants to ask the legislature, which is unlikely to make any changes.

The facts still matter. The Court rested its sufficiency analysis on Cassell’s control of the drugs and Scott’s role as the go-between, and it quoted the California rule that the partner who takes the more active role in financing and arranging the buy may be guilty of furnishing to the less active one. A case where two people put in the same money and bought the drugs together remains open as a sufficiency argument, even without a jury instruction, and defense counsel should build that record. Cassell’s murder conviction also carries a lesson. The trial court told the jury it could infer malice from his failure to seek medical care, not from the delivery itself. Calling 911 is the one choice that can still change the outcome, both in terms of avoiding a murder charge and getting crushed at sentencing should a defendant be convicted.

Facing Criminal Charges or Appealing a Criminal Case in Pennsylvania? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 6/6/26 Zak Goldstein 6/6/26

Jury Acquits Attorney Goldstein’s Client of Third-Degree Murder in One-Punch Homicide Case

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently obtained a not guilty verdict on the charge of third-degree murder in Commonwealth v. K.F., a homicide trial in the Philadelphia Court of Common Pleas. The case arose from a widely publicized 2022 incident in which a single punch thrown outside a Center City bar caused the death of a patron who had earlier been removed from the bar. The jury found K.F. not guilty of third-degree murder, a felony of the first degree that carries a maximum sentence of 40 years’ incarceration. The jury instead convicted K.F. only of involuntary manslaughter, a misdemeanor of the first degree with a maximum sentence of five years.

This case was a tragedy for everyone involved. A 41-year-old man lost his life, and K.F. has expressed nothing but remorse for the punch that caused his death. No verdict could change that loss. But the legal question for the jury was narrow: had the Commonwealth proven beyond a reasonable doubt that K.F. acted with malice, the element that separates murder from manslaughter under Pennsylvania law? After four years of litigation, including the pre-trial dismissal of the murder charge and a Commonwealth appeal that reinstated it, the jury concluded that the answer was no.

Background

The evidence showed that in the early morning hours of April 16, 2022, K.F. was working as a security guard at a bar in Center City Philadelphia. He was not employed by the bar itself; he worked for a private security company that the bar had retained to provide security staff. That night, bar staff decided to remove a patron who had become severely intoxicated. Security guards escorted the patron outside, and he remained in the area, eventually dancing in the street in front of the bar. Another guard tried to move him out of the roadway. K.F. then walked up to the patron and punched him once in the face. The man fell, struck his head on the street, and lost consciousness. He was taken to a nearby hospital, where he died days later. The medical examiner attributed the death to complications of blunt impact injuries to the head and ruled the death a homicide.

K.F. remained at the scene. He was charged with homicide later that month and turned himself in to the police. Following a preliminary hearing in July 2022, the Philadelphia Municipal Court held him for court on a charge of third-degree murder.

The Motion to Quash

The defense moved to quash the return of transcript. A motion to quash, which is the Philadelphia term for a pre-trial petition for a writ of habeas corpus, asks the Court of Common Pleas to dismiss a charge on the ground that the Commonwealth failed to present a prima facie case at the preliminary hearing. The motion argued that the evidence could not support a charge of third-degree murder because the Commonwealth could not establish malice.

Malice requires more than carelessness or even ordinary recklessness. It exists only where the defendant acted with the intent to cause serious bodily injury or with “a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017). Involuntary manslaughter, by contrast, requires only that the defendant caused a death as the direct result of doing an act in a reckless or grossly negligent manner.

Pennsylvania courts have long recognized that a death caused by bare fists usually does not amount to murder. In Commonwealth v. Dorazio, 74 A.2d 125, 129 (Pa. 1950), the Pennsylvania Supreme Court explained that “[o]rdinarily where an assault is made with bare fists only, without a deadly weapon, and death results there would only be manslaughter.” Whether a bare-fisted assault establishes malice depends on the circumstances, including the size of the assailant, the manner in which the fists are used, the ferocity and duration of the attack, and the provocation. Id. at 130. In Commonwealth v. Thomas, 594 A.2d 300 (Pa. 1991), a single unexpected punch that knocked the decedent down and caused him to strike his head on the pavement was held insufficient to establish malice where the two men were roughly equal in size and had been drinking together.

The trial court agreed with the defense and dismissed the third-degree murder charge in December 2022, concluding that a single punch, thrown without a weapon and without more, did not establish the malice required for murder.

The Commonwealth’s Appeal

The Commonwealth appealed, and in July 2024, the Pennsylvania Superior Court reversed in a published opinion and reinstated the murder charge. The Superior Court held that there is no per se rule that a single punch can never establish malice. The question instead depends on the particular circumstances of each case. Viewing the preliminary hearing evidence in the light most favorable to the Commonwealth, as courts must at that stage, the Superior Court concluded that the Commonwealth had presented a prima facie case of malice based on the size disparity between K.F. and the decedent, the lack of provocation, and K.F.’s awareness of the decedent’s intoxication.

That ruling resolved only the question of whether the Commonwealth could take the murder charge to a jury. The prima facie standard is a low one. The Commonwealth need only produce some evidence of each element of the offense, and at that stage, the court may not weigh the evidence or assess the credibility of the witnesses. Proving malice to a unanimous jury beyond a reasonable doubt is a far more demanding task.

The Trial

The case went to trial before a jury in June 2026, more than four years after the incident. The defense did not dispute the basic facts. The punch was captured on surveillance video, and there was no question that it led to the decedent’s death. The dispute was over the degree of the homicide: whether a single punch thrown by a security guard who was dealing with an intoxicated patron reflected the conscious disregard of an extremely high risk of death or serious bodily injury that the law requires for murder, or instead the recklessness or gross negligence that makes an unintentional killing involuntary manslaughter.

The jury deliberated for a morning before returning its verdict. It found K.F. not guilty of third-degree murder and guilty only of involuntary manslaughter. Instead of a first-degree felony conviction carrying up to 40 years in prison, K.F. now awaits sentencing on a first-degree misdemeanor carrying no more than five years. Sentencing is scheduled for July 31, 2026.

Why This Result Matters

One-punch homicide cases are difficult. The harm is catastrophic and irreversible, but the conduct often involves a momentary decision rather than the cruelty, hardness of heart, or conscious disregard for human life that the law requires for a murder conviction. Pennsylvania law accounts for that difference through the degrees of criminal homicide, and the jury’s verdict in this case reflected those distinctions.

The case also illustrates how much the standard of proof matters. The Superior Court’s decision reinstating the charge meant only that the Commonwealth had produced enough evidence, viewed in the light most favorable to it, to put the question of malice to a jury. At trial, where the Commonwealth had to prove every element beyond a reasonable doubt, the jury rejected the murder charge. A defendant who loses a pre-trial motion or an appeal under the prima facie standard still has the right to hold the Commonwealth to its full burden at trial.

Finally, the result reflects the value of litigating a serious case at every stage. The motion to quash, the appeal, and the trial all turned on the same question: whether one punch, under these circumstances, amounted to malice. The defense pressed that question for four years, and the jury ultimately answered it in the negative, acquitting Attorney Goldstein’s client of murder.

Facing Criminal Charges in Pennsylvania?

Criminal Defense Attorney Zak T. Goldstein, Esquire

If you or a loved one is facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent more than a decade in prison for a crime he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Supreme Court Finds Mandatory Life Without Parole for Second Degree Murder Unconstitutional

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has just issued what may be the most significant criminal sentencing decision in decades. In Commonwealth v. Lee, No. 3 WAP 2024 (Pa. March 26, 2026), the Court held that Pennsylvania’s mandatory sentence of life imprisonment without the possibility of parole for all second-degree murder (felony murder) convictions violates Article I, Section 13 of the Pennsylvania Constitution. The decision means that every person currently serving a mandatory life-without-parole sentence for felony murder may be entitled to resentencing, and going forward, sentencing courts must conduct an individualized assessment of culpability before imposing a life sentence for felony murder. This is a landmark ruling that will affect potentially thousands of inmates across the Commonwealth. The Court, however, did not clearly rule whether the decision is retroactive. It also stayed the decision for 120 days to give the legislature time to respond and decide whether some other lesser mandatory minimum should apply.

The Facts of Commonwealth v. Lee

The case arose from a 2014 home invasion robbery in the Elliott neighborhood of Pittsburgh. Leonard Butler and Tina Chapple shared a residence with their nine-year-old son. On October 14, 2014, two men, later identified as Derek Lee and Paul Durham, entered the home armed with guns and with partially covered faces. They forced Butler and Chapple into the basement, demanded money, and used a taser on Butler. Lee, described by Chapple as “the meaner one,” pistol-whipped Butler in the face and took his watch before running upstairs. Durham remained with the couple. Butler then began to struggle with Durham over the gun, and during that struggle, a shot was fired that killed Butler.

Lee was charged with homicide, burglary, robbery, and criminal conspiracy. At trial, the jury found Lee guilty of second-degree murder (felony murder), robbery, and conspiracy. Critically, the jury found Lee not guilty of first-degree murder. In other words, the jury specifically rejected the idea that Lee had the intent to kill. Lee was not the shooter; according to the Court’s summary, the fatal shot was fired by Durham during a struggle with the victim while Lee was on a different floor of the house.

Despite the jury’s finding that Lee did not intend to kill anyone, the trial court was required by statute to sentence him to life imprisonment without the possibility of parole. Under 18 Pa.C.S. § 1102(b), a conviction for second-degree murder carries a mandatory sentence of life in prison, and under 61 Pa.C.S. § 6137(a)(1), a person serving a life sentence is ineligible for parole. The sentencing judge had no discretion, meaning they had no ability to consider Lee’s individual role in the crime, his lack of intent to kill, or any other mitigating factors.

What Is Felony Murder?

Under Pennsylvania law, second-degree murder, commonly known as felony murder, is defined as a criminal homicide committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S. § 2502(b). The qualifying felonies include robbery, rape, arson, burglary, and kidnapping. 18 Pa.C.S. § 2502(d). Unlike first-degree murder, the Commonwealth does not have to prove that the defendant intended to kill anyone. The only intent required is the intent to commit the underlying felony. The malice necessary to support a murder conviction is constructively inferred from the act of committing the dangerous felony.

This means a person can be convicted of murder and sentenced to die in prison even if they did not pull the trigger, did not intend for anyone to be hurt, and were not even in the same room when the killing occurred. At the time of this decision, only four other states, Iowa, Louisiana, Mississippi, and North Carolina, imposed a similar mandatory life-without-parole sentence for felony murder without exceptions, making Pennsylvania an outlier even among the minority of states that still use the felony murder rule aggressively. This case addressed whether such a sentence would be constitutional under the Pennsylvania Constitution.

The Eighth Amendment Claim

The Court first addressed whether mandatory life without parole for felony murder violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court concluded that it does not, at least under current United States Supreme Court precedent. The majority explained that the high Court’s categorical approach, which has been used to bar the death penalty for non-homicide offenses in Kennedy v. Louisiana, 554 U.S. 407 (2008), and to bar mandatory life without parole for juvenile offenders in Miller v. Alabama, 567 U.S. 460 (2012), has not been extended to adult defendants convicted of felony murder. While the appellant relied on cases like Enmund v. Florida, 458 U.S. 782 (1982) (barring the death penalty for felony murder defendants who did not kill, attempt to kill, or intend to kill), the Court found that this line of cases involved capital punishment specifically and has not been applied to life-without-parole sentences for adults.

The Court also considered whether a national consensus has emerged against mandatory life without parole for felony murder under the categorical approach. Noting that the number of states with similar mandatory sentencing schemes is disputed but at least a handful of states still impose such sentences, the Court concluded that a sufficient national consensus has not yet developed to support an Eighth Amendment categorical bar.

The Article I, Section 13 Claim: A Broader State Constitutional Protection

This is where the decision breaks new and critical ground. The Court conducted an independent analysis under Article I, Section 13 of the Pennsylvania Constitution, applying the four-factor test from Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), which governs when state constitutional provisions provide broader protections than their federal counterparts. And the Court concluded that Section 13 does provide broader protection in this context.

The key textual distinction is significant: the Eighth Amendment prohibits “cruel and unusual punishments,” while Article I, Section 13 prohibits “cruel punishments,” without the word “unusual.” This is not merely a semantic difference. The Court reasoned that under the Eighth Amendment’s framework, a punishment must be both cruel and unusual to be unconstitutional. A punishment that is common or widespread among the states, and therefore not “unusual,” may survive Eighth Amendment scrutiny even if it is harsh. But under the Pennsylvania Constitution, the sole question is whether the punishment is “cruel,” regardless of how many other states impose it.

The Court held that imposing a mandatory sentence of life without parole on all felony murder defendants, without any assessment of individual culpability, constitutes a cruel punishment under Article I, Section 13. The statutory scheme treats the person who planned and carried out a killing identically to the person who served as a lookout during a robbery in which an unplanned death occurred. This one-size-fits-all approach is inconsistent with the Pennsylvania Constitution’s protection against cruel punishments.

In reaching this conclusion, the Court traced the history of both the felony murder doctrine and Pennsylvania’s tradition of proportionate sentencing, going back to Pennsylvania’s landmark 1794 statute, the first in the country to divide murder into degrees, which was rooted in Enlightenment-era principles of proportionality promoted by figures like Cesare Beccaria and Benjamin Rush. The Court found that mandatory life without parole for all felony murder offenders, without any opportunity for an individualized assessment of culpability, is fundamentally at odds with this tradition.

The Remedy

The Court vacated Lee’s judgment of sentence and remanded the case for resentencing. However, the Court also stayed its order for 120 days to give the General Assembly an opportunity to enact remedial legislation establishing a new sentencing framework for second-degree murder. This is the same approach the Court has used in other cases where it has struck down a sentencing scheme, such as the juvenile lifer cases following Miller v. Alabama.

The Concurring and Dissenting Opinions

All seven justices participated in the decision, and while the result was unanimous as to the Pennsylvania constitutional holding, several justices wrote separately to elaborate on various points.

Justice Wecht wrote a concurrence providing extensive scholarly analysis of the differences in culpability between first-degree and second-degree murder, emphasizing that the felony murder rule punishes defendants who lack any intent to kill with the same severity as those who deliberately take a life. Justice Wecht also argued that foreign law should be irrelevant to the Pennsylvania constitutional analysis. This was a point of departure from the majority’s broader survey approach.

Justice Dougherty, joined by Justice McCaffery, wrote a concurrence further developing the textual analysis of why Section 13 provides broader protection than the Eighth Amendment. Justice Dougherty emphasized that because mandatory life without parole for felony murder is not “unusual” in that several states still impose it, it cannot violate the Eighth Amendment under current doctrine. But the absence of the word “unusual” from Section 13 means the Pennsylvania Constitution asks a different and more protective question.

Justice Mundy wrote separately to emphasize the limited scope of the holding: it applies only to defendants who did not kill, did not attempt to kill, and did not intend to kill. The decision does not disturb life-without-parole sentences for second-degree murder defendants who were the actual killer or who intended that someone die.

Justice Brobson concurred in the majority’s Edmunds analysis and the holding that mandatory life without parole for all felony murder offenders is unconstitutional under Section 13. However, he dissented in part from the remedy, expressing reservations about the 120-day stay and arguing that the Court should provide more specific guidance to sentencing courts on remand.

The Takeaway

This decision has enormous practical implications for criminal defendants in Pennsylvania. For those currently serving mandatory life-without-parole sentences for second-degree murder, particularly those who were not the actual killer and did not intend to kill, this decision may open the door to resentencing proceedings. Certainly, defendants will most likely want to file PCRA petitions in 120 days when the decision takes effect. It is not yet clear exactly how many inmates will be affected, but it is likely in the thousands, as Pennsylvania has one of the largest populations of people serving life without parole in the country, and a significant number of those individuals were convicted under the felony murder rule. It is not yet clear, however, whether the decision is retroactive to those whose convictions are already final, and this may be the subject of litigation. The Governor, however, has already commented that he supports the decision.

Going forward, the General Assembly will need to establish a new sentencing framework for second-degree murder that allows for individualized consideration of a defendant’s culpability. If the legislature does not act within 120 days, the courts may begin resentencing felony murder defendants without a new statutory framework in place.

For defendants facing felony murder charges now, this decision is critical. Defense attorneys should be raising the issue of individualized sentencing at every stage and arguing that a mandatory life-without-parole sentence cannot be imposed without consideration of the defendant’s specific role in the offense, intent, and other mitigating factors.

Facing Criminal Charges or Appealing a Criminal Case? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Fraud, and Murder. We have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We can also help you navigate your response to the Court’s decision if you have a loved one serving life without parole as a result of a second degree murder conviction. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.