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.

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