Com. v. Scott, J.
2024 Pa. Super. 232, 325 A.3d 845 (2024)
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Rule of Law:
Under Pennsylvania law, a "delivery" of a controlled substance, for the purposes of Drug Delivery Resulting in Death (DDRD) and Possession With Intent to Deliver (PWID) offenses, involves the actual or constructive transfer from one person to another, even if an agency relationship exists or if the parties intended to acquire and use drugs together, so long as a physical conveyance occurs and a mutual plan for joint acquisition/use is not clearly established between all parties involved.
Facts:
- In the week preceding June 28, 2019, Melissa Wandell and Zack Savage planned for Savage to drive Wandell to Harrisburg to buy heroin from Wandell's drug dealer, 'Ro-Ro,' for joint use, with Savage providing money and Wandell offering prescribed Klonopin and Vyvanse.
- On June 28, 2019, Savage arrived at Wandell's house, and Wandell, unable to reach Ro-Ro, spoke to Jerrod Aaron Scott ("Scott"), who identified himself as Ro-Ro's son and offered to get drugs if Wandell and Savage picked him up at Hershey Medical Center.
- Savage and Wandell picked up Scott, and Savage provided money to Wandell to hold, which she then gave to Scott. Scott directed Savage to Harrisburg where Scott exchanged the money with an unknown individual for fentanyl, which Scott then handed to Wandell.
- The trio continued to other locations where Scott facilitated the purchase of crack cocaine (for Wandell) and exchanged his Suboxone prescription for heroin, all while Savage drove, becoming frustrated by the extensive detours and waiting for Scott.
- Around 7:00 p.m., Scott, Wandell, and Savage drove to Martin Luther King Memorial Park to use drugs; Wandell carried a 'kit' and the drugs she and Savage purchased, while Scott carried his own separate drugs.
- At the park, Scott and Wandell ingested fentanyl, Scott overdosed, and Savage revived him with Narcan from the car. Savage then ingested two bags of the fentanyl and passed out, after which Scott and Wandell placed him in the back seat of the car.
- Wandell and Scott drove Savage around to other locations, including Wandell's apartment, checking on Savage multiple times but not calling 911 or seeking medical help, eventually going to sleep themselves.
- The next morning, after Wandell returned from a methadone clinic, she and her mother discovered Savage deceased in the car, and a subsequent autopsy determined the cause of death was mixed substance toxicity, including toxic levels of fentanyl.
Procedural Posture:
- Police charged Jerrod Aaron Scott with Drug Delivery Resulting in Death (DDRD), Possession With Intent to Deliver (PWID), third-degree murder, access device fraud, theft, receiving stolen property, and evidence tampering.
- The trial court (York County Court of Common Pleas) conducted a three-day trial where a jury heard evidence concerning Savage’s overdose death.
- During the charge conference, Scott’s counsel requested a jury instruction on joint use and acquisition of drugs, which the trial court denied.
- The jury found Scott guilty of DDRD, PWID, and several other crimes, but not guilty of third-degree murder and tampering with evidence.
- On June 1, 2023, the trial court imposed an aggregate sentence of seven to nineteen years of incarceration, followed by one year of probation.
- Scott filed a post-sentence motion, which the trial court denied.
- Scott filed a timely notice of appeal to the Superior Court of Pennsylvania (appellant).
- Both Scott (appellant) and the trial court complied with Rule 1925 of the Pennsylvania Rules of Appellate Procedure.
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Issue:
Does a defendant's act of facilitating a drug purchase and physically conveying the drugs to an agent of a co-purchaser constitute "delivery" under Pennsylvania's Drug Act, for purposes of Drug Delivery Resulting in Death (DDRD) and Possession With Intent to Deliver (PWID), even when the defendant claims a mutual plan for joint acquisition and use?
Opinions:
Majority - Beck, J.
No, Scott's act of facilitating a drug purchase and physically conveying the drugs to Wandell, who acted as Savage's agent, constitutes "delivery" under Pennsylvania's Drug Act, sufficient to support convictions for Drug Delivery Resulting in Death (DDRD) and Possession With Intent to Deliver (PWID), particularly since the facts did not establish a clear mutual plan for joint acquisition and use between Scott and Savage. The court affirmed Scott’s convictions, holding that under 35 P.S. § 780-102, "delivery" includes the actual or constructive transfer of a controlled substance from one person to another, regardless of an agency relationship or an exchange of money. The court cited Commonwealth v. Murphy for the principle that actual transfer occurs when a person physically conveys drugs to another. While Scott argued for a "joint acquisition and use" theory, the court found that this theory was not supported by the facts, as Savage's plan was solely to use drugs with Wandell, not Scott, and Savage was frustrated by Scott's involvement. The court emphasized that current Pennsylvania law, based on the plain language of the statute, does not provide an exemption for joint purchasers or social sharing among users where a physical conveyance occurs. The court also affirmed the trial court's refusal to issue a joint acquisition/use instruction to the jury, finding that such an instruction was not warranted given the absence of evidence supporting a mutual plan between Scott and Savage.
Analysis:
This case reinforces a broad interpretation of "delivery" under Pennsylvania's Drug Act, particularly concerning DDRD and PWID offenses, making it difficult for defendants to escape liability by claiming joint acquisition or use, especially where a clear physical transfer occurs. It highlights the Superior Court's reluctance to carve out a "social sharing" exception without explicit legislative amendment, emphasizing adherence to the plain language of the statute. This decision serves as a warning that individuals facilitating drug transactions, even among co-users, face significant legal exposure if a death results, pushing the onus for creating such exceptions onto the General Assembly. Future cases will likely continue to apply this broad definition of delivery, potentially expanding the reach of DDRD prosecutions to a wider range of participants in drug acquisition chains.
