Commonwealth v. Cassell, III, C., Aplt.
CourtSupreme Court of Pennsylvania
Date FiledOctober 13, 2026
Docket22 MAP 2025
JudgeWecht, David N.
StatusPublished
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Full Opinion
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 22 MAP 2025
:
Appellee : Appeal from the Order of the
: Superior Court at No. 993 MDA
: 2023 dated September 24, 2024,
v. : Affirming the Judgment of
: Sentence of the York County
: Court of Common Pleas, Criminal
CHARLES CLAYTON CASSELL III, : Division, at No. CP-67-CR-
: 0000378-2022 dated May 1,
Appellant : 2023.
:
ARGUED: March 12, 2026
COMMONWEALTH OF PENNSYLVANIA, : No. 23 MAP 2025
:
Appellee : Appeal from the Order of the
: Superior Court at No. 1247 MDA
: 2023, dated October 1, 2024,
v. : Affirming the Judgment of
: Sentence of the York County
: Court of Common Pleas, Criminal
JERROD AARON SCOTT, : Division, at No. CP-67-CR-
: 0000858-2021 dated June 1,
Appellant : 2023.
:
: ARGUED: March 12, 2026
CONCURRING OPINION
JUSTICE WECHT DECIDED: October 13, 2026
Many cases that come before this Court require us to parse imprecise statutory
language in order to comprehend the General Assembly’s meaning. These two cases do
not fall into that category. The appeals here turn upon what it means to “deliver” a
controlled substance. The General Assembly has supplied a clear mandate: “‘Deliver’ or
‘delivery’ means 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.”1
It is common for two or more people to buy and use drugs together. Often, the
members of the group will hand drugs and paraphernalia to each other to partake. That
is, a “transfer” of controlled substances, i.e., “delivery,” may occur numerous times
throughout a session of mutual drug use. If several people are using drugs together in
this manner, and someone overdoses and dies, the other drug users—often addicts
themselves—undoubtedly are less culpable in a moral sense than the prototypical drug
dealer, who profited from this tragic form of self-destruction. But we are bound by the
plain statutory language. We cannot displace or subordinate that language in service of
our own perceptions of relative blameworthiness. As far as the drug-delivery-resulting-
in-death (“DDRD”) statute2 goes, a “delivery” is a “delivery.” The meaning of that word is
clear and well-settled. The Majority undoubtedly is correct that, absent any statutory
support, “joint acquisition and use” of controlled substances does not negate the “delivery”
element of a DDRD charge, or of the underlying drug offense incorporated into the DDRD
charge.3
1 Section 2 of The Controlled Substance, Drug, Device and Cosmetic Act (the “Drug
Act”), Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-102(b).
2 18 Pa.C.S. § 2506(a) (“A person commits a felony of the first degree if the person
intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any
controlled substance or counterfeit controlled substance in violation of section 13(a)(14)
or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance,
Drug, Device and Cosmetic Act, and another person dies as a result of using the
substance.”).
3 Specifically, as relevant here, DDRD incorporates the offense of delivery or
possession with intent to deliver a controlled substance under Section 13(a)(30) of the
Drug Act. See 18 Pa.C.S. § 2506(a); 35 P.S. § 780-113(a)(30) (prohibiting “the
manufacture, delivery, or possession with intent to manufacture or deliver, a controlled
(continued…)
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 2
I agree with the Majority’s thorough and detailed analysis, save for two points.
First, a matter of terminology. This is somewhat tangential to the issue here, but even to
identify the nature of my concern requires some explanation. The Majority frames the
issue in this case as an inquiry into whether joint acquisition and use of controlled
substances creates a “defense” to the element of delivery, which, “[i]n other words,” asks:
“is the Commonwealth required to disprove the defendant jointly acquired possession of
the controlled substances with the decedent for their personal use?”4 The Majority later
distinguishes the purported defense from an affirmative defense, which, the Majority
states, the defendant would be required to prove.5 The Majority cites no authority for
these propositions.
The Majority’s comments implicate some nuances of Pennsylvania law. It is true
that, “[t]raditionally, the defendant had the burden to prove affirmative defenses . . . by a
preponderance of the evidence.”6 However, in 1974, this Court “re-examined and
discarded the historical view.”7 In Commonwealth v. Rose, this Court discerned a
developing trend toward requiring a defendant to produce some evidence placing an
affirmative defense at issue, at which point the burden shifts to the Commonwealth to
substance by a person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating, delivering or possessing
with intent to deliver, a counterfeit controlled substance”) (emphasis added); see also
Commonwealth v. Peck, 242 A.3d 1274, 1281 (Pa. 2020) (“[A] violation of one of the
specifically referenced provisions of the Drug Act is an element of the crime of DDRD.”).
4 Maj. Op. at 13.
5 Id. at 26 n.22 (“Neither Cassell nor Scott assert joint acquisition and use is an
affirmative defense for which the defendant would bear the burden of proof.”) (emphasis
in original).
6 Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012).
7 Id. (discussing Commonwealth v. Rose, 321 A.2d 880 (Pa. 1974)).
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 3
disprove that defense beyond a reasonable doubt.8 Rose noted some support for this
trend in then-recent United States Supreme Court decisions, but it principally attributed
this Court’s course-change to the fact that, “[i]n any criminal prosecution, the
Commonwealth has an unshifting burden to prove beyond a reasonable doubt all
elements of the crime.”9
Notably, and contrary to Rose’s prediction about emerging federal law, subsequent
decisions of the United States Supreme Court made clear that, for federal constitutional
purposes, “due process permits States to place a burden on the defendant to prove an
affirmative defense by a preponderance of the evidence, so long as the defendant is not
thereby required to negate an element of the offense.”10 As a federal constitutional
matter, then, it is permissible for the legislature to place the burden to prove certain
affirmative defenses upon the defendant, and some statutory defenses do so expressly.11
Other statutes are silent as to the burden of proof.12 Adding to the complexity, Rose
8 Rose, 321 A.2d at 883-84; see Mouzon, 53 A.3d at 741-42 (discussing Rose). This
paradigm remains for, e.g., self-defense. See Commonwealth v. Torres, 766 A.2d 342,
345 (Pa. 2001) (“When a defendant raises the issue of self-defense, the Commonwealth
bears the burden to disprove such a defense beyond a reasonable doubt.”); see also id.
(referring to self-defense as an “affirmative defense”).
9 Rose, 321 A.2d at 884; see also Mouzon, 53 A.3d at 742 (“The Rose Court
attributed this break from precedent to the never-shifting burden of the Commonwealth to
prove the elements of a crime beyond a reasonable doubt.”).
10 Mouzon, 53 A.3d at 743 (discussing Dixon v. United States, 548 U.S. 1 (2006)
(duress); Martin v. Ohio, 480 U.S. 228 (1987) (self-defense); Patterson v. New York, 432
U.S. 197 (1977) (extreme emotional disturbance)).
11 See, e.g., 18 Pa.C.S. § 315(a) (insanity) (“The mental soundness of an actor
engaged in conduct charged to constitute an offense shall only be a defense to the
charged offense when the actor proves by a preponderance of evidence that the actor
was legally insane at the time of the commission of the offense.”) (emphasis added).
12 See, e.g., 18 Pa.C.S. § 309 (duress) (“It is a defense that the actor engaged in the
conduct charged to constitute an offense because he was coerced to do so by the use of,
(continued…)
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 4
remains good law in Pennsylvania as a general matter.13 Thus, it is not entirely accurate
for the Majority to suggest that, if the purported defense at issue in these appeals were
classified as an “affirmative defense,” then the “defendant would bear the burden of
proof.”14 At the very least, that is not the whole story. Indeed, in light of these nuances
of Pennsylvania law, the Majority’s various comments about the significance of a
“defense” as triggering a particular burden to prove (or disprove) a relevant fact warrants
further elaboration, or at least a citation to some authority.15 The matter is more
complicated than the Majority suggests.
Turning to the substance of these appeals, I disagree with the Majority’s discussion
of “constructive” transfer and its application of that concept to the facts of these appeals.
Early in its opinion, the Majority correctly quotes from this Court’s decision in
Commonwealth v. Murphy, which fleshed out the relevant terms in the statutory definition
of “delivery.”16 Murphy explained that a “defendant actually transfers drugs whenever he
or a threat to use, unlawful force against his person or the person of another, which a
person of reasonable firmness in his situation would have been unable to resist.”).
13 Indeed, in light of the intersection between constitutional principles, statutory
requirements (or statutory silence), and case law pointing in different directions, the
Criminal Jury Instructions Subcommittee has described the assignment of burdens of
proof for defenses as a “matter of considerable complexity”; the subcommittee felt it
necessary to provide a lengthy “general research study” on the topic embedded within
the suggested criminal jury instructions. See Pennsylvania Suggested Standard Criminal
Jury Instructions, § 8.00, Information for The Court on The Burden of Proof (4th ed.,
Revised September 2024). Helpfully, at the end of that research study, the subcommittee
provided a chart of statutory defenses, organized by defenses as to which a statute
expressly assigns a burden of proof, defenses as to which a court has assigned the
burden of proof, and defenses as to which the burden has not yet been established.
14 Maj. Op. at 26 n.22.
15 See id. at 13, 26, 27.
16 See id. at 14 (discussing Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa.
2004)).
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 5
physically conveys drugs to another person,” and he “constructively transfers drugs when
he directs another person to convey drugs under his control to a third person or entity.”17
Including constructive transfer within the definition of “delivery” thus allows law
enforcement to, for instance, target a higher level actor within a criminal organization, one
who may not handle drugs or money personally, but who directs an underling to conduct
a drug transaction. Although the underling “actually” transfers the drugs, the actor who
gave the order “constructively” transferred them, and accordingly is no less responsible
for the “delivery.”
The Majority recognizes that constructive transfer is directed toward this sort of
scenario.18 However, the Majority then does something very different with the concept of
constructive transfer. Citing to a 1977 decision of the United States Court of Appeals for
the Second Circuit, the Majority claims that “an individual also may constructively deliver
drugs to another when they intentionally facilitate the sale,” or, stated otherwise, “serve[s]
‘as a link in the chain of distribution’” by, for example, “providing the funds for the drugs,
or the transportation to the dealer.”19 When the Majority later applies this new standard
to the facts of Cassell’s case, it additionally borrows some language from the Supreme
Court of California, referring to Cassell’s “active role in instigating, financing, arranging
[and] carrying-out the drug transaction” as sufficient grounds for finding constructive
transfer.20
17 Murphy, 844 A.2d at 1234.
18 Maj. Op. at 25 (“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.”).
19 Id. (quoting United States v. Swiderski, 548 F.2d 445, 450 (2d Cir. 1977)).
20 Id. at 28-29 (quoting People v. Edwards, 702 P.2d 555, 559 n.5 (Ca. 1985)).
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 6
None of this “facilitation” or “link in the chain” reasoning has any basis in existing
Pennsylvania law. The Majority certainly cites none. A half-century-old Second Circuit
decision and a footnote from a 1985 California Supreme Court opinion cannot and should
not supersede this Court’s discussion in Murphy, which gave constructive transfer a far
narrower meaning. I fear that the Majority’s reasoning could be extended to encompass
a much broader range of conduct than the General Assembly chose to address. Giving
someone a ride to a drug dealer’s house is not a constructive transfer of a controlled
substance. Neither is contributing money for the purchase. Yet, these are the primary
facts that the Majority cites to demonstrate constructive transfer in Cassell’s case—that
he “provided the funds and transportation to acquire the drugs that Smith used—the same
drugs that later caused her death.”21 On the Majority’s reasoning, it is conceivable that,
for example, exasperated parents who give their drug-addicted child fifty dollars
suspecting that the money will be used to buy drugs—an unfortunately common
occurrence—might be alleged to have constructively transferred a controlled substance.
A stronger (and from a precedent-setting perspective, more prudent) analysis
would find that, in Cassell’s case, the evidence was sufficient because, viewed in the light
most favorable to the Commonwealth as verdict-winner, it is reasonable to infer that
21 Id. at 28. The Majority’s discussion of Scott’s appeal is more opaque. The Majority
notes that “Scott obtained the drugs from his dealer and physically transferred them to
Wandell, who was acting as Savage’s agent.” Id. at 29 (emphasis added). Physical
transfer is sufficient to prove actual transfer. Yet, the Majority then concludes that “the
evidence was sufficient to prove Scott (constructively) delivered the drugs to Savage,
which resulted in his death.” Id. (emphasis added). Given the physical conveyance that
the Majority references, it is unclear why the Majority would resort to the suggestion that
Scott engaged in a constructive transfer in order to find “delivery.” The DDRD statute
does not require that the defendant deliver a controlled substance directly to the person
who dies, with no others in between. Rather, the statute requires that the defendant
commit an act that constitutes a specified violation of the Drug Act, i.e., delivery, “and
another person dies as a result of using the substance.” 18 Pa.C.S. § 2506(a). The fact
that Scott physically transferred the drugs to Wandell does not absolve him of Savage’s
death under the plain language of the DDRD statute.
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 7
Cassell physically conveyed the fentanyl to Smith while the two were using.22 Thus, there
was an “actual” transfer of a controlled substance and, in turn, “delivery.” Many of the
same facts that the Majority highlights give rise to this inference. Cassell’s text messages
demonstrated that Cassell set up the sale and purchased the fentanyl, with his money,
from his drug dealer. From the fact that Smith then used the fentanyl in Cassell’s
presence, one reasonably can infer that Cassell physically conveyed it to her. This
conclusion is further supported by Cassell’s acknowledgement, during his interview with
investigators, that he “let” Smith use “as much as she wants.”23 The resolution of this
appeal can, and should, thus turn upon the straightforward concept of actual transfer.
There is no need to pursue a problematic expansion of the concept of constructive
transfer.
As a final note, I share the Superior Court’s view that, although it is foreclosed by
the plain language of the relevant statutes, the appellants’ argument in these appeals has
a certain “commonsense appeal.”24 Unfortunately, the statutory law of this
Commonwealth sometimes lacks common sense. The General Assembly does not
violate the Constitution when it violates common sense. It is undoubtedly true that the
DDRD statute was meant to target drug dealers, not drug users. As a policy matter, few
22 See Commonwealth v. Peters, 355 A.3d 1270, 1279 (Pa. 2026) (quoting
Commonwealth v. Chisebwe, 310 A.3d 262, 267 (Pa. 2024)) (“In conducting sufficiency
review, we consider whether the evidence introduced at trial and all reasonable
inferences derived therefrom, viewed in the light most favorable to the Commonwealth as
verdict winner, are sufficient to establish the elements of the offense beyond a reasonable
doubt.”).
23 Commonwealth’s Trial Exhibit 34, Transcript of Recorded Interview, at 14 (Cassell
stating: “But she used more than I did. Because I always let her – if we are doing stuff, I
let her take as much as she wants.”).
24 Commonwealth v. Scott, 325 A.3d 844, 852 (Pa. Super. 2024).
[J-12A-2026 and J-12B-2026] [MO: McCaffery, J.] - 8
would disagree that “drug dealers should be punished more harshly than drug users.”25
Yet, the use of the DDRD statute in these cases places common drug users on the same
plane of culpability as drug dealers. This is a situation in which the spirit of the law is in
considerable tension with its text. Yet, it is the latter that binds us. Where, as here, the
applicable statutory language is crystal clear, “the letter of it is not to be disregarded under
the pretext of pursuing its spirit.”26
I concur in the result.
Chief Justice Todd joins this concurring opinion.
25 Maj. Op. at 29.
26 1 Pa.C.S. § 1921(b).
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