The Pennsylvania Supreme Court is weighing whether to add new legal protections for defendants accused of providing drugs that caused a deadly overdose.<\/p>\n
A decision from the state\u2019s highest court could address a frequent criticism of these overdose death prosecutions: that they target fellow drug users instead of high-level dealers.<\/p>\n
But some justices appeared skeptical that they \u2014 and not the legislature \u2014 have the power to change how the law works.<\/p>\n
\u201cThis case was definitely overcharged and definitely oversentenced,\u201d Justice David Wecht said in arguments earlier this year<\/a>. \u201cBut I don\u2019t see how we can do anything about it.\u201d<\/p>\n The cases highlight the emotionally charged issue in Pennsylvania, where supplying drugs in fatal overdoses has led to hundreds of state prison sentences, previous Spotlight PA investigations found<\/a>.<\/p>\n Cases with a drug delivery resulting in death charge, which carries a maximum prison sentence of 40 years, were filed more than 680 times from 2021 through 2025.<\/a><\/p>\n Pennsylvania is known as a national leader<\/a> for bringing this type of criminal charge, but prosecution rates vary widely between counties here<\/a> and grieving families are divided over whether these prosecutions do more harm than good. Supporters say these cases bring needed accountability, while critics say the fear of spending decades in prison discourages people from calling for help if someone overdoses.<\/p>\n The two cases before the Supreme Court focus on the question of what happens when people \u201cjointly and constructively acquire and use drugs,\u201d<\/a> Justices are considering whether that should be a defense for drug delivery resulting in death charges and similar offenses \u2014 and if so, whether that\u2019s sufficient for an acquittal or entitles the defense to a jury instruction that addresses the issue of joint possession.<\/p>\n The court\u2019s rulings could affect how these cases are prosecuted and defended across the state. The decisions were still pending as of early September.<\/p>\n In legal filings, defense attorney Anthony Tambourino has talked about recognizing the \u201ccommon sense reality\u201d of how people use drugs and said the drug delivery resulting in death law was \u201cnot meant to criminalize every drug handoff among co-users.\u201d He told Spotlight PA that prosecutors currently have a lot of discretion for using the charge.<\/p>\n \u201cI would hope that a favorable decision from the Supreme Court, if that\u2019s what we get, would change that and they\u2019d have to make a little more of an assessment as to who\u2019s really the drug user here, sharing drugs jointly, versus who\u2019s the drug dealer,\u201d he said.<\/p>\n Two York County cases<\/p>\n Both cases, which have been consolidated together for Pennsylvania Supreme Court arguments, involve prosecutions that occurred in York County, which has been a leader<\/a> for these types of prosecutions over multiple years<\/a>, consistently outpacing<\/a> some counties with higher populations<\/a>. Pennsylvania\u2019s attorney general, Republican Dave Sunday, was the county district attorney when both cases were originally prosecuted.<\/p>\n In one case, Jerrod Scott received a 9- to 18-year prison<\/a> sentence for drug delivery resulting in death and other convictions in connection to the 2019 overdose death of Zack Savage<\/a>. Tambourino, an attorney for Scott, argued that Scott, Savage, and another person pooled their resources to buy drugs. Savage had money and a vehicle, while Scott had dealer connections, according to the defense attorney.<\/p>\n At one point that night, Scott overdosed, and Savage administered an overdose reversal drug to him, according to court documents. Scott\u2019s \u201clife was saved\u201d by Savage, a judge later said.<\/p>\n Savage then used drugs himself, passed out<\/a>, and struck his head on pavement while Scott carried him back to the car. Scott continued using drugs with the third person in the group. The next day, emergency services were contacted but it was determined Savage was dead.<\/p>\n At his sentencing, Scott apologized multiple times: \u201cI\u2019m sorry that I couldn\u2019t or didn\u2019t do more than I did to help him.\u201d<\/p>\n In the other case \u2014 the one Wecht said was overcharged and oversentenced \u2014 Charles Cassell III<\/a> received a prison sentence of 23.5 to 47 years for drug delivery resulting in death, murder of the third degree, and other convictions in connection to the 2020 death of Angelique Smith. She was 23, and died of a fentanyl overdose a day after leaving a drug rehabilitation facility<\/a>.<\/p>\n At one point after the two used drugs, Cassell performed CPR on her and she was able to breathe on her own, according to an appellate court\u2019s summary of the case.<\/a> He then drove them \u201cto a nearby parking lot instead of getting help because he was concerned about her outstanding warrants.\u201d Cassell eventually called 911, but she was dead when emergency assistance arrived.<\/p>\n The appellate court summary noted opportunities to seek help, saying \u201cin the three hours between Smith\u2019s initial adverse reaction to the drugs and Cassell\u2019s eventual 911 call, Cassell drove his car in the vicinity of a hospital and a fire station stocked with Narcan.\u201d<\/p>\n Cassell and Smith had a \u201cco-dependent, personal relationship, not a transactional one,\u201d and they \u201chad a history of jointly buying and using drugs together,\u201d according to Tambourino<\/a>, who also represents Cassell. During Cassell\u2019s sentencing, he objected to how the prosecution portrayed him.<\/p>\n \u201cI did CPR twice on this young girl, and I\u2019m not a predator,\u201d said Cassell, now 59.<\/p>\n Tambourino works for the York County Office of Conflict Counsel, which represents clients who can\u2019t be represented by the local public defender\u2019s office due to a conflict of interest. He emphasized in comments to Spotlight PA \u201cthat my views on the matter are my own and not reflective of\u201d the county government.<\/p>\n The York County District Attorney\u2019s Office has disputed that Scott and Cassell jointly possessed the drugs with the victims in their respective cases. A chief deputy prosecutor with the office, James Zamkotowicz, described Scott as a \u201cmiddleman\u201d who did not \u201cshare a pool of drugs or use any substances together\u201d with Savage.<\/p>\n In Smith\u2019s death, Zamkotowicz said she \u201chad no money, no mode of transportation, and no cell phone,\u201d and that it was Cassell who \u201csuggested using heroin that day without any prompting from the victim.\u201d The prosecutor said Cassell \u201cdelivered a portion of his drugs to the victim as a gift which ultimately led to her death.\u201d<\/p>\n But more broadly, the district attorney\u2019s office argued that under Pennsylvania law \u2014 with a limited exception for sharing small amounts of marijuana \u2014 any transfer of a controlled substance is a \u201cdelivery.\u201d<\/p>\n \u201cThe legislature chose not to leave a loophole for those acting as agents or co-purchasers of other drugs,\u201d Zamkotowicz wrote.<\/p>\n Defending the prosecutors\u2019 approach<\/p>\n During the Supreme Court arguments, Zamkotowicz responded to Wecht\u2019s comments about the Cassell case being overcharged and oversentenced by saying there were \u201cextenuating circumstances that happened during the course of her overdose and death.\u201d<\/p>\n The transcript from Cassell\u2019s sentencing<\/a> hearing shows a prosecutor with the York County District Attorney\u2019s Office arguing for a lengthy prison sentence: at least 30- to 60-years, \u201cin hopes that he never has the opportunity to prey on another victim,\u201d the prosecutor said. The prosecutor said the incident was part of a pattern for Cassell and that when Smith overdosed, \u201che did nothing. She died in that vehicle while he drove around.\u201d<\/p>\n At the same hearing, a defense attorney for Cassell told the judge \u201cwe are dealing with two people that had an ongoing relationship, and, unfortunately, that ongoing relationship was the use of fentanyl\u201d and that Cassell misread \u201cthe final signs that Angie was giving.\u201d<\/p>\n York County District Attorney Tim Barker told Spotlight PA the evidence in the cases currently being considered by the Pennsylvania Supreme Court goes \u201cwell beyond any characterization of a minimal \u2018sharing\u2019 of drugs.\u201d And he said the office looks forward to receiving the court\u2019s decision, \u201cwhich will not only be binding on these matters, but also provide future precedential guidance in this critical area of criminal law.\u201d<\/p>\n In his statement<\/a>, Barker described how the office seeks \u201crehabilitation and diversion where appropriate,\u201d but \u201cwill always seek accountability for criminal conduct that harms victims, especially when the actions cause the death of another.\u201d<\/p>\n The Cassell and Scott cases were originally prosecuted when Pennsylvania\u2019s current attorney general, Sunday, led the district attorney\u2019s office. Brett Hambright, a spokesperson for Sunday, responded to Wecht\u2019s comments about the case being overcharged and oversentenced, by saying, \u201cWe emphasize that a jury of the defendant\u2019s peers deliberated over the facts and agreed on a verdict.\u201d<\/p>\n Hambright said the sentence \u201cwas ordered by a Court of Common Pleas Judge.\u201d<\/p>\n Concerns over 911 calls<\/p>\n The issues in these cases overlap with a frequent concern about drug-induced homicide prosecutions: their potential to discourage people from calling 911 for help in case of an overdose. Multiple<\/a>studies<\/a> have raised concerns about that scenario.<\/p>\n Kate McLean, a professor of criminal justice at Penn State Beaver, studied the issue by surveying and interviewing people participating in an outpatient drug counseling program in southwestern Pennsylvania. Her findings<\/a> \u2014 based on 50 survey participants and 18 interviewees \u2014 were published in a 2018 volume<\/a> of Journal of Crime and Justice.<\/p>\n She cautioned against drawing the conclusion that \u201ca highly punitive criminal regime\u201d that compels \u201cwitnesses to call 911 out of fear\u201d is effective. She wrote that \u201cmany more respondents cited the threat of homicide prosecution in justifying their decision to deal with overdose themselves, or simply flee the scene.\u201d<\/p>\n In an interview with Spotlight PA, McLean said she\u2019s come to believe these drug-induced homicide laws \u201cjust make everyone less safe.\u201d She said they complicate the calculations people make when, after an overdose, they decide whether to call for help.<\/p>\n \u201cEven if they eventually do that, how many more minutes \u2026 do they take to consider, \u2018Well, what\u2019s going to happen to me?\u2019\u201d she said.<\/p>\n The issue of risk came up during oral arguments before the Pennsylvania Supreme Court, when Tambourino responded to a comment that people should do drugs alone.<\/p>\n \u201cThat might not be the safest thing to do,\u201d Tambourino replied.<\/p>\n Across the country, 31 states have a specific drug-induced homicide law on the books as of 2024, according to one analysis<\/a>. Of those, only six states provided an \u201caffirmative defense to prosecution\u201d for people who made \u201cgood faith efforts to seek emergency assistance,\u201d researchers found. Pennsylvania was not one of them.<\/p>\n State law offers<\/a> legal protection from some drug violations to people who seek help for an overdose, depending on the circumstances. But the statute notes that protection is limited to specific charges, and does not prevent prosecutions for drug-induced homicide cases.<\/p>\n Often, little more than luck separates the person who dies from the defendant when co-users are prosecuted, said C. Melissa Owen, an attorney and president of the National Association of Criminal Defense Lawyers.<\/p>\n \u201cIt is always tragic for anybody to lose their life,\u201d Owen said. \u201cBut Pennsylvania\u2019s current law only adds to that tragedy when co-users face decades in prison.\u201d<\/p>\n Owen sees high stakes in the cases currently before Pennsylvania\u2019s Supreme Court. Ruling against the defendants would cement \u201cthe idea that homicide occurs simply because two individuals are using together, when either could be named a deliverer to the other,\u201d she told Spotlight PA.<\/p>\n \u201cThese types of charges will continue, and more lives will be lost,\u201d she added.<\/p>\n Kelly Callihan, executive director of the Pennsylvania District Attorneys Association, called the matters before the Supreme Court an \u201cimportant issue\u201d but didn\u2019t comment on the specifics. She previously said<\/a> these investigations can bring answers to families and send a broader message to the community.<\/p>\n What counts as delivery?<\/p>\n A key issue in these Supreme Court cases \u2014 and others like them \u2014 is what it means to deliver drugs.<\/p>\n In a Westmoreland County case, Assistant Public Defender Patrice DiPietro used the analogy of friends deciding to share a meal.<\/p>\n \u201cJust as when a group of friends share a pizza and all pitch in a few dollars to pay the pizza delivery man,\u201d she wrote<\/a>, \u201cthe friend who takes the initiative to dole out the slices on plates and passes them to his\/her friends is not delivering the pizza to them, as the delivery was already completed by the pizza delivery man.\u201d<\/p>\n In 2023, the Pennsylvania Superior Court upheld<\/a> a decision<\/a> to dismiss a drug delivery resulting in death charge against DiPietro\u2019s client. The client ultimately pled guilty in the case to two drug felony counts \u2014 ones that don\u2019t have as lengthy of a maximum prison sentence as drug delivery resulting in death.<\/p>\n After the favorable Superior Court ruling, DiPietro petitioned the court<\/a> to change the status of an opinion so it would set a precedent in other cases. She argued that police and prosecutors \u201croutinely miscomprehend and misapply\u201d Pennsylvania\u2019s drug delivery resulting in death statute. The court declined to do so<\/a>.<\/p>\n A number<\/a> of other<\/a> Pennsylvania Superior Court decisions<\/a> have gone against defendants<\/a> in these types of cases. The court ruled against both Cassell<\/a> and Scott<\/a> before the Pennsylvania Supreme Court decided to hear<\/a> their appeals<\/a>.<\/p>\n