Pennsylvania Justices Reject Co-User Defense in Overdose Death Cases

The Pennsylvania Supreme Court declined to create a new legal protection for people charged with causing a fatal overdose, upholding two convictions this month and ruling that the state's drug delivery resulting in death statute "does not differentiate between drug dealers and co-users for purposes of delivery of illegal narcotics."

The decision settles — at least at the state level — a question the same court heard arguments on earlier this year: whether people who jointly buy and share drugs should have a defense when one of them dies. The answer, in a majority opinion issued in mid-October, is no.

It is not a niche ruling. Pennsylvania is among the most aggressive states in the country on these prosecutions. Cases carrying 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.

What the majority decided

The court's reasoning rests on a single word. Prosecutors argued that any transfer of a controlled substance — with a narrow exception for small amounts of marijuana — is a "delivery" under state law, and the majority accepted that reading, writing that the statute "does not differentiate between drug dealers and co-users."

Justice Daniel McCaffery, writing for the majority, conceded the defendants' policy argument had force. The court "cannot ignore the fact that" the proposed defense "makes sense — some believe drug dealers should be punished more harshly than drug users," he wrote. But that "type of policy determination is for the General Assembly, not the courts."

Justices Christine Donohue, Kevin Dougherty, Sallie Updyke Mundy and P. Kevin Brobson joined him.

Two justices said the law defies common sense

The sharpest language came in a concurrence by Justice David Wecht, joined by Chief Justice Debra Todd. Wecht agreed the convictions should stand, then spent his opinion explaining why he disliked the result.

"The General Assembly does not violate the Constitution when it violates common sense," Wecht wrote. "It is undoubtedly true that the DDRD statute was meant to target drug dealers, not drug users." But, he added, "the spirit of the law is in considerable tension with its text," and "it is the latter that binds us."

That concurrence is the closest thing the ruling offers to an invitation. It tells defense attorneys that the constitutional argument is exhausted and that any change has to come from the legislature in Harrisburg, where past attempts to narrow the statute have gone nowhere. Some bills now pending would move in the opposite direction, giving prosecutors more time to file these charges.

The two York County cases

Both appeals came out of York County and were consolidated for argument. The court read the ruling against Jerrod Scott, who is serving nine to 18 years in the 2019 death of Zack Savage, and Charles Cassell III, sentenced to 23.5 to 47 years in the 2020 fentanyl death of Angelique Smith, 23, who died a day after leaving a rehabilitation facility.

The facts of the Cassell case — CPR performed, then roughly three hours of driving near a hospital and a fire station stocked with naloxone before a 911 call — were central to the earlier stage of the litigation, when the justices heard arguments. This site covered those arguments in September, including Justice Wecht's remark at the time that the case was "definitely overcharged and definitely oversentenced" and his conclusion that the court could not fix it.

Why critics say the ruling will cost lives

Defense attorney Anthony Tambourino, who represented the defendants, argued the statute "was not meant to criminalize every drug handoff among co-users." After the ruling, the president of the National Association of Criminal Defense Lawyers went further.

"It is unthinkable that joint drug use can be made a homicide," C. Melissa Owen told Spotlight PA. "We anticipate this ruling will further discourage individuals from seeking help during an overdose, causing the very harm the law purports to prevent."

That deterrence claim is the heart of the objection, and it has research behind it. Kate McLean, a criminal justice professor at Penn State Beaver, studied people in an outpatient drug counseling program in southwestern Pennsylvania and found many cited the threat of homicide prosecution as a reason to handle an overdose themselves or leave rather than call for help.

Pennsylvania's Good Samaritan law protects people who summon emergency help from some drug charges but explicitly does not shield them from drug delivery resulting in death. As of 2024, 31 states had a specific drug-induced homicide law, and only six offered an affirmative defense for someone who made a good-faith effort to get emergency assistance.

Prosecutors' answer

York County District Attorney Tim Barker has said the evidence in both cases went "well beyond any characterization of a minimal 'sharing' of drugs," and that his office seeks "rehabilitation and diversion where appropriate" while pursuing accountability "for criminal conduct that harms victims, especially when the actions cause the death of another."

The ruling gives prosecutors in his position a settled rule: in Pennsylvania, shared drugs are delivered drugs, and the person who survives can be charged with the death of the person who does not.

Treatment for opioid use disorder is available regardless of a criminal record. The SAMHSA National Helpline, 1-800-662-4357, is free, confidential and staffed 24 hours a day.