Possession of a controlled substance in Pennsylvania is the offense in 35 P.S. § 780-113(a)(16): knowingly or intentionally possessing a controlled or counterfeit substance, unless the Controlled Substance Act or a valid prescription order authorizes it. In Philadelphia, the case is heard in the First Judicial District: Philadelphia Municipal Court and the Court of Common Pleas.

What the Statute Prohibits

Pennsylvania drug offenses are not in the Crimes Code. They are in section 13 of The Controlled Substance, Drug, Device and Cosmetic Act of 1972, cited as 35 P.S. § 780-113. Clause (16) of subsection (a) prohibits:

“Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.”

A “controlled substance” is, in the Act’s words, “a drug, substance, or immediate precursor included in Schedules I through V of this act.” That includes heroin, and also oxycodone and hydrocodone held without a valid prescription order. A counterfeit is a separate category. The Act defines “counterfeit” as a controlled substance, other drug, device or cosmetic which, or whose container or labeling, without authorization bears the trademark, trade name or other identifying mark of a manufacturer, distributor or dispenser other than the one who in fact made, distributed or dispensed it, and which is thereby falsely represented to be that other maker’s or distributor’s product.

What the Commonwealth Must Prove

As a former Philadelphia prosecutor, Brian Fishman knows how these cases are built. To convict you, the Commonwealth must prove each element beyond a reasonable doubt:

  • that the item was a controlled substance, meaning one included in Schedules I through V of the Act, or a counterfeit substance as the Act defines it;
  • that you possessed it; and
  • that you possessed it knowingly or intentionally.

Registration under the Act, a valid prescription order and the Act’s other authorizations are exemptions or exceptions, and they work differently. Section 21 of the Act, “Burden of Proving Exemptions” (35 P.S. § 780-121), provides that in any prosecution under the Act “it shall not be necessary to negate any of the exemptions or exceptions of this act in any complaint, information or trial,” and that “the burden of proof of such exemption or exception shall be upon the person claiming it.” The Commonwealth does not have to disprove an exemption; if you held the substance under a valid prescription order, that is for you to prove.

The Act does not define “possession”; the courts recognize two forms of it.

Actual possession

Actual possession means the substance is on your person: in your hand, your pocket or your clothing.

Constructive possession

You can be charged even when nothing was found on you. Pennsylvania courts treat a person as being in constructive possession when he or she has conscious dominion over the substance: the power to control it and the intent to exercise that control. Mere presence in a place where drugs are found, or being close to them, does not by itself establish possession. In a shared car or apartment, whether the evidence connects the drugs to you, rather than to someone else with access, is often the central question.

How Simple Possession Is Graded and Punished

Subsection (b) of section 13 sets the penalty for a violation of clause (16). It provides that the person “shall be guilty of a misdemeanor” and, for a first offense, on conviction shall “be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($5,000), or both.” The misdemeanor carries no degree; the Act grades it on its own terms.

A prior conviction raises the ceiling. Under the same subsection, “if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both.”

These figures are statutory maximums, the most a court may impose. They are not a prediction of the sentence in any case. A court sentences within them after considering the Pennsylvania Sentencing Guidelines and the facts.

Under 35 P.S. § 780-113(a)(31) and (g), possession of a small amount of marijuana for personal use (thirty grams of marijuana or eight grams of hashish) is a misdemeanor punishable by up to thirty days in jail or a $500 fine, or both.

Possession vs. Possession With Intent to Deliver

Clause (30) of subsection (a) prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act.” The difference is the intent element: the Commonwealth must prove not only that you possessed the substance but that you meant to deliver it to someone else.

No sale is required. The Act defines “deliver” as “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.” Prosecutors try to infer intent from circumstances such as quantity, packaging, scales, cash and messages, and each inference can be tested.

The grading also changes: possession with intent to deliver under clause (30) is a felony for most substances, and for a Schedule I or II narcotic carries up to fifteen years in prison or a $250,000 fine, or both (35 P.S. § 780-113(f)(1)); lower ceilings for other schedules are set by subsection (f).

Whether a case is charged as simple possession or as possession with intent to deliver shapes everything that follows. The firm’s Philadelphia drug crime defense practice handles both charges.

What a Defense Lawyer Does in a Possession Case

No lawyer can promise how a drug case will end. A lawyer can test every part of the Commonwealth’s case:

  • The search. If the police found the substance through an unlawful stop or search, a motion to suppress asks the court to exclude that evidence. If the court grants the motion, the Commonwealth cannot use the suppressed evidence in its case against you at trial; how far the order reaches depends on the court’s ruling.
  • Possession itself. In a shared space, the question is whether the evidence shows conscious dominion by you, or only your presence near the drugs.
  • The substance. The Commonwealth must prove that the item is a controlled substance included in the Act’s schedules, or a counterfeit substance as the Act defines it, which means looking closely at the laboratory analysis and how the evidence was handled.
  • Authorization. If you held the substance under a valid prescription order, the Act places the burden of proving that exception on you, and a lawyer gathers the records that prove it.
  • Diversion. Where the Philadelphia District Attorney’s Office offers a diversion program for a case like yours, a lawyer can pursue it. Eligibility and terms are set locally and turn on your facts.

Questions About Possession Charges in Philadelphia

Is simple possession a felony in Pennsylvania?

No. A violation of 35 P.S. § 780-113(a)(16) is an ungraded misdemeanor under subsection (b): up to one year in prison or a $5,000 fine, or both, for a first offense. Subsection (b) raises the maximum to three years in prison or a $25,000 fine, or both, “if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final.”

Can I be charged if the drugs were not on me?

Yes, on a theory of constructive possession: the Commonwealth must show conscious dominion, meaning the power to control the substance and the intent to exercise that control. Being present where drugs were found is not enough on its own.

If you are charged with possession in Philadelphia, early decisions matter. Brian Fishman, a former Philadelphia prosecutor, defends people charged with drug offenses in Philadelphia Municipal Court and the Court of Common Pleas. To talk about your case, call 267-758-2228 or reach the firm through its contact page.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Pennsylvania law changes and every case turns on its specific facts. Consult a licensed Pennsylvania criminal-defense attorney about your situation. (Attorney advertising — Pa. Rules of Professional Conduct 7.1–7.2.)