The grade of possession with intent to deliver in Pennsylvania depends on the substance: a felony for a Schedule I to IV substance, a misdemeanor for a Schedule V substance or for a small amount of marijuana held to distribute but not to sell. The District Attorney will have to prove that the defendant intentionally or knowingly possessed a controlled substance, and had the intent to distribute it. I have provided an infographic below illustrating some basic definitions regarding the possession and distribution of a controlled substance as well as common defenses to these charges. The penalties a convicted defendant may face will depend on the type and quantity of the controlled substance. The table below lists the weight-based mandatory minimum sentences printed in 18 Pa.C.S. § 7508 for a first or subsequent conviction for possession with the intent to deliver (PWID), but those minimums cannot be imposed today: Pennsylvania’s appellate courts have held § 7508 unconstitutional, so the table is not a statement of current law. If you have been charged with possession of a controlled substance with the intent to distribute in Philadelphia, please contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation concerning your legal rights.
What Possession With Intent to Deliver Means in Pennsylvania
PWID is a crime under 35 P.S. § 780-113(a)(30), section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act. Except as the Act authorizes, it prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act,” and it reaches counterfeit controlled substances too. The Act defines delivery as “the actual, constructive, or attempted transfer from one person to another” of a controlled substance. An actual sale is not required: the Commonwealth may try to prove intent to deliver through circumstantial evidence such as quantity, packaging, scales, cash and communications.
How the Grade and the Maximum Are Set
Section 780-113(f) grades the offense by the substance: a felony for a Schedule I, II, III or IV substance and a misdemeanor for a Schedule V substance. Its maximum prison terms run from one year (Schedule V) to fifteen years (a Schedule I or II narcotic drug). Each paragraph of subsection (f) also sets a maximum fine; some allow a larger fine sufficient to exhaust the assets used in and profits obtained from the illegal activity. Under 35 P.S. § 780-115, a second or subsequent PWID offense, counting similar federal and other-state convictions, may be punished by up to twice the term and twice the fine otherwise authorized. These are ceilings, not predictions; the court must also consider Pennsylvania’s sentencing guidelines, which are advisory.
How PWID Differs From Simple Possession
Simple possession (§ 780-113(a)(16)) is knowingly or intentionally possessing a controlled or counterfeit substance without registration, a valid prescription or other authorization under the Act. PWID adds the intent to manufacture or deliver. Under subsection (b), simple possession is a misdemeanor with a maximum of one year or a $5,000 fine, or both, and three years or a $25,000 fine, or both, if committed after a prior conviction under that section has become final; subsection (n) makes possession of GHB a felony. Small amounts of marijuana have their own rule: under clause (31) and subsection (g), possessing a small amount (thirty grams of marijuana or eight grams of hashish) for personal use or with intent to distribute but not sell it, or distributing it but not for sale, is a misdemeanor with a maximum of thirty days or a $500 fine, or both.
The Weight-Based Minimums in the Table Below
18 Pa.C.S. § 7508 sets mandatory minimum prison terms by drug and weight, and its subsection (b) has the judge decide at sentencing, “by a preponderance of the evidence,” whether they apply. After Alleyne v. United States (2013), the Superior Court held the section unconstitutional in its entirety: “a mandatory minimum sentence imposed under this statute is illegal” (Commonwealth v. Vargas, 2014 PA Super 289 (en banc)). In Commonwealth v. Mosley, 2015 PA Super 88, the court remanded “for resentencing without the mandatory minimum” even though the jury had found on a special verdict form that the cocaine weighed more than ten grams. In Commonwealth v. DiMatteo (2018), the Supreme Court of Pennsylvania wrote that it is “uncontested that Section 7508 is an unconstitutional and illegal sentencing statute in light of Alleyne and its Pennsylvania progeny.”
What a Defense Lawyer Does in a PWID Case
A defense lawyer tests the Commonwealth’s case, including:
- the laboratory report, since the substance helps set the grade and the maximum;
- the stop, the search and any warrant, and whether to file a motion to suppress;
- whether the Commonwealth can prove you possessed the drugs;
- whether the quantity, packaging, cash or messages show an intent to deliver;
- that no § 7508 minimum is applied at sentencing.
Whether any point helps depends on the facts of your case; no lawyer can promise a result. Brian Fishman is a Philadelphia criminal defense lawyer and former Philadelphia prosecutor; read more about drug crime defense in Philadelphia.
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.
