Are you just friends, family, or co-conspirators? Conspiracy & Possession with the Intent to Deliver Drugs (PWID)

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.


In Pennsylvania, The Controlled Substance Drug, Device, and Cosmetic Act (Title 35, Section 780-101) covers crimes involving the possession of illegal drugs or narcotics. Possession of a controlled substance is a misdemeanor of the first degree and possession with the intent to deliver or manufacture that same substance is an ungraded felony offense. Possession of a drug requires that the prosecution prove three elements:

  1. That the item is in fact the controlled substance or a counterfeit controlled substance;
  2. The item was possessed by the person; and
  3. The person was aware of the item’s presence.

Possession with the intent to deliver or manufacture is a felony which requires the prosecution meet all of the elements of simple possession but, in addition, a fourth element which is that the defendant possessed the item the with the intent or goal of delivering them to another person or using the item to manufacture a controlled substance. That fourth element is what separates the misdemeanor offense from the felony offense. This is especially important now in Pennsylvania given the new criminal record sealing legislation aimed at improving the economic situation of offenders who have committed non-violent offenses such as misdemeanor drug possession. This new law however only applies to misdemeanors and not a felony such as PWID.

It’s also important to understand that if a PWID is committed with other people, the prosecution can and will charge a person with conspiracy to commit possession with the intent to deliver or manufacture a controlled substance. In Pennsylvania, joining in or creating a conspiracy to deliver or sell drugs is a crime! Even if the crime that the people are planning isn’t actually carried out, the members of the conspiracy are still responsible for it. A conspiracy is an agreement between two or more person to commit a crime. It exists once two conditions are met: (1) there is an agreement (2) one of the members then commits some act to advance the goal of that conspiracy.

In Pennsylvania, an agreement is when two or more people come to an understanding to commit a crime or crimes. It is more than people associating with one or another. The agreement doesn’t have to cover all of the details of how the crime will be committed nor does it require that everyone actually participate in the crime. Co-conspirators can agree that only one person will actually do the “job”. Even if there’ s an agreement, however, there is no conspiracy unless one of the co-conspirators does something more – an overt act in furtherance of the conspiracy.  Living in the same house or traveling in the same car isn’t usually enough evidence for the prosecution to meet its burden of proof.

This overt act can be criminal or non-criminal as long as it’s designed to put the agreement into effect. A person who is found guilty of a conspiracy faces the same crime as a person who commits the principle act. Further, it is possible to be convicted of conspiracy and the principle act. A person convicted of both would therefore face a double penalty. Judge aren’t obligated to run sentences concurrently (at the same time) and can run convictions consecutively (one after the other).

There are many situations where the prosecution attempts to prove conspiracy but presents no evidence but two people together at the time of an arrest. This isn’t a conspiracy regardless of the amount of drugs found, drug paraphernalia, or money located in the area of the arrest. Remember, the prosecution must prove two elements (agreement and an over act) to further the conspiracy beyond a reasonable doubt.

The “mere presence” of two people together isn’t a conspiracy to sell drugs! It’s so important that your criminal defense lawyer bring out this point to a judge or jury. In addition to crimes involving controlled substances, we also see conspiracy charges for crimes such as robbery, burglary, and murder! For more information, on criminal defense in Pennsylvania and New Jersey keep reading my blog and visit my free download section of my website.

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