COMMONWEALTH OF PENNSYLVANIA v. JERROD AARON SCOTT
No. 1247 MDA 2023
IN THE SUPERIOR COURT OF PENNSYLVANIA
October 1, 2024
2024 PA Super 232
J-A15024-24
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY BECK, J.:
FILED OCTOBER 01, 2024
Jerrod Aaron Scott (“Scott“) appeals from the judgment of sentence imposed following his convictions, in relevant part, of drug delivery resulting in death (“DDRD“) and possession with intent to deliver (“PWID“) by the York County Court of Common Pleas (“trial court“).1 Scott argues that the evidence was insufficient to prove that he delivered the drugs to Zack Savage (“Savage“) that caused Savage‘s overdose death. Alternatively, he contends that the trial court abused its discretion by denying his request to instruct the jury that acquisition and possession of drugs may be constructive and joint. Following our careful consideration of his arguments, we affirm.
* Former Justice specially assigned to the Superior Court.
In the week preceding June 28, 2019, Melissa Wandell (“Wandell“) and Savage made arrangements for Savage to pick up Wandell and take her [to Harrisburg] to buy heroin from Wandell‘s drug deаler named Ro-Ro. [Their plan was for Wandell to give Savage some Klonopin and Vyvanse, two medications that she was prescribed, and for Savage to pay for the heroin that they would share.] On Friday, June 28, 2019, around 11:10 a.m., Savage arrived at Wandell‘s house. In the time leading up to Savage‘s arrival, Wandell called Ro-Ro‘s phone number multiple times. At some point, an individual identifying himself as “J“, later identified as Scott, answered the phone and indicated [that] Ro-Ro is his mom. Ro-Ro was unavailable but Scott indicated that he could get the drugs if Wandell could pick him up at Hershey Medical Center.
Savage and Wandell drove to Hershey and picked up Scott. Savage supplied money and gave it to Wandell to hold. Scott got in the back seat behind Wandell, told the occupants [that] they needed to go to Harrisburg and gave Savage driving directions. Upon arriving in Harrisburg, Savage drove to a convenience store where Scott made contact with an unknown individual [inside the storе before the individual and Scott] got into the back seat of Savage‘s car. Scott gave the individual the money, provided by Wandell and Savage, in exchange for fentanyl which Scott then handed to Wandell. The unknown individual exited the vehicle and the trio proceeded to another location, with Scott giving Savage directions. At the next stop, Scott purchased crack cocaine [that Wandell had asked Scott to obtain]. [Details regarding the logistics of this transaction are largely absent from the record]. Savage then drove to a third and a fourth location so [that] Scott could pick up a prescription for Suboxone then have that prescription filled at Rite Aid. [Savage and Wandell used crack cocaine in the car while they were waiting for Scott to obtain his Suboxone prescription]. Scott then traded the Suboxone for heroin at yet another location to which he provided direction[s] to Savage. Scott and Wandell used the crack cocaine in the car while Savage was driving.
At approximately 7:00 p.m., Scott, Wandell, and Savage drove to Martin Luther King Memorial Park, in Harrisburg, to get
high. Upon arriving at the park, the trio parked and walked to a more secluded area. Wandell carried a “kit” containing a spoon, a syringe and a tie as well as the drugs for herself and Savage; Scott carried his own drugs. Scott and Wandell ingested [fentanyl] and Scott overdosed. Savage obtained Narcan from the сar and used it on Scott. While Scott recovered, Savage ingested two bags of the [fentanyl] and passed out. Scott carried Savage back to the car[, and put] him down at one point, allowing Savage to fall backwards and hit his head on the pavement. Eventually, Scott and Wandell got Savage into the car and placed him in the back seat, propping him up with Savage‘s bookbag. At approximately midnight, Wandell drove from the park to a convenience store in thе hopes of getting water for Savage. The store was closed and they continued on to Berryhill so Scott could obtain crack, then went to Wandell‘s apartment in Dillsburg, York County. Savage was passed out in the backseat.
Upon arriving at her home, Wandell checked on Savage then went into her room with Scott to ingest more drugs. Once finished taking the drugs, Wandell and Scott went outside and again checked on Savage. Savage was in the same place, alive but still passed out. Wandеll checked on Savage three or four times before falling asleep on the porch around 2:30 a.m. No one called 911 or sought help for Savage. At some point, Wandell‘s mother woke her to go inside to bed. Wandell checked on Savage one more time then went inside with Scott and went to bed. When checking on Savage, Wandell testified that she felt for a pulse and checked that he was breathing.
The next morning, Wandell took the remaining fentanyl, then left for her appointment at the methadone clinic. She looked in on Savage and thought he looked fine and thought she felt a pulse. Wandell was gone for approximately forty minutes. When she returned, Wandell again looked in on Savage. Wandell‘s mother indicated that he did not look right and Wandell could not find a pulse. Emergency services were contacted and both the police and paramedics dispatched with reports of an unconscious male. Upon arrival, CPR was performed оn Savage and an attempt was made to administer Narcan. However, it was determined that Savage was deceased. A subsequent autopsy indicated Savage had antemortem contusions and abrasions to the scalp and face indicative of blunt force trauma. Further, there were hemorrhages in the subarachnoid spaces that did not
completely match the external injuries. [The metabolites found in Savage‘s tissue and fluids indicated that he had used Klonopin, marijuana, аnd cocaine prior to his death, as well as fentanyl at toxic levels.] The cause of Savage‘s death was determined to be mixed substance toxicity.
Trial Court Opinion, 1/25/2024, at 1-6 (record citations omitted; names modified).
After investigating Savage‘s death, police charged Scott with DDRD and PWID, as well as third-degree murder, access device fraud, theft, receiving stolen property, and evidence tampering. The trial court conducted a three-day trial wherein the jury heard the abovе evidence concerning Scott‘s role in Savage‘s overdose death.
After the parties rested, the trial court conducted a charge conference during which Scott‘s counsel requested that the trial court instruct the jury on joint use and acquisition of drugs. Defense counsel argued that as addicts who planned to acquire and use drugs together, Scott, Savage, and Wandell had joint and simultaneous possession, and as such, Scott did not deliver drugs to Savage. N.T., 3/27-30/2023, at 406, 409, 459-66. Scott‘s argument was premised upon Commonwealth v. Brown, 798 WDA 2022, 2023 WL 3222860 (Pa. Super. Apr. 28, 2023) (non-precedential decision), and United States v. Semler, 858 Fed. Appx. 533 (3d. Cir. 2021), an unpublished federal case. The trial court declined to issue the instruction, expressing doubt that the facts supported a finding that the three were joint users. N.T., 3/27-30/2023, at 466. Moreover, the trial court opined that while the law may
The term dеliver includes the actual or constructive transfer from one person to another of the controlled substance. It does not require the transfer to involve profit or the exchange of money. Rather, the transfer need only involve the conveyance of a controlled substance. A delivery may take place between two persons even though one of them is acting as agent for the other.
Id. at 561.
The jury found Scott guilty of DDRD, PWID, and several other crimes not pertinent to this аppeal. The jury found Scott not guilty of third-degree murder and tampering with evidence. On June 1, 2023, the trial court imposed an aggregate sentence of seven to nineteen years of incarceration, followed by one year of probation. Scott filed a post-sentence motion, which the trial court denied.
Scott filed a timely notice of appeal. Both Scott and the trial court complied with
We review Scott‘s challenge to the sufficiency of the evidence supporting his convictions according to the following standard:
Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the [factfinder] to determine the weight to be accorded to each witness‘s testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the [factfinder].
Commonwealth v. Rosario, 307 A.3d 759, 764-65 (Pa. Super. 2023) (citation omitted).
In relevant part, section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act (“Drug Act“), commonly known as PWID, prohibits a person not registered under the Drug Act from engaging in “manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance.”
To establish DDRD, the Commonwealth need not prove that the defendant intended to cause the death of another. See Commonwealth v. Kakhankham, 132 A.3d 986, 993 (Pa. Super. 2015). Instead, the Commonwealth must establish that the defendant‘s act of administering, dispensing, delivering, giving, prescribing, selling, or distributing the substance was intentional and that the defendant had a “reckless disregard of death from the use of the contraband.” Commonwealth v. Carr, 227 A.3d 11, 17 (Pa. Super. 2020). A defendant acts recklessly when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor‘s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor‘s situation.
In his challenge to the sufficiency of the evidence, Scott specifically disputes that the Commonwealth proved that he “delivered” the drugs to Savage. Scott‘s Brief at 24. Instead, he argues that the three addicts—Scott, Wandell, and Savage—mutually planned to acquire drugs from Scott‘s contacts and use the drugs together. Id. at 28. Scott urges this Court to
While aspects of Scott‘s argument may have some commonsense appeal, neither the facts of this case nor the current state of Pennsylvania law permit reversal on this basis. To the contrary, based upon our Supreme Court‘s interpretation of the statutory term “deliver,” and mindful of the legal standard for a sufficiency review, we conclude that the Commonwealth sufficiently proved that, in exchange for Savage‘s money, Scott obtained drugs from his dealer and then delivered the drugs that killed Savage via his
Even assuming that a mutual plan to obtain and use drugs together could overcome the physical conveyance between Scott and Wandell as Savage‘s agent, we agree with the trial court that the facts did not establish that such a plan existed between Savage and Scott. Trial Court Order and Opinion, 8/18/2023, at 9 (pagination added). Savage‘s plan was simply to use with Wandell. Savage did not have a personal relationship with Scott; Scott only became involved when Wandell could not reach Scott‘s mother to purchase drugs for her and Savage, and Scott offered to facilitate a purchase for them instead. Savage did not know any of the three drug dealers Scott used to obtain the drugs. In fact, the record reflects that Savage provided transportation from seller tо seller, but he was frustrated that he had to drive Scott all over Harrisburg and did not intend to share drugs with Scott. See N.T., 3/27-30/2023, at 223, 258.
Jury Instructions
In his second issue, Scott argues that the trial court erred by denying his request to instruct the jury on joint acquisition and use. Scott‘s Brief at 38-43. Without such an instruction, Scott argues, the jury had no ability to contrast the Commonwealth‘s delivery theory with the defense‘s joint acquisition theory, which Scott contends was “plausibly consistent” with the trial evidence. Id. at 40-42.
We review this claim pursuant to the following standard:
In reviewing a challenge to the trial court‘s refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court‘s decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to misleаd or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the [a]ppellant was prejudiced by that refusal.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (cleaned up; citations omitted); see also Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996) (“Instructions regarding matters which are not before the court or which are not supported by the evidence serve no purpose other than to confuse the jury.“).
Conclusion
Because the evidence was sufficient to support Scott‘s convictions, and the trial court did not abuse its discretion by rejecting Scott‘s request to
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/01/2024