Com. v. Cassell, III, C.

J-A15023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHARLES CLAYTON CASSELL III :

:

Appellant : No. 993 MDA 2023

Appeal from the Judgment of Sentence Entered May 1, 2023

In the Court of Common Pleas of York County Criminal Division at No(s):

CP-67-CR-0000378-2022

BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY BECK, J.: FILED: SEPTEMBER 24, 2024

Charles Clayton Cassell III (“Cassell”) appeals from the judgment of

sentence imposed following his convictions, in relevant part, of third-degree

murder, drug delivery resulting in death (“DDRD”), possession with intent to

deliver (“PWID”)1 by the York County Court of Common Pleas (“trial court”).

Cassell argues that the evidence was insufficient to prove that he delivered

the drugs to Angelique Smith (“Smith”) that caused Smith’s overdose death.

Alternatively, he contends that the trial court abused its discretion by denying

his request to instruct the jury that possession and acquisition of drugs may

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 2506(a); 35 P.S. § 780-113(a)(30).

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be constructive and joint. Following our careful consideration of his

arguments, we affirm.

Smith died of a fentanyl overdose on October 23, 2020, at age twenty-

three. Police became aware of the overdose from Cassell’s 911 call at 7:45

p.m., three minutes after Cassell parked his car in the lot behind Royal Farms

convenience store in York, Pennsylvania. Smith was already deceased when

emergency assistance arrived. Police found Smith’s body dressed in

disheveled clothes sitting in the front passenger seat of Cassell’s car, slumped

over towards the drivers’ side. Police also observed leaves underneath her

body, a container of food from Weis Markets near her feet, and a syringe in

the center console.

At the scene, Cassell appeared to be nervous, anxious, and spoke

quickly. N.T., 3/20-22/2023, at 96. Cassell told the two officers who

interviewed him in the parking lot that Smith was his girlfriend,2 that they had

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2 Later, when he was interviewed at the police station, Cassell, who was thirty

years older than Smith, referred to himself as Smith’s “protector” and

elaborated upon his view of their relationship:

I was more than just a boyfriend. One day I am dad. Her dad

kicked her out of her house. One day I am dad. One day I am a

parent. One day I am a boyfriend. The next day I am a therapist.

I wore many hats. That’s why it’s like so devastating to me. Like

she was everything to me. And she, um, it wasn’t as much

romantic as we just had a bond that was, you know, some days

she was my child. Some days she was my girlfriend. Some days

I felt like I was a psychiatrist and I am trying to help her.

(Footnote Continued Next Page)

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shared two bags of what they thought was heroin earlier, and that Smith had

obtained the drugs. N.T., 3/20-22/2023, at 96-97, 104, 117. Police observed

that Cassell appeared to be under the influence of a substance because he

rambled, repeated his words, and stumbled. Id. at 119-20. Nevertheless, he

seemed to understand the severity of the situation and consented to searches

of his car and cell phone. Id. at 121. Police interviewed Cassell several days

later at the police station. Thereafter, police charged Cassell with the

aforementioned crimes.

At Cassell’s two-day jury trial, the Commonwealth established the

following facts. The day before Smith’s death, October 22, 2020, Smith left a

drug rehabilitation facility that she was supposed to attend following

incarceration. Id. at 123. Smith made her way to a Turkey Hill convenience

store in Lancaster, where she encountered Jena Parrish in the late afternoon.

Parrish and Smith did not know each other. Parrish noticed that Smith looked

anxious and was pacing. Smith told Parrish that she was looking for a ride to

York, that she wanted to get high, and asked Parrish to get her “dope.” Id.

at 265. According to Parrish, Smith did not appear to be high and had no

money, drugs, or other belongings beyond the clothes that she was wearing.

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N.T., 3/20-22/2023, at Commonwealth’s Exhibit 14 (Cassell’s police

interview). Although Cassell lived out of his car and a storage unit, he

periodically was employed through a temporary agency and financially

provided for Smith, including giving her money while she was in jail and buying

her a cell phone after she ran away from rehab. Id.

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Id. at 266-67. Parrish declined to find drugs for Smith but allowed Smith to

wait outside her house and to use her cell phone periodically. The last time

Parrish saw Smith was mid-morning on October 23, 2020, when Smith left in

a car. Id. on 262.

Cell phone logs revealed that Smith had used Parrish’s phone to text

Cassell at 10:50 p.m. on October 22, 2020. Id. at Commonwealth’s Exhibits

24-25 (cell phone records). Smith told Cassell that she might go to jail and

told him to answer if he got a call from any random numbers. Id. Cassell

responded at 11:09 p.m. and asked where she was. Id. At 2:14 in the

morning of October 23, 2020, Cassell asked Smith if she wanted him “to get”

her. Id. Around 8:00 a.m., Smith responded that she was in Lancaster and

asked him to pick her up or to send an Uber. Id. Cassell agreed to send an

Uber or to figure something out when his money “hits.” Id. Smith responded

that she did not have money either. Id. At 8:52 a.m., Cassell texted: “I’ll

have a guy get you, do u want to use[.]” Id. At 9:06 a.m., Smith responded,

“Yes i want to use[.]” Id. Four minutes later, Cassell responded with a plan:

he would have someone named Justin who lived in Lancaster take Smith to

meet Cassell. Id. He added: “I’ll get a bundle from him.” Id.

Cassell’s cell phone records indicated that he contacted multiple people

to attempt to purchase drugs. Id. at 184. One such person was Chase Smith

(“Chase”). Cassell initially texted Chase at 10:14 a.m. and asked him if he

would pick up Smith in Lancaster if Cassell gave him gas money. Id. at

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Exhibit 24-25 (cell phone records). When he received no response, Cassell

arranged and paid for an Uber to pick up Smith. The Uber dropped Smith off

at a Weis Market convenience store in York, where Cassell was waiting in his

car.

At 1:16 p.m., Cassell texted Chase again, asking where he was and

telling him that he had forty dollars and he was sick. Id. Chase responded

that he was at his house. Id. Cassell told him that he was on his way. Id.

Around the same time, Parrish, who was concerned about Smith, texted

Cassell and asked if he had met up with Smith yet. Id. Cassell responded

that he had. Id

Based upon the location data corresponding to Cassell’s cell phone that

police obtained, Cassell drove his car in a direct route to Chase’s house. Id.

at 245. Chase, who ultimately pled guilty to possession with intent to deliver

a controlled substance related to this incident, then presumably provided

Cassell with the drugs in exchange for Cassell’s payment of $40 per their text

messages.3

Around 2:00 p.m., Cassell parked his car behind an apartment building

and Smith and Cassell shot up for the first time that day, each using half of

one bag of what they thought was heroin. Id. at Commonwealth’s Exhibit 14

(Cassell’s police interview). Afterwards, Cassell drove to a park and they shot

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3 Smith is not related to Chase. Chase did not testify at Cassell’s trial.

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up again around 4:30 p.m. Id. Smith had her own needle and injected herself

both times. Id. The second time, Smith used more than Cassell, consistent

with Cassell’s practice to “always let her … take as much as she wants” before

he took a turn. Id. The drugs immediately affected Smith and she was happy

and screaming. Id. Cassell drove off because he did not want Smith’s

screaming to draw attention to them. Id.

As Cassell was driving, suddenly Smith’s “head went down.” Id. Cassell

pulled over, checked Smith’s pulse, dragged Smith out of the car, and

performed CPR because her lips were turning blue. Id. When she was

breathing on her own, he returned her to the car and drove to a nearby

parking lot instead of getting help because he was concerned about her

outstanding warrants. Id. Cassell believed Smith started showing “signs of

life” and arranged her head so “that her airway would be cleared.” Id. After

about a half hour, Cassell started “to get a little worried because this [was]

going on too long,” and “then all of the sudden everything shut down.” Id.

He got Smith out of the car and gave her chest compressions. Id. She had

bile coming out of her mouth and nose and Cassell “realized right then that

she drowned.” Id.

Cassell returned Smith to the car. He claimed that he started to drive

to the hospital, but he could not make it because his “car was messed up.”

Id. He ingested the remaining drugs and drove around for a while, stopping

at a Sunoco gas station to discard any signs of drugs in a garbage can in the

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parking lot. Id.4 When he realized that Smith’s body was cold, he parked at

the Royal Farms convenience store and finally called 911. Id. at

Commonwealth’s Exhibit 14 (Cassell’s police interview).

Notably, in the three hours between Smith’s initial adverse reaction to

the drugs and Cassell’s eventual 911 call, Cassell drove his car in the vicinity

of a hospital and a fire station stocked with Narcan. Id. at 221-22.

After the jury heard the above evidence, the trial court conducted a

charge conference, wherein Cassell’s counsel requested that the trial court

instruct the jury on joint use and acquisition of drugs. Id. at 271-72. Cassell’s

argument was premised upon United States v. Semler, 858 Fed. Appx. 533

(3d. Cir. 2021), an unpublished federal case, which interpreted the Federal

Controlled Substances Act, 21 U.S.C. § 841, and held that the district court

erred by not instructing the jury on joint and simultaneous possession of a

controlled substance between two personal co-users. The trial court declined

to issue the instruction, opining that there were differences between the

Controlled Substances Act and Pennsylvania law. N.T., 3/20-22/2023, at 272.

During the jury charge, the trial court issued the following instruction to

the jury regarding the term “deliver”:

The term deliver includes the actual or constructive transfer from

one person to another of the controlled substance. It does not

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4 Presumably, Cassell also spent time deleting recent texts from his cell

phone. An officer looked through Cassell’s phone with his permission at the

scene and did not see any texts about drugs, which is at odds with the cell

phone data that police later retrieved. Id. at 122, 176.

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require the transfer to involve profit or the exchange of money.

Rather, the transfer need only involve the conveyance of the

controlled substance. A delivery may take place between two

persons even though one of them may be acting as the agent for

the other.

Id. at 326-27. At the conclusion of the jury charge, counsel for Cassell

renewed his objection to the trial court’s refusal to provide the requested joint

acquisition/use charge. Id. at 334.

The jury found Cassell guilty of third-degree murder, DDRD, PWID, and

several other crimes not pertinent to this appeal. On May 1, 2023, the trial

court imposed an aggregate sentence of twenty-three and one-half years to

forty-seven years of incarceration. Cassell filed a post-sentence motion, which

the trial court denied.

Cassell filed a timely notice of appeal. Both Cassell and the trial court

complied with Pa.R.A.P. 1925. Cassell asks this Court to decide whether the

jury’s guilty verdicts for third-degree murder, DDRD, and possession with

intent to deliver were supported by sufficient evidence, arguing that the

Commonwealth failed to prove that Cassell delivered the drugs to Smith that

led to her death. Cassell’s Brief at 6. Alternatively, Cassell contends that the

trial court erred by not instructing the jury regarding joint use and acquisition

of drugs. Id.

Sufficiency of the Evidence

We review Cassell’s challenges to the sufficiency of the evidence

supporting his convictions according to the following standard:

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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 780-113(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.” 35 P.S. § 780-113(a)(30).

A person commits the crime of DDRD when (1) he “intentionally

administers, dispenses, delivers, gives, prescribes, sells or distributes any

controlled substance or counterfeit controlled substance”; (2) such act violates

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Section 780-113(a)(14) or (30) of the Drug Act;5 and (3) “another person dies

as a result of using the substance.” See 18 Pa.C.S. § 2506(a); see also

Commonwealth v. Peck, 242 A.3d 1274, 1281 (Pa. 2020).6

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.

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5 Section 780-113(a)(14), relating to medical practitioners, is not applicable

to the instant case.

6 Cassell does not present a separate argument as to his conviction of third-

degree murder, and we therefore concentrate our discussion on PWID and

DDRD. Like his conviction of DDRD, his conviction of third-degree murder

relied upon Cassell’s sustained failure to intervene after Smith had an adverse

reaction to ingesting the fentanyl. As such, and as Cassell implicitly

recognizes, if the evidence is sufficient to convict him of DDRD, it is also

sufficient to convict him of third-degree murder. See Commonwealth v.

Packer, 168 A.3d 161, 168 (Pa. 2017) (Third-degree murder is “a killing

conducted with malice aforethought.”); 18 Pa.C.S. § 2502(c).

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18 Pa.C.S. § 302(b)(3). Given the inherent dangerousness of consuming

heroin in an unknown strength and the high possibility that death could occur,

the Commonwealth easily “satisfies the reckless element as to the possibility

of death” when the substance involved is heroin or similar narcotics.

Commonwealth v. Storey, 167 A.3d 750, 758 (Pa. Super. 2017). The

statute requires “but-for” causation, such that the defendant’s prescribed

action regarding the drugs was a “direct and substantial factor in producing

the death even though other factors combined with that conduct to achieve

the result,” so long as the defendant’s actions were not “so extraordinarily

remote or attenuated that it would be unfair to hold the defendant criminally

responsible.” Commonwealth v. Proctor, 156 A.3d 261, 271 (Pa. Super.

2017); see also 18 Pa.C.S. § 303(a).

In his challenge to the sufficiency of the evidence, Cassell specifically

disputes that the evidence established that Chase delivered drugs solely to

Cassell, who then in turn delivered them to Smith. Cassell’s Brief at 18.

Instead, he argues that Cassell and Smith jointly possessed the drugs from

the outset because Cassell and Smith equally participated in acquiring,

possessing, and using the drugs. Id. at 18-19. Cassell urges this Court to

follow the rationale of Commonwealth v. Brown, 798 WDA 2022, 2023 WL

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3222860 (Pa. Super. Apr. 28, 2023) (non-precedential decision)7 and cases

from federal and other state courts8 and find that Cassell could not have

delivered the drugs to Smith because Smith already jointly or constructively

possessed the drugs. See id. at 19-24. Instead of focusing upon discrete

logistics of the drug acquisition and the plain language of the statute in

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7 Brown is a split non-precedential decision authored by President Judge

Emeritus Bender affirming the pre-trial dismissal of DDRD charges against

Brown, who, along with the decedent, had jointly acquired and used the heroin

which ultimately killed the decedent. This Court affirmed based upon the

Commonwealth’s failure to preserve its issue for appellate review. Brown,

2023 WL 3222860 at *2. President Judge Emeritus Bender alternatively

affirmed because Brown and the decedent jointly constructively possessed the

drugs from the outset as co-users with a plan to obtain drugs for joint personal

use. Id. at **3-10. Although Brown physically obtained the drugs from her

personal contact outside of the decedent’s presence before sharing the drugs

with the decedent, President Judge Emeritus Bender agreed with the trial court

that Brown could not have transferred possession of the drugs to the decedent

when the decedent already possessed the drugs. Id. at **9-10. However,

Brown is non-precedential, both because it is unpublished and because

President Judge Emeritus Bender’s reasoning did not garner a majority. See

E.C.S. v. M.C.S., 256 A.3d 449, 456 (Pa. Super. 2021) (noting that, pursuant

to 210 Pa. Code. 65.37, unpublished decisions are not binding); Estate of

Agnew v. Ross, 110 A.3d 1020, 1026 n.6 (Pa. Super. 2015) (“Unless an

issue in a panel decision commands a majority both as to result and as to

rationale, the principle embodied in the issue is not precedential.”), rev’d on

other grounds, 152 A.3d 247 (Pa. 2017). Judge Kunselman concurred in the

result only without explanation. Senior Judge Colins concurred as to President

Judge Emeritus Bender’s waiver finding, but otherwise dissented on the

merits.

8 For example, Cassell again relied upon Semler. There, the Court of Appeals

for the Third Circuit interpreted the term “distribute” in the Controlled

Substances Act as incorporating concepts of possession and control. See

Semler, 858 Fed. Appx. at 538-39. The court declined to interpret the statute

in a “hyperliteral” fashion because it would turn any physical handoff of drugs

into a felony distribution, which would divert punishment from traffickers to

end users sharing small amounts of drugs socially. Id.

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question, Cassell implores this Court to consider that Cassell and Smith were

two addicts with a personal and non-commercial relationship who mutually

planned to acquire and use the drugs together. Id. at 30-32. From Cassell’s

perspective, the plan between co-users should be determinative of whether

they jointly acquired possession or whether one delivered drugs to the other.

Id. at 31.9

Significantly, the Drug Act defines “deliver” and “delivery” 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.” 35 P.S. § 780-102. Based upon the common

meaning of the term “transfer,” our Supreme Court has held that a person

“actually transfers drugs whenever he physically conveys drugs to another

person.” Commonwealth v. Murphy, 844 A.2d 1228, 1233–34 (Pa. 2004).10

An exchange of money or something of value is not required; “all that is

necessary is that the transfer be between two people.” Commonwealth v.

Metzger, 372 A.2d 20, 22 (Pa. Super. 1977).

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9 Cassell’s argument exclusively focuses upon whether the Commonwealth

proved that he delivered the drugs to Smith in a sufficient fashion to convict

him of PWID, DDRD, and third-degree murder. We observe that his argument

does not address whether any other acts that may trigger criminal liability

under DDRD are applicable, such as the term “give.”

10 A person constructively transfers drugs when “he directs another person to

convey drugs under his control to a third person or entity.” Id.

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While aspects of Cassell’s argument may have some commonsense

appeal, based upon our Supreme Court’s interpretation of the statutory term

“deliver,” and mindful of the legal standard for a sufficiency review—which

requires us to view the facts in the light most favorable to the Commonwealth,

permits the Commonwealth to use wholly circumstantial evidence to establish

each element, and does not require the Commonwealth to rule out every

possibility of innocence to sustain its burden—we conclude that the

Commonwealth’s direct and circumstantial evidence was sufficient to prove

that Cassell physically conveyed the drugs to Smith. Upon learning that Smith

had left rehabilitation and needed help, Cassell, who was Smith’s self-

described boyfriend, protector, father, therapist, and psychiatrist,

immediately initiated the conversation about using, contacted his drug

connections, arranged and paid for Smith’s transportation, and bought Smith

food and a cell phone. He then offered Chase $40.00 to buy drugs, drove

himself and Smith to Chase’s house, obtained the heroin that turned out to be

the deadly fentanyl, provided the drugs to Smith, and twice “let” Smith “take

as much as she want[ed]” before using himself. Id. at Exhibit 24-25 (Cassell’s

police interview). Without her own money, cell phone, and transportation, the

jury was entitled to believe that Cassell, who had money, a telephone, drug

connections, and a car, arranged to buy the drugs from Chase, paid for the

drugs, received possession of the drugs, and physically conveyed the drugs to

Smith that ultimately killed her. But for Cassell’s assistance and conveyance

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of the drugs to her, Smith would not have ingested the deadly fentanyl

purchased from Chase.

As for Cassell’s argument regarding constructive possession, we note

that the concept is typically “a pragmatic construct to deal with the realities

of criminal law enforcement” that permits a factfinder to infer from a set of

facts that possession of the contraband was more likely than not.

Commonwealth v. Mudrick, 507 A.2d 1212, 1213 (Pa. 1986). Even

assuming arguendo that a mutual plan to obtain and use drugs together was

not a delivery for the purposes of PWID and DDRD despite a physical

conveyance between co-users, the facts of this case do not support Cassell’s

argument that Cassell and Smith jointly possessed the drugs. Clearly, Smith’s

conversation with Parrish supports the notion that Smith, an addict whose

brush with the criminal justice system interrupted her ability to satisfy her

addiction, desired to obtain and use drugs. But Smith’s desire to use and her

acquiescence in Cassell’s plan do not equate to her simultaneous joint

constructive possession. To constitute joint constructive possession, the

“evidence must show a nexus between the accused and the item sufficient to

infer that the accused had the power and intent to exercise dominion and

control over it.” Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa.

2019). Under the totality of the circumstances, the evidence circumstantially

establishes that Smith may have had access to the drugs, but she did not have

control over them. Not only did Cassell make the arrangements, drive the

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car, and pay for the drugs for Smith in her dependent state, Cassell’s police

interview established that any access Smith had to the drugs was subject to

Cassell’s control, particularly his statement that he “let” Smith take what she

wanted.

Because the Commonwealth sufficiently proved that the Cassell

delivered the drugs to Smith that ultimately killed her, no relief is due.

Jury Instructions

In his second issue, Cassell argues that the trial court erred by denying

his request to instruct the jury on joint acquisition and use. Cassell’s Brief at

32-35. Without such an instruction, Cassell argues, the jury had no ability to

contrast the Commonwealth’s delivery theory with the defense’s joint

acquisition theory, which Cassell contends was “plausibly consistent” with the

trial evidence. Id. at 34.

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 mislead 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

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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.”).

As our discussion regarding the sufficiency of the evidence indicates,

Pennsylvania law focuses upon a physical conveyance of drugs between two

people. See Murphy, 844 A.2d at 1233–34; Metzger, 372 A.2d at 22. Even

if the inference of joint constructive possession could overcome the physical

conveyance, the evidence clearly indicated that Cassell spearheaded the plan

to obtain drugs and maintained control over the drugs. Smith may have

mutually desired to use and accompanied Cassell while he obtained the drugs,

but the evidence does not support that she had control over the acquisition

and use of the drugs. As such, we will not interfere with the trial court’s ample

discretion to deny Cassell’s request for a joint acquisition/use charge. See

Commonwealth v. Baker, 963 A.2d 495, 506 (Pa. Super. 2008) (stating

that a particular jury instruction is warranted only where there is evidence

supporting such an instruction).

Conclusion

Because the evidence was sufficient to support Cassell’s convictions, and

the trial court did not abuse its discretion by rejecting Smith’s request to

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instruct the jury regarding a joint use/acquisition theory, we affirm his

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/24/2024

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