The District Attorney (prosecution) can establish the intent to distribute, deliver or manufacture element with either observed transactions or with circumstantial evidence

What the District Attorney Must Prove at Trial in a PWID Case in Pennsylvania?


Under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. Section 780-101) Possession with the Intent to Deliver (PWID – 35 P.S. Section 780-113(30)) is a felony offense in Pennsylvania and therefore much more serious than the illegal possession of a controlled substance or drug for personal use (aka knowing and intentional possession). While all PWID crimes are felonies, the severity of a criminal penalty is based on the drug or substance’s weight. Keep in mind that the prosecution must prove all elements of a criminal offense in Pennsylvania and any other jurisdiction (including federal) beyond a reasonable doubt. Unlike simple possession, the prosecution (district attorney) must prove not only actual or constructive possession of a controlled substance, narcotic, or drug but an intent to manufacture, deliver, or distribute it.     


What Type of Evidence Can The Prosecution Introduce To Prove PWID?


The District Attorney (prosecution) can establish the intent to distribute, deliver or manufacture element with either observed transactions or with circumstantial evidence (bags, scales, large quantity of money, other drug paraphernalia). If there aren’t observed transactions, however, the prosecution will need an expert to testify that the circumstantial evidence is indicative of an intent to distribute, deliver, or manufacture the drug. Obviously the prosecution must prove possession before it can establish an intent to deliver or distribute and readers of my previous articles understand that constructive possession is just as good as actual possession when it comes to the prosecution’s burden of proof in these cases. While the elements of a PWID charge are important, it is equally important to understand that the severity of a criminal penalty increases as the weight of the drug found within the person’s possession increases.


What a Prosecutor Must Prove at Trial in a PWID Case in New Jersey?

In New Jersey it is a crime to manufacture, distribute, or dispense a controlled dangerous substance (CDS), or its analog. NJSA 2C: 35-4.1(e). The penalty for this offense is dependent on the type of controlled substance involved and on the quantity of the substance.

If you’re charged with this crime in New Jersey, the state (prosecution) must prove that you knowingly or purposely manufactured, distributed, or dispensed a substance. The prosecution must prove that you are aware of the character of this substance in order to prove that you acted knowingly. There are 3 essential elements that the prosecution must establish beyond a reasonable doubt, which is the criminal standard in any courtroom in New Jersey and every other state. These are the elements:

  1. The item is a CDS or its analog.
  2. The defendant manufactured, dispensed, or distributed it.
  3. The defendant acted knowingly or purposely.


How Will the Weight of Drug or Narcotic Effect the Charges?


For example, a PWID charge for over 1,000 grams of heroin, cocaine, or any Schedule I or Schedule II controlled substance has an offense gravity score (OGS) of 13, while a PWID for these same substances with a weight of 100 – 1,000 grams has an OGS of 11.  50 – 100 grams has an OGS of 10. These different weights would expose a person to the following criminal penalties even if they had no prior criminal history in Pennsylvania:





Cocaine, Heroin,

Schedule I, II


60-78 months

Cocaine, Heroin,

Schedule I, II


36-54 months

Cocaine, Heroin,

Schedule I, II


22-36 months





How is Pennsylvania Different From New Jersey on PWID Charges?

As you can tell as the OGS falls, so does the person’s potential time in jail. Unlike, New Jersey, Pennsylvania doesn’t have mandatory minimum sentencing for drug offenses under the Controlled Substance, Drug, Device and Cosmetic Act, but many judges within the Commonwealth will still follow these sentencing guidelines. It’s important that if you’re charged with a PWID charge in Pennsylvania, your attorney not only look at the elements of the criminal charges but also pre-trial issues such as illegal search and seizure. If a Motion to Suppress evidence (illegal search and seizure) isn’t successful, your attorney must argue not only reasonable doubt with regards to the prosecution’s presentation of the evidence (actual vs. constructive possession) but also reasonable doubt with regards to the amount of weight at issue in the case—this can make a huge difference!


Why is the Weight of the Drug So Important?


The weight of the drugs is tremendously important because it will control the amount of time a person might spend in jail following a conviction. In addition to jail, a person convicted of PWID faces a substantial find even for a first time offense. A first time offender for a PWID charge faces a maximum fine of $250,000.00 if the drug is heroin, oxycodone, methadone, or LSD and $100,000.00 fine it the drug is cocaine, crack, PCP, or methamphetamine.


What To Do Next?  Read my Book! 

For more information on drug crimes, I encourage you to read my monthly newsletter or pick up a copy of my latest book, “What Everyone Should Know about Guns, Drugs, and Defense Attorney’s in Pennsylvania”.