J-A25030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                       Appellant                    :
                                                    :
                                                    :
                v.                                  :
                                                    :
                                                    :
    DOUGLAS R. FEHR                                 :   No. 457 MDA 2019

                Appeal from the Order Dated February 15, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003087-2018


BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED FEBRUARY 18, 2020

        The Commonwealth appeals from an order granting Douglas R. Fehr’s

motion to dismiss his charges pursuant to the Drug Overdose Response

Immunity statute, 35 P.S. § 780-113.7 (“Overdose Immunity Statute”). We

conclude that the statute does not afford Fehr immunity in this case. We

therefore reverse the order dismissing the charges and remand for further

proceedings.

        The Commonwealth charged Fehr in April 2018 with possession of a

controlled    substance,     possession        of   drug   paraphernalia,   and   public

drunkenness.1 See Information, filed 7/31/18. Fehr moved to dismiss the

charges, citing the Overdose Immunity Statute. At a hearing on the motion,

Officer Sean Engelman testified that he encountered Fehr while on duty on

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1   35 P.S. §§ 780-113(a)(16), (a)(32), and 18 Pa.C.S.A. § 5505, respectively.
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April 27, 2018. N.T., Pretrial Hearing, 9/28/18, at 3. He said that between

4:30 and 5:00 that morning he was in the parking lot outside of a McDonald’s

restaurant when two people flagged him down. They informed him that “a

male on the opposite side of the building of the McDonald’s . . . was walking

in and out of traffic. . . . and they said that the male seemed out of it and

asked me if I would go investigate.” Id. at 4. Officer Engelman did not obtain

any identifying information from the two, who then left the area. Id. at 13.

The officer testified that the two individuals did not say that the male was

having a medical emergency or that he seemed to be overdosing on drugs.

Id.

      Officer Engelman then drove to the area the individuals had identified

and saw Fehr “walking along the curb line in the street.” Id. at 6. Officer

Engelman asked Fehr to come over to his vehicle but Fehr “seem[ed] a little

dazed. He was stumbling around in traffic.” Id. Officer Engelman walked

towards Fehr, identified himself as a police officer, and asked Fehr “if he would

accompany me back from the parking lot away from the road.” Id. Fehr did

not respond, and Officer Engelman guided him to his patrol car in the parking

lot. Id. at 6-7. Without any direction from Officer Engelman, Fehr leaned on

the hood of the patrol car, at which point Officer Engelman observed a silver

spoon and two hypodermic needles sticking out of his top front pocket. Id. at

7, 8. Officer Engelman asked Fehr if there was anything else in his pockets

but Fehr again did not respond. Id. at 8. Officer Engelman conducted a pat

down search to make sure Fehr had no other needles in his pockets, and he

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found none. Id. He then placed Fehr under arrest for possession of drug

paraphernalia. Id.

      Officer Engelman then performed a search incident to arrest and

recovered numerous baggies filled with a white powdery substance that field-

tested positive for heroin. Id. After he placed Fehr in the back of his patrol

car, a young girl approached him and said that Fehr was a friend of her

mother, who was in the McDonald’s. Id. at 9, 17. He spoke with the mother

who told him that she was in the area to drop Fehr off at a methadone clinic.

Id. at 10. This conversation lasted about 10 to 15 minutes. Id. When Officer

Engelman returned to his patrol car, Fehr’s “head was kind of leaned back and

his mouth was open. He was still not answering any of my questions. At that

time that’s when I called for an ambulance to have him evaluated.” Id. Officer

Engelman testified that Fehr did not appear to be overdosing but did seem to

be under the influence of a narcotic or alcohol. Id. at 7.

      Officer Engelman testified on cross-examination that he receives yearly

training “for releases of Narcan” and identifying people who may be

overdosing. Id. at 12. He explained that Narcan is used for an active heroin

or opiate overdose. Id. The training informed him to administer Narcan when

the individual “starts making certain noises or gurgling sounds and stops

breathing….” Id. at 23. A portion of the police incident report that he prepared

on the day of the incident was also read into the record. It read, “Fehr was

placed in the back of the patrol car and an ambulance was called to the scene




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due to the fact that Fehr was going in and out of consciousness from apparent

heroin overdose.” Id. at 19.

      At the conclusion of the hearing, the Commonwealth argued that the

facts of the case were “just not what was intended to be covered by [the drug

overdose] statute.” Id. at 31. It argued that Fehr failed to carry his burden to

establish immunity under subsection 780-113.7(a)(2) because the two

individuals reporting Fehr to the officer did not actually or reasonably believe

that Fehr was experiencing a drug overdose:

         That is my argument. That in order for there to be immunity
         the person reporting so these people in this car have to be
         reporting a drug overdose event and they have to be under
         the reasonable belief that the person was in need of
         immediate medical attention to prevent death or serious
         bodily injury due to a drug overdose event. They have no
         way of knowing or there is no evidence that there was any
         belief that when they see this guy walking in traffic that they
         believed that he is suffering from a drug overdose event.

            It is defined for you. I put it in the response that you
         requested. There is none of that and a[n] acute medical
         condition and it goes on and on and on, none of that acute
         – none of that is established here. So I don’t believe that
         they meet the first criteria at all. Certainly they were being
         good citizens and were reporting the fact that there is a guy
         walking in traffic but that’s it.

            He could have been having a mental health episode or
         just being a jerk, he could have been drunk, he could have
         been any number of things.

Id. at 29.

      The prosecution also maintained the Fehr failed to show that the

reporters remained at the scene. Defense counsel responded that the evidence



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supported the dismissal of all charges because “[Officer Engelman] called the

ambulance because my client was going in and out of consciousness from an

apparent heroin overdose.” Id. at 26.

      The trial court ultimately granted the motion concluding that the

evidence supported all requirements of subsection 780-113.7(a)(2). The court

explained, “Under the first requirement . . . this [c]ourt finds that [Fehr] was

the subject of a drug overdose event.” Findings of Fact and Conclusions of

Law, filed 2/15/19, at Conclusions of Law ¶ 8. The court also concluded “[i]n

this case, one would reasonably believe that [Fehr] was suffering from a drug

overdose and required immediate medical attention.” Id. at ¶ 9.

      The Commonwealth filed this timely appeal and presents a single issue:

“Did the trial court err when it concluded that two individuals reported a drug

overdose event thus triggering immunity under 35 P.S. § 780-113.7?”

Commonwealth’s Br. at 4.

      This appeal presents a question of statutory interpretation. Our standard

of review is de novo and our scope of review is plenary. See Bowling v.

Office of Open Records, 75 A.3d 453, 466 (Pa. 2013). We review for error

of law. Commonwealth v. Lewis, 180 A.3d 786, 788 (Pa.Super. 2018).

Unless the text of a statute is ambiguous, we may not resort to the tools of

statutory construction to discern its meaning. Rather, we must apply its

unambiguous text. 1 Pa.C.S. § 1921(b); Commonwealth v. Brown, 981

A.2d 893, 898 (Pa. 2009).




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       The Overdose Immunity Statute affords immunity to a person

experiencing a “drug overdose event” only if the statute also immunizes a

person who reported the event. 35 P.S. § 780-113.7(c).2 Fehr claims the two

individuals who contacted Officer Engelman were immune under Section 780-

113.7(a)(2). Subsection (a)(2) provides:

       (a) A person may not be charged and shall be immune from
           prosecution for any offense listed in subsection (b) and for
           a violation of probation or parole if the person can establish
           the following:

                                           ***

              (2) all of the following apply:

                     (i)   the person reported, in good faith, a drug
                           overdose event to a law enforcement officer,
                           the 911 system, a campus security officer or
                           emergency services personnel and the report
                           was made on the reasonable belief that
                           another person was in need of immediate
                           medical attention and was necessary to
                           prevent death or serious bodily injury due to a
                           drug overdose;

                     (ii) the person provided his own name and
                          location and cooperated with the law
                          enforcement officer, 911 system, campus
                          security officer or emergency services
                          personnel; and

                     (iii) the person remained with the person needing
                           immediate medical attention until a law
                           enforcement officer, a campus security officer
                           or emergency services personnel arrived.
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2 “Persons experiencing drug overdose events may not be charged and shall
be immune from prosecution as provided in subsection (b) if a person who
transported or reported and remained with them may not be charged and is
entitled to immunity under this section.” 35 P.S. § 780-113.7(c).

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35 P.S. § 780-113.7(a)(2). The person claiming immunity under the statute

bears the burden of proof. Id. at § 780-113.7(a).

        Fehr thus bore the burden of proving that: 1. the reporters reported a

“drug overdose event”3 to Officer Engelman in good faith and based on the

reasonable belief that immediate medical attention was necessary to prevent

death or serious bodily injury due to a drug overdose; 2. the reporters

provided authorities with their real name and location, and cooperated with

the responding authorities; and 3. the reporters remained with him until

responding authorities arrived. See id. at § 780-113.7(a)(2); Lewis, 180

A.3d at 790.

        The Commonwealth argues that the statute does not apply here because

the two individuals who contacted Officer Engelman did not report a “drug

overdose event.” See Commonwealth’s Br. at 12-13. It further maintains that

even if Fehr established that element, the reporters did not identify

themselves or remain on the scene. Id. at 15.

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3   “Drug overdose event” is defined as:

           An acute medical condition, including, but not limited to,
           severe physical illness, coma, mania, hysteria or death,
           which is the result of consumption or use of one or more
           controlled substances causing an adverse reaction. A
           patient's condition shall be deemed to be a drug overdose if
           a prudent layperson, possessing an average knowledge of
           medicine and health, would reasonably believe that the
           condition is in fact a drug overdose and requires immediate
           medical attention.

35 P.S. § 780-113.7(f).

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      We must agree with the Commonwealth. Even assuming, arguendo, that

Fehr established that the reporters contacted Officer Engelman based on their

reasonable belief that he was undergoing a “drug overdose event,” Fehr did

not carry his burden to prove the other required elements. It is undisputed

that the reporters did not remain with Fehr until help arrived and did not give

their names to Officer Engelman. We thus conclude that here the Overdose

Immunity Statute is inapplicable as the reporters would not have been entitled

to immunity. We reverse the order granting Fehr’s motion to dismiss and

remand the case for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/18/2020




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