J-S07010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 KYLE JAMES WRONSKI                      :
                                         :
                   Appellant             :   No. 1369 MDA 2018

       Appeal from the Judgment of Sentence Entered August 6, 2018
   In the Court of Common Pleas of Schuylkill County Criminal Division at
                     No(s): CP-54-CR-0002001-2017


BEFORE:   OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                FILED: MARCH 27, 2019

     Appellant, Kyle James Wronski, appeals from the judgment of sentence

entered on August 6, 2018. We affirm.

     The trial court ably summarized the facts of this case:

        On [September] 9, 2017, [Mahanoy City Borough Police
        Corporal Charles Kovalewski] was dispatched to 307 East
        Mahanoy Street[. The dispatch was in response to a 911 call,
        that Appellant made, reporting that a female (hereinafter
        “the Overdose Victim”) was experiencing a drug overdose].
        The address was that of [the Overdose Victim’s mother]. . . .

        [Corporal Kovalewski] was the first responder at the scene.
        Upon arrival, [Corporal] Kovalewski saw numerous
        individuals, including [Appellant], and [the Overdose
        Victim’s] body partially under a motor vehicle parked [on] the
        street. People were yelling, including the [Overdose Victim’s]
        mother, that [Appellant] was seen driving with the [Overdose
        Victim] prior to the incident, that the mother saw [Appellant]
        dragging the [Overdose Victim] out of the vehicle[,] and that
        [Appellant] had been trying to leave [the scene], but was
        caught [and then “decided to call 911 because [the Overdose


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Victim’s mother] had caught him . . . dragging her out of the
       vehicle.” N.T. Trial, 6/11/18, at 157.] . . .

       As [Corporal Kovalewski] began to attend to the [Overdose
       Victim,] he asked [Appellant] what had happened. . . .
       [Appellant], who was standing on the sidewalk, told
       [Corporal] Kovalewski that he had not been driving, [] did
       not know who had driven the vehicle, [] did not know what
       had happened to the [Overdose Victim,] and [] did not know
       the identity of the owner of the vehicle under which the
       [Overdose Victim was lying. Further, Appellant told Corporal
       Kovalewski that “he had just walked up and [saw] what was
       going on and called 911.” Id. at 153]. . . .

       While the [Overdose Victim] was on the ground being
       attended to by [Corporal] Kovalewski, [the corporal] saw
       [Appellant] get into the vehicle, start the engine[, put the
       vehicle in drive,] and begin to pull forward to drive away. The
       vehicle was about the run over the unconscious [Overdose
       Victim] who was [lying in] between [the vehicle’s] front and
       rear tires. [Corporal] Kovalewski [testified that, in response,
       he stopped giving the Overdose Victim aid, stood up, got out
       of the way of the vehicle, and “start[ed] banging on the
       passenger window to get [Appellant] to stop.” Id. at 46. At
       the corporal’s command, Appellant put the vehicle in park
       and exited the vehicle. Id. Nevertheless, the corporal
       testified that Appellant had moved the vehicle “several
       inches” until – in response to the corporal’s commands –
       Appellant stopped the vehicle and exited; further, Corporal
       Kovalewski testified that, if Appellant had “pulled forward or
       . . . gone backward” a little more, he would have driven over
       the Overdose Victim. Id. at 115]. . . .

       [Corporal] Kovalewski was aware from prior dealings with
       [Appellant] that he had a suspended driver’s license and
       asked [Mahanoy Township Police Officer Rachel Lenar,] . . .
       who arrived to assist [Corporal] Kovalewski, to [arrest
       Appellant.fn.1 During the] search incident to arrest, Officer
       Lenar found that [Appellant] possessed[: 0.08 grams of a
       powdered mixture, consisting of heroin, fentanyl, and
       cocaine; 0.30 grams of cocaine; an empty glassine baggie;
       and, a syringe. Id. at 38-39, 68, 96, and 99.]




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              [fn.1] The Commonwealth additionally had indicated to
              the [trial] court before trial testimony began that its
              witnesses were instructed not to testify that 911 had
              relayed to Officer Lenar that a warrant was out for
              [Appellant’s] arrest. Evidence of the warrant was not
              elicited.

Trial Court Opinion, 10/11/18, at 3-4 (some internal capitalization omitted).

       The Commonwealth charged Appellant with two counts of possession of

a controlled substance, one count of possession of drug paraphernalia, and

one count of driving with a suspended license.1 Commonwealth’s Information,

11/6/17, at 1. Appellant proceeded to a jury trial, where the above evidence

was presented. Further, during trial, Appellant moved for dismissal of the

possessory offenses by claiming that 35 P.S. § 780-113.7 provided him with

immunity from the charges. See N.T. Trial, 6/11/18, at 136. The trial court

denied Appellant’s motion and the jury found Appellant guilty of the

possessory offenses.2        Id. at 216.       On August 6, 2018, the trial court

sentenced Appellant to serve an aggregate term of nine to 24 months in

prison, followed by one year of probation, for his convictions. N.T. Sentencing,

8/6/18, at 22-23.

       Appellant filed a timely notice of appeal. He raises one claim to this

Court:


____________________________________________


1  35 P.S. §§ 780-113(a)(16) and (32) and 75 Pa.C.S.A. § 1543(a),
respectively.

2The trial court found Appellant guilty of the summary offense of driving with
a suspended license. N.T. Trial, 6/11/18, at 216.


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        Did the trial court [err] in failing to dismiss the possession
        [of] drugs and possession of drug paraphernalia [charges]
        against [Appellant] pursuant to 35 P.S. § 780-113.7(a)(2)?

Appellant’s Brief at 4.

      Appellant’s claim revolves around the interpretation and application of

35 P.S. § 780-113.7.        We note that, since “statutory interpretation is a

question of law, our standard of review is de novo[] and our scope of review

is plenary.”     Commonwealth v. Hacker, 15 A.3d 333, 335 (Pa. 2011)

(internal quotations and citations omitted). We further note that:

        The principal objective of statutory interpretation and
        construction is to ascertain and effectuate the intention of the
        legislature. 1 Pa.C.S.A. § 1921(a). . . . The plain language
        of a statute is the best indication of legislative intent. The
        basic tenet of statutory construction requires a court to
        construe words of the statute according to their plain
        meaning. “When the words of a statute are clear and free
        from all ambiguity, the letter of it is not to be disregarded
        under the pretext of pursuing its spirit.”         1 Pa.C.S.A.
        § 1921(b).

Commonwealth v. Poncala, 915 A.2d 97, 104 (Pa. Super. 2006) (some

internal quotations and citations omitted).

      Appellant claims that the trial court erred in concluding that he was not

entitled to immunity under 35 P.S. § 780-113.7. Section 780-113.7, entitled

“drug overdose response immunity,” provides, in relevant part:

        (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:

               (1) law enforcement officers only became aware of the
               person's commission of an offense listed in subsection (b)
               because the person transported a person experiencing a

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            drug overdose event to a law enforcement agency, a
            campus security office or a health care facility; or

            (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.

        (b) The prohibition on charging or prosecuting a person as
        described in subsection (a) bars charging or prosecuting a
        person for probation and parole violations and for violations
        of section 13(a)(5), (16), (19), (31), (32), (33) and (37).

35 P.S. § 780-113.7. Section 780-113.7 “does not require the Commonwealth

to establish that immunity does not apply, but places the burden on the

defendant to establish [the section’s] applicability.”     Commonwealth v.

Markun, 185 A.3d 1026, 1033 (Pa. Super. 2018) (en banc); see also 35 P.S.

§ 780-113.7(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 . . .”).




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       On appeal, Appellant claims that the trial court erred in failing to afford

him immunity under Section 780-113.7(a)(2).3 According to Appellant, to be

entitled to immunity under Section 780-113.7(a)(2), “the defendant must only

make the call reporting the overdose incident to law enforcement or 911,

identify himself[,] and remain with the person in need of medical care until

law enforcement or medical personnel arrives. Nothing further is required.”

Appellant’s Brief at 8. As Appellant claims, since he complied with all of the

statutory elements he listed, he was entitled to immunity from prosecution

and the trial court erred in refusing to dismiss the charges against him. This

claim fails.

       Appellant’s summary of Section 780-113.7(a)(2) notably omits one,

explicitly stated, mandatory statutory element for immunity: that Appellant

“cooperate[] with the law enforcement officer, 911 system, campus security

officer or emergency services personnel.”          35 P.S. § 780-113.7(a)(2)(ii)

(emphasis added); see also Commonwealth v. Lewis, 180 A.3d 786, 790

(Pa. Super. 2018) (noting:         “[o]ther conditions on the grant of immunity

include a requirement that the reporter provide authorities with her real name,

that she stay with the subject of her report, and she cooperate fully with

authorities”) (emphasis added).           Indeed, Appellant’s argument on appeal
____________________________________________


3 Appellant does not claim that he was entitled to immunity under Section
780-113.7(a)(1). See Appellant’s Brief at 4 and 8-11. We note it is
uncontradicted that Appellant did not “transport[ the Overdose Victim] to a
law enforcement agency, a campus security office or a health care facility.”
See 35 P.S. § 780-113.7(a)(1). Therefore, and unquestionably, Section
780-113.7(a)(1) does not apply to this case.

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simply reads out the mandatory statutory element of cooperation and – in

contravention of the plain statutory language – Appellant argues the immunity

statute does not require cooperation with the police. Appellant’s Brief at 10.

Appellant’s argument ignores the plain statutory language of Section

780-113.7(a)(2)(ii) and, thus, immediately fails.

     Further, we note that, in the case at bar, the evidence is clear that

Appellant did not cooperate with Corporal Kovalewski.          As the trial court

cogently explained:

        [Appellant] did not cooperate with police by providing
        information relative to the events surrounding the overdose.
        Rather, [Appellant] claimed to know nothing about it.
        Moreover, he attempted to leave the scene of the event and
        would have driven over the [Overdose Victim] had [Corporal
        Kovalewski] not stopped the vehicle.

                                       ...

        [In addition, during trial, Appellant testified that, as he pulled
        the Overdose Victim] out of the vehicle, he saw that she had
        a needle in her arm and an empty baggie in her lap.
        [Appellant testified that he] assumed that she overdosed on
        heroin because she had just gotten out of “rehab.” As he
        pulled the [Overdose Victim] out of the vehicle, [Appellant]
        claimed that the needle fell from her arm and the baggie fell
        to the ground. [Appellant] picked both up and put them in
        his pocket[,] but did not tell the officers at the scene about .
        . . the drugs, [the Overdose Victim] having likely overdosed
        on heroin, [or] . . . the needle. . . .

        [Thus,] although [Appellant] claimed at the scene to know
        nothing about the overdose, the evidence established that
        [Appellant] was well aware of the drug that had been used
        by the [Overdose Victim,] lied about what had happened to
        her and what his involvement had been[,] hid evidence of the
        use of the heroin by [the Overdose Victim] prior to police
        arrival[, and almost drove a car over the Overdose Victim

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        while Corporal Kovalewski was attempting to give the victim
        aid].

Trial Court Opinion, 10/11/18, at 5-6.

      In this appeal, Appellant does not claim that the trial court’s factual

determinations were incorrect or that, despite the trial court’s factual findings,

the trial court erred in failing to find that he cooperated with the authorities.

See Appellant’s Brief at 8-11.     Instead, Appellant simply argues that the

immunity statute does not require his cooperation with the police. Id. at 10.

As noted above, Appellant’s argument disregards the plain statutory language

of Section 780-113.7(a)(2)(ii) and, thus, fails. Moreover, since the evidence

demonstrates that Appellant did not cooperate with the police, Appellant was

not entitled to immunity in this case. Appellant’s claim to the contrary fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2019




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