J-A08021-16

                                  2016 PA Super 197



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KEVIN MICHAEL CARONTENUTO,

                            Appellee                   No. 1693 EDA 2015


                   Appeal from the Order Entered May 7, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0001117-2015


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY OLSON, J.:                                 FILED AUGUST 31, 2016

        The Commonwealth of Pennsylvania appeals from the order entered on

May 7, 2015, which granted Kevin Michael Carontenuto’s pre-trial motion to

dismiss all criminal charges. We affirm.

        On December 23, 2014, the Commonwealth charged Mr. Carontenuto

with one count of possession of a controlled substance and one count of use

or possession of drug paraphernalia.1          On April 28, 2015, the parties

appeared for a pre-trial motion hearing and, during the hearing, Mr.

Carontenuto orally moved to dismiss all criminal charges filed against him.

N.T. Pre-Trial Hearing, 4/28/15, at 2.           As Mr. Carontenuto argued,

Pennsylvania’s “Drug Overdose Response Immunity” statute, found at 35

____________________________________________


1
    35 P.S. § 780-113(a)(16) and (32), respectively.



*Retired Senior Judge assigned to the Superior Court.
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P.S. § 780-113.7, applied to his case and rendered him statutorily immune

from prosecution. See id.; see also 35 P.S. § 780-113.7(c). In relevant

part, the immunity statute provides:

        § 780-113.7. Drug overdose response immunity

        (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 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

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         person for probation and parole violations and for violations
         of [35 P.S. § 780-113(a)](5), (16), (19), (31), (32), (33)
         and (37).

         (c) 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 (internal footnote omitted) (emphasis added).2

       During the pre-trial hearing, the parties stipulated to the following

facts for purposes of the motion:

         on December 23[, 2014,] at approximately [12:20 a.m.],
         Mark Rizzo, manager of a recovery house at 29 Sweetgum
         Road in Middletown Township, called 911 for medical
         assistance.

         Mr. Rizzo reported finding [Mr. Carontenuto] unconscious
         and experiencing an overdose event.      Officer Zachary
         Brosius of the Middletown Township Police Department
         responded to the recovery house and observed [Mr.
         Carontenuto] blue in the face, unresponsive and with an
         irregular pulse and breathing pattern.

         Officer Brosius spoke to Mr. Rizzo, who had remained on
         scene and was cooperative to law enforcement and was also
         truthful.

         Officer Brosius, then, moved [Mr. Carontenuto] from the
         bathroom and observed an empty syringe bottle cap and
         glassine envelopes that tested positive for heroin later.

         Officer Brosius observed no evidence that the drug
         paraphernalia belonged to anyone but [Mr. Carontenuto].
____________________________________________


2
  35 P.S. § 780-113.7 took effect on November 29, 2014.           All relevant
events in this case occurred on December 23, 2014.



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J-A08021-16



N.T. Pre-Trial Hearing, 4/28/15, at 5-7.

        The Commonwealth opposed Mr. Carontenuto’s motion and argued

that Mr. Carontenuto was not entitled to immunity under the statute.

Specifically, the Commonwealth argued, since Mr. Carontenuto was the

individual who “experience[ed the] drug overdose event[],” any immunity he

might have under the statute would need to fall under subsection (c).

However, the Commonwealth noted, immunity under subsection (c) is

derivative of the       immunity granted under subsection (a).          As the

Commonwealth argued: “[since] there was no evidence that Mr. Rizzo, the

manager of the recovery house, had committed any of the enumerated

offense[s] set forth in the immunity statue . . . [Mr. Rizzo] did not require

immunity under subsection (a) of the immunity statute. Consequently, [Mr.

Carontenuto] is not entitled to the derivative immunity under subsection

(c).”   Commonwealth’s Brief in Opposition, 5/4/15, at 10 (some internal

capitalization omitted).

        On May 7, 2015, the trial court granted Mr. Carontenuto’s motion and

dismissed all charges against Mr. Carontenuto. As the trial court ably and

succinctly explained:

          Here the statutory factors of [35 P.S. § 780-113.7(a)(2)]
          are met because Mr. Rizzo reported the overdose to the
          Middletown Township Police Department, cooperated with
          law enforcement, and remained with [Mr. Carontenuto] until
          Officer Brosius arrived. It is not contested that Mr. Rizzo
          believed that [Mr. Carontenuto] was in need of immediate
          medical attention or that Mr. Rizzo provided his name and
          location when he called the police.


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        The key provision applicable to [this] case is [35 P.S. § 780-
        113.7(c)], which describes the manner in which the
        immunity of the overdose victim depends upon the
        individual who reported the incident to law enforcement.

                                     ...

        [Mr. Carontenuto] is entitled to immunity from prosecution
        for violations of [35 P.S. § 780-113(a)(16) and (32)]
        because Mr. Rizzo may not be charged and is entitled to
        immunity under [35 P.S. § 780-113.7(a)(2)]. There is no
        evidence that Mr. Rizzo committed any crime. However, the
        statute applies if the reporting individual meets the
        requirements to be protected by the statute because of his
        actions.

        I would note parenthetically that almost anyone present at
        an overdose could or would be fearful of being prosecuted
        for constructive possession of anything that is on site.

        The contrary result would be that . . . individuals who have
        committed a crime need not fear calling for help in the
        event of an overdose, but individuals who have not
        committed a crime should hesitate before reporting an
        overdose for fear that [they or] the victim may be
        prosecuted. The overarching purpose of the statute is to
        encourage persons to report an overdose and to ensure that
        the victim would receive . . . help.

N.T. Decision and Order, 5/7/15, at 6-7 and 8-9.

      The Commonwealth filed a timely notice of appeal and now raises the

following claim:

        Did the trial court err when it dismissed the charges against
        [Mr. Carontenuto] pursuant to the Drug Overdose Response
        Immunity Act, 35 [P.S.] § 780-113.7, concluding that [Mr.
        Carontenuto], who had experienced a drug overdose event
        and was found in possession of drugs and drug
        paraphernalia, was entitled to immunity from prosecution
        pursuant to the Drug Overdose Response Immunity statute,
        for charges relating to his drug and drug paraphernalia use

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J-A08021-16


         and/or possession, where the person who called the police
         to report [Mr. Carontenuto’s] drug overdose event remained
         on the scene and cooperated with police, but where it was
         undisputed that there was no evidence that the caller
         himself had committed any criminal act from which the
         caller required immunity?

Commonwealth’s Brief at 4 (some internal capitalization and bolding

omitted).

      The Commonwealth’s claim on appeal revolves entirely around the

proper   interpretation   of   35   P.S.   § 780-113.7.     “Because    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). Further:

         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). When possible,
         every statute should be construed to give effect to all its
         provisions. Courts must read and evaluate each section of
         a statute in the context of, and with reference to, the other
         sections of the statute, because there is a presumption that
         the legislature intended the entire statute to be operative
         and effective.

         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).




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J-A08021-16



      The Commonwealth’s argument on appeal is singular: it argues that

Mr. Carontenuto was not entitled to immunity because Mr. Rizzo (the

individual who reported Mr. Carontenuto’s overdose) committed no crime.

According to the Commonwealth, since Mr. Carontenuto’s immunity is

derivative of Mr. Rizzo’s immunity – and since Mr. Rizzo “did not require

immunity under subsection (a) of the immunity statute” – Mr. Carontenuto is

not   entitled   to   immunity   under   subsection   (c)   of   the   statute.

Commonwealth’s Brief at 20-21. This claim fails under a plain reading of the

statute.

      In the case at bar, there is no question that: 1) Mr. Rizzo reported, in

good faith, a drug overdose event to the 911 system “and the report was

made on the reasonable belief that [Mr. Carontenuto] was in need of

immediate medical attention and was necessary to prevent death or serious

bodily injury due to a drug overdose;” 2) Mr. Rizzo “provided his own name

and location and cooperated with” the 911 system; and, 3) Mr. Rizzo

remained with Mr. Carontenuto until Officer Brosius arrived. N.T. Pre-Trial

Hearing, 4/28/15, at 5-7; 35 P.S. § 780-113.7(a)(2). Therefore, Mr. Rizzo

complied with all three of the statutory requirements for immunity listed in

35 P.S. § 780-113.7(a)(2) – and, since Mr. Rizzo complied with the three

statutory requirements, under the plain terms of Section 780-113.7(a)(2),

Mr. Rizzo “may not be charged and shall be immune from prosecution . . .

for violations of [35 P.S. § 780-113(a)(16) (possession of a controlled

substance) and (32) (use or possession of drug paraphernalia)].”       35 P.S.

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J-A08021-16



§ 780-113.7(a)(2) and (b). Further, under the plain terms of Section 780-

113.7, since Mr. Rizzo “may not be charged and is entitled to immunity

under” the statute, Appellant “may not be charged and shall be immune

from prosecution” for possessing a controlled substance and using or

possessing drug paraphernalia. 35 P.S. § 780-113.7(c).

      The Commonwealth argues that, “because [Mr. Rizzo] had not

committed any of the enumerated offense[s], he did not require immunity

under subsection (a) of the immunity statute.                Consequently, [Mr.

Carontenuto] is not entitled to [] derivative immunity under subsection (c).”

Commonwealth’s Brief at 21. This argument is not well taken.

      At the outset, the plain terms of the statute contain no probable cause

requirement for the “person who . . . reported and remained with” the

overdose victim – and the plain terms of the statute do not require the

“person who . . . reported and remained with” the overdose victim to have

“committed” any crime at all. Rather, the statute simply declares that, if the

reporting   individual   complies   with   the   three   statutory   requirements

enumerated in Section 780-113.7(a)(2), that individual “may not be charged

and shall be immune from prosecution for” things such as possessing a

controlled substance and using or possessing drug paraphernalia.          35 P.S.

§ 780-113.7(a).

      Therefore, under the plain terms of the statute, the Commonwealth

could not have charged Mr. Rizzo with possessing the contraband, even if it

believed Mr. Rizzo and Mr. Carontenuto jointly possessed the heroin and

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J-A08021-16



drug paraphernalia that was found in the bathroom. Further, under the plain

terms of the statute, even though the Commonwealth states it believes that

Mr. Rizzo did not possess the contraband, the Commonwealth’s belief does

not alter the fact that Mr. Rizzo “may not be charged and shall be immune

from prosecution” for the contraband found in the house.

       Moreover, and on a related note, the Commonwealth’s entire position

in this case is oddly astigmatic. In effect, it is saying it believes Mr. Rizzo

and it believes that Mr. Rizzo did not use or possess any of the contraband

found at the scene – that’s why the Commonwealth did not charge him with

a crime.     Moreover, since the Commonwealth believes that Mr. Rizzo is

innocent, Mr. Rizzo did not “require” immunity from prosecution, and, since

Mr. Rizzo did not “require” immunity from prosecution, Mr. Carontenuto

cannot claim immunity derivatively from Mr. Rizzo. Yet, and simply stated,

regardless of whether the Commonwealth believed Mr. Rizzo or not, the

Commonwealth could not have charged Mr. Rizzo with any crime in this case

since Mr. Rizzo complied with the requirements of Section 780-113.7(a)(2)

and was thus “entitled to immunity” under the statute.           35 P.S. § 780-

113.7(c) (emphasis added).3          As such, under the statute, Mr. Carontenuto
____________________________________________


3
  On appeal, the Commonwealth also looks to the statutory language
contained in Section 780-113.7(a)(1) and argues:

         As further evidence of the legislature’s intent, the statute
         explicitly provides in subsection (a)(1) – regarding those
         who transport a person who experiences a drug overdose
(Footnote Continued Next Page)


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J-A08021-16



“may not be charged and shall be immune from prosecution” for possessing

a controlled substance and using or possessing drug paraphernalia. 35 P.S.

§ 780-113.7(c) and (b).

      Thus, the trial court properly granted Mr. Carontenuto’s motion to

dismiss the criminal charges filed against him. Under the plain terms of 35

                       _______________________
(Footnote Continued)

         event – that “law enforcement officers only became aware
         of the person’s commission of an offense . . . because the
         person transported a person experiencing a drug overdose
         event.”    This language renders it beyond dispute that
         someone who transports a person experiencing an overdose
         to get help must have committed an enumerated offense in
         order to be entitled to immunity under subsection (a). . . .
         Yet, if this [Court] were to accept the trial court’s
         interpretation of [subsection (a)(2),] – that the person who
         reports and remains under subsection (a)(2) need not have
         committed an enumerated offense to be entitled to
         immunity – this would lead to inconsistent results [between
         cases that fall under subsection (a)(1) and subsection
         (a)(2)].

Commonwealth’s Brief at 18 (internal footnote omitted).

We express no opinion on the meaning of 35 P.S. § 780-113.7(a)(1).
However, we note that, under the guise of a parity claim, the
Commonwealth is, in effect, requesting this Court to supply language that
the legislature purposefully omitted from subsection (a)(2).                 See
Commonwealth’s Brief at 18 n.4 (“[t]he Commonwealth acknowledges that
subsection (a)(2), pertaining to those who report and remain, does not
repeat this specific language and that in an earlier draft of this statute that
same language had been included in subsection (a)(2) and was struck”).
We will not do so. Moreover, to the extent subsection (a)(1) and subsection
(a)(2) may be read differently, we simply note that the subsections use
different language to define the scope of their respective immunities.
Therefore, if different results are obtained, the difference is a function of the
explicit language the legislature purposefully utilized.



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J-A08021-16



P.S. § 780-113.7, Mr. Carontenuto “may not be charged and shall be

immune from prosecution” for possessing a controlled substance and using

or possessing drug paraphernalia.    35 P.S. § 780-113.7(c) and (b).   The

Commonwealth’s claim on appeal fails.

     Order affirmed. Jurisdiction relinquished.

     Judge Bowes joins this Opinion.

     Judge Strassburger files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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