J-A29018-19

                                   2020 PA Super 85

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONNIE LEHMAN                              :
                                               :
                       Appellant               :   No. 1715 WDA 2018


      Appeal from the Judgment of Sentence Entered, November 5, 2018,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0003380-2018.


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

OPINION BY KUNSELMAN, J.:                                 FILED APRIL 6, 2020

        Ronnie Lehman appeals from the judgment of sentence imposed

following his conviction for possession of controlled substance contraband by

an inmate.1     After careful review, we affirm.

        The facts underlying the instant appeal are not in dispute, as the parties

stipulated to the factual history contained in the affidavit of probable cause,

which provided as follows:

        On [March 5, 2018 at approximately 8:20 a.m.] I, Officer Lutz,
        along with Officer Strano responded to the Renewal Center (a
        halfway house) for an overdose. While in route [sic] dispatch
        notified us that an employee was just stuck with a needle found
        on the overdosed person’s body. Upon arrival Medic 14 was
        treating the overdosed male, Ronnie Lehman. Security Officer,
        John Wagner, stated that another unknown inmate called down to
        the front desk to report that there was a male passed out in the
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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. § 5123(a.2).
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       bathroom on the 2nd floor. John Wagner, Ralph Chippich, and
       Anthony Narducci responded to the bathroom and found Ronnie
       Lehman unresponsive on the bathroom floor. They gave Lehman
       2 doses of Narcan. Ralph Chippich went to search Lehman’s
       pockets and was stuck with a hypodermic needle that was in
       Lehman’s pocket. Ex. 2: a hypodermic needle was recovered
       along with Ex:1: 10 stamp bags of heroin marked “World Wide”
       from Lehman's pocket by John Wagner. Wagner turned over the
       stamp bags of heroin to me and disposed of the needle in a sharps
       container. Chippich had another employee drive him to Mercy
       Hospital for treatment. Ronnie Lehman was transported to Mercy
       Hospital by Medic 14. Officer Strano went to Mercy Hospital to
       transport Lehman to the [Allegheny County Jail] after he is
       released. Lehman was transported to the ACJ from Mercy by
       Officer Strano with out [sic] incident.

Lehman’s Brief at 8 (citing Affidavit of Probable Cause, 3/5/18, at 2).

       Following this incident, the police charged Lehman with possession of

controlled substance contraband by an inmate, along with possession of a

controlled substance and possession of drug paraphernalia. See 35 P.S. §§

780-113(a)(16), (32).        Lehman filed a motion to dismiss the charges for

possession of a controlled substance and possession of drug paraphernalia

pursuant to the Drug Overdose Response Immunity Act, 35 P.S. § 780-113.7,

which provides immunity from prosecution for certain drug-related offenses

under specified circumstances.2            In response, the Commonwealth nolle

prossed the charges for possession of a controlled substance and possession

of drug paraphernalia.
____________________________________________


2  In an effort to prevent overdose deaths, the Pennsylvania Legislature
enacted the Act to provide for immunity from prosecution for certain minor
possessory crimes when a person has a reasonable belief someone is suffering
from an overdose and contacts local authorities. See Commonwealth v.
Lewis, 180 A.3d 786 (Pa. Super. 2018). The Act provides this immunity to
both the reporter and the victim, so long as several conditions are met. Id.

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      Lehman then informed the trial court that he was extending his motion

to dismiss to the possession of contraband charge as well. The parties briefed

the issue of whether Lehman had immunity under the Drug Overdose

Response Immunity Act from that charge. Ultimately, the trial court denied

the additional request for immunity, and the case proceeded to a bench trial,

where Lehman was convicted of possession of contraband.         The trial court

sentenced Lehman to thirty-five to ninety months of incarceration. Lehman

filed a timely notice of appeal. Both Lehman and the trial court complied with

Pa.R.A.P. 1925.

      Lehman raises the following issue for our review:

      In an issue of first impression, should the trial court have
      dismissed the contraband charge filed against Mr. Lehman
      because the Drug Overdose Response Immunity Act . . . provides
      immunity from prosecution for minor narcotics infractions to
      persons who overdose and obtain medical assistance from
      authorities? More specifically, as the contraband charge . . . can
      only be proven by possession of a controlled substance, for
      which offense Mr. Lehman has immunity under the Act, should
      immunity also apply here to prohibit any criminal prosecution of
      Mr. Lehman for possession of heroin, no matter where it was
      possessed?

Lehman’s Brief at 10 (emphasis in original).

      Lehman’s claim involves the interpretation and application of the Drug

Overdose Response Immunity Act. As “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:


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      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).

      Lehman argues that the trial court erred in concluding that he was not

entitled to immunity under the Drug Overdose Response Immunity Act for the

possession of contraband charge. That Act 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 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,


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J-A29018-19


           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 [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

     (d) The prohibition on charging or prosecuting a person
     as described in this section is limited in the following
     respects:

        (1)   This section may not bar charging or prosecuting a
              person for offenses enumerated in subsection (b) if a law
              enforcement officer obtains information prior to or
              independent of the action of seeking or obtaining
              emergency assistance as described in subsection (a).

        (2)   This section may not interfere with or prevent the
              investigation, arrest, charging or prosecution of a
              person for the delivery or distribution of a controlled
              substance, drug-induced homicide or any other crime
              not set forth in subsection (b).

        (3)   This section may not bar the admissibility of any evidence
              in connection with the investigation and prosecution for
              any other prosecution not barred by this section.

              ....

35 P.S. § 780-113.7 (emphasis added).



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J-A29018-19



       The burden of proof under the Drug Overdose Response Immunity Act

is not on the Commonwealth; rather, the defendant must establish that he is

entitled to immunity under the Act. Commonwealth v. Markun, 185 A.3d

1026, 1033 (Pa. Super. 2018) (en banc); see also 35 P.S. § 780-113.7(a)

(providing that “[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 . . .”).

       Based on our review of the Drug Overdose Response Immunity Act, we

conclude that the trial court did not err in declining to dismiss the charge of

possession of contraband.          The Act provides immunity for only certain,

specifically-enumerated offenses, namely 35 P.S. §§ 780-113(a)(5), (16),

(19), (31), (32), (33) and (37), and probation and parole violations. See id.

§ 780-113.7(b).       The crime of possession of contraband, codified at 18

Pa.C.S.A. § 5123(a.2), is not one of those enumerated offenses. Moreover,

by its plain language, the Drug Overdose Response Immunity Act prohibits

the interference with or prevention of the investigation, arrest, charging or

prosecution of a person for “any other crime not set forth in subsection (b).”

35 P.S. § 780-113.7(d)(2); see also Lewis, 180 A.3d at 790 (observing that

the Act does not provide immunity for, inter alia, “any other serious crime not

explicitly listed in the Act”).3

____________________________________________


3Lehman’s reliance on Markun, 185 A.3d 1026, is unavailing, as that case is
both factually and legally distinguishable. Therein, Markun, an overdose



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     Although Lehman concedes that possession of contraband is not one of

the offenses enumerated in subsection (b), he nevertheless contends that he

should be entitled to immunity under the Drug Overdose Response Immunity

Act because an element of the crime of possession of contraband is the crime

of possession of a controlled substance, which is an enumerated offense under

subsection (b).     Lehman’s Brief at 10.        He argues that his immunity from

prosecution for possession of a controlled substance should preclude the

possession of contraband conviction.

       While possession of a controlled substance is an element of possession

of contraband, the crimes are nevertheless distinct. Pursuant to § 5123(a.2),

the crime of possession of contraband is committed when “[a] prisoner or

inmate . . . unlawfully has in his possession or under his control any controlled

substance in violation of [35 P.S. § 780-1]13(a)(16) . . . For purposes of this

subsection, no amount shall be deemed de minimus.”                  18 Pa.C.S.A.

§ 5123(a.2). The legislative purpose in enacting § 5123(a) was to prevent

the acquisition of contraband substances by persons confined in prison

environments. See Commonwealth v. Williams, 579 A.2d 869, 871 (Pa.

1990). Notably, possession of contraband under § 5123(a.2) does not require

a conviction for possession of a controlled substance, but only the fact of such

____________________________________________


victim, was charged with possession of a controlled substance, not possession
of contraband. This Court addressed the question of whether she had waived
immunity under the Act for the possessory offense by failing to raise the issue
in the trial court. See id. at 1035 (holding that the Legislature did not intend
for the Act to operate as a waivable defense).

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J-A29018-19



possession. See Commonwealth v. Gerald, 47 A.3d 858, 861 (Pa. Super.

2012).

       Moreover, a conviction for possession of contraband under § 5123(a.2)

is not a minor drug offense. Rather, it graded as a second-degree felony.

See 18 Pa.C.S.A. § 5123(a.2). Thus, the Legislature clearly considered the

possession of narcotics by an inmate, like Lehman, to be a serious offense

regardless of the amount of narcotics involved. As noted previously, the Drug

Overdose Response Immunity Act was not intended to provide immunity for

serious offenses, like the crime in question.     See Lewis, 180 A.3d at790

(observing that “[u]nder the appropriate circumstances, the reporter is

rendered immune from prosecution for minor drug offenses enumerated in the

[Drug Overdose Response Immunity] Act”).4 Had the Legislature desired to

grant immunity to prisoners and inmates for possession of contraband, it could

have done so. However, it did not. See Williams, 579 A.2d at 871 (observing

that “we are constrained to focus upon the plain language of the statute rather

than upon the harshness of the policy that the legislature has found it

necessary to enforce”).



____________________________________________


4 In its opinion, the trial court remarked, “[c]ontraband requires more than
possession, [it] requires possession within a facility, higher grading, higher
concern with regard to the safety of others in that facility, and . . . the fact
that it is in a facility within a criminal justice system where many other people
are being treated to address addiction issues.” Trial Court Opinion, 5/17/19,
at 5.


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J-A29018-19



       Moreover, the mere fact that the crime of possession of a controlled

substance is an element of the crime of possession of contraband is not

indicative of any Legislative intent to provide immunity for all offenses

involving possession of drugs.            Indeed, the Drug Overdose Response

Immunity Act expressly states that no immunity is to be granted for the crime

of possession with intent to deliver, which includes the element of possession

of narcotics. See 35 P.S. § 780-113.7(d)(2).5

       In sum, Lehman is not entitled to relief because the plain and

unambiguous terms of § 780-113.7 demonstrate that the Legislature did not

intend to include the crime of possession of contraband as an enumerated

offense for which immunity is provided under the Drug Overdose Response

Immunity Act. Accordingly, the trial court did not err in denying his motion

to dismiss that charge. We therefore affirm the judgment of sentence.

       Judgment of sentence affirmed.

       President Judge Emeritus Bender joins the opinion.

       Judge Pellegrini files a concurring opinion in which President Emeritus

Bender joins.




____________________________________________


5 Even if possession of contraband were an enumerated offense under
subsection (b), Lehman does not contend, and we therefore do not address
the question of whether he could otherwise satisfy the requirements for
immunity under the Drug Overdose Response Immunity Act. See 35 P.S. §
780-113.7(a), (c).

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J-A29018-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2020




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