J-A20029-17


                               2018 PA Super 46

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
SHEILA MARIE LEWIS                      :
                                        :
                   Appellant            :   No. 257 MDA 2017

           Appeal from the Judgment of Sentence January 27, 2017
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0005227-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

OPINION BY PANELLA, J.                            FILED MARCH 02, 2018

     In this appeal, we interpret and apply the Drug Overdose Response

Immunity statute, 35 P.S. § 780-113.7 (the “Act”). In an effort to prevent

overdose deaths, the Legislature provided for immunity from prosecution for

certain crimes when a person has a reasonable belief someone is suffering

from an overdose and contacts local authorities. The Act provides this

immunity to both the reporter and the victim, so long as several conditions

are met.

     At issue here is whether the statute applies to a person who

reasonably believed she herself had overdosed and contacted authorities

pursuant to this belief. We conclude that while the language of the statute

does not explicitly provide for immunity under these circumstances, denying

Lewis immunity in this case would frustrate the Legislature’s intent in
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passing the Act. We therefore reverse the trial court’s order finding that

Appellant, Sheila Marie Lewis, is not entitled to immunity.

      For purposes of this appeal, the facts of the case are undisputed. Lewis

called 911 from her hotel room reporting she had overdosed on prescription

pills. A police officer responded to the scene to assist Lewis until an

ambulance could arrive. While he was assisting Lewis in gathering the

prescription pills, he observed paraphernalia often utilized to smoke

marijuana. When questioned about the paraphernalia, Lewis admitted she

had used the items to smoke marijuana.

      The ambulance took Lewis to a local hospital. The Commonwealth

subsequently charged her with possession of drug paraphernalia. Prior to her

bench trial, Lewis moved to have the charge dismissed, claiming immunity

to prosecution under the Act. The trial court denied her motion on two

grounds.

      The court concluded self-reported overdose victims are not entitled to

immunity under the law. In addition, the court held Lewis did not need

immediate medical attention and therefore was not entitled to immunity

under the law. After hearing testimony, the court found Lewis guilty of

possession of drug paraphernalia and sentenced her to three months’

probation. Lewis filed this timely appeal.

      Lewis argues the trial court erred in concluding she is not statutorily

immune from prosecution under the Act. As she concedes in her brief, this


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issue raises a question of statutory interpretation. “A trial court’s application

of a statute is a question of law, and our standard of review is plenary.

Moreover, our review is limited to determining whether the trial court

committed an error of law.” Commonwealth v. Wall, 867 A.2d 578, 580

(Pa. Super. 2005) (citations and internal quotation marks omitted).

        In interpreting any statute, appellate courts must take note of
        the principles of statutory interpretation and construction. The
        principal objective of interpreting a statute is to effectuate the
        intention of the legislature and give effect to all of the provisions
        of the statute. In construing a statute to determine its meaning,
        courts must first determine whether the issue may be resolved
        by reference to the express language of the statute, which is to
        be read according to the plain meaning of the words. When
        analyzing particular words or phrases, we must construe them
        according to rules of grammar and according to their common
        and approved usage. Words of a statute are to be considered in
        their grammatical context. Furthermore, we may not add
        provisions that the General Assembly has omitted unless the
        phrase is necessary to the construction of the statute. A
        presumption also exists that the legislature placed every word,
        sentence and provision in the statute for some purpose and
        therefore courts must give effect to every word.

Commonwealth v. Morris, 958 A.2d 569, 578-579 (Pa. Super. 2008)

(internal citations and quotation marks omitted).

        Lewis’s claim relies solely on the Act.1 The Legislature amended the

Controlled Substance, Drug, Device and Cosmetic Act by enacting the Drug


____________________________________________


1   The relevant language of the Act:

        (a)   A person may not be charged and shall be immune from
              prosecution for any offense listed in subsection (b) and for
(Footnote Continued Next Page)


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Overdose Response Immunity statute. The amendment passed in the face of

a burgeoning humanitarian crisis across the United States in general and

Pennsylvania in particular. In the United States as a whole, drug overdose

deaths “nearly tripled during 1999-2014.” Rudd RA, Seth P, David F, Scholl

L., Increases in Drug and Opioid-Involved Overdose Deaths — United States,
(Footnote Continued) _______________________

             a violation of probation or parole if the person can
             establish the following:
                                      …

             (1)    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 [a list of crimes including possession of drug
             paraphernalia.]
      (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.



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2010–2015. MMWR Morb Mortal Wkly Rep 2016; 65:1445–1452, available at

https://www.cdc.gov/mmwr/volumes/65/wr/mm655051e1.htm?s_cid=mm6

55051e1_w, retrieved 1/23/18. From 1999 to 2010, Pennsylvania’s rate

nearly doubled. See Prescription Drug Abuse: Strategies to Stop the

Epidemic, available at http://healthyamericans.org/reports/drugabuse2013/,

retrieved 1/23/18. As of 2010, Pennsylvania’s drug overdose mortality rate

was 14th highest in the country. See id. After signing the Act into law, then-

Governor Tom Corbett observed, “[t]he bill I am signing today will save lives

and ensure those who help someone in need aren’t punished for doing so.”

Pa. Painkiller-Heroin Crisis: Corbett Signs Bill Intended to Save Lives,

available                                                                   at

http://www.pennlive.com/midstate/index.ssf/2014/09/corbett_heroin_good_

samaritan.html, retrieved 1/23/18.

      This public health crisis continues unabated. In fact, “[m]ore than

63,600 lives were lost to drug overdose in 2016, the most lethal year yet of

the drug overdose epidemic, according to … the US Centers for Disease

Control and Prevention.” Opioids Now Kill More People Than Breast Cancer,

available   at   http://www.wfmz.com/health/opioids-now-kill-more-people-

than-breast-cancer/675807470, retrieved 2/21/18.

      To achieve its intent of saving lives, the Act provides immunity from

prosecution for persons who call authorities to seek medical care for a

suspected overdose victim. Specifically, the Commonwealth may not


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prosecute either the caller or the victim for minor narcotics infractions. This

immunity cannot be used to defeat prosecutions for ongoing investigations.

For instance, a person cannot gain immunity by calling 911 and reporting a

suspected overdose while police are knocking on the door to serve a search

warrant.

      Furthermore, immunity is only granted when the reporter reasonably

believes medical attention is necessary. This requirement would further

restrict the ability of a defendant to utilize a timely 911 call to frustrate an

ongoing investigation. Other 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.

      Under the appropriate circumstances, the reporter is rendered immune

from prosecution for minor drug offenses enumerated in the Act, including

possession of drug paraphernalia. Additionally, the suspected overdose

victim is granted immunity so long as the reporter has met all the conditions

necessary for immunity. See Commonwealth v. Carontenuto, 148 A.3d

448, 452 (Pa. Super. 2016). The suspected victim is granted immunity even

if authorities have no reason to believe the reporter committed any crime.

See id., at 452-453.

      Thus, the Act is designed to save lives by sacrificing the enforcement

of minor narcotics criminal penalties. However, as noted, it does not


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frustrate larger law enforcement goals. For example, if a narcotics

distribution operation were the subject of an extended investigation, the

suspects would not receive immunity if they called 911 while police were in

the process of entering the building. See 35 P.S. § 780-113.7(d)(1).

Furthermore, even if police were completely unaware of the narcotics

distribution operation, and were summoned to treat an overdose, there

would be no immunity granted for distribution charges, firearms charges, or

any other serious crime not explicitly listed in the Act. See 35 P.S. § 780-

113.7(d)(2). Thus, the Act in no way constitutes an impediment to the

prosecution of organized criminal behavior.

      As the learned trial judge noted in announcing his verdict, application

of the Act to this fact pattern is not straightforward. The esteemed trial

judge chose a strict construction in interpreting the statute. In light of our

standard of review, we believe our broader interpretation is in line with the

Legislature’s clear intent in enacting this statute.

      As referenced above, the Act repeatedly refers to the presence of a

third party, the reporter, in setting forth the conditions for immunity. For

example, the Act states the reporter must be acting under a reasonable

belief that “another person” is in need of immediate medical assistance. See

35 P.S. § 780-113.7(a)(2)(i). Thus, the Act appears to implicitly condition

the grant of immunity on the presence of two parties: a reporter and a

victim.


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     However, it is unclear this implicit requirement was intended. The Act

does not explicitly exclude immunity for self-reporters. Furthermore,

excluding self-reporters from the immunity granted by the Act would lead to

absurd results. Using the facts of this case as an example, we could hold

that Lewis was not immune because she self-reported and affirm her

conviction. However, if she had summoned anyone else—a neighbor, or

passerby, for instance—to phone the police for her, it is clear she would

qualify for immunity under the Act.

     We do not believe the Legislature intended this absurd dichotomy in

results. “The legislature does not intend a result that is absurd and

unreasonable.” Bankers Trust Co. v. Foust, 621 A.2d 1054, 1058 (Pa.

Super. 1993) (citation omitted). See also Koken v. Reliance Ins. Co., 893

A.2d 70, 81 (Pa. 2006); 1 Pa.C.S.A. § 1922(1). We cannot believe the

Legislature intended to weigh the life of a self-reporter below the life of a

drug overdose victim who has a conscientious associate. Whether a life is

worth saving should not depend on the presence of a third party. We

therefore conclude the immunities granted under the Act are available to

self-reporters, so long as they meet all other requirements.

     Which leads to the second basis for the trial court’s refusal to grant

Lewis immunity under the facts of this case. The court found Lewis was not

“in need of immediate medical attention … necessary to prevent death or




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serious bodily injury due to a drug overdose event.” Trial Court Opinion, filed

2/28/17, at 4 (emphasis and footnote omitted).

        However, this standard is not the standard set forth in the Act. The Act

requires the reporter to have “a 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[.]” 35 P.S. § 780-113.7(a)(2)(i)

(emphasis supplied). Thus, the subject of the report need not necessarily

require immediate medical attention, or even be suffering from a drug

overdose. What the Act requires is that the reporter have a reasonable belief

emergency medical care is required due to a drug overdose.

        Initially, the reasonableness of Lewis’s belief is bolstered by the fact

she called 911 to request aid. There is no evidence Lewis had a motive to

call 911 outside of a desire to seek            immediate medical attention.

Furthermore, the only testimony at trial came from the officer who

responded to Lewis’s 911 call. He testified the responding ambulance crew

took Lewis to the hospital, over her protests. See N.T., Bench Trial, 1/27/17,

at 16-17. He agreed this was done “because they wanted to make sure that

whatever she ingested didn’t eventually kill her or harm her[.]” Id., at 17.

Thus,    the   Commonwealth      presented   evidence   that   the   responding

ambulance crew believed Lewis was in need of immediate medical care to

prevent death or serious harm. On this record, we cannot conclude Lewis’s

belief was unreasonable.


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     We therefore reverse the judgment of sentence.

     Judgment of sentence reversed. Appellant discharged.

     President Judge Emeritus Ford Elliott joins the opinion.

     President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/18




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