J-S33029-20

                                   2020 PA Super 194


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCIS SOUTH                              :
                                               :
                       Appellant               :   No. 3237 EDA 2019

        Appeal from the Judgment of Sentence Entered October 8, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003759-2019


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY MURRAY, J.:                                    Filed: August 13, 2020

       Francis South (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of possession of a controlled

substance and possession of drug paraphernalia.1 We affirm.

       The trial court provided a summary of the facts and procedural history

of this case:

             On March 1, 2019, Lijera (sp) Glass ([] Ms. Glass) was
       working at McDonald’s [Restaurant], located at 1576 Chester Pike,
       Eddystone, Delaware County. During her shift, Ms. Glass called
       911 and [reported that an adult white male was passed out in the
       restaurant, and during the call, he got up and proceeded to exit
       the building and stumble through the parking lot.] . . .

             As a result of the call, the following dispatch was put out by
       [the 911 Dispatcher]: “1576 Chester Pike, one five seven six, the
       Mcdonalds. Ill older white male in the parking lot, wearing a gray
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. §§ 780-113(a)(16), (a)(32).
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     coat.” Officer Ryan Sweet, while on patrol for the Eddystone Police
     Department, received the dispatch and drove to the McDonalds.

            Upon arrival, Officer Sweet located the individual, later
     identified as Appellant, outside by the exit, crouched down,
     nodding in and out of sleep. He made contact with Appellant and
     asked if he was alright. Appellant did not seem to comprehend
     what Officer Sweet was saying and just kept telling Officer Sweet
     that he was about to go home on the bus. When Officer Sweet
     asked Appellant where he lived, Appellant gave him three different
     addresses. During their interaction, Officer Sweet observed
     Appellant’s pupils to be constricted and his demeanor to be
     disoriented; Appellant appeared to be under the influence. Officer
     Sweet observed an orange syringe and a silver spoon in
     Appellant’s front, left coat pocket, items commonly associated
     with drug use.

           Appellant refused any medical treatment, despite its
     availability. Officer Sweet placed Appellant into custody and a
     search incident [to] arrest yielded six, blue wax paper baggies
     stamped “lightening hit” which were filled with a white powder.
     The substance contained within the baggies was sent to the lab
     for testing and positively identified as heroin. Appellant was
     arrested and charged with [possession of a controlled substance,
     possession of drug paraphernalia, and public drunkenness.]

            On June 20, 2019, Appellant waived his preliminary hearing
     . . . and all charges were bound over to the [trial court].

           On July 19, 2019, a status hearing was held where counsel
     for Appellant advised that he had filed a Motion to Dismiss
     Pursuant to 35 P.S. § 780-113.7. Specifically, the [m]otion
     alleged that Ms. Glass reported a potential overdose to 911, in
     good faith, on the reasonable belief that Appellant was in need of
     immediate medical attention in order to prevent his death or
     serious bodily injury due to a drug overdose, and that she
     provided her name and location and remained with Appellant until
     the police arrived; therefore, satisfying the elements of the statute
     and making Appellant immune from prosecution.                    The
     Commonwealth told [the trial court] that it would provide a disc
     containing the audio recording of the 911 call for its review. In
     support of his [m]otion, counsel for Appellant attached the
     Affidavit of Probable Cause, the transcript of the 911 call, the 911


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     event information[,] and a 911 event chronology. The [m]otion
     was taken under advisement.

           On August 26, 2019, a status hearing was conducted;
     wherein [the trial c]ourt told the parties that the [m]otion was
     being denied, placing its reasoning on the record. [] Specifically,
     [the trial c]ourt explained that, based upon the language of the
     statute, and the audio/transcript of the call, Ms. Glass did not call
     911 because she reasonably believed that Appellant was in need
     of medical attention in order to prevent death or serious bodily
     injury due to a drug overdose event; and [] Ms. Glass remained
     at the location solely because she was working, and more
     importantly, did not actually remain with Appellant as he was
     outside, and unattended when Officer Sweet arrived. Counsel for
     Appellant asked [the trial c]ourt to reconsider denying the
     [m]otion and to review [Commonwealth v. Carontenuto, 148
     A.3d 448 (Pa. Super. 2016) and Commonwealth v. Lewis, 180
     A.3d 786 (Pa. Super. 2018)]. The [c]ourt agreed to do so.

            On September 5, 2019, another status hearing was held.
     [The trial c]ourt told the parties that it was constrained by the
     strict interpretation of the statute to deny the motion. [The trial
     c]ourt codified its decision via [o]rder, with the following footnote:
     “to achieve its interest in saving lives, the act provides immunity
     from prosecution for persons who call authorities to seek medical
     care for a suspected overdose victim. Here, the caller did not
     suspect an overdose; rather, the caller thought it was a syncopal
     episode, which takes it outside the clear language of the statute.”
     ...

           On October 8, 2019, a stipulated bench trial was conducted
     wherein the parties agreed to forego testimony and rely upon the
     Affidavit of Probable Cause [], the Incident Report [], the written
     record of the CAD report from the 911 call [], the lab results[,]
     the audio recording of the 911 call [], and the transcript of the
     911 call []. [] Based upon the exhibits, [the trial c]ourt entered a
     verdict of guilty [for possession of a controlled substance and
     possession of drug paraphernalia]. Appellant was found not guilty
     of [public drunkenness].

          Appellant elected to proceed to immediate sentencing and
     was sentenced to [an aggregate of 2 years of probation].




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           On November 6, 2019, counsel for Appellant filed a timely
      appeal, challenging the denial of Appellant’s Motion to Dismiss
      pursuant to 35 P.S. § 780-113.7.

Trial Court Opinion, 1/10/20, at 1-5 (footnotes and italics omitted).          Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      Whether the [trial] court lacked authority to convict and sentence
      [Appellant], because he was immune from prosecution pursuant
      to 35 P.S. § 780-113.7 (“Drug Overdose Response Immunity”)?

Appellant’s Brief at 4 (italics omitted).

      Appellant’s issue involves the interpretation and application of the Drug

Overdose Response Immunity Act (the Act). Our standard of review is well

settled:

      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. . .
      . 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.


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J-S33029-20



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

omitted).

      Appellant argues that he was entitled to immunity under the Act because

“Ms. Glass called 911 in good faith to report [Appellant’s] ‘drug overdose

event’ believing immediate medical attention was necessary to prevent his

death or serious bodily injury.” Appellant’s Brief at 10. Appellant avers that

Ms. Glass “cooperated with the 911 Dispatcher, provided her name and

location, and remained with [Appellant] until emergency personnel arrived.”

Id. at 10. Accordingly, Appellant asserts that because “Ms. Glass is immune,

[Appellant] is entitled to derivative immunity” pursuant to Section 780-

113.7(c). Id. at 10-11.

      In response, the Commonwealth contends that the trial court correctly

denied Appellant immunity under the Act because:       (1) Appellant failed to

prove that Ms. Glass reasonably believed that he was overdosing and needed

immediate medical attention to prevent death or serious bodily injury; and (2)

Appellant failed to prove that Ms. Glass remained with him until Officer Sweet

arrived. Commonwealth’s Brief at 6.

      “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.” Lewis, 180 A.3d 786, 787-88 (Pa. Super. 2018).

      The Act, in relevant part, provides:

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J-S33029-20



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

           (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 violations of section 13(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 . . . reported and remained with
     them may not be charged and is entitled to immunity under this
     section. . . .

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J-S33029-20



35 P.S. § 780-113.7(a), (b), and (c) (footnote omitted).

      As defined in Section 780-113.7, a “drug overdose event” is,

      [a]n 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. In applying the Act, we have previously held that, “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.” Lewis, 180 A.3d at 791. Further, “[t]he

burden of proof under the [Act] is not on the Commonwealth; rather, the

defendant must establish that he is entitled to immunity under the Act.”

Commonwealth v. Lehman, -- A.3d --, 2020 WL 1671582, *3 (Pa. Super.

Apr. 6, 2020) (citing 35 P.S. § 780-113.7(a)).

      Upon careful review of the record, we agree with the trial court that

Appellant did not qualify for Section 780-113.7(c) immunity because he failed

to satisfy the Act’s requirements.   Specifically, Appellant failed to produce

evidence showing that Ms. Glass reasonably believed he was in need of

immediate medical attention to prevent death or serious bodily injury due to

a drug overdose, and also that Ms. Glass remained with Appellant until Officer

Sweet arrived.


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J-S33029-20



      At Appellant’s stipulated bench trial, no witness testimony was

presented. See N.T., 10/8/19, at 3-8. Rather, the trial court considered five

exhibits submitted by the Commonwealth, and one submitted by Appellant.

Id. at 6-7. The Commonwealth introduced the affidavit of probable cause,

Officer Sweet’s incident report, the 911 event log, a Pennsylvania State Police

lab report, and a CD containing an audio recording of Ms. Glass’s 911 call. Id.

at 6; see also Commonwealth’s Exhibit #1-5.         Appellant introduced the

transcript of Ms. Glass’s 911 call. N.T., 10/8/19, at 7; see also Appellant’s

Exhibit #1.

      The affidavit of probable cause states:

      On March 1, 2019, at approximately 1225[]hrs, I, Officer Ryan
      Sweet of the Eddystone Police Department was dispatched to
      1576 Chester Pike, McDonalds, for the medical emergency.
      Delcom advised an older white male in a gray coat was outside
      the store suffering from a syncopal episode. Upon arrival to the
      area, I found the male, later identified as [Appellant] at the exit
      crouched down, nodding in and out of sleep. I then made contact
      with [Appellant] and asked if he was alright, to which he seemed
      to not comprehend and kept saying he was just about to go home
      via bus. When I asked him where he lived, he gave me three
      different addresses. While speaking with [Appellant], I observed
      his pupils to be constricted and he appeared disoriented, having a
      hard time standing under his own power and appeared to be under
      the influence of narcotics. I also observed an orange syringe and
      silver spoon in his front left coat pocket, items commonly used as
      paraphernalia for drug use. Ambulance and medics were on scene
      and [Appellant] refused any medical treatment.

      At this time, [Appellant] was placed into custody. Search incident
      to arrest yielded six blue wax paper baggies stamped “lightening
      hit” filled with a white powder, which was later tested and showed
      positive reaction for heroin/fentanyl. [Appellant] was transported
      to Ridley Township, where he was processed and held for


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J-S33029-20


       arraignment. The suspected heroin will be sent to PSP labs for
       further analysis. . . .

Affidavit of Probable Cause, 3/1/19, at 1.2

       In her 911 call, Ms. Glass stated:

                                  (first transcription)

       911 Dispatcher: Police and fire, ambulance 153.

       Ms. Glass: I’m sorry. I’m at Eddystone McDonald’s, 1576 Chester
       Pike. I have a older male with a gray hoodie - I’m sorry - a gray
       coat. It kind of look like, I can’t really say, and it’s like a gray hat.
       He passed out in here but he just got up. He’s about to leave but
       I’m not sure if I should let him leave.

       911 Dispatcher: Okay. Yeah, we can send somebody out.

       Ms. Glass: Okay. Thank you. He’s still kind of stumbling in the
       parking lot out front.

       911 Dispatcher: Is he white, black, Hispanic?

       Ms. Glass: He’s white, Caucasian.

       911 Dispatcher: Is he getting into a car?

       Ms. Glass: No, it don’t look like he is getting into a car.

       911 Dispatcher: Okay. What is your name? What is your name,
       ma’am?

       Ms. Glass: Lijera (ph) Glass.

       911 Dispatcher: What is your phone number you’re calling from?

       Ms. Glass: [Provides phone number she called from].

       911 Dispatcher: Okay. All right. We’ll send an ambulance over.
____________________________________________


2 Officer Sweet’s June 26, 2019 incident report contains an identical narrative
of the events of March 1, 2019. See Commonwealth’s Exhibit #2.

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J-S33029-20



      Ms. Glass: All right. Thank you.

      911 Dispatcher: You’re welcome.

                            (Second transcription)

      911 Dispatcher: DelCOMM number 23.

      Male Voice: Check.

      911 Dispatcher: 1 576 Chester Pike, one five seven six, the
      McDonald’s. Dispatcher ill older white male in the parking lot,
      wearing a gray coat.

      Male Voice: Check.

                             (Third transcription)

      911 Dispatcher: 3240 DelCOMM. Out at 123 East Glenolden.

      Male Voice: Okay.

      911 Dispatcher: Out of McDonald’s, 3324 83 of Chester Pike.

Appellant’s Exhibit #1, at 3-4.

      To qualify for immunity, it was Appellant’s burden to show that Ms. Glass

reasonably believed he required emergency medical care due to a drug

overdose. 35 P.S. § 780-113.7(2)(i); Lewis, 180 A.3d at 791. We agree

with the trial court’s conclusion that there was no evidence submitted at

Appellant’s trial “which would support that Ms. Glass, as the reporter, had any

reasonable belief that Appellant was in need of immediate medical attention

to prevent death or serious bodily injury from a drug overdose.” Trial Court

Opinion, 1/10/20, at 8.




                                    - 10 -
J-S33029-20



      Ms. Glass made no mention during her 911 call that she suspected

Appellant was suffering adverse reactions from the consumption of one or

more controlled substances. See Appellant’s Exhibit #1, at 3-4; see also 35

P.S. § 780-113.7.    Rather, Ms. Glass only reported to the dispatcher that

Appellant “passed out” inside the McDonalds, and that he was “stumbling in

the parking lot out front.”   Id. at 3.   While it is apparent Ms. Glass was

concerned for Appellant’s wellbeing and actively sought out medical attention

for him, nothing submitted by either party indicates that Ms. Glass believed

his condition was due to a drug overdose. Therefore, Appellant failed to meet

his burden under the Act.

      Moreover, Appellant also failed to prove that Ms. Glass remained with

him until Officer Sweet arrived, as required by Section 780-113.7(2)(iii). The

transcript of Ms. Glass’s 911 call evidences that while she had apprehensions

about letting Appellant exit the restaurant, Ms. Glass ultimately let Appellant

leave, did not pursue him, and instead, watched him stumble through the

parking lot from inside the restaurant. Appellant’s Exhibit #1, at 3. This is

further corroborated by the affidavit of probable cause, in which Officer Sweet

stated that upon arriving at the McDonald’s, he found Appellant outside the

exit “crouched down, nodding in and out of sleep.” Commonwealth’s Exhibit

#1, at 1.   Thus, the trial court properly concluded that Appellant failed to

satisfy his burden of proof that Ms. Glass remained with him until Officer Sweet

arrived. See Trial Court Opinion, 1/10/20, at 9.




                                     - 11 -
J-S33029-20



     In sum, the trial court properly denied Appellant’s motion to dismiss

because it correctly determined Appellant did not qualify for immunity under

the Act. We therefore affirm his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/20




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