J-E04002-17

                               2018 PA Super 104



COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
SARAH KATHERINE MARKUN                    :
                                          :
                   Appellant              :   No. 1009 EDA 2016

           Appeal from the Judgment of Sentence March 1, 2016
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0006444-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY BOWES, J.:                                    FILED MAY 01, 2018

      Sarah Katherine Markun appeals from the judgment of sentence of one

year of probation imposed following her conviction for possession of a

controlled substance. The sole issue on appeal is whether Appellant waived

the immunity provisions contained within the Drug Overdose Response Act,

35 P.S. § 780-113.7 (hereinafter “the Act”), by failing to assert that issue in

a pre-trial motion.    We conclude that immunity under the Act is not a

defense and is nonwaivable. We further find that the Act serves to bar the

instant prosecution. Hence, we vacate the conviction.

      The trial court set forth the facts underlying this appeal in its Pa.R.A.P.

1925(a) opinion, which we adopt herein:
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      Twenty-four year old Sarah Markun, the Defendant in the above
      matter, was found unconscious in a Motel 6 in Tinicum, Delaware
      County on April 10, 2015 at about 1:30 p.m.           Apparently
      housekeeping personnel called 911 and reported a medical
      emergency when she was discovered. She was evaluated and
      treated at the motel by emergency medical responders and
      thereafter transported by the EMTs to a nearby hospital.

Trial Court Opinion, 6/7/16, at 1-2 (citation to transcript omitted). Appellant

was charged with possession of heroin, a controlled substance.

      Appellant filed a pre-trial motion to suppress statements made in the

presence of the investigating police officer, which was denied following an

evidentiary   hearing,   and    Appellant   proceeded   to   a   non-jury   trial

incorporating the suppression testimony.      She was convicted, sentenced,

and filed a notice of appeal.     Appellant complied with the order to file a

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal

wherein she raised, for the first time, the applicability of the Act. The trial

court determined that Appellant was required to raise immunity in a pre-trial

motion, and therefore deemed the issue waived.

      A panel of this Court, over this author’s dissent, determined that

Appellant waived her immunity claim due to her failure to preserve the issue

in a pre-trial motion.   Appellant sought en banc reargument, which was

granted. Appellant raises the following novel issue for our review:

      Whether the lower court was without authority to convict or
      sentence Appellant for possession of a controlled substance since


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      she was immune from prosecution pursuant to 35 P.S. § 780-
      113.7?

Appellant’s brief at 5.

      Both parties identify the standard of review applicable to statutory

interpretation as governing our resolution of this issue. When addressing a

question of statutory construction, our standard of review is de novo and the

scope of our review is plenary. Commonwealth v. Barbaro, 94 A.3d 389,

391 (Pa.Super. 2014) (citation omitted). Interpretation of a statute “is

guided by the polestar principles set forth in the Statutory Construction Act,

1 Pa.C.S. § 1501 et seq., which has as its paramount tenet that ‘[t]he object

of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly.’”       Commonwealth v.

Hart, 28 A.3d 898, 908 (Pa. 2011) (quoting 1 Pa.C.S. § 1921(a)).

      We begin by setting forth the full text of the statute:

      § 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:




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                (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).

     (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).




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           (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.

           (4) This section may not bar the admissibility of any
           evidence in connection with the investigation and
           prosecution of a crime with regard to another
           defendant who does not independently qualify for the
           prohibition on charging or prosecuting a person as
           provided for by this section.

     (e) In addition to any other applicable immunity or limitation on
     civil liability, a law enforcement officer or prosecuting attorney
     who, acting in good faith, charges a person who is thereafter
     determined to be entitled to immunity under this section shall
     not be subject to civil liability for the filing of the charges.

35 P.S. § 780-113.7 (footnote omitted).

     Instantly, the ultimate issue is whether the Act’s immunity provisions

are subject to waiver. A critical component of that determination is whether

the Act operates as a defense to the underlying crime.

     Appellant argues that immunity is not a defense and analogizes it to

subject matter jurisdiction, which cannot be waived.         “Subject matter

jurisdiction relates to the competency of a court to hear and decide the type

of controversy presented.    Jurisdiction is a matter of substantive law.”

Midwest Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 627 (Pa.Super.

2013) (citation omitted). Appellant reaches this conclusion by focusing on


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the language of subsection (a), which states that a person “may not be

charged and shall be immune from prosecution[.]”         The statute therefore

“effectively strips criminal courts of authority to adjudicate cases where

defendants are immune.” Appellant’s brief at 15. Thus, Appellant views the

Act as a restriction on the trial court’s competency to address the matter,

and hence not a defense to the crime. Additionally, because subject matter

jurisdiction cannot be waived, Appellant argues that the Act applies on its

terms, requiring discharge.

      The Commonwealth responds that subject matter jurisdiction is an

inapt analogy, as Appellant’s possession of controlled substances remained a

crime despite the potential applicability of the Act.      The Commonwealth

casts the availability of immunity as a waivable defense, and, consequently

Appellant was required to litigate the issue at the trial court level. Hence,

her failure to raise the issue prior to conviction is subject to the normal rules

of waiver, including the requirement that the defendant must raise and

preserve defenses at trial.

      This issue is a matter of first impression and we begin our analysis by

examining the statutory language. “When the words of a statute are clear

and free from all ambiguity, they are presumed to be the best indication of

legislative intent.” Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 1242

(Pa. 2017) (quoting Commonwealth v. Corban Corp., 957 A.2d 274, 276

(Pa. 2008)).


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        At the outset, we note that the Commonwealth’s view of the Act as a

defense has superficial appeal due to the rather limited circumstances in

which immunity appears in the criminal domain. Perhaps the most common

is a witness receiving immunity in exchange for his or her testimony, which

serves to override the privilege against self-incrimination. See 42 Pa.C.S. §

5947.

        Our research corroborates the notion that immunity outside of the

testimony context is unusual, although there are some examples, such as

immunity from criminal liability for special circumstances. For example, 50

P.S. § 7114, a provision of the Mental Health Procedures Act, applies to

decisions made by certain individuals regarding “an application for voluntary

treatment or for involuntary emergency examination and treatment” and

states those individuals “shall not be civilly or criminally liable[.]” 50 P.S. §

7114(a). See also 75 Pa.C.S. § 3755(b) (supplying immunity from civil and

criminal liability “for withdrawing blood or obtaining a urine sample and

reporting test results to the police pursuant to this section or for performing

any other duty imposed by this section”); 35 P.S. § 4501 (“All owners of

rifle, pistol . . . or other ranges in this Commonwealth shall be exempt and

immune from . . . criminal prosecution in any matter relating to noise or

noise pollution resulting from the normal and accepted shooting activity on

ranges.”).




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      At least two other crimes contain immunity provisions.        The first is

ecoterrorism, which has the following provision:

      (c.1) Immunity.--A person who exercises the right of petition
      or free speech under the United States Constitution or the
      Constitution of Pennsylvania on public property or with the
      permission of the landowner where the person is peaceably
      demonstrating or peaceably pursuing his constitutional rights
      shall be immune from prosecution for these actions under this
      section or from civil liability under 42 Pa.C.S. § 8319 (relating to
      ecoterrorism).

18 Pa.C.S. § 3311. While utilizing the “shall be immune from prosecution”

language, this language otherwise bears little resemblance to the Act.

      The other crime offers a far greater parallel to the Act. The immunity

subsection appears within the body of 18 Pa.C.S. § 6308, which states in

pertinent part:

      § 6308. Purchase, consumption, possession or transportation of
      liquor or malt or brewed beverages

      (a) Offense defined.--A person commits a summary offense if
      he, being less than 21 years of age, attempts to purchase,
      purchases, consumes, possesses or knowingly and intentionally
      transports any liquor or malt or brewed beverages, as defined in
      section 6310.6 (relating to definitions). For the purposes of this
      section, it shall not be a defense that the liquor or malt or
      brewed beverage was consumed in a jurisdiction other than the
      jurisdiction where the citation for underage drinking was issued.

            ....

      (f) Exception for person seeking medical attention for
      another.--A person shall be immune from prosecution for
      consumption or possession under subsection (a) if he can
      establish the following:

            (1) The only way law enforcement officers became
            aware of the person's violation of subsection (a) is

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              because the person placed a 911 call, or a call to
              campus safety, police or emergency services, in
              good faith, based on a reasonable belief and
              reported that another person was in need of
              immediate medical attention to prevent death or
              serious injury.

              (2) The person reasonably believed he was the first
              person to make a 911 call or a call to campus safety,
              police or emergency services, and report that a
              person needed immediate medical attention to
              prevent death or serious injury.

              (3) The person provided his own name to the 911
              operator or equivalent campus safety, police or
              emergency officer.

              (4) The person remained with the person needing
              medical assistance until emergency health care
              providers arrived and the need for his presence had
              ended.

18 Pa.C.S. § 6308.

       That crime, concerning alcohol and underage persons, has obvious

parallels to the narcotics offense at issue herein both in language and

purpose. Subsection (f) of § 6308 encourages a person who is violating the

law to call authorities when faced with a medical emergency. In contrast to

the Act, however, subsection (f) appears within the body of the criminal

statute itself, does not forbid the initiation of charges, and uses the word

“exception.”1 There is no case law associated with this subsection, perhaps

____________________________________________


1When analyzing the language of a criminal statute, courts analyze whether
a phrase constitutes an element of the crime, which the Commonwealth
must negate beyond a reasonable doubt, versus a proviso in the nature of a
(Footnote Continued Next Page)


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because law enforcement officers refrain from seeking criminal sanctions in

such situations.

      As applied to the narcotics offenses covered by the Act, it is illogical to

state that persons seeking its application are exempt from a duty not to

commit those crimes.         There is no dispute that the Commonwealth has

proved the legal sufficiency of these charges beyond a reasonable doubt.

Nor is there any doubt that, had the police lawfully encountered Appellant

under other circumstances, she would be subject to prosecution. It is the

particular factual circumstance that resulted in Appellant’s contact with law

enforcement that shields Appellant from the normal consequences attendant

to her possession of heroin.

      Thus,    we    agree    that   the       Act   resembles   a   criminal   defense.

Simultaneously, we cannot ignore that the Legislature chose the word

“immunity.” The Statutory Construction Act states:

      (a) Words and phrases shall be construed according to rules of
      grammar and according to their common and approved usage;
      but technical words and phrases and such others as have
      acquired a peculiar and appropriate meaning or are defined in
      this part, shall be construed according to such peculiar and
      appropriate meaning or definition.
(Footnote Continued) _______________________

defense. See Commonwealth v. Karash, 175 A.3d 306 (Pa.Super. 2017);
Commonwealth v. Bavusa, 832 A.2d 1042, 1058–59 (Pa. 2003) (Saylor,
J., concurring) (discussing distinction “between exceptions fused integrally
into the definition of the offense (and therefore deemed to reflect integral
aspects of the forbidden conduct) and those styled as distinct provisos”).
Herein, we do not deal with a question of the sufficiency of the evidence for
the underlying crime of possession.



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      (b) General words shall be construed to take their meanings and
      be restricted by preceding particular words.

1 Pa.C.S. § 1903.

      The fact that the Act does not employ the term “defense” is strong

evidence that the Act was not intended to create a defense to these charges.

The Legislature is perfectly capable of using the word “defense” and

supplying defenses within the body of a crime when that is its intention. See

18 Pa.C.S. § 6308; 18 Pa.C.S. § 3503(c) (“It is a defense to prosecution

under this section . . . . ”). It would be incongruous for the Legislature to

signal its intent to establish a defense by discarding the very word that

would clearly serve that purpose, and by enacting a new statute instead of

simply amending § 780-113 to provide defenses to particular crimes.

Hence, we find that there is an incompatibility between the Act’s function

and its label.

      Moving beyond the Legislature’s use of the word “immunity,” we find

that the remainder of the statutory language likewise offers no clear answer

as to whether the Act was intended to supply a defense. At this juncture,

we repeat subsection (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:

35 P.S. § 780-113.7(a).




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      Analyzing this language, we note that the clause preceding “if” places

a limitation on the power of law enforcement officials by prohibiting criminal

proceedings in a particular set of circumstances.       This point favors an

interpretation that the Act does not merely provide a defense.

      Simultaneously, the “if” construction following this prefatory clause

delineates the set of circumstances that triggers that very limitation, and the

text requires the charged individual to demonstrate those circumstances.

The statute does not require the Commonwealth to establish that immunity

does not apply, but places the burden on the defendant to establish the Act’s

applicability.   Thus, this latter clause is directed at the defendant who is

facing charges, and favors the Commonwealth’s interpretation that the Act

operates as a defense.        Thus, the language of the Act is inherently

ambiguous.

      We find further ambiguity in the fact that the first clause employs both

“may” and “shall” and directs those terms to different stages of the criminal

justice process. As a matter of textual analysis, the word “may” implies a

permissive power, while “shall” is a mandatory limitation.       See A. Scott

Enter., Inc. v. City of Allentown, 142 A.3d 779, 787 (Pa. 2016)

(“Although ‘may’ can mean the same as ‘shall’ where a statute directs the

doing of a thing for the sake of justice, it ordinarily is employed in the

permissive sense.”) (citation omitted).   The Act applies the word “may” to

the charging decision, while “shall” is applicable to “immunity from


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prosecution.”       The use of both terms evidences a conscious decision to

attach the distinct meanings to each word.                 See O'Neill v. Borough of

Yardley, 565 A.2d 502, 504 (Pa.Cmwlth. 1989) (“[T]he legislature used

both ‘may’ and ‘shall’ in subsection (c) which indicates to us that it was

conscious of the distinct meaning of each word.”).2

       Placing a limitation upon the Commonwealth’s charging power expands

the   scope    of    the   Act’s   protections     since    it   means   that,   in   some

circumstances, the individual will never be called to court. Concomitantly,

the “shall be immune from prosecution” language becomes relevant only

when the Commonwealth has elected to file charges, and it obligates the

defendant to establish the Act’s applicability. The Legislature did not state

that the authorities “shall not” charge in the event that the Act applies.

Therefore, the Commonwealth has discretion in charging matters, with the

defendant retaining the ability to seek immunity.

       However, further complicating matters is the fact that subsection (a)

speaks in the conjunctive while other portions of the statute are phrased in

the disjunctive: “The prohibition on charging or prosecuting a person is

limited in the following respects[.]”            35 P.S. § 780-113.7(d) (emphasis

added). This phrasing indicates that the prohibition applies to both charging

____________________________________________


2 “Although decisions by the Commonwealth Court are not binding on this
Court, they may be persuasive.” In re Estate of Brown, 30 A.3d 1200,
1205 (Pa.Super. 2011) (citation omitted).



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and continuing prosecution, suggesting that “may” and “shall” carry identical

meanings.

       We therefore find that the statute fails to offer a clear answer as to the

Legislature’s intent and is materially ambiguous, permitting an examination

beyond the plain text of the statute.

       When a statute is ambiguous, we may go beyond the relevant
       texts and look to other considerations to discern legislative
       intent. “Where statutory or regulatory language is ambiguous,
       this Court may resolve the ambiguity by considering, inter
       alia, the following: the occasion and necessity for the statute or
       regulation; the circumstances under which it was enacted; the
       mischief to be remedied; the object to be attained; the former
       law, if any, including other statutes or regulations upon the
       same or similar subjects; the consequences of a particular
       interpretation;     and    administrative   interpretations     of
       such statute.” Freedom Med. Supply, Inc. v. State Farm Fire
       & Cas. Co., ––– Pa. ––––, 131 A.3d 977, 984 (2016), citing 1
       Pa.C.S. § 1921(c).

Commonwealth v. Giulian, 141 A.3d 1262, 1267–68 (Pa. 2016).

       We hold that the aforementioned considerations warrant a conclusion

that the Legislature did not intend for immunity to operate as a defense to

the charges.3     The occasion, necessity, and circumstances surrounding the

Act’s enactment were aptly set forth by this Court in Commonwealth v.

Lewis, --- A.3d ---, 2018 PA Super 46 (Pa.Super. 2018).

       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
____________________________________________


3 As discussed infra, we separate that issue from whether we may address
the claim as a matter of appellate procedure.



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      and contacts local authorities. The Act provides this immunity to
      both the reporter and the victim, so long as several conditions
      are met.

              ....

      The Legislature amended the Controlled Substance, Drug, Device
      and Cosmetic Act by enacting the Drug 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, 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-peoplethan-
      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.

Id. at 1-3.




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      In this light, we conclude that the Legislature did not intend for the Act

to operate as a defense. The purpose of the statute is to encourage calls to

the authorities when an overdose victim requires immediate aid, thereby

saving lives. It achieves this end by addressing the obvious concern on the

part of reporters that a call to 911 will result in criminal charges for

themselves or the overdose victim.

      The Act’s purpose explains the conflicting statutory language discussed

supra. We find that the Legislature sought to encourage persons, who may

be fellow drug users themselves, to report overdoses by guaranteeing that

criminal punishments will not normally follow.              Moreover, the Legislature

intended for prosecutors and police to refrain from filing charges when

sorting   through     the    aftermath   of     the     unfortunately     all-too-common

overdose.     The statute discourages the authorities from commencing the

criminal justice process, i.e. by placing a limitation upon the charging power,

to provide more incentive for reporters to call.                In Commonwealth v.

Carontenuto,        148     A.3d   448   (Pa.Super.        2016),    we    rejected    the

Commonwealth’s argument that an overdose victim is not entitled to

immunity if the reporting person committed no crime.                      The Honorable

Eugene B. Strassburger, III, filed a concurring opinion, stating, “The

suggestion that a person present at a crime scene could have no fear of

prosecution    does    not    comport    with     the    real   world.”     Id.   at   454

(Strassburger, J., concurring). It would significantly undercut the statute’s


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goal to conclude, as the Commonwealth urges, that the Act merely provides

a defense, thereby requiring an overdose victim or a reporter to litigate the

issue of immunity.4       We find that the statute clearly contemplates that a

large number of these cases will never reach the courtroom halls; hence, the

prohibition against charging a person.5

       Further support for our conclusion that the Act contemplates that law

enforcement officials are encouraged in the first instance not to initiate

charges is found in subsection (e) of the Act:
____________________________________________


4  As Appellant persuasively states: “If the judiciary permits police to
criminally charge obviously immune individuals with drug possession, jail
them, and force them to later plead and prove their immunity in court, it will
effectively reinstate the disincentive against reporting overdose events that
the [L]egislature sought to eliminate by passing Section 780-113.7.”
Appellant’s brief at 17. We agree. The consequences of the interpretation
offered by the Commonwealth is a pertinent factor in ascertaining the
Legislature’s intent.

5 As we have moved beyond the statutory text, we note that the legislative
history corroborates our analysis that the intent was for the Commonwealth
not to file charges where the Act applies. Mr. Joseph Hackett, a member of
the Pennsylvania House of Representatives from Delaware County, offered
an amendment to the Act’s statutory language. Among other changes, the
amendment inserted the language “may not be charged,” and struck the
term “limited immunity” in favor of “prohibition on charging or prosecuting a
person.” Mr. Hackett stated the following in support of the amendment:

       Mr. Speaker, this amendment clarifies a little portion of the bill
       where instead of just prosecution, it addresses the line - changes
       it to “will not be charged.” So it starts at the beginning point
       when law enforcement first comes into this issue and not
       wait until after we get to that prosecution issue.

Pennsylvania House Journal, 2014 Reg. Sess. No. 42 (emphasis added).




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       (e) In addition to any other applicable immunity or limitation on
       civil liability, a law enforcement officer or prosecuting attorney
       who, acting in good faith, charges a person who is thereafter
       determined to be entitled to immunity under this section shall
       not be subject to civil liability for the filing of the charges.

35 P.S. § 780-113.7.

       Thus, the statute contemplates that charges will only be filed when law

enforcement authorities, acting in good faith, believe that the individual is

not entitled to the Act’s protections.         The Legislature was also obviously

concerned that competing law enforcement goals would be frustrated if the

Act precluded charges every time an overdose was reported. Among other

restrictions, the Act “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).”            35 P.S. § 780-

113.7(d)(1). Doubtlessly, there will be situations in which application of the

Act will be unclear.       In such cases, the Commonwealth is permitted to

exercise its discretionary power by initiating charges despite the possible

applicability of the Act, but a defendant is entitled to raise the issue of

immunity in response.6


____________________________________________


6 We recognize that there may be cases in which the applicability of the Act
turns on a mixed determination of facts and law. Our holding that the Act’s
protections are not subject to waiver does not mean that relief is automatic,
as the statute requires that the person establish the Act’s applicability.



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      Having established that the Legislature did not intend for the Act to

operate as a defense, we now address the remaining question of whether

the issue is nonetheless subject to normal waiver principles.              The

Commonwealth notes that our review “is premised on the requirement that

litigants preserve their arguments for appeal.” Commonwealth’s brief at 8.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Under this view, we would

be powerless to review whether the Act applies, even if the Legislature did

not intend for the Act to operate as a defense. This argument implicates our

ability, as an appellate court, to address the claim.

      Before discussing that matter, we note our belief that the Act explicitly

discourages procedural gamesmanship whereby the Commonwealth files

charges and places the onus on the defendant to raise the Act as a shield in

cases where the Act clearly applies.      Relatedly, we are troubled by the

Commonwealth’s steadfast refusal to take a position on whether the Act’s

protections would apply if Appellant had timely raised the issue.     Instead,

the Commonwealth elects to analogize its decision to charge Appellant,

despite the potential applicability of the Act, to a criminal prosecution

initiated where an arrest was made without probable cause, where evidence

was obtained in violation of the Fourth Amendment, or where a statute of

limitations may have applied. In all those cases, the claims must be raised

and preserved at trial.


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J-E04002-17


      These analogies are unpersuasive.      Regarding the lack of probable

cause, a prosecutor has an obligation not to file charges if there is no

probable cause to believe a crime has been committed, which is distinct from

the question of whether an arrest warrant is unsupported by probable cause.

Pennsylvania Rules of Professional Conduct 3.8(a) (“The prosecutor in a

criminal case shall . . . refrain from prosecuting a charge that the prosecutor

knows is not supported by probable cause[.]”). Second, the comparison to a

defendant’s failure to seek suppression of impermissibly obtained items or a

failure to raise a statute of limitations fares no better, as the primary

criticism against the exclusionary rule and related theories of relief is that

the criminal goes free due to errors by the authorities that have nothing to

do with guilt or innocence. See Herring v. United States, 555 U.S. 135,

151 (2009) (“The Court's discussion invokes a view of the exclusionary rule

famously held by renowned jurists Henry J. Friendly and Benjamin Nathan

Cardozo. . . . . In words often quoted, Cardozo questioned whether the

criminal should go free because the constable has blundered.”) (quotation

marks and citation omitted) (Ginsburg, J., dissenting).

      The Act has nothing to do with guilt or innocence, thereby lending

some weight to the Commonwealth’s argument that its applicability may be

waived. The counter to that weight is the fact that the Legislature, which is

far more attuned to the ongoing opioid crisis, has placed its thumb on the

scale and expressed a clear desire to sacrifice the prosecution of minor


                                    - 20 -
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narcotics offenses in order to save lives.          The Legislature sought to

accomplish that goal by directing law enforcement to refrain from charging

persons where the Act applies.          The Commonwealth does not account for

that circumstance, and its brief lacks any suggestion that the Act would not

apply if Appellant had raised the issue. Instead, the Commonwealth informs

us that “The fact that the Statute may have applied does not change the

simple fact that this was a criminal matter.” Commonwealth’s brief at 10.

True, but if the Act does apply, then the charges should not have been filed

in the first place.     The Commonwealth’s brief utterly fails to address that

point. While the statute grants discretion to file charges if there is a good

faith belief that the Act does not apply, the Commonwealth transforms that

discretion into a license to pursue winning the case at all costs, which is

arguably incompatible with its special duties.7

____________________________________________


7In Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017), Justice Donohue
authored a concurring opinion discussing the prosecutor’s role, which we
quote herein:

       Prosecutors have a unique role in our criminal justice system.
       This Court has codified the “Special Responsibilities of a
       Prosecutor” to provide that “[a] prosecutor has the
       responsibility of a minister of justice and not simply that of an
       advocate.” Pennsylvania Rules of Professional Conduct 3.8
       (comment). We have further observed that “[a] defendant does
       not have a right not to be prosecuted; he does, however, have
       a right to have his case reviewed by an administrator of justice
       with his mind on the public purpose, not by an advocate whose
       judgment        may       be       blurred     by      subjective
       reasons.” Commonwealth v. Eskridge, 529 Pa. 387, 604 A.2d
(Footnote Continued Next Page)


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J-E04002-17


      Notwithstanding, we agree that the failure to preserve the issue poses

an impediment to our ability to review the claim pursuant to Pa.R.A.P. 302.

That prohibition is not absolute, however.            When reviewing criminal

judgments, it is well-settled that issues pertaining to the legality of the

sentence cannot be waived.          Since that principle does not extend to the

validity of the conviction, Commonwealth v. Norris, 446 A.2d 246, 252

n.9 (Pa. 1982), it offers no relief. Additionally, subject matter jurisdiction is

non-waivable, a theory discussed, and rejected, supra.

      Moving beyond the criminal context, our Supreme Court has held that

the government’s sovereign immunity from lawsuits cannot be waived and

may be raised for the first time on appeal.           See McShea v. City of

Philadelphia, 995 A.2d 334, 341 (Pa. 2010) (“The clear intent of the Tort

Claims Act was to insulate the government from exposure to tort liability.

Tort immunity is a non-waivable, absolute defense.”) (citations omitted).

McShea cited In re Upset Sale of Properties, 560 A.2d 1388 (Pa. 1989)

for that proposition. That case states:

(Footnote Continued) _______________________

      700, 701 (1992) (citing Commonwealth v. Dunlap, 335 A.2d
      364, 368 (Pa. Super. 1975) (Hoffman, J., dissenting)); see
      also Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291,
      331 (2011).

Id. at 631 (Donohue, J., concurring). “The prosecutor's duty to seek justice
trumps his or her role as an advocate to win cases for the Commonwealth.”
Id.




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     The tax claim unit has raised their governmental immunity for
     the first time on appeal. They claim they are not only immune
     but that their immunity is not waivable, even if they negligently
     failed to do so before. Perhaps here is one reason their immunity
     cannot be waived; a governmental agency cannot be put at the
     mercy of negligent or agreed waiver by counsel of a substantive
     right designed to protect its very existence. Such negligence can
     spread, pebble in a pond, until the governmental agency would
     be engulfed in a tidal wave of liability.

           ....

     Defense of governmental immunity is an absolute defense,
     directly analogous to our holding in workmen's compensation
     cases and is not waivable, LeFlar v. Gulf Creek Industrial
     Park, 511 Pa. 574, 515 A.2d 875 (1986), nor is it subject to any
     procedural device that could render a governmental agency
     liable beyond the exceptions granted by the legislature.

Id. at 1389.

     For the following reasons, we find that the same principles apply to

challenges under this Act.   Appellant obviously does not enjoy sovereign

immunity from all criminal prosecutions absent her consent to being

charged.   In this regard, the Act is more analogous to the concept of

qualified immunity, which is subject to waiver principles.   As described by

the United States Supreme Court:

     The doctrine of qualified immunity protects government officials
     “from liability for civil damages insofar as their conduct does not
     violate clearly established statutory or constitutional rights of
     which a reasonable person would have known.” Harlow v.
     Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
     (1982). Qualified immunity balances two important interests—
     the need to hold public officials accountable when they exercise
     power irresponsibly and the need to shield officials from
     harassment, distraction, and liability when they perform their
     duties reasonably. . . .


                                   - 23 -
J-E04002-17


       Because qualified immunity is “an immunity from suit rather
       than a mere defense to liability . . . it is effectively lost if a case
       is erroneously permitted to go to trial.” Mitchell v.
       Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411
       (1985) (emphasis deleted). Indeed, we have made clear that the
       “driving force” behind creation of the qualified immunity doctrine
       was a desire to ensure that “‘insubstantial claims' against
       government       officials [will]     be      resolved      prior    to
       discovery.” Anderson v. Creighton, 483 U.S. 635, 640, n. 2,
       107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Accordingly, “we
       repeatedly have stressed the importance of resolving immunity
       questions at the earliest possible stage in litigation.” Hunter v.
       Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589
       (1991) (per curiam).

Pearson v. Callahan, 555 U.S. 223, 231–32 (2009).

       Analogously, the qualification to Appellant’s immunity in this case

turns on the Act. Pearson’s description of qualified immunity as providing

immunity from suit, rather than a mere defense to liability, describes this

situation. Moreover, that immunity was effectively lost when, as here, the

case was erroneously permitted to go to trial due to Appellant’s failure to

raise the claim in pre-trial proceedings.       Furthermore, we agree it was far

preferable to have this question settled at a much earlier stage in the

litigation.

       However, there is one key feature of qualified immunity that does not

apply to the Act: The plaintiff seeking damages from an official has no

obligation whatsoever not to file suit, even if the defendant has qualified

immunity.       Herein, it is only partially correct to say that the case

erroneously went forward due to Appellant’s failure to raise the defense, as

the Commonwealth also bore a duty not to bring charges if the Act applied.

                                       - 24 -
J-E04002-17


       Accordingly, we find that extending the Supreme Court’s sovereign

immunity principles is warranted.          As set forth at length supra, the clear

intent of the Legislature was to shield Appellant from any exposure to

criminal liability if the Act applies.8 That the Act grants the Commonwealth

discretion to file charges is simply a byproduct of the fact that its

applicability will not be clear in all cases, and, in those cases, the defendant

must establish that it applies.        When it does, the defendant is entitled to

immunity from prosecution and is therefore “insulate[d] . . . from

exposure[.]” McShea, supra. The Commonwealth’s failure to acknowledge

its duty to refrain from charging if the Act applies, combined with Appellant’s

failure to raise the issue in a timely fashion has “spread, pebble in a pond,”

In Re Upset Sale, supra, to this Court.                The same policy reasons

permitting the government to raise sovereign immunity at any stage in the

proceedings applies to this matter. Accordingly, we may review the claim.

       What remains is whether the Act actually applies.         Keeping in mind

that it is Appellant’s duty to prove its applicability, we hold that she has met
____________________________________________


8  Our extension of these principles relies upon that key feature, and
therefore we do not agree with the Commonwealth’s assertion that creating
an exception to the waiver doctrine in these circumstances would logically
justify creating exceptions for other types of claims, e.g. suppression claims
and statute of limitations claims. As discussed supra, in those situations the
Commonwealth has no duty to refrain from filing charges, whereas here the
Act places the duty on the Commonwealth in the first instance to refrain
from even initiating charges.




                                          - 25 -
J-E04002-17


her burden. Appellant argues that the Act applies as a matter of law, and

we find that the record clearly establishes the facts necessary for application

of § 780-113.7(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.” According to § 780-

113.7(a)(2), Appellant was entitled to immunity from prosecution for a

violation of possession of controlled substance if the following facts are

present.   First, someone “reported, in good faith, a drug overdose event,”

to, among other persons, “a law enforcement officer [or] the 911 system.”

35 P.S. § 780-113.7(a)(2)(i). Second, the person who made the report did

so based upon a reasonable belief that someone else needed medical

attention to avoid death or serious bodily injury due to a drug overdose

event. Id. Finally, the reporting person must have “provided his own name

and location and cooperated with the law enforcement officer [or] 911

system” and then “remained with the person needing immediate medical

attention until a law enforcement officer . . . or emergency services

personnel arrived.” 35 P.S. § 780-113.7(a)(2)(ii-iii).

      All of those facts are present. A motel employee discovered Appellant

unconscious in her room and called 911. Officer Robert Loder of the Tinicum

Police Department responded to the call and went to Appellant’s room,

where emergency medical personnel were already treating her. The record


                                    - 26 -
J-E04002-17


further establishes that the reporter had a reasonable belief that Appellant

was suffering a drug overdose event. That is statutorily defined to include

any “acute medical condition,” which includes, but is not limited to, “severe

physical illness” or a coma when the condition is the “result of consumption”

of a controlled substance that causes an adverse reaction. 35 P.S. § 780-

113.7(f). “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.” Id.

      Herein, Officer Loder overheard Appellant tell medical staff that she

had become unconscious due to the consumption of heroin. Since the motel

employees discovered Appellant in an unconscious state, they prudently

concluded   that   she   was   suffering   from   an   event   requiring   medical

intervention, which could have resulted in serious bodily injury or death.

That event was, in fact, caused by the consumption of heroin.

      The motel employees were immune from having criminal charges filed

against them under § 781-113.7.       Appellant concomitantly was entitled to

application of 35 P.S. § 780-113.7(c).        Carontenuto, supra (reporting

person need not have committed a crime). Therefore, she “shall be entitled

to immunity.”

      Judgment of sentence vacated. Appellant is discharged.

      President Judge Emeritus Bender joins the opinion.


                                     - 27 -
J-E04002-17


     Judge Panella joins the opinion.

     Judge Shogan joins the opinion.

     Judge Lazarus joins the opinion.

     Judge Olson joins the opinion.

     Judge Stabile joins the opinion.

     Judge Dubow joins the opinion.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/18




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