J. A32007/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
CHRISTOPHER A. OHM,                        :
                                           :
                           Appellant       :     No. 922 EDA 2016

                    Appeal from the Order February 24, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002021-2015
                                          CP-48-CR-0003791-2015

BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*

MEMORANDUM BY DUBOW, J.:                          FILED JANUARY 24, 2017

        Appellant, Christopher A. Ohm, appeals from the February 24, 2016

Order entered in the Northampton County Court of Common Pleas revoking

his parole and recommitting him to a term of total confinement. We reverse

the Order revoking Appellant’s parole and remand for further proceedings.

        This case involves the application of the Drug Overdose Response

Immunity statute.1 The facts, as gleaned from the limited certified record

before us, are summarized as follows. While on parole for a False Reports

conviction, Appellant experienced a drug overdose event. As a result, the




*
    Retired Senior Judge Assigned to the Superior Court.
1
    35 P.S. § 780-113.7.
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Commonwealth charged Appellant with Possession of Drug Paraphernalia.2

In the course of investigating Appellant’s possession of drug paraphernalia

crime, Appellant purportedly admitted to consistent drug use while on

parole. Appellant’s parole officer sought to revoke Appellant’s parole based

on the drug paraphernalia charge.3 Appellant pleaded guilty to possession of

drug paraphernalia.

        On February 24, 2016, the trial court vacated Appellant’s Judgment of

Sentence and the Commonwealth nolle prossed the possession of drug

paraphernalia charge pursuant to the Drug Overdose Response Immunity

statute.    However, that same day the Commonwealth and the trial court

nonetheless moved forward to a Gagnon II4 violation of parole hearing.

        Rather than relying on the charge for which Appellant was entitled to

immunity, the Commonwealth sought to revoke Appellant’s parole based on

his statement about using drugs while on parole.          The Commonwealth

believed his admission was sufficiently “independent” of the drug overdose

event pursuant to 35 P.S. § 780-113.7(d)(1) to serve as the basis of

Appellant’s parole violation. Appellant’s counsel disputed that the statement

2
    35 P.S. § 780-113(a)(32).
3
  In the “Petition for Review of Parole” filed by Probation Officer Luke C.
Deluise, it states that Appellant “violated the conditions of his supervision by
receiving new charges on October 15, 2015 from the Bethlehem Township
Police Department. [Appellant] was charged with Use/Possession of Drug
Paraphernalia (M).” Petition for Review of Parole, filed 11/25/15, at 1.
4
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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was made independent of the overdose event and indicated that Appellant’s

statements could have been made while Appellant was detained or on the

way to the prison after his arrest on the drug paraphernalia charge, a charge

for which he was ultimately entitled to immunity.       N.T., 2/24/16, at 6.

Appellant’s parole officer was not present and there were no reports or notes

admitted as evidence.5

      After hearing argument and discussing Appellant’s prior involvement

with drug use, the trial court revoked Appellant’s parole and recommitted

Appellant to a term of total confinement.       The trial court entered the

following Order after the hearing:

      1. With the agreement of the District Attorney’s Office that the
      sentence in 3791-2015 that was entered on January 21, 2016
      should be vacated, and it appearing that [Appellant] qualifies
      under the requirements of 780-113.7 as a person who was
      involved in a drug overdose, the case is hereby nolle prossed.

      2. [Appellant] admitted to drug use, independent of the charges
      at 3791 of 2015 and in violation of his parole sentence at 2021
      of 2015.

      3. The [c]ourt finds that that independent admission is outside of
      the purview of the law at 780-113.7.



5
  Probation Officer Amy Moss reviewed Appellant’s Probation Officer Luke
DeLuise’s “notes” in which he had written that Appellant had “admitted to
doing 15 bags a day and cocaine.” N.T., 2/24/16, at 8. She then stated:
“[i]n speaking with [Appellant] prior to him coming up to you, he said he
made that statement that he was doing that prior to this incident [and] that
Mr. DeLuise misunderstood him. Now, I can’t speak to that, because he is
not here.” Id. The notes about which Moss spoke were not proffered as
evidence.



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      4. Appellant is sentenced to having his street time removed,
      serve the balance of sentence, eligible for re-parole in six
      months, credit for time served.

      5. The [c]ourt recognizes the social policy that is at play in the
      law cited above and believes that it is the intention of the
      legislature to provide immunity from prosecution for the event
      itself that served the basis of 3791 of 2015 but not for admission
      to violation at times other than the event at 3791 of 2015.

Trial Court Order, dated 2/24/16, at 1-2.

      Appellant timely filed a Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review:

      Did the court err in finding that there was an independent
      admission of drug use which violated his probation[?]

Appellant’s Brief at 7 (unpaginated).

      Preliminarily, we observe:

      Unlike a probation revocation, a parole revocation does not
      involve the imposition of a new sentence. Indeed, there is no
      authority for a parole-revocation court to impose a new penalty.
      Rather, the only option for a court that decides to revoke parole
      is to recommit the defendant to serve the already-imposed,
      original sentence. At some point thereafter, the defendant may
      again be paroled.

      Therefore, the purposes of a court’s parole-revocation hearing—
      the revocation court’s tasks—are to determine whether the
      parolee violated parole and, if so, whether parole remains a
      viable means of rehabilitating the defendant and deterring future
      antisocial   conduct,    or    whether     revocation,  and   thus
      recommitment, are in order. The Commonwealth must prove
      the violation by a preponderance of the evidence and, once it
      does so, the decision to revoke parole is a matter for the court’s
      discretion. In the exercise of that discretion, a conviction for a
      new crime is a legally sufficient basis to revoke parole.



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Commonwealth v. Kalichak, 943 A.2d 285, 290-91 (Pa. Super. 2008)

(internal citations omitted).

      “The sole issue on appeal is whether the trial court erred, as a matter

of law, in revoking appellant’s parole and committing him to a term of total

confinement.” Commonwealth v. Galletta, 864 A.2d 532, 539 (Pa. Super.

2004) (citation and quotation omitted). “In order to support a revocation of

parole, the Commonwealth need only show, by a preponderance of the

evidence, that a parolee violated his parole.” Commonwealth v. Mitchell,

632 A.2d 934, 936 (Pa. Super. 1993).

      Our legislature enacted the Drug Overdose Response Immunity statute

in 2014 to address heroin and opioid-related overdose deaths in the

Commonwealth by encouraging cooperation with law enforcement to assist

individuals experiencing drug overdoses. The statute provides, in relevant

part, that:

      § 780-113.7. Drug overdose response immunity

      (a) A person may not be charged and shall be immune from
      prosecution for [35 P.S. § 780-113(a)(32)] 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 [35 P.S. § 780-113(a)(32)]
         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


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            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
      [35 P.S. § 780-113(a)(32)].

                                    *         *   *

      (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 [35 P.S. § 780-113(a)(32)] 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.

      In the instant case, the trial court addressed Appellant’s issue as

follows:

      [Appellant] contends on appeal that this [c]ourt erred in
      sentencing him on the parole violation[.]      First, [Appellant]
      argues that the Gagnon II violation should also have been
      dismissed under the Drug Overdose Response Immunity
      provision. We disagree. The record reflects that, independent of
      the overdose event which led to the subsequently-dismissed


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      charges at term number 3791-2015, [Appellant] admitted to a
      probation officer that he had been using 15 bags of heroin a day.

      There is no provision in the Drug Overdose Response Immunity
      act that prevents a defendant from being held on a violation
      where a condition of parole is to remain drug and alcohol free,
      and they admit to generally using drugs. The Drug Overdose
      Response Immunity provision only expressly prohibits charges
      resulting from the actual incidence of an overdose.         Here,
      [Appellant] admitted to his probation officer that he had been
      using large quantities of heroin over a period of time,
      culminating in an overdose. That admission is sufficient to result
      in a parole violation sentence.

Trial Court Opinion, 4/1/16, at 1-2 (citation omitted). We disagree with the

trial court’s assessment.

      Contrary to the trial court’s Opinion, there is no admissible evidence in

the record to support the trial court’s conclusion that Appellant’s statement

of drug use was made independent of his drug overdose event. Moreover,

based on the limited certified record before us, we conclude that the

Commonwealth failed to provide sufficient evidence of probative value that

Appellant violated the conditions of his parole.

      Although the Commonwealth tried to “make an amendment to this

petition with regard [to] the statements that [Appellant] made regarding his

[drug] use[,]” there is no supporting documentation for this allegation. N.T.,

2/24/16, at 5.

      The   circumstances      surrounding   Appellant’s   statements   to   law

enforcement officials are far from clear.     Appellant’s parole officer did not

testify at the hearing.     Significantly, there are no reports in the certified



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record providing the circumstances under which Appellant provided his

allegedly independent admission of drug use.            Nothing in the probation

officer’s Petition mentions Appellant’s allegedly independent statements

admitting to his prior extensive drug use.

        The Commonwealth agreed that Appellant was entitled to immunity

from prosecution for the drug paraphernalia charge and nolle prossed those

charges     voluntarily.     N.T.,    2/24/16,   at   3-4.     Significantly,   the

Commonwealth now “agrees with Appellant that a statement he made in the

course of the investigation of the criminal offense for which he was entitled

to immunity should not be used against him as evidence of a parole

violation.” Letter from Appellee, 9/21/16, at 1.6

        In light of the above facts, the limited record before us, and the lack of

evidence showing that the statements were not made in connection with the

drug overdose event, Appellant is entitled to immunity from a charge of a

parole violation pursuant to 35 P.S. § 780-113.7. The trial court, thus, erred

as a matter of law in concluding that Appellant violated his parole.

Accordingly, we reverse the February 24, 2016 Order revoking Appellant’s

parole and remand for further proceedings.

        Revocation   of    parole    reversed.   Case    remanded     for   further

proceedings. Jurisdiction relinquished.

        Judge Ransom joins the memorandum.

6
    The Commonwealth did not file an appellate brief in this matter.



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     Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/24/2017




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