J-A30010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

KAITLYN RUTH MCCLIMON

                            Appellant               No. 863 MDA 2016


               Appeal from the Order Entered February 16, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004917-2015


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 21, 2017

       Kaitlyn McClimon appeals from the order denying her pre-trial writ of

habeas corpus.1 We reverse.

____________________________________________


1
   The February 16, 2016 order denied Appellant’s petition for a writ of
habeas corpus.     On February 26, 2016, Appellant filed a petition for
interlocutory appeal, requesting that the trial court amend its order to
include language set forth in 42 Pa.C.S. § 702(b) (trial court may certify an
interlocutory appeal if it is “of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter[.]”). That petition
was timely. Pa.R.A.P. 1311(b) (“An application for an amendment of an
interlocutory order to set forth expressly the statement specified in 42
Pa.C.S. § 702(b) shall be filed with the lower court or other government unit
within 30 days after the entry of such interlocutory order[.]”).

      On March 21, 2016, the trial court granted the petition and amended
the February 16, 2016 order to include the § 702(b) language. Appellant
(Footnote Continued Next Page)
J-A30010-16



      This case concerns the applicability of the Drug Overdose Response

Immunity statute (hereinafter “the Act”), 35 P.S. § 780-113.7. The facts are

straightforward. Appellant suffered a life-threatening heroin overdose at her

residence. A friend called 911 and remained on site while paramedics and

police officers responded and administered aid.               Police discovered stamp

bags of heroin and drug paraphernalia near Appellant, who was charged with

one count each of possession of a controlled substance and possession of

drug paraphernalia. The police officer determined that the friend committed

no crime.

      Appellant    thereafter       sought       discharge,   invoking   the   statutory

protections of the Act, which states in relevant part:

      (a) A person may not be charged and shall be immune from
      prosecution for [the instant offenses] . . . if the person can
      establish the following:
            ....

             (2) all of the following apply:

                       (i) the person reported, in good faith, a
                       drug overdose event to . . . the 911
                       system . . . and the report was made on
                       the reasonable belief that another person
                       was in need of immediate medical
                       attention and was necessary to prevent

                       _______________________
(Footnote Continued)

then timely filed, on April 1, 2016, a petition for appeal with this Court
within thirty days of the order as amended. See Pa.R.A.P. 1311(b). On
June 1, 2016, we granted the petition for permission to appeal.




                                            -2-
J-A30010-16



                  death or serious bodily injury due to a
                  drug overdose;

                  (ii) the person provided his own name
                  and location and cooperated with the . . .
                  911 system . . . ; 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.
      ....

      (c) Persons experiencing drug overdose events may not
      be charged and shall be immune from prosecution [of
      these offenses] . . . 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.     The trial court agreed with the Commonwealth’s

position that, since the authorities determined that the friend did not commit

a crime, there is no immunity to extend to Appellant.

      The Commonwealth does not dispute that the friend would be entitled

to immunity under 35 P.S. § 780-113.7(a)(2), but maintains there is no

immunity to extend to Appellant under § 780-113.7(c) since the friend

committed no crime.     “[Appellant] is not entitled to . . . immunity, even

though the elements of 35 P.S. § 780-113.7(a)(2) have been satisfied.”

Commonwealth’s brief at 13. Commonwealth v. Carontenuto, 148 A.3d

448 (Pa.Super. 2016), issued after the trial court’s ruling, rejected this

precise argument.




                                    -3-
J-A30010-16



     [T]he statute simply declares that, if the reporting individual
     complies with the three statutory requirements enumerated in
     Section 780–113.7(a)(2), that individual “may not be charged
     and shall be immune from prosecution for” things such as
     possessing a controlled substance and using or possessing drug
     paraphernalia. 35 P.S. § 780–113.7(a).

     Therefore, under the plain terms of the statute, the
     Commonwealth could not have charged [the reporting party]
     with possessing the contraband, even if it believed [the reporting
     party] and [appellant] jointly possessed the heroin and drug
     paraphernalia that was found in the bathroom. Further, under
     the plain terms of the statute, even though the Commonwealth
     states it believes that [the reporting party] did not possess the
     contraband, the Commonwealth's belief does not alter the fact
     that [he] “may not be charged and shall be immune from
     prosecution” for the contraband found in the house.

Id. at 453.

     The Commonwealth recognizes that Carontenuto defeats its position,

but, since    “further    appeals are   expected,”   asks us   to   deny relief.

Commonwealth’s brief at 11, n.1.        We are powerless to overrule a prior

decision of this Court.      Commonwealth v. Pepe, 897 A.2d 463, 465

(Pa.Super. 2006).        Moreover, we note that, on February 15, 2017, our

Supreme Court denied further review in Carontenuto. Commonwealth v.

Carontenuto, --- A.3d ---, 2017 WL 611926 (Pa. 2017).                Hence, we

reverse.




                                        -4-
J-A30010-16



     Order reversed. Appellant is discharged. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2017




                                   -5-
