Commonwealth v. Markun , 185 A.3d 1026 ( 2018 )

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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
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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
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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:
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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
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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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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
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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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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. . . .
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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.
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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.
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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
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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.
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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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