Commonwealth v. Markun

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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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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