The opinion
J-S33019-20
2020 PA Super 198
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OBED NUNEZ, :
:
Appellant : No. 3308 EDA 2019
Appeal from the Judgment of Sentence Entered October 18, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000114-2019
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED AUGUST 14, 2020
Obed Nunez (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of possession of a controlled
substance and possession of drug paraphernalia.1 We affirm.
The trial court summarized the facts and procedural history of this case:
On Monday, September 10, 2018, at approximately
4:00[]p.m., [Upper Darby Police Department Officer Michael
Begany (Officer Begany)] was working as a patrolman in full
uniform and in a marked police vehicle. Officer Begany received
a dispatch call for a “customer disturbance” at the Taco Bell
[Restaurant] on 7500 West Chester Pike in Upper Darby. . . .
Officer [Michael] Wilson of the Upper Darby Police
Department also responded to the call. Before the two arrived,
the manager called back a second time, stating that they needed
help with an intoxicated or high customer who had now passed
out. When Officer Wilson and Officer Begany arrived at the Taco
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(16), (a)(32).
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Bell, they observed an [unconscious] male, later identified as
Appellant, on the floor in the bathroom of the restaurant. Based
upon his training and experience with opioids, Officer Begany
determined that Appellant was overdosing on opioids and Narcan
was administered. After receiving the Narcan, [Appellant]
regained some amount of consciousness.
As the paramedics were in route, Officer Begany and Officer
Wilson prepared [] Appellant for transport, which routinely
includes checking for identification as well as searching []
Appellant in order to make sure there are no dangerous objects
such as weapons or needles that could injure the paramedics or
the officers. As a result of the search, a glassine baggy with white
powder was located in Appellant’s right, front pocket.
Appellant was eventually arrested and charged with
[p]ossession of a [c]ontrolled [s]ubstance and [p]ossesion of
[d]rug [p]araphernalia.
On June 13, 2019, counsel for Appellant filed a Motion to
Dismiss pursuant to 35 P.S. § 780-113 as well as a Motion to
Suppress. A hearing was conducted on the Motion to Dismiss on
July 8, 2019. . . . After review of the audio of the 911 calls and
the applicable case[]law, [the trial court] issued an order denying
the motion on July 9, 2019. Counsel filed a Motion to Reconsider
which was denied on August 26, 2019. [Following a hearing,
Appellant’s motion to suppress was denied on July 26, 2019.]
On October 18, 2019, a non-jury trial was conducted. In
lieu of testimony, counsel for the Commonwealth and counsel for
Appellant agreed to a trial by stipulation and entered the following
exhibits into evidence: [Commonwealth’s Exhibit #1]: Affidavit
of Probable Cause; [Commonwealth’s Exhibit #2]: Incident
Report; [Commonwealth’s Exhibit #3]: CD containing audio of
the 911 calls; [Commonwealth’s Exhibit #4: the 911 event log];
[Commonwealth’s Exhibit #5]: Lab Report; as well as the notes
of testimony from the suppression hearing, which were not
transcribed at the time of the non-jury trial, but was agreed upon
by both parties that they would be incorporated into the record
when they became available. After review of the exhibits, [the
trial court] found Appellant guilty of [p]ossesion of a [c]ontrolled
substance and [p]ossession of [d]rug [p]araphernalia.
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[The trial court sentenced Appellant to an aggregate of 3
years of probation.] Appellant filed a timely appeal[.]
Trial Court Opinion, 1/16/20, at 2-5 (footnotes and italics omitted). Both
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Appellant presents a single issue for review: “Whether the [trial] court
lacked authority to convict and sentence [Appellant], because he was immune
from prosecution pursuant to 35 P.S. § 780-113.7 . . . ?” Appellant’s Brief at
4 (italics omitted).2
Appellant’s issue involves the interpretation and application of the Drug
Overdose Response Immunity Act (the Act). Our standard of review is well
settled:
A trial court’s application of a statute is a question of law, and our
standard of review is plenary. Moreover, our review is limited to
determining whether the trial court committed an error of law. . .
. In interpreting any statute, appellate courts must take note of
the principles of statutory interpretation and construction. The
principal objective of interpreting a statute is to effectuate the
intention of the legislature and give effect to all of the provisions
of the statute. In construing a statute to determine its meaning,
courts must first determine whether the issue may be resolved by
reference to the express language of the statute, which is to be
read according to the plain meaning of the words. When analyzing
particular words or phrases, we must construe them according to
rules of grammar and according to their common and approved
usage. Words of a statute are to be considered in their
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2 Appellant’s Rule 1925(b) statement raises an additional suppression claim.
See Rule 1925(b) Statement, 11/27/19, at 1. However, because Appellant
abandoned this claim in his brief, we will not address it. See Appellant’s Brief
at 4; see also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011),
cert. denied, 132 S.Ct. 267 (2011) (refusing to address claim appellant
raised with trial court but subsequently abandoned in brief).
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grammatical context. Furthermore, we may not add provisions
that the General Assembly has omitted unless the phrase is
necessary to the construction of the statute. A presumption also
exists that the legislature placed every word, sentence and
provision in the statute for some purpose and therefore courts
must give effect to every word.
Commonwealth v. Lewis, 180 A.3d 786, 788 (Pa. Super. 2018) (citations
omitted).
Appellant argues that he was entitled to immunity under the Act because
the Taco Bell restaurant manager, William Jay (Mr. Jay), “reported in good
faith a ‘drug overdose event’ to 911 believing immediate medical attention
was necessary to prevent death or serious bodily injury.” Appellant’s Brief at
8. Appellant avers that Mr. Jay “cooperated with authorities, provided his
name and location, and remained with [Appellant] until emergency personnel
arrived at Taco Bell.” Id. Accordingly, Appellant asserts that because Mr. Jay
is immune, Appellant is entitled to derivative immunity pursuant to Section
780-113.7(c). Id.
In response, the Commonwealth contends:
The [Act] does not apply to the facts of this case because
[Appellant] failed to prove that [Mr. Jay] reasonably believed that
[Appellant] was overdosing and needed immediate medical
attention to prevent death or serious bodily injury. The trial court
found that [Mr. Jay] called 911 to remove the uncooperative
[Appellant], not to provide him with medical attention. As the trial
court accurately and succinctly summarized, the 911 call was
made out of concern for the business; not out of concern for
Appellant’s well-being.
The [Act] does not grant blanket immunity to everyone who
overdoses. The plain language of the statute provides the
conditions that must be met for the statute to apply and the trial
court correctly found that these conditions were not present.
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Commonwealth’s Brief at 6 (citation omitted).
“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 and contacts local authorities.
The Act provides this immunity to both the reporter and the victim, so long as
several conditions are met.” Lewis, 180 A.3d 786, 787-88 (Pa. Super. 2018).
The Act, in relevant part, provides:
(a) A person may not be charged and shall be immune from
prosecution for any offense listed in subsection (b) . . . 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 . . .
(2) all of the following apply:
(i) the person reported, in good faith, a
drug overdose event to a law enforcement
officer, the 911 system, a 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
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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 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 . . . 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).
...
35 P.S. § 780-113.7(a)-(d) (footnote omitted, emphasis added).
As defined in Section 780-113.7, a “drug overdose event” is,
[a]n acute medical condition, including, but not limited to, severe
physical illness, coma, mania, hysteria or death, which is the
result of consumption or use of one or more controlled substances
causing an adverse reaction. 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.
35 P.S. § 780-113.7. In applying the Act, we have previously held that, “the
subject of the report need not necessarily require immediate medical
attention, or even be suffering from a drug overdose. What the Act requires
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is that the reporter have a reasonable belief emergency medical care is
required due to a drug overdose.” Lewis, 180 A.3d at 791. Further, “[t]he
burden of proof under the [Act] is not on the Commonwealth; rather, the
defendant must establish that he is entitled to immunity under the Act.”
Commonwealth v. Lehman, -- A.3d --, 2020 WL 1671582, *3 (Pa. Super.
Apr. 6, 2020) (citing 35 P.S. § 780-113.7(a)).
Upon review of the record, we agree with the trial court that Appellant
did not qualify for Section 780-113.7(c) immunity because he failed to satisfy
the Act’s requirements. Specifically, we conclude Mr. Jay’s 911 calls did not
evidence that he held a reasonable belief Appellant was in need of immediate
medical attention necessary to prevent death or serious bodily injury due to a
drug overdose. See 35 P.S. § 780-113.7(a)(2)(i). Further, Appellant also
failed to prove that Mr. Jay remained with him until the police officers arrived.
See 35 P.S. § 780-113.7(a)(2)(iii).
At Appellant’s stipulated bench trial, no witness testimony was
presented. N.T., 10/18/19, at 1-19. Instead, the trial court considered five
exhibits submitted by the Commonwealth: the affidavit of probable cause,
Officer Wilson’s incident report, an audio recording of Mr. Jay’s 911 calls, the
911 event log, and a Pennsylvania State Police lab report. Id. at 6-7; see
also Commonwealth’s Exhibit #1-5. Appellant did not submit any evidence
for the trial court’s consideration. N.T., 10/18/19, at 7 (“[Appellant will] not
be presenting any testimony or evidence.”).
The affidavit of probable cause states:
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On Monday September 10th, 2018 at 15:59 hours your Affiant,
Officer Michael Wilson #80 of the Upper Darby Township Police
Department, was on duty, working in full uniform, and operating
marked patrol vehicle 79-23. During my course of duty I was
dispatched to the Taco Bell located at 7500 West Chester Pike,
Upper Darby, PA, 19082 for the report of a customer dispute in
progress. While en route DELCOM advised that a male inside of
the store was now unconscious. Upon entering the store I located
[Appellant] being held up on a chair by Taco Bell employees.
[Appellant] was unresponsive and appeared to be overdosing on
narcotics. Myself and Officer Michael Begany [#137] placed
[Appellant] flat on the ground, and I administered (1) 4mg dose
of Naloxone through his nostril. During a search of [Appellant] for
officer safety, Officer Begany located (1)[] clear, glassine bag
containing (1) blue wax paper bag stamped “White House” which
contained a white powdery substance, suspected to be heroin, in
[Appellant’s] right front pants pocket. [Appellant] did eventually
regain consciousness, however due to his intoxicated state he was
transported by paramedics to Delaware County Memorial Hospital.
At police headquarters the suspected heroin was field tested using
the NARKII (Heroin/Fentanyl Reagent) test kit, which produced
positive results for the presence of Fentanyl. . . .
Affidavit of Probable Cause, 9/10/18, at 1.3
In his initial 911 call, Mr. Jay stated:
([] 3:59:18 [p.m.])
Dispatcher: The time is 9-1.
[Mr. Jay]: Oh, yeah. Can I have, I’m at the Taco Bell in
Upper Darby. Can I have an escort across the —
Dispatcher: O kay. You’re at Taco Bell. Where are you
going to?
[Mr. Jay]: No. I need, a customer, actually he’s extremely
high.
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3 Officer Wilson’s incident report contains an identical narrative of the events
of September 10, 2018. See Commonwealth’s Exhibit #2.
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Dispatcher: Which Taco Bell you at, sir?
[Mr. Jay]: That one on West Chester Pike. (Noise)
Dispatcher: Is he a white male, black male, [H]ispanic?
[Mr. Jay]: He’s a white male.
Dispatcher: White male. What color shirt? What color
pants?
[Mr. Jay]: He’s got on a gray hoodie and black, purple and
white sweat pants.
Dispatcher: Black, purple and white sweat pants? (Noise)
[Mr. Jay]: Yes, he’s staying right in the lobby. (Noise) . . .
He’s asleep standing up. Sir.
Dispatcher: Is he a customer?
[Mr. Jay]: Yes. (Noise)
Dispatcher: Your name, sir?
[Mr. Jay]: I’m a manager. My name is Will[.]
Dispatcher: What’s your last name?
[Mr. Jay]: It’s Jay, J-a-y.
Dispatcher: And your phone number?
[Mr. Jay]: You got to get up. I’m sorry.
Dispatcher: Your phone number, sir?
[Mr. Jay]: [Provides phone number].
Dispatcher: All right. They already have the call.
[Mr. Jay]: I’m sorry.
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Dispatcher: They have the call, sir.
[Mr. Jay]: All right. Thank you.
(Conclusion of the 911 call.)
Appellant’s Motion for Reconsideration, 7/23/19, Exhibit A, at 3-4.
As stated above, to qualify for immunity, Appellant bore the burden of
proving that: 1) the reporter reported a “drug overdose event” to Officer
Begany and Officer Wilson in good faith and based upon the reasonable belief
that immediate medical attention was necessary to prevent death or serious
bodily injury due to a drug overdose; 2) the reporter provided authorities with
their real name and location, and cooperated with the responding authorities;
and 3) the reporter remained with Appellant until responding authorities
arrived. 35 P.S. § 780-113.7(a)(2); Lewis, 180 A.3d at 791.
During Mr. Jay’s initial 911 call, he stated to the dispatcher that
Appellant was “extremely high” and “asleep standing up” in the middle of the
Taco Bell restaurant lobby. Appellant’s Motion for Reconsideration, 7/23/19,
Exhibit A, at 3-4. However, Mr. Jay did not make any statement during this
call that he reasonably believed Appellant required immediate medical
attention, see id., nor did Mr. Jay relay to the dispatcher that he reasonably
believed Appellant was experiencing a drug overdose event, as defined by the
Act. See id.; see also 35 P.S. § 780-113.7. Rather, our review of the record
reveals that the trial court correctly characterized Mr. Jay’s first 911 call as “a
manager of an establishment contacting the police for assistance in removing
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an individual who, by his intoxicated nature, [was] causing a disturbance to
the regular course of business.” Trial Court Opinion, 1/16/20, at 8.
Prior to Officer Begany and Officer Wilson’s arrival, Mr. Jay made a
second call to 911:
[(]911 call at 4:04:02 p.m.)
Dispatcher: -- police and firemen.
[Mr. Jay]: How you doing? This is the Upper Darby Taco Bell on
West Chester Pike, and we have a man who is highly intoxicated
or high. He’s in our store passed out. Can we have some
assistance or help over here, please.
Dispatcher: All right. He’s at the one on State and West Chester
Pike?
[Mr. Jay]: West Chester Pike, yes. 7500 West Chester Pike.
Dispatcher: Okay. Is a white, black or Hispanic male?
[Mr. Jay]: Excuse me?
Dispatcher: Is he a white, black or Hispanic male?
[Mr. Jay]: He’s a white male.
Dispatcher: What’s he wearing?
[Mr. Jay]: He’s got on a gray hoodie and some black, purple and
white sweats, an eye patch.
Dispatcher: Okay. Is he unconscious now?
[Mr. Jay]: Yes.
(End of 911 call.)
Appellant’s Motion for Reconsideration, 7/23/19, Exhibit A, at 5-6.
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While Mr. Jay’s second 911 call could arguably qualify under the Act as
a report of a drug overdose event requiring immediate medical attention
necessary to prevent death or serious bodily injury, because Officer Wilson
had already obtained information concerning Appellant prior to Mr. Jay’s
second 911 call, Appellant is not entitled to immunity. See Affidavit of
Probable Cause, 9/10/18, at 1; Commonwealth’s Exhibit #2; Commonwealth’s
Exhibit #4; see also 35 P.S. § 780-113.7(d)(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 . . . the action seeking
or obtaining emergency assistance as described in subsection (a).”).
Simply, based upon Mr. Jay’s initial 911 call, Officer Wilson was already
in route to the Taco Bell to remove a customer asleep in the lobby before
receiving additional information, via Mr. Jay’s second 911 call, that Appellant
had become unconscious and needed help. See Affidavit of Probable Cause,
9/10/18, at 1 (“I was dispatched to the Taco Bell . . . for the report of a
customer dispute. . . . While en route DELCOM advised that a male inside of
the store was unconscious.”); see also Commonwealth’s Exhibit #2. The Act
specifically withholds immunity in this instance. See 35 P.S. § 780-
113.7(d)(1).
Moreover, Appellant failed to prove that Mr. Jay remained with Appellant
until the officers arrived at the Taco Bell, as required by Section 780-
113.7(a)(2)(iii) (“[T]he person remained with the person needing immediate
medical attention until a law enforcement officer . . . arrived.”). Officer Wilson
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noted in both the affidavit of probable cause and in his incident report that
upon arriving at the Taco Bell, he observed Appellant “being held up on a chair
by Taco Bell employees.” Affidavit of Probable Cause, 9/10/18, at 1; See
Commonwealth’s Exhibit #2. However, there is no evidence of record
specifically indicating that Mr. Jay, as the reporter under the Act, remained
with Appellant until the officers arrived, as required for immunity.4 Neither
the affidavit of probable cause, nor Officer Wilson’s incident report reflect that
Mr. Jay was found present with Appellant upon the officers’ arrival, and
Appellant did not present any evidence proving so. Appellant therefore failed
to satisfy his burden under Section 780-113.7(a)(2)(iii). Lewis, 180 A.3d at
791.
In sum, because Appellant did not qualify for immunity under the Act,
the trial court properly denied Appellant’s motion to dismiss. We therefore
affirm his judgment of sentence.
Judgment of sentence affirmed.
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4 Notably, Appellant concedes in his motion to dismiss pursuant to 35 P.S. §
780-113.7 that the “record is vague” concerning Mr. Jay’s involvement, but
ultimately avers that “the facts and circumstances suggest that an employee
phoning the police would provide police with his name and remain at the scene
throughout the investigation.” Appellant’s Motion to Dismiss Pursuant to 35
P.S. § 780-113.7, 6/13/19, at unnumbered 2. However, we hold that
“suggestive facts and circumstances” fail to carry Appellant’s burden of
showing he was entitled to immunity under the Act. See 35 P.S. § 780-113.7.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/20
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