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Commonwealth v. Markun

Superior Court of Pennsylvania

February 27, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
SARAH KATHERINE MARKUN, Appellant

         Appeal from the Judgment of Sentence March 1, 2016 in the Court of Common Pleas of Delaware County, Criminal Division, No(s): CP-23-CR-0006444-2015

          BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

          OPINION

          MUSMANNO, J.

         Sarah Katherine Markun ("Markun") appeals from the judgment of sentence imposed following her conviction of possession of a controlled substance. See 35 P.S. § 780-113(a)(16). We affirm.

         The trial court set forth the relevant underlying facts as follows:

Twenty-four[-]year[-]old [] Markun … 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. A criminal [C]omplaint charging her with possessing heroin and possession of drug paraphernalia was issued on August 26, 2015. [The possession of drug paraphernalia was later withdrawn.]
A pre[]trial [M]otion to suppress was filed. After a hearing[, ] the [M]otion to suppress was denied and the matter proceeded by way of a non-jury trial with [Markun] stipulating to the testimony heard at the suppression hearing for trial purposes. At the conclusion of the non-jury trial[, ] [Markun] was found guilty of possessing a controlled substance. A sentence of twelve months of probation was imposed.

         Trial Court Opinion, 6/7/16, at 1-2 (footnotes and citations omitted).

         Markun filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

         On appeal, Markun raises the following question for our review: "Whether the lower court was without authority to convict or sentence [Markun] for possession of a controlled substance[, ] since she was immune from prosecution pursuant to 35 P.S. § 780-113.7?" Brief for Appellant at 5.

         Initially, we must determine whether Markun properly preserved her immunity challenge, where she raised this claim for the first time in her Rule 1925(b) Concise Statement. Resolution of this issue involves the interpretation and application of section 780-113.7, which states, in relevant part, the following:

(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:
(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 ...

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