from the Judgment of Sentence March 1, 2016 In the Court of
Common Pleas of Delaware County Criminal Division at No(s):
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA,
J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and
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.
trial court set forth the facts underlying this appeal in its
Pa.R.A.P. 1925(a) opinion, which we adopt herein:
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
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.
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 she was immune from prosecution pursuant to 35 P.S.
Appellant's brief at 5.
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:
(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
(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
(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).
(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
(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).
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.
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."
Fin. Acceptance Corp. v. Lopez, 78 A.3d 614, 627
(Pa.Super. 2013) (citation omitted). Appellant reaches this
conclusion by focusing on 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,
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.
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)).
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.
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.").
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 ...