Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Markun

Superior Court of Pennsylvania

May 1, 2018

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 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

          BOWES, J.

         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:

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 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:
(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).
(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 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)).

          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.").

          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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.