J-S75040-16
2017 PA Super 46
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, No(s): CP-23-CR-0006444-2015
BEFORE: BOWES, MOULTON and MUSMANNO, JJ.
OPINION BY MUSMANNO, J.: Filed: February 27, 2017
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paraphernalia was later withdrawn.]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.
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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;
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(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).
***
(f) As used in this section, the following words and phrases shall
have the meanings given to them in this subsection unless the
context clearly indicates otherwise:
“911 system.” A system, including enhanced 911 service and a
wireless E-911 system, that permits a person dialing 911 by
telephone to be connected to a public safety answering point, via
normal telephone facilities, for the reporting of police, fire,
medical or other emergency situations.
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“Campus security officer.” An employee of an institution of
higher education charged with maintaining the safety and
security of the property of the institution and the persons on the
property.
“Drug overdose event.” An 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.
“Emergency services personnel.” Individuals, including a
trained volunteer or a member of the armed forces of the United
States or the National Guard, whose official or assigned
responsibilities include performing or directly supporting the
performance of emergency medical and rescue services or
firefighting.
“Law enforcement officer.” A person who by virtue of the
person's office or public employment is vested by law with a duty
to maintain public order or to make arrests for offenses, whether
that duty extends to all offenses or is limited to specific offenses,
or a person on active State duty under 51 Pa.C.S.[A.] § 508
(relating to active duty for emergency).
35 P.S. § 780-113.7 (footnote omitted).
“Where reviewing a claim that raises an issue of statutory
construction, our standard of review is plenary.” Commonwealth v.
Wilson, 111 A.3d 747, 751 (Pa. Super. 2015).
Our task is guided by the sound and settled principles set forth
in the Statutory Construction Act, including the primary maxim
that the object of statutory construction is to ascertain and
effectuate legislative intent. 1 Pa.C.S.[A.] § 1921(a). In
pursuing that end, we are mindful that “[w]hen the words of a
statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit.” 1
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Pa.C.S.[A.] § 1921(b). Indeed, “[a]s a general rule, the best
indication of legislative intent is the plain language of a statute.”
In reading the plain language, “[w]ords and phrases shall be
construed according to rules of grammar and according to their
common and approved usage,” while any words or phrases that
have acquired a “peculiar and appropriate meaning” must be
construed according to that meaning. 1 Pa.C.S.[A.] [§] 1903(a).
However, when interpreting non-explicit statutory text,
legislative intent may be gleaned from a variety of factors,
including, inter alia: the occasion and necessity for the statute;
the mischief to be remedied; the object to be attained; the
consequences of a particular interpretation; and the
contemporaneous legislative history. 1 Pa.C.S.[A.] § 1921(c).
Moreover, while statutes generally should be construed liberally,
penal statutes are always to be construed strictly, 1 Pa.C.S.[A.]
§ 1928(b)(1), and any ambiguity in a penal statute should be
interpreted in favor of the defendant.
Notwithstanding the primacy of the plain meaning doctrine as
best representative of legislative intent, the rules of construction
offer several important qualifying precepts. For instance, the
Statutory Construction Act also states that, in ascertaining
legislative intent, courts may apply, inter alia, the following
presumptions: that the legislature does not intend a result that
is absurd, impossible of execution, or unreasonable; and that the
legislature intends the entire statute to be effective and certain.
1 Pa.C.S.[A.] § 1922(1),(2). Most importantly, the General
Assembly has made clear that the rules of construction are not
to be applied where they would result in a construction
inconsistent with the manifest intent of the General Assembly. 1
Pa.C.S.[A.] § 1901.
Wilson, 111 A.3d at 751.
Markun contends that she did not waive the immunity challenge under
section 780–113.7(a)(2) for failing to raise it before the trial court because
such a claim implicates the jurisdiction of the court, and cannot be waived.
Brief for Appellant at 14-15. Markun asserts that the trial court did not have
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authority to adjudicate the case, and that her judgment of sentence must be
vacated. Id. at 15.1
The trial court addressed Markun’s claim as follows:
As the statute places the burden of establishing a person’s
entitlement to immunity on a defendant, it follows that it is
incumbent upon a defendant to raise this claim before the trial
court. While direction on the procedural mechanism through
which immunity can [be] sought under this provision is not
included within the statute, guidance may be found in the Rules
of Criminal Procedure governing pre-trial motions, alibi and
insanity or mental health defenses. [Markun’s] claim of
immunity should have been raised in an omnibus pretrial motion.
Notice to the Commonwealth would then have been followed by
a hearing where [Markun] would have the opportunity to
demonstrate that she was immune from prosecution. … A
defendant claiming immunity from prosecution must be required
through notice and a hearing, to give the Commonwealth an
opportunity to meet her claim and to give the trial court an
opportunity to consider it through fact-finding based upon
evidence rather than mere speculation.
Trial Court Opinion, 6/7/16, at 8-9.
As the trial court notes, while the statute clearly places the burden of
proving immunity upon the defendant, the statute is silent as to the timing
and mechanism through which a defendant may seek immunity. However,
the statute provides that a defendant “may not be charged and shall be
1
Markun also claims that the trial court lacked authority to convict her for
possession of a controlled substance where she was immune from
prosecution as a drug overdose victim under section 780-113.7. Brief for
Appellant at 10, 13. Markun argues that she suffered a drug overdose,
motel employees reported the overdose, the employees remained on the
scene until medical responders arrived, and the employees cooperated with
the responders. Id. at 13-14. Markun asserts that the police did not obtain
any assistance prior to, or independent of the action seeking medical help.
Id. at 13.
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immune from prosecution,” if he/she meets the statutory requirements.
See Commonwealth v. Carontenuto, 2016 PA Super 197, *4 (Pa. Super.
2016) (stating that “the statute simply declares that, if the reporting
individual complies with the three statutory requirements enumerated in
Section 780–113.7(a)(2), that individual ‘may not be charged and shall be
immune from prosecution for’ things such as possessing a controlled
substance and using or possessing drug paraphernalia.”) (citation omitted);
see also Commonwealth v. Ferguson, 552 A.2d 1075, 1080 (Pa. Super.
1988) (stating that “the term ‘shall’ is generally construed as creating a
mandatory duty”) (emphasis omitted). While the statute does not define
“immune,” “prosecution” or “charged,” we must look to their plain meaning
to determine the applicability of the statute. “Charge” is defined as “[t]o
accuse (a person) of an offense .”
BLACK’S LAW DICTIONARY 248 (8th ed. 2004). “Immune” is defined as being
“exempt from a duty or liability.” Id. at 765. Further, “prosecution” is
defined as “[a] criminal proceeding in which an accused person is tried.” Id.
at 1258.
The plain meaning of “may not be charged,” in conjunction with
“immune from prosecution,” must be construed to create a complete bar of
the prosecution of criminal proceedings and dismissal of charges against
persons who establish the other statutory requirements listed in section 780-
113.7. Further, the statute imposes a burden on the defendant, not the
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Commonwealth, to prove immunity after the Commonwealth has filed
charges. Indeed, it would be impractical and unreasonable to impose a
burden on a defendant to prove immunity prior to an arrest or filing of
charges. See Wilson, 111 A.3d at 751. Thus, the only mechanism through
which a defendant could enforce immunity to avoid being subject to a trial or
criminal proceeding would be through a pretrial motion. See Carontenuto,
2016 PA Super 197, at *1 (wherein the defendant raised an immunity
challenge under section 780-113.7 in a pretrial motion).
Here, Markun failed to raise an immunity challenge in a pretrial
motion, and there is no record to determine whether she established the
requirements of section 780-113.7.2 See Pa.R.A.P. 302(a) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); see also Commonwealth v. Coleman, 19 A.3d
1111, 1118 (Pa. Super. 2011) (stating that issues raised for first time in
Rule 1925(b) concise statement are waived); Commonwealth v. Hanford,
937 A.2d 1094, 1098 n.3 (Pa. Super. 2007) (noting that “new theories
ordinarily cannot be raised for the first time on appeal[.]”). Further,
Markun’s failure to properly raise the immunity claim before the trial court
did not divest the court of the power to hear the action. See
2
We note that the arresting officer and Markun testified at the bench trial.
See N.T., 3/1/16, at 4-9, 20-25. However, this testimony was not adequate
to decide the factual question of the applicability of the statutory immunity.
See Trial Court Opinion, 6/7/16, at 9 (stating that Markun “offered no
competent evidence that allows the court to conclude that all of the
provisions of subsection [(a)](2) are satisfied[.]”).
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Commonwealth v. Seiders, 11 A.3d 495, 497 (Pa. Super. 2010) (stating
that “[c]ontroversies stemming from violations of the Crimes Code are
entrusted to the original jurisdiction of the courts of common pleas for
resolution.”); see generally Commonwealth v. Lenart, 242 A.2d 259,
262 (Pa. 1968) (stating that “the statute of limitations is not per se a bar to
prosecution; it is an affirmative defense which must be pleaded. Thus, if not
pleaded, the prosecution machinery will grind.”). Based upon Markun’s
failure to raise her immunity challenge in a pretrial motion, we conclude the
claim is waived on appeal.
Judgment of sentence affirmed.
Judge Moulton joins the opinion.
Judge Bowes files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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