J-A30010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KAITLYN RUTH MCCLIMON
Appellant No. 863 MDA 2016
Appeal from the Order Entered February 16, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004917-2015
BEFORE: BOWES, OLSON AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 21, 2017
Kaitlyn McClimon appeals from the order denying her pre-trial writ of
habeas corpus.1 We reverse.
____________________________________________
1
The February 16, 2016 order denied Appellant’s petition for a writ of
habeas corpus. On February 26, 2016, Appellant filed a petition for
interlocutory appeal, requesting that the trial court amend its order to
include language set forth in 42 Pa.C.S. § 702(b) (trial court may certify an
interlocutory appeal if it is “of the opinion that such order involves a
controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the matter[.]”). That petition
was timely. Pa.R.A.P. 1311(b) (“An application for an amendment of an
interlocutory order to set forth expressly the statement specified in 42
Pa.C.S. § 702(b) shall be filed with the lower court or other government unit
within 30 days after the entry of such interlocutory order[.]”).
On March 21, 2016, the trial court granted the petition and amended
the February 16, 2016 order to include the § 702(b) language. Appellant
(Footnote Continued Next Page)
J-A30010-16
This case concerns the applicability of the Drug Overdose Response
Immunity statute (hereinafter “the Act”), 35 P.S. § 780-113.7. The facts are
straightforward. Appellant suffered a life-threatening heroin overdose at her
residence. A friend called 911 and remained on site while paramedics and
police officers responded and administered aid. Police discovered stamp
bags of heroin and drug paraphernalia near Appellant, who was charged with
one count each of possession of a controlled substance and possession of
drug paraphernalia. The police officer determined that the friend committed
no crime.
Appellant thereafter sought discharge, invoking the statutory
protections of the Act, which states in relevant part:
(a) A person may not be charged and shall be immune from
prosecution for [the instant offenses] . . . if the person can
establish the following:
....
(2) all of the following apply:
(i) the person reported, in good faith, a
drug overdose event to . . . the 911
system . . . and the report was made on
the reasonable belief that another person
was in need of immediate medical
attention and was necessary to prevent
_______________________
(Footnote Continued)
then timely filed, on April 1, 2016, a petition for appeal with this Court
within thirty days of the order as amended. See Pa.R.A.P. 1311(b). On
June 1, 2016, we granted the petition for permission to appeal.
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death or serious bodily injury due to a
drug overdose;
(ii) the person provided his own name
and location and cooperated with the . . .
911 system . . . ; 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.
....
(c) Persons experiencing drug overdose events may not
be charged and shall be immune from prosecution [of
these offenses] . . . if a person who transported or
reported and remained with them may not be charged and
is entitled to immunity under this section.
35 P.S. § 780-113.7. The trial court agreed with the Commonwealth’s
position that, since the authorities determined that the friend did not commit
a crime, there is no immunity to extend to Appellant.
The Commonwealth does not dispute that the friend would be entitled
to immunity under 35 P.S. § 780-113.7(a)(2), but maintains there is no
immunity to extend to Appellant under § 780-113.7(c) since the friend
committed no crime. “[Appellant] is not entitled to . . . immunity, even
though the elements of 35 P.S. § 780-113.7(a)(2) have been satisfied.”
Commonwealth’s brief at 13. Commonwealth v. Carontenuto, 148 A.3d
448 (Pa.Super. 2016), issued after the trial court’s ruling, rejected this
precise argument.
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[T]he 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. 35 P.S. § 780–113.7(a).
Therefore, under the plain terms of the statute, the
Commonwealth could not have charged [the reporting party]
with possessing the contraband, even if it believed [the reporting
party] and [appellant] jointly possessed the heroin and drug
paraphernalia that was found in the bathroom. Further, under
the plain terms of the statute, even though the Commonwealth
states it believes that [the reporting party] did not possess the
contraband, the Commonwealth's belief does not alter the fact
that [he] “may not be charged and shall be immune from
prosecution” for the contraband found in the house.
Id. at 453.
The Commonwealth recognizes that Carontenuto defeats its position,
but, since “further appeals are expected,” asks us to deny relief.
Commonwealth’s brief at 11, n.1. We are powerless to overrule a prior
decision of this Court. Commonwealth v. Pepe, 897 A.2d 463, 465
(Pa.Super. 2006). Moreover, we note that, on February 15, 2017, our
Supreme Court denied further review in Carontenuto. Commonwealth v.
Carontenuto, --- A.3d ---, 2017 WL 611926 (Pa. 2017). Hence, we
reverse.
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Order reversed. Appellant is discharged. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2017
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