Commonwealth v. Nunez

238 A.3d 420

COMMONWEALTH of Pennsylvania

v.Obed NUNEZ, Appellant

No. 3308 EDA 2019

Superior Court of Pennsylvania.

Submitted July 13, 2020

Filed August 14, 2020

Reargument Denied October 14, 2020

Steven M. Papi, Public Defender, Media, for appellant.

Max J. Orenstein, Public Defender, Media, for appellant.

Frederick J. Stollsteimer, District Attorney, Dennis D. Woody, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY MURRAY, J.:

Obed Nunez (Appellant) appeals from the judgment of sentence imposed after the trial court convicted him of possession of a controlled substance and possession of drug paraphernalia.¹ We affirm.

The trial court summarized the facts and procedural history of this case:

On Monday, September 10, 2018, at approximately 4:00[ ]p.m., [Upper Darby Police Department Officer Michael Begany (Officer Begany) ] was working as a patrolman in full uniform and in a marked police vehicle. Officer Begany received a dispatch call for a "customer disturbance" at the Taco Bell [Restaurant] on 7500 West Chester Pike in Upper Darby. ...

Officer [Michael] Wilson of the Upper Darby Police Department also responded to the call. Before the two arrived, the manager called back a second time, stating that they needed help with an intoxicated or high customer who had now passed out. When Officer Wilson and Officer Begany arrived at the Taco Bell, they observed an [unconscious] male, later identified as Appellant, on the floor in the bathroom of the restaurant. Based upon his training and experience with opioids, Officer Begany determined that Appellant was overdosing on opioids and Narcan was administered. After receiving the Narcan, [Appellant] regained some amount of consciousness.

As the paramedics were in route, Officer Begany and Officer Wilson prepared [ ] Appellant for transport, which routinely includes checking for identification as well as searching [ ] Appellant in order to make sure there are no dangerous objects such as weapons or needles that could injure the paramedics or the officers. As a result of the search, a glassine baggy with white powder was located in Appellant's right, front pocket.

Appellant was eventually arrested and charged with [p]ossession of a [c]ontrolled [s]ubstance and [p]ossession of [d]rug [p]araphernalia.

On June 13, 2019, counsel for Appellant filed a Motion to Dismiss pursuant to 35 P.S. § 780-113 as well as a Motion to Suppress. A hearing was conducted on the Motion to Dismiss on July 8, 2019.... After review of the audio of the 911 calls and the applicable case[ ]law, [the trial court] issued an order denying the motion on July 9, 2019. Counsel filed a Motion to Reconsider which was denied on August 26, 2019. [Following a hearing, Appellant's motion to suppress was denied on July 26, 2019.]

On October 18, 2019, a non-jury trial was conducted. In lieu of testimony, counsel for the Commonwealth and counsel for Appellant agreed to a trial by stipulation and entered the following exhibits into evidence: [Commonwealth's Exhibit #1]: Affidavit of Probable Cause; [Commonwealth's Exhibit #2]: Incident Report; [Commonwealth's Exhibit #3]: CD containing audio of the 911 calls; [Commonwealth's Exhibit #4: the 911 event log]; [Commonwealth's Exhibit #5]: Lab Report; as well as the notes of testimony from the suppression hearing, which were not transcribed at the time of the non-jury trial, but was agreed upon by both parties that they would be incorporated into the record when they became available. After review of the exhibits, [the trial court] found Appellant guilty of [p]ossession of a [c]ontrolled substance and [p]ossession of [d]rug [p]araphernalia.

[The trial court sentenced Appellant to an aggregate of 3 years of probation.] Appellant filed a timely appeal[.]

Trial Court Opinion, 1/16/20, at 2-5 (footnotes and italics omitted). Both Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents a single issue for review: "Whether the [trial] court lacked authority to convict and sentence [Appellant], because he was immune from prosecution pursuant to 35 P.S. § 780-113.7 ... ?" Appellant's Brief at 4 (italics omitted).²

Appellant's issue involves the interpretation and application of the Drug Overdose Response Immunity Act (the Act). Our standard of review is well settled:

A trial court's application of a statute is a question of law, and our standard of review is plenary. Moreover, our review is limited to determining whether the trial court committed an error of law. ... In interpreting any statute, appellate courts must take note of the principles of statutory interpretation and construction. The principal objective of interpreting a statute is to effectuate the intention of the legislature and give effect to all of the provisions of the statute. In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. When analyzing particular words or phrases, we must construe them according to rules of grammar and according to their common and approved usage. Words of a statute are to be considered in their grammatical context. Furthermore, we may not add provisions that the General Assembly has omitted unless the phrase is necessary to the construction of the statute. A presumption also exists that the legislature placed every word, sentence and provision in the statute for some purpose and therefore courts must give effect to every word.

Commonwealth v. Lewis , 180 A.3d 786, 788 (Pa. Super. 2018) (citations omitted).

Appellant argues that he was entitled to immunity under the Act because the Taco Bell restaurant manager, William Jay (Mr. Jay), "reported in good faith a ‘drug overdose event’ to 911 believing immediate medical attention was necessary to prevent death or serious bodily injury." Appellant's Brief at 8. Appellant avers that Mr. Jay "cooperated with authorities, provided his name and location, and remained with [Appellant] until emergency personnel arrived at Taco Bell." Id. Accordingly, Appellant asserts that because Mr. Jay is immune, Appellant is entitled to derivative immunity pursuant to Section 780-113.7(c). Id.

In response, the Commonwealth contends:

The [Act] does not apply to the facts of this case because [Appellant] failed to prove that [Mr. Jay] reasonably believed that [Appellant] was overdosing and needed immediate medical attention to prevent death or serious bodily injury. The trial court found that [Mr. Jay] called 911 to remove the uncooperative [Appellant], not to provide him with medical attention. As the trial court accurately and succinctly summarized, the 911 call was made out of concern for the business; not out of concern for Appellant's well-being.

The [Act] does not grant blanket immunity to everyone who overdoses. The plain language of the statute provides the conditions that must be met for the statute to apply and the trial court correctly found that these conditions were not present.

Commonwealth's Brief at 6 (citation omitted).

"In an effort to prevent overdose deaths, the Legislature provided for immunity from prosecution for certain crimes when a person has a reasonable belief someone is suffering from an overdose and contacts local authorities. The Act provides this immunity to both the reporter and the victim, so long as several conditions are met." Lewis , 180 A.3d 786, 787-88 (Pa. Super. 2018).

The Act, in relevant part, provides:

(a) A person may not be charged and shall be immune from prosecution for any offense listed in subsection (b) ... 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 ...

(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 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 ... 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)....

35 P.S. § 780-113.7(a) - (d) (footnote omitted, emphasis added).

As defined in Section 780-113.7, a "drug overdose event" is,

[a]n 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

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