Com. v. Markun, S.
Com. v. Markun, S. No. 1009 EDA 2016
| Pa. Super. Ct. | Feb 27, 2017Background
- Appellant Sarah K. Markun was found unconscious in a Motel 6 and treated by EMTs on April 10, 2015; police subsequently charged her with possession of a controlled substance.
- Markun filed a pretrial motion to suppress (denied); she proceeded to a non‑jury trial, stipulated to suppression‑hearing testimony, and was convicted of possession and sentenced to 12 months probation.
- On appeal Markun argued she was statutorily immune from prosecution under 35 P.S. § 780‑113.7 (Pennsylvania’s "Good Samaritan"/overdose immunity) and that the trial court therefore lacked authority to convict her.
- She raised the immunity claim for the first time in her Rule 1925(b) statement rather than by pretrial motion; the trial court and Superior Court treated the issue as one of preservation (waiver).
- The trial court held the defendant bears the burden to prove immunity and should raise it in a pretrial motion so the Commonwealth and court have notice and an evidentiary hearing; because Markun did not do so, the claim was waived.
- The Superior Court affirmed, applying statutory‑construction principles and case law on preservation and jurisdiction, and concluded the failure to raise the immunity defense pretrial waived the issue on appeal; a dissent disagreed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Markun was immune under 35 P.S. § 780‑113.7 and thus the trial court lacked authority to convict | Markun: she was a drug‑overdose victim (or reporter/companion), met the statutory criteria, and therefore was immune from prosecution | Commonwealth: immunity is an affirmative claim the defendant must prove and should be raised pretrial; failure to raise it waives the claim | Court: immunity claim was waived because Markun did not raise it in a pretrial motion and therefore may not be raised for the first time on appeal |
Key Cases Cited
- Commonwealth v. Wilson, 111 A.3d 747 (Pa. Super. 2015) (standard of review for statutory construction)
- Commonwealth v. Ferguson, 552 A.2d 1075 (Pa. Super. 1988) (interpretation of the mandatory term "shall")
- Commonwealth v. Seiders, 11 A.3d 495 (Pa. Super. 2010) (criminal controversies entrusted to courts of common pleas)
- Lenart v. Commonwealth, 242 A.2d 259 (Pa. 1968) (statute of limitations is an affirmative defense that must be pleaded)