185 A.3d 1026
Pa. Super. Ct.2018Background
- Sarah Markun (24) was found unconscious from heroin use in a Motel 6; motel housekeeping called 911 and EMS transported her to a hospital.
- Police discovered controlled substances and charged Markun with possession of a controlled substance.
- Markun moved to suppress statements (denied), proceeded to a non‑jury trial, was convicted, and sentenced to one year probation.
- On appeal she first raised the applicability of the Drug Overdose Response Act (35 P.S. § 780‑113.7), which provides immunity from charging/prosecution for certain overdose reporters and victims.
- The trial court deemed the immunity claim waived for failure to raise it pretrial; a Superior Court panel initially agreed, but the en banc court granted reargument.
- The en banc court analyzed whether the Act creates a nonwaivable limitation on charging (immunity) or a waivable defense and ultimately vacated Markun’s conviction and discharged her under the Act.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Markun) | Held |
|---|---|---|---|
| Whether immunity under 35 P.S. § 780‑113.7 is waivable or instead operates as a nonwaivable bar to prosecution | The Act creates a waivable defense; possession remains a crime and Markun had to raise immunity pretrial | The Act operates as an immunity that strips courts of authority to charge/prosecute and is nonwaivable (analogous to subject‑matter or sovereign immunity) | The Act is not a mere defense but a nonwaivable immunity restricting charging; court may review it despite preservation rules and Markun met the statute’s requirements, so conviction vacated |
Key Cases Cited
- Commonwealth v. Barbaro, 94 A.3d 389 (Pa. Super. 2014) (standard for statutory interpretation in criminal cases)
- Commonwealth v. Hart, 28 A.3d 898 (Pa. 2011) (statutory construction principles)
- Commonwealth v. Giulian, 141 A.3d 1262 (Pa. 2016) (use of extratextual aids when statute ambiguous)
- Commonwealth v. Carontenuto, 148 A.3d 448 (Pa. Super. 2016) (interpretation of overdose‑reporter immunity provisions)
- McShea v. City of Philadelphia, 995 A.2d 334 (Pa. 2010) (governmental immunity is nonwaivable)
- In re Upset Sale of Properties, 560 A.2d 1388 (Pa. 1989) (governmental immunity may be raised for first time on appeal)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity doctrine: immunity is an entitlement not a mere defense)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity protects officials from suit and is effectively lost if case proceeds to trial)