Commonwealth of PA vs. Jonathan Robert Porter No. CP-38-CR-0001993-2015

Criminal Action-Law-Violation of the Controlled Substance, Drug, Device and Cosmetic Act-Drug Overdose Response Immunity-Drug Overdose Event-Immediate Medical Attention

Defendant was charged with violations of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., after he collapsed in a convenience store and a responding officer, who searched Defendant to protect emergency services workers because he believed that Defendant had overdosed on heroin, found contraband in Defendant’s pocket. Defendant filed a Motion to Bar Prosecution Pursuant to Drug Overdose Response Immunity codified at 35 P.S. § 780-113.7, asserting that he is immune from prosecution because the charges stem from his experience of a drug overdose event.

1. Section 780-113.7 provides that a person may not be charged and shall be immune from prosecution for any offense under subsection (b) if: (1) the person can establish that law enforcement officers became aware of the person’s commission of an offense only because the person transported a person experiencing a drug overdose to a law enforcement agency; or (2)(i) a health care facility or the person reported in good faith a drug overdose event to law enforcement, the report was made upon the reasonable belief that another person was in need of immediate medical attention and it 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; and (iii) the person remained with the person needing immediate medical attention until a law enforcement officer arrived.

2. A drug overdose event is defined as 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 (1) or more controlled substances causing an adverse reaction. A patient’s condition shall be deemed to be a drug overdose event if a prudent layperson, possessing an average knowledge of medicine and health, reasonably would believe that the condition is, in fact, a drug overdose and requires immediate medical attention. 35 P.S. § 780-113.7(f). The burden is on the defendant to establish that he experienced a drug overdose event that led to the call for emergency services. 35 P.S. § 780-113.7(a).

3. Nothing about the store manager’s summons for help suggests that the store manager or others present at the scene had any reason to suspect that Defendant was suffering from a drug overdose, as the store manager initially suggested that Defendant had suffered a head injury, appeared disoriented and had fallen and later advised that others present at the scene had advised her that Defendant might be drunk.

4. Since the purpose of the drug overdose response immunity statute is to encourage reports of drug overdose situations to ensure that a subject receives prompt medical treatment, the legislature’s intent would not be furthered by granting immunity to an individual who does not recognize that the subject is experiencing a drug overdose and calls for emergency services based upon the perception that a different type of emergency is involved.

L.C.C.C.P. No. CP-38-CR-0001993-2015, Opinion by John C. Tylwalk, President Judge, August 8, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-1993-2015

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN ROBERT PORTER

ORDER OF COURT

AND NOW, this 8^th day of August, 2016, upon consideration of Defendant’s Motion to Bar Prosecution Pursuant to Drug Overdose Response Immunity (35 P.S. §780-113.7), the evidence submitted at the hearing conducted on June 24, 2016, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED. Defendant is directed to appear at the Call of the List scheduled for August 23, 2016 in the designated courtroom with Trial to commence on September 12, 2016.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

MEGAN RYLAND-TANNER, ESQUIRE FOR THE COMMONWEALTH

SENIOR DEPUTY DISTRICT ATTORNEY

BRIAN DEIDERICK, ESQUIRE FOR JONATHAN ROBERT CHIEF PUBLIC DEFENDER PORTER

OPINION, TYLWALK, P.J., AUGUST 8, 2016.

Defendant is charged with one count of Possession of Heroin, one count of Possession of Clonazepam, and one count of Possession of Drug Paraphernalia with regard to an incident that occurred on September 6, 2015. On that date, Defendant had fallen in the Turkey Hill Minit Mart located at 716 East Cumberland Street in the City of Lebanon. When the store manager, Susan Yuninger, called 911 to request an ambulance, she reported that Defendant had appeared disoriented, had fallen and had sustained a small cut which was bleeding. She also informed the dispatcher that “I was just told he’s drunk.” (Exhibit “1” – DVD of 911 call)

As a result of Yuninger’s call, Patrolman Sean Buck of the Lebanon City Police was dispatched to the scene. When he arrived at the store, he found Defendant laying in an aisle. The employees had placed him on his side and he was not breathing. He had a small cut near his right eye that was bleeding and his skin was turning blue. Defendant’s radial pulse was faint. When Officer Buck applied a forceful sternum rub, Defendant gasped for air and began labored breathing, taking a few breaths a minute.

Based upon his training and experience, Officer Buck believed that Defendant was experiencing a heroin overdose. In order to protect EMS workers from the possibility that Defendant had an uncapped syringe on his person, Officer Buck searched Defendant. In Defendant’s cargo shorts pocket, Officer Buck found a capped syringe, a piece of tissue rolled around a sharp object, multiple glassine bags containing a white powdery substance, a loose round yellow tablet, and a marijuana bowl. The powdery substance was later determined to be heroin and the yellow tablet was identified as Clonazepam.

Defendant has filed a Motion to Bar Prosecution Pursuant to Drug Overdose Response Immunity (35 P.S. §780-113.7). In lieu of a hearing, the parties have submitted several items for our consideration – a recording of the 911 call (Exhibit “1”), Officer Buck’s police report (Exhibit “2”), the EMA log (Exhibit “3”), and the report from First Aid & Safety (Exhibit “4”). Both parties have filed Briefs and the matter is now before us for resolution.

Defendant argues that Section 780-113.7 of the Controlled Substance, Drug, Device & Cosmetic Act, 35 P.S. §780-101 et seq., bars prosecution of these charges against him. This section provides, in part:

§ 780-113.7. Drug overdose response immunity

(2) all of the following apply:

35 P.S. §780-113.7(a)-(c).

Defendant contends that Yuninger would be entitled to immunity under this statute and that he is therefore immune from prosecution under Subsection (c) because the charges stem from his experiencing a “drug overdose event.” A “drug overdose event” is defined as “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 event 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.” 35 P.S. §780-113.7(f). The burden is on the defendant to establish that he experienced a drug overdose event which led to the call for emergency services. 35 P.S. §780-113.7(a).

Defendant’s claim to immunity under Subsection (c) is dependent on whether Yuninger would be immune under this statute. In order for Yuninger to be immune from prosecution, the requirements set forth in Subsection (a)(2)(i)-(iii) must be present. Our review of the circumstances of this case reveals that these requirements have not been met. Under Subsection (2)(i), the individual summoning aid must reasonably believe that the subject’s condition is a drug overdose for which he requires immediate medical attention. Yuninger’s initial report suggested that Defendant had suffered a head injury. When Yuninger placed the 911 call, she reported that a store patron had appeared disoriented and had fallen and sustained a cut which was bleeding. Later in the call, she informed the 911 dispatcher that others present at the scene had advised her that Defendant might be drunk. Nothing about this summons for help suggested that Yuninger and/or the others present at the scene had any reason to suspect that Defendant was suffering a drug overdose and/or that the medical help was necessary to prevent his suffering serious bodily injury or death from an overdose.

Defendant cites Commonwealth v. Carontenuto, 2015 Pa. Dist. & Cnty. Dec. Lexis 695 (Bucks Cnty. 2015), No. CP-09-CR-01117-2015, Slip Opinion, Boylan, J., for the proposition that immunity is still available to a defendant who suffered a drug overdose even though the individual who made the report had not committed one of the drug-related offenses enumerated in the statute. However, this type of rule would have broad implications and could be subject to abuse. We do recognize that the statute does not make immunity dependent upon the culpability of the one making the report of the drug overdose. We further recognize that the purpose of this law is to encourage anyone who observes an individual who is experiencing a drug overdose to summon help for that person without fear of being charged with certain drug offenses themselves. However, as pointed out by the Commonwealth, this statute could not have been meant to provide immunity in every situation where emergency services are requested for someone who has overdosed on controlled substances since the specific instances where the immunity is applicable is spelled out in Subsections (a)(1) and (a)(2)(i)-(iii). When the situation at hand does not satisfy those requirements, immunity is not available to the individual making the report or the person who experienced the overdose.

In Carontenuto, the individual who made the call for aid was aware that the defendant had overdosed. Here, Yuninger reported a patron who fell in the store she managed. She did not realize that Defendant had overdosed. Since the purpose of this statute is to encourage reports of drug overdose situations to ensure that the subject receives prompt medical treatment, the legislature’s intent is not furthered in a situation, such as here, by the grant of immunity to an individual who does not recognize that the subject is experiencing a drug overdose and calls for emergency services based on their perception that a different type of emergency is involved.

Defendant also argues that the EMA report indicates that when the emergency medical personnel were en route to the Turkey Hill store, they received a report that the situation involved a possible overdose. (Exhibit “4”) However, this communication was based upon Officer Buck’s report of the items he found in Defendant’s pocket and was unrelated to Yuninger’s call for assistance.

For these reasons, we find that Defendant is not immune from prosecution for these offenses and will deny his Motion. We will direct him to appear for the next Call of the List and Term of Criminal Jury Trials.

1) Counts 1 through 3, 35 P.S. §780-113(a)(16), 35 P.S. §780-113(a)(16), and 35 P.S. §780-113(a)(32), respectively.

2) Carontenuto is currently on appeal to the Superior Court of Pennsylvania, at 1693 EDA 2015. As of the time of the issuance of this Opinion, that case had been referred to a panel and the decision was still pending.