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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)
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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