J-A08021-16

 2016 PA Super 197

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KEVIN MICHAEL CARONTENUTO,

Appellee No. 1693 EDA 2015

Appeal from the Order Entered May 7, 2015

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0001117-2015

BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

OPINION BY OLSON, J.: FILED AUGUST 31, 2016

The Commonwealth of Pennsylvania appeals from the order entered on 

May 7, 2015, which granted Kevin Michael Carontenuto’s pre-trial motion to 

dismiss all criminal charges. We affirm. 

On December 23, 2014, the Commonwealth charged Mr. Carontenuto 

with one count of possession of a controlled substance and one count of use 

or possession of drug paraphernalia.1 On April 28, 2015, the parties 

appeared for a pre-trial motion hearing and, during the hearing, Mr. 

Carontenuto orally moved to dismiss all criminal charges filed against him. 

N.T. Pre-Trial Hearing, 4/28/15, at 2. As Mr. Carontenuto argued, 

Pennsylvania’s “Drug Overdose Response Immunity” statute, found at 35 

____________________________________________

1 35 P.S. § 780-113(a)(16) and (32), respectively.
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P.S. § 780-113.7, applied to his case and rendered him statutorily immune 

from prosecution. See id.; see also 35 P.S. § 780-113.7(c). In relevant 

part, the immunity statute provides:

§ 780-113.7. Drug overdose response immunity

(a) A person may not be charged and shall be immune from 

prosecution for any offense listed in subsection (b) and for a 

violation of probation or parole 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 the person transported a person 

experiencing a drug overdose event to a law 

enforcement agency, a campus security office or a 

health care facility; or

(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 
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person for probation and parole violations and for violations 

of [35 P.S. § 780-113(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 

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 (internal footnote omitted) (emphasis added).2

During the pre-trial hearing, the parties stipulated to the following 

facts for purposes of the motion:

on December 23[, 2014,] at approximately [12:20 a.m.], 

Mark Rizzo, manager of a recovery house at 29 Sweetgum 

Road in Middletown Township, called 911 for medical 

assistance.

Mr. Rizzo reported finding [Mr. Carontenuto] unconscious 

and experiencing an overdose event. Officer Zachary 

Brosius of the Middletown Township Police Department 

responded to the recovery house and observed [Mr. 

Carontenuto] blue in the face, unresponsive and with an 

irregular pulse and breathing pattern.

Officer Brosius spoke to Mr. Rizzo, who had remained on 

scene and was cooperative to law enforcement and was also 

truthful.

Officer Brosius, then, moved [Mr. Carontenuto] from the 

bathroom and observed an empty syringe bottle cap and 

glassine envelopes that tested positive for heroin later.

Officer Brosius observed no evidence that the drug 

paraphernalia belonged to anyone but [Mr. Carontenuto]. 

____________________________________________

2 35 P.S. § 780-113.7 took effect on November 29, 2014. All relevant 

events in this case occurred on December 23, 2014.
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N.T. Pre-Trial Hearing, 4/28/15, at 5-7. 

The Commonwealth opposed Mr. Carontenuto’s motion and argued 

that Mr. Carontenuto was not entitled to immunity under the statute. 

Specifically, the Commonwealth argued, since Mr. Carontenuto was the 

individual who “experience[ed the] drug overdose event[],” any immunity he 

might have under the statute would need to fall under subsection (c). 

However, the Commonwealth noted, immunity under subsection (c) is 

derivative of the immunity granted under subsection (a). As the 

Commonwealth argued: “[since] there was no evidence that Mr. Rizzo, the 

manager of the recovery house, had committed any of the enumerated 

offense[s] set forth in the immunity statue . . . [Mr. Rizzo] did not require 

immunity under subsection (a) of the immunity statute. Consequently, [Mr. 

Carontenuto] is not entitled to the derivative immunity under subsection 

(c).” Commonwealth’s Brief in Opposition, 5/4/15, at 10 (some internal 

capitalization omitted). 

On May 7, 2015, the trial court granted Mr. Carontenuto’s motion and 

dismissed all charges against Mr. Carontenuto. As the trial court ably and 

succinctly explained:

Here the statutory factors of [35 P.S. § 780-113.7(a)(2)] 

are met because Mr. Rizzo reported the overdose to the 

Middletown Township Police Department, cooperated with 

law enforcement, and remained with [Mr. Carontenuto] until 

Officer Brosius arrived. It is not contested that Mr. Rizzo 

believed that [Mr. Carontenuto] was in need of immediate 

medical attention or that Mr. Rizzo provided his name and 

location when he called the police.
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The key provision applicable to [this] case is [35 P.S. § 780-

113.7(c)], which describes the manner in which the 

immunity of the overdose victim depends upon the 

individual who reported the incident to law enforcement.

. . .

[Mr. Carontenuto] is entitled to immunity from prosecution 

for violations of [35 P.S. § 780-113(a)(16) and (32)] 

because Mr. Rizzo may not be charged and is entitled to 

immunity under [35 P.S. § 780-113.7(a)(2)]. There is no 

evidence that Mr. Rizzo committed any crime. However, the 

statute applies if the reporting individual meets the 

requirements to be protected by the statute because of his 

actions.

I would note parenthetically that almost anyone present at 

an overdose could or would be fearful of being prosecuted 

for constructive possession of anything that is on site.

The contrary result would be that . . . individuals who have 

committed a crime need not fear calling for help in the 

event of an overdose, but individuals who have not 

committed a crime should hesitate before reporting an 

overdose for fear that [they or] the victim may be 

prosecuted. The overarching purpose of the statute is to 

encourage persons to report an overdose and to ensure that 

the victim would receive . . . help.

N.T. Decision and Order, 5/7/15, at 6-7 and 8-9.

The Commonwealth filed a timely notice of appeal and now raises the 

following claim:

Did the trial court err when it dismissed the charges against 

[Mr. Carontenuto] pursuant to the Drug Overdose Response 

Immunity Act, 35 [P.S.] § 780-113.7, concluding that [Mr. 

Carontenuto], who had experienced a drug overdose event 

and was found in possession of drugs and drug 

paraphernalia, was entitled to immunity from prosecution 

pursuant to the Drug Overdose Response Immunity statute, 

for charges relating to his drug and drug paraphernalia use 
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and/or possession, where the person who called the police 

to report [Mr. Carontenuto’s] drug overdose event remained 

on the scene and cooperated with police, but where it was 

undisputed that there was no evidence that the caller 

himself had committed any criminal act from which the 

caller required immunity?

Commonwealth’s Brief at 4 (some internal capitalization and bolding 

omitted).

The Commonwealth’s claim on appeal revolves entirely around the 

proper interpretation of 35 P.S. § 780-113.7. “Because statutory 

interpretation is a question of law, our standard of review is de novo[] and 

our scope of review is plenary.” Commonwealth v. Hacker, 15 A.3d 333, 

335 (Pa. 2011) (internal quotations and citations omitted). Further:

The principal objective of statutory interpretation and 

construction is to ascertain and effectuate the intention of 

the legislature. 1 Pa.C.S.A. § 1921(a). When possible, 

every statute should be construed to give effect to all its 

provisions. Courts must read and evaluate each section of 

a statute in the context of, and with reference to, the other 

sections of the statute, because there is a presumption that 

the legislature intended the entire statute to be operative 

and effective. 

The plain language of a statute is the best indication of 

legislative intent. The basic tenet of statutory construction 

requires a court to construe words of the statute according 

to their plain meaning. “When the words of a statute are 

clear and free from all ambiguity, the letter of it is not to be 

disregarded under the pretext of pursuing its spirit.” 1 

Pa.C.S.A. § 1921(b).

Commonwealth v. Poncala, 915 A.2d 97, 104 (Pa. Super. 2006) (some 

internal quotations and citations omitted). 
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The Commonwealth’s argument on appeal is singular: it argues that 

Mr. Carontenuto was not entitled to immunity because Mr. Rizzo (the 

individual who reported Mr. Carontenuto’s overdose) committed no crime. 

According to the Commonwealth, since Mr. Carontenuto’s immunity is 

derivative of Mr. Rizzo’s immunity – and since Mr. Rizzo “did not require 

immunity under subsection (a) of the immunity statute” – Mr. Carontenuto is 

not entitled to immunity under subsection (c) of the statute. 

Commonwealth’s Brief at 20-21. This claim fails under a plain reading of the 

statute.

In the case at bar, there is no question that: 1) Mr. Rizzo reported, in 

good faith, a drug overdose event to the 911 system “and the report was 

made on the reasonable belief that [Mr. Carontenuto] was in need of 

immediate medical attention and was necessary to prevent death or serious 

bodily injury due to a drug overdose;” 2) Mr. Rizzo “provided his own name 

and location and cooperated with” the 911 system; and, 3) Mr. Rizzo 

remained with Mr. Carontenuto until Officer Brosius arrived. N.T. Pre-Trial 

Hearing, 4/28/15, at 5-7; 35 P.S. § 780-113.7(a)(2). Therefore, Mr. Rizzo 

complied with all three of the statutory requirements for immunity listed in 

35 P.S. § 780-113.7(a)(2) – and, since Mr. Rizzo complied with the three 

statutory requirements, under the plain terms of Section 780-113.7(a)(2), 

Mr. Rizzo “may not be charged and shall be immune from prosecution . . . 

for violations of [35 P.S. § 780-113(a)(16) (possession of a controlled 

substance) and (32) (use or possession of drug paraphernalia)].” 35 P.S. 
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§ 780-113.7(a)(2) and (b). Further, under the plain terms of Section 780-

113.7, since Mr. Rizzo “may not be charged and is entitled to immunity 

under” the statute, Appellant “may not be charged and shall be immune 

from prosecution” for possessing a controlled substance and using or 

possessing drug paraphernalia. 35 P.S. § 780-113.7(c).

The Commonwealth argues that, “because [Mr. Rizzo] had not 

committed any of the enumerated offense[s], he did not require immunity 

under subsection (a) of the immunity statute. Consequently, [Mr. 

Carontenuto] is not entitled to [] derivative immunity under subsection (c).” 

Commonwealth’s Brief at 21. This argument is not well taken. 

At the outset, the plain terms of the statute contain no probable cause 

requirement for the “person who . . . reported and remained with” the 

overdose victim – and the plain terms of the statute do not require the 

“person who . . . reported and remained with” the overdose victim to have 

“committed” any crime at all. Rather, the 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 Mr. Rizzo with possessing the contraband, even if it 

believed Mr. Rizzo and Mr. Carontenuto jointly possessed the heroin and 
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drug paraphernalia that was found in the bathroom. Further, under the plain 

terms of the statute, even though the Commonwealth states it believes that 

Mr. Rizzo did not possess the contraband, the Commonwealth’s belief does 

not alter the fact that Mr. Rizzo “may not be charged and shall be immune 

from prosecution” for the contraband found in the house. 

Moreover, and on a related note, the Commonwealth’s entire position 

in this case is oddly astigmatic. In effect, it is saying it believes Mr. Rizzo 

and it believes that Mr. Rizzo did not use or possess any of the contraband 

found at the scene – that’s why the Commonwealth did not charge him with 

a crime. Moreover, since the Commonwealth believes that Mr. Rizzo is 

innocent, Mr. Rizzo did not “require” immunity from prosecution, and, since 

Mr. Rizzo did not “require” immunity from prosecution, Mr. Carontenuto 

cannot claim immunity derivatively from Mr. Rizzo. Yet, and simply stated, 

regardless of whether the Commonwealth believed Mr. Rizzo or not, the 

Commonwealth could not have charged Mr. Rizzo with any crime in this case 

since Mr. Rizzo complied with the requirements of Section 780-113.7(a)(2) 

and was thus “entitled to immunity” under the statute. 35 P.S. § 780-

113.7(c) (emphasis added).3 As such, under the statute, Mr. Carontenuto 

____________________________________________

3 On appeal, the Commonwealth also looks to the statutory language 

contained in Section 780-113.7(a)(1) and argues:

As further evidence of the legislature’s intent, the statute 

explicitly provides in subsection (a)(1) – regarding those 

who transport a person who experiences a drug overdose 

(Footnote Continued Next Page)
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“may not be charged and shall be immune from prosecution” for possessing 

a controlled substance and using or possessing drug paraphernalia. 35 P.S. 

§ 780-113.7(c) and (b).

Thus, the trial court properly granted Mr. Carontenuto’s motion to 

dismiss the criminal charges filed against him. Under the plain terms of 35 

(Footnote Continued) _______________________

event – that “law enforcement officers only became aware 

of the person’s commission of an offense . . . because the 

person transported a person experiencing a drug overdose 

event.” This language renders it beyond dispute that 

someone who transports a person experiencing an overdose 

to get help must have committed an enumerated offense in 

order to be entitled to immunity under subsection (a). . . . 

Yet, if this [Court] were to accept the trial court’s 

interpretation of [subsection (a)(2),] – that the person who 

reports and remains under subsection (a)(2) need not have 

committed an enumerated offense to be entitled to 

immunity – this would lead to inconsistent results [between 

cases that fall under subsection (a)(1) and subsection 

(a)(2)].

Commonwealth’s Brief at 18 (internal footnote omitted).

We express no opinion on the meaning of 35 P.S. § 780-113.7(a)(1). 

However, we note that, under the guise of a parity claim, the 

Commonwealth is, in effect, requesting this Court to supply language that 

the legislature purposefully omitted from subsection (a)(2). See

Commonwealth’s Brief at 18 n.4 (“[t]he Commonwealth acknowledges that 

subsection (a)(2), pertaining to those who report and remain, does not 

repeat this specific language and that in an earlier draft of this statute that 

same language had been included in subsection (a)(2) and was struck”). 

We will not do so. Moreover, to the extent subsection (a)(1) and subsection 

(a)(2) may be read differently, we simply note that the subsections use 

different language to define the scope of their respective immunities. 

Therefore, if different results are obtained, the difference is a function of the 

explicit language the legislature purposefully utilized.
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P.S. § 780-113.7, Mr. Carontenuto “may not be charged and shall be 

immune from prosecution” for possessing a controlled substance and using 

or possessing drug paraphernalia. 35 P.S. § 780-113.7(c) and (b). The 

Commonwealth’s claim on appeal fails.

Order affirmed. Jurisdiction relinquished.

Judge Bowes joins this Opinion.

Judge Strassburger files a Concurring Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/31/2016