J-S33019-20

2020 PA Super 198

COMMONWEALTH OF PENNSYLVANIA

v.

OBED NUNEZ, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3308 EDA 2019

Appeal from the Judgment of Sentence Entered October 18, 2019

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000114-2019

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY MURRAY, J.: FILED AUGUST 14, 2020

Obed Nunez (Appellant) appeals from the judgment of sentence 

imposed after the trial court convicted him of possession of a controlled 

substance and possession of drug paraphernalia.1 We affirm.

The trial court summarized the facts and procedural history of this case:

On Monday, September 10, 2018, at approximately 

4:00[]p.m., [Upper Darby Police Department Officer Michael 

Begany (Officer Begany)] was working as a patrolman in full 

uniform and in a marked police vehicle. Officer Begany received 

a dispatch call for a “customer disturbance” at the Taco Bell 

[Restaurant] on 7500 West Chester Pike in Upper Darby. . . . 

Officer [Michael] Wilson of the Upper Darby Police 

Department also responded to the call. Before the two arrived, 

the manager called back a second time, stating that they needed 

help with an intoxicated or high customer who had now passed 

out. When Officer Wilson and Officer Begany arrived at the Taco 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(16), (a)(32).
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Bell, they observed an [unconscious] male, later identified as 

Appellant, on the floor in the bathroom of the restaurant. Based 

upon his training and experience with opioids, Officer Begany 

determined that Appellant was overdosing on opioids and Narcan 

was administered. After receiving the Narcan, [Appellant] 

regained some amount of consciousness.

As the paramedics were in route, Officer Begany and Officer 

Wilson prepared [] Appellant for transport, which routinely 

includes checking for identification as well as searching [] 

Appellant in order to make sure there are no dangerous objects 

such as weapons or needles that could injure the paramedics or 

the officers. As a result of the search, a glassine baggy with white 

powder was located in Appellant’s right, front pocket.

Appellant was eventually arrested and charged with 

[p]ossession of a [c]ontrolled [s]ubstance and [p]ossesion of 

[d]rug [p]araphernalia.

On June 13, 2019, counsel for Appellant filed a Motion to 

Dismiss pursuant to 35 P.S. § 780-113 as well as a Motion to 

Suppress. A hearing was conducted on the Motion to Dismiss on 

July 8, 2019. . . . After review of the audio of the 911 calls and 

the applicable case[]law, [the trial court] issued an order denying 

the motion on July 9, 2019. Counsel filed a Motion to Reconsider

which was denied on August 26, 2019. [Following a hearing, 

Appellant’s motion to suppress was denied on July 26, 2019.]

On October 18, 2019, a non-jury trial was conducted. In 

lieu of testimony, counsel for the Commonwealth and counsel for 

Appellant agreed to a trial by stipulation and entered the following 

exhibits into evidence: [Commonwealth’s Exhibit #1]: Affidavit 

of Probable Cause; [Commonwealth’s Exhibit #2]: Incident 

Report; [Commonwealth’s Exhibit #3]: CD containing audio of 

the 911 calls; [Commonwealth’s Exhibit #4: the 911 event log];

[Commonwealth’s Exhibit #5]: Lab Report; as well as the notes 

of testimony from the suppression hearing, which were not 

transcribed at the time of the non-jury trial, but was agreed upon 

by both parties that they would be incorporated into the record 

when they became available. After review of the exhibits, [the 

trial court] found Appellant guilty of [p]ossesion of a [c]ontrolled 

substance and [p]ossession of [d]rug [p]araphernalia. 
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[The trial court sentenced Appellant to an aggregate of 3 

years of probation.] Appellant filed a timely appeal[.]

Trial Court Opinion, 1/16/20, at 2-5 (footnotes and italics omitted). Both 

Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 

Appellant presents a single issue for review: “Whether the [trial] court 

lacked authority to convict and sentence [Appellant], because he was immune 

from prosecution pursuant to 35 P.S. § 780-113.7 . . . ?” Appellant’s Brief at 

4 (italics omitted).2

Appellant’s issue involves the interpretation and application of the Drug 

Overdose Response Immunity Act (the Act). Our standard of review is well 

settled: 

A trial court’s application of a statute is a question of law, and our 

standard of review is plenary. Moreover, our review is limited to 

determining whether the trial court committed an error of law. . . 

. In interpreting any statute, appellate courts must take note of 

the principles of statutory interpretation and construction. The 

principal objective of interpreting a statute is to effectuate the 

intention of the legislature and give effect to all of the provisions 

of the statute. In construing a statute to determine its meaning, 

courts must first determine whether the issue may be resolved by 

reference to the express language of the statute, which is to be 

read according to the plain meaning of the words. When analyzing 

particular words or phrases, we must construe them according to 

rules of grammar and according to their common and approved 

usage. Words of a statute are to be considered in their 

____________________________________________

2 Appellant’s Rule 1925(b) statement raises an additional suppression claim. 

See Rule 1925(b) Statement, 11/27/19, at 1. However, because Appellant 

abandoned this claim in his brief, we will not address it. See Appellant’s Brief 

at 4; see also Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011), 

cert. denied, 132 S.Ct. 267 (2011) (refusing to address claim appellant 

raised with trial court but subsequently abandoned in brief).
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grammatical context. Furthermore, we may not add provisions 

that the General Assembly has omitted unless the phrase is 

necessary to the construction of the statute. A presumption also 

exists that the legislature placed every word, sentence and 

provision in the statute for some purpose and therefore courts 

must give effect to every word.

Commonwealth v. Lewis, 180 A.3d 786, 788 (Pa. Super. 2018) (citations 

omitted).

Appellant argues that he was entitled to immunity under the Act because

the Taco Bell restaurant manager, William Jay (Mr. Jay), “reported in good 

faith a ‘drug overdose event’ to 911 believing immediate medical attention 

was necessary to prevent death or serious bodily injury.” Appellant’s Brief at 

8. Appellant avers that Mr. Jay “cooperated with authorities, provided his 

name and location, and remained with [Appellant] until emergency personnel 

arrived at Taco Bell.” Id. Accordingly, Appellant asserts that because Mr. Jay 

is immune, Appellant is entitled to derivative immunity pursuant to Section 

780-113.7(c). Id.

In response, the Commonwealth contends: 

The [Act] does not apply to the facts of this case because 

[Appellant] failed to prove that [Mr. Jay] reasonably believed that 

[Appellant] was overdosing and needed immediate medical 

attention to prevent death or serious bodily injury. The trial court 

found that [Mr. Jay] called 911 to remove the uncooperative 

[Appellant], not to provide him with medical attention. As the trial 

court accurately and succinctly summarized, the 911 call was 

made out of concern for the business; not out of concern for 

Appellant’s well-being.

The [Act] does not grant blanket immunity to everyone who 

overdoses. The plain language of the statute provides the 

conditions that must be met for the statute to apply and the trial 

court correctly found that these conditions were not present.
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Commonwealth’s Brief at 6 (citation omitted). 

“In an effort to prevent overdose deaths, the Legislature provided for 

immunity from prosecution for certain crimes when a person has a reasonable 

belief someone is suffering from an overdose and contacts local authorities. 

The Act provides this immunity to both the reporter and the victim, so long as 

several conditions are met.” Lewis, 180 A.3d 786, 787-88 (Pa. Super. 2018). 

The Act, in relevant part, provides: 

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

prosecution for any offense listed in subsection (b) . . . 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 . . . 

(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 
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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 person 

. . . for violations of section 13(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 . . . reported and remained 

with them may not be charged and is entitled to immunity 

under this section. 

(d) The prohibition on charging or prosecuting a person as 

described in this section is limited in the following respects:

(1) This section may not bar charging or prosecuting 

a person for offenses enumerated in subsection (b) if 

a law enforcement officer obtains information prior to 

or independent of the action of seeking or obtaining 

emergency assistance as described in subsection (a). 

. . .

35 P.S. § 780-113.7(a)-(d) (footnote omitted, emphasis added).

As defined in Section 780-113.7, a “drug overdose event” is,

[a]n 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 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. In applying the Act, we have previously held that, “the 

subject of the report need not necessarily require immediate medical 

attention, or even be suffering from a drug overdose. What the Act requires 
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is that the reporter have a reasonable belief emergency medical care is 

required due to a drug overdose.” Lewis, 180 A.3d at 791. Further, “[t]he 

burden of proof under the [Act] is not on the Commonwealth; rather, the 

defendant must establish that he is entitled to immunity under the Act.” 

Commonwealth v. Lehman, -- A.3d --, 2020 WL 1671582, *3 (Pa. Super. 

Apr. 6, 2020) (citing 35 P.S. § 780-113.7(a)). 

Upon review of the record, we agree with the trial court that Appellant 

did not qualify for Section 780-113.7(c) immunity because he failed to satisfy 

the Act’s requirements. Specifically, we conclude Mr. Jay’s 911 calls did not 

evidence that he held a reasonable belief Appellant was in need of immediate 

medical attention necessary to prevent death or serious bodily injury due to a 

drug overdose. See 35 P.S. § 780-113.7(a)(2)(i). Further, Appellant also 

failed to prove that Mr. Jay remained with him until the police officers arrived. 

See 35 P.S. § 780-113.7(a)(2)(iii).

At Appellant’s stipulated bench trial, no witness testimony was 

presented. N.T., 10/18/19, at 1-19. Instead, the trial court considered five 

exhibits submitted by the Commonwealth: the affidavit of probable cause, 

Officer Wilson’s incident report, an audio recording of Mr. Jay’s 911 calls, the 

911 event log, and a Pennsylvania State Police lab report. Id. at 6-7; see 

also Commonwealth’s Exhibit #1-5. Appellant did not submit any evidence 

for the trial court’s consideration. N.T., 10/18/19, at 7 (“[Appellant will] not 

be presenting any testimony or evidence.”).

The affidavit of probable cause states:
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On Monday September 10th, 2018 at 15:59 hours your Affiant, 

Officer Michael Wilson #80 of the Upper Darby Township Police 

Department, was on duty, working in full uniform, and operating 

marked patrol vehicle 79-23. During my course of duty I was 

dispatched to the Taco Bell located at 7500 West Chester Pike, 

Upper Darby, PA, 19082 for the report of a customer dispute in 

progress. While en route DELCOM advised that a male inside of 

the store was now unconscious. Upon entering the store I located 

[Appellant] being held up on a chair by Taco Bell employees. 

[Appellant] was unresponsive and appeared to be overdosing on 

narcotics. Myself and Officer Michael Begany [#137] placed 

[Appellant] flat on the ground, and I administered (1) 4mg dose 

of Naloxone through his nostril. During a search of [Appellant] for 

officer safety, Officer Begany located (1)[] clear, glassine bag 

containing (1) blue wax paper bag stamped “White House” which 

contained a white powdery substance, suspected to be heroin, in 

[Appellant’s] right front pants pocket. [Appellant] did eventually 

regain consciousness, however due to his intoxicated state he was 

transported by paramedics to Delaware County Memorial Hospital. 

At police headquarters the suspected heroin was field tested using 

the NARKII (Heroin/Fentanyl Reagent) test kit, which produced 

positive results for the presence of Fentanyl. . . .

Affidavit of Probable Cause, 9/10/18, at 1.3

In his initial 911 call, Mr. Jay stated: 

([] 3:59:18 [p.m.])

Dispatcher: The time is 9-1.

[Mr. Jay]: Oh, yeah. Can I have, I’m at the Taco Bell in 

Upper Darby. Can I have an escort across the —

Dispatcher: O kay. You’re at Taco Bell. Where are you 

going to?

[Mr. Jay]: No. I need, a customer, actually he’s extremely 

high.

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3 Officer Wilson’s incident report contains an identical narrative of the events 

of September 10, 2018. See Commonwealth’s Exhibit #2.
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Dispatcher: Which Taco Bell you at, sir? 

[Mr. Jay]: That one on West Chester Pike. (Noise)

Dispatcher: Is he a white male, black male, [H]ispanic?

[Mr. Jay]: He’s a white male. 

Dispatcher: White male. What color shirt? What color 

pants? 

[Mr. Jay]: He’s got on a gray hoodie and black, purple and 

white sweat pants. 

Dispatcher: Black, purple and white sweat pants? (Noise)

[Mr. Jay]: Yes, he’s staying right in the lobby. (Noise) . . . 

He’s asleep standing up. Sir.

Dispatcher: Is he a customer? 

[Mr. Jay]: Yes. (Noise)

Dispatcher: Your name, sir? 

[Mr. Jay]: I’m a manager. My name is Will[.]

Dispatcher: What’s your last name? 

[Mr. Jay]: It’s Jay, J-a-y. 

Dispatcher: And your phone number?

[Mr. Jay]: You got to get up. I’m sorry.

Dispatcher: Your phone number, sir? 

[Mr. Jay]: [Provides phone number].

Dispatcher: All right. They already have the call.

[Mr. Jay]: I’m sorry.
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Dispatcher: They have the call, sir.

[Mr. Jay]: All right. Thank you.

(Conclusion of the 911 call.)

Appellant’s Motion for Reconsideration, 7/23/19, Exhibit A, at 3-4. 

As stated above, to qualify for immunity, Appellant bore the burden of 

proving that: 1) the reporter reported a “drug overdose event” to Officer 

Begany and Officer Wilson in good faith and based upon the reasonable belief 

that immediate medical attention was necessary to prevent death or serious 

bodily injury due to a drug overdose; 2) the reporter provided authorities with 

their real name and location, and cooperated with the responding authorities; 

and 3) the reporter remained with Appellant until responding authorities 

arrived. 35 P.S. § 780-113.7(a)(2); Lewis, 180 A.3d at 791. 

During Mr. Jay’s initial 911 call, he stated to the dispatcher that 

Appellant was “extremely high” and “asleep standing up” in the middle of the 

Taco Bell restaurant lobby. Appellant’s Motion for Reconsideration, 7/23/19, 

Exhibit A, at 3-4. However, Mr. Jay did not make any statement during this 

call that he reasonably believed Appellant required immediate medical 

attention, see id., nor did Mr. Jay relay to the dispatcher that he reasonably 

believed Appellant was experiencing a drug overdose event, as defined by the 

Act. See id.; see also 35 P.S. § 780-113.7. Rather, our review of the record 

reveals that the trial court correctly characterized Mr. Jay’s first 911 call as “a 

manager of an establishment contacting the police for assistance in removing 
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an individual who, by his intoxicated nature, [was] causing a disturbance to 

the regular course of business.” Trial Court Opinion, 1/16/20, at 8.

Prior to Officer Begany and Officer Wilson’s arrival, Mr. Jay made a 

second call to 911:

[(]911 call at 4:04:02 p.m.)

Dispatcher: -- police and firemen.

[Mr. Jay]: How you doing? This is the Upper Darby Taco Bell on 

West Chester Pike, and we have a man who is highly intoxicated 

or high. He’s in our store passed out. Can we have some 

assistance or help over here, please. 

Dispatcher: All right. He’s at the one on State and West Chester 

Pike? 

[Mr. Jay]: West Chester Pike, yes. 7500 West Chester Pike.

Dispatcher: Okay. Is a white, black or Hispanic male? 

[Mr. Jay]: Excuse me?

Dispatcher: Is he a white, black or Hispanic male? 

[Mr. Jay]: He’s a white male.

Dispatcher: What’s he wearing?

[Mr. Jay]: He’s got on a gray hoodie and some black, purple and 

white sweats, an eye patch.

Dispatcher: Okay. Is he unconscious now? 

[Mr. Jay]: Yes. 

(End of 911 call.) 

Appellant’s Motion for Reconsideration, 7/23/19, Exhibit A, at 5-6.
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While Mr. Jay’s second 911 call could arguably qualify under the Act as 

a report of a drug overdose event requiring immediate medical attention 

necessary to prevent death or serious bodily injury, because Officer Wilson 

had already obtained information concerning Appellant prior to Mr. Jay’s 

second 911 call, Appellant is not entitled to immunity. See Affidavit of 

Probable Cause, 9/10/18, at 1; Commonwealth’s Exhibit #2; Commonwealth’s 

Exhibit #4; see also 35 P.S. § 780-113.7(d)(1) (“This section may not bar 

charging or prosecuting a person for offenses enumerated in subsection (b) if 

a law enforcement officer obtains information prior to . . . the action seeking 

or obtaining emergency assistance as described in subsection (a).”).

Simply, based upon Mr. Jay’s initial 911 call, Officer Wilson was already 

in route to the Taco Bell to remove a customer asleep in the lobby before 

receiving additional information, via Mr. Jay’s second 911 call, that Appellant 

had become unconscious and needed help. See Affidavit of Probable Cause, 

9/10/18, at 1 (“I was dispatched to the Taco Bell . . . for the report of a 

customer dispute. . . . While en route DELCOM advised that a male inside of 

the store was unconscious.”); see also Commonwealth’s Exhibit #2. The Act 

specifically withholds immunity in this instance. See 35 P.S. § 780-

113.7(d)(1).

Moreover, Appellant failed to prove that Mr. Jay remained with Appellant

until the officers arrived at the Taco Bell, as required by Section 780-

113.7(a)(2)(iii) (“[T]he person remained with the person needing immediate 

medical attention until a law enforcement officer . . . arrived.”). Officer Wilson 
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noted in both the affidavit of probable cause and in his incident report that 

upon arriving at the Taco Bell, he observed Appellant “being held up on a chair 

by Taco Bell employees.” Affidavit of Probable Cause, 9/10/18, at 1; See

Commonwealth’s Exhibit #2. However, there is no evidence of record 

specifically indicating that Mr. Jay, as the reporter under the Act, remained 

with Appellant until the officers arrived, as required for immunity.

4

 Neither 

the affidavit of probable cause, nor Officer Wilson’s incident report reflect that 

Mr. Jay was found present with Appellant upon the officers’ arrival, and 

Appellant did not present any evidence proving so. Appellant therefore failed 

to satisfy his burden under Section 780-113.7(a)(2)(iii). Lewis, 180 A.3d at 

791. 

In sum, because Appellant did not qualify for immunity under the Act, 

the trial court properly denied Appellant’s motion to dismiss. We therefore 

affirm his judgment of sentence.

Judgment of sentence affirmed.

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4 Notably, Appellant concedes in his motion to dismiss pursuant to 35 P.S. § 

780-113.7 that the “record is vague” concerning Mr. Jay’s involvement, but 

ultimately avers that “the facts and circumstances suggest that an employee 

phoning the police would provide police with his name and remain at the scene 

throughout the investigation.” Appellant’s Motion to Dismiss Pursuant to 35 

P.S. § 780-113.7, 6/13/19, at unnumbered 2. However, we hold that

“suggestive facts and circumstances” fail to carry Appellant’s burden of 

showing he was entitled to immunity under the Act. See 35 P.S. § 780-113.7.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/20