An appeals court has tossed the conviction of a woman who overdosed on heroin and was later charged with possession of a controlled substance, holding that immunity under the state’s Drug Overdose Response Act cannot be waived.

An en banc Superior Court panel found that defendant Sarah Markun could not be brought up on criminal drug charges related to her overdose because immunity under the act is not a defense that must be asserted. In doing so, the court vacated her conviction and sentence of one year of probation.

In April 2015, Markun was found unconscious in a Motel 6 room in Tinicum, Delaware County, according to the court’s opinion written by Superior Court Judge Mary Jane Bowes. Housekeeping staff had called 911 and Markun was taken by ambulance to a nearby hospital.

She was subsequently charged with heroin possession. According to the act, “Persons experiencing drug overdose events may not be charged and shall be immune from prosecution.”

Prosecutors argued that the underlying drug use was a valid reason to arrest and charge Markun, but Bowes said the argument missed the point of the act.

“There is no dispute that the commonwealth has proved the legal sufficiency of these charges beyond a reasonable doubt. Nor is there any doubt that, had the police lawfully encountered appellant under other circumstances, she would be subject to prosecution,” Bowes said. “It is the particular factual circumstance that resulted in appellant’s contact with law enforcement that shields appellant from the normal consequences attendant to her possession of heroin.”

The crux of the matter was whether the immunity provision could be considered a criminal defense, and whether it could be waived.

“We agree that the act resembles a criminal defense. Simultaneously, we cannot ignore that the legislature chose the word ‘immunity,’” Bowes said.

The judge added, “The fact that the act does not employ the term ‘defense’ is strong evidence that the act was not intended to create a defense to these charges. The legislature is perfectly capable of using the word ‘defense’ and supplying defenses within the body of a crime when that is its intention.”

Bowes continued, “It would be incongruous for the legislature to signal its intent to establish a defense by discarding the very word that would clearly serve that purpose, and by enacting a new statute instead of simply amending Section 780-113 to provide defenses to particular crimes. Hence, we find that there is an incompatibility between the act’s function and its label.”

Steven Papi of the Delaware County Public Defender’s Office declined to comment on the ruling. Assistant District Attorney Daniel Woody for the county district attorney’s office did not return a call seeking comment.

(Copies of the 28-page opinion in Commonwealth v. Markun, PICS No. 18-0566, are available at