Commonwealth v. Stranges , 397 Pa. Super. 59 ( 1990 )

JOHNSON, Judge:

Once again, we are called upon to determine whether in a prosecution for drunk driving under the Motor Vehicle Code, a defendant may be admitted to Accelerated Rehabilitative Disposition (ARD) over the objection of the attorney for the Commonwealth. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) remains the law of this Commonwealth. That case instructs us that the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based upon her or his view of what is most beneficial for society and the offender. As there was no abuse of prosecutorial discretion, the trial court improperly granted the petition to compel ARD. The order directing admission to ARD is, therefore, reversed.

The Bucks County District Attorney has an open policy which withholds diversion from criminal prosecution into ARD from any person charged with drunk driving who is involved in an accident of any kind with another occupied vehicle, regardless of fault. Jeffrey Stranges was involved in a two-vehicle accident in April 1988. He was transported by ambulance to a local hospital where a technician extracted a blood sample.

Stranges’ blood alcohol content was established to be .13 percent. He was charged with driving under the influence of alcohol, 75 Pa.C.S. §§ 3731(a)(1) and (4). At the preliminary hearing, the investigating police officer testified that (a) Stranges was not at fault, (b) the operator of the other vehicle was also drunk and completely at fault for the accident, and (c) he had no objection to an ARD diversion of the charges against Stranges. The district justice dismissed the charge for violating § 3731(a)(1) (incapable of safe driving). He bound Stranges over to court on the charge under § 3731(a)(4) (blood alcohol content .10 percent or greater).

Stranges filed an ARD application with the Bucks County-Office of the District Attorney. The application was denied. Stranges then filed a petition for reconsideration which was heard in the court of common pleas. The trial court found that the district attorney had abused his discretion by denying ARD eligibility to Stranges. The court expressly found that the Commonwealth’s own investigation disclosed no fault on the part of Stranges, no impact on other motorists as a result of Stranges’ driving, and no purpose in protecting the public by denying Stranges ARD disposition. Opinion, November 15, 1988, page 6. The trial court directed that the defendant be admitted to the ARD program. It is this order directing the attorney for the Commonwealth to admit Stranges to the ARD diversion program which we now review and reverse.

The formal purpose of the Superior Court is to maintain and effectuate the decisional law of the Supreme Court of Pennsylvania as faithfully as possible. Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). We begin and conclude our analysis with the law set forth in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985).

In Lutz, our Supreme Court assumed plenary jurisdiction over nine cases in neighboring judicial districts to consider whether a defendant may be admitted to ARD over the objection of the attorney for the Commonwealth. In all of the cases, the trial court, over objection, either ordered that the defendant be considered for admission to ARD or actually ordered such admission. After reviewing the theory of the program and its statutory mandate, 75 Pa.C.S. § 1552, the Lutz court examined subsection (d) of § 3731 of Title 75, the Motor Vehicle Code, relating to drunk driving. The court concluded that the ARD program relies upon the rules promulgated by our Supreme Court for the procedural implementation of the statutory program, except for providing that certain cases may not be submitted for ARD. Lutz, 508 Pa. at 305, 495 A.2d at 932.

The Lutz court declared that, under the Pennsylvania Rules of Criminal Procedure promulgated by our Supreme Court, Rules 176 — 186, 42 Pa.C.S., district attorneys have the sole discretion in any criminal case, including drunk driving cases, to move for the admission of a defendant into ARD. Id. Although the exercise of that discretion had not been directly challenged in any of the nine consolidated appeals then before the court, the Lutz court did, in fact, address that issue, observing in pertinent part:

Contrary to the view of the trial courts, we do not believe that only prior offenses related to drunk driving are relevant to admission to an ARD program. What is relevant in moving a particular defendant’s admission to ARD is whether he is the type of person who can benefit from the treatment offered by an ARD program, not whether he had been in trouble with alcohol and an automobile before.

This judgment, in turn, rests in the sound discretion of the district attorney. Such discretion, of course, is not without limitation, and ... may be usefully circumscribed by a requirement of openness.....In all of the cases consolidated herein, the prosecutors have openly specified their reasons for not submitting the cases for ARD, and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion.

Since the judgment about who can benefit from ARD is subjective, and since society may be seriously damaged by a wrong judgment, the district attorney is not to be faulted if he errs on the side of caution.

In any event, the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based upon his view of what is most beneficial for society and the offender.

Id., 508 Pa. at 309-310, 495 A.2d at 934-35 (emphasis in text; citations omitted).

Commonwealth v. Lutz was decided in June, 1985, and since then this court has assiduously followed its teachings: Commonwealth v. Burdge, 345 Pa.Super. 187, 497 A.2d 1367 (1985) (court-established admission criteria in contravention of Supreme Court rules are invalid); Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986) (no ineffectiveness from failure to file motion seeking to compel district attorney to nominate for ARD, since no right to demand; no abuse of discretion in denial); Commonwealth v. Dougherty, 351 Pa.Super. 603, 506 A.2d 936 (1986) (district attorney’s discretion not unconstitutional; due process not violated by vesting in district attorney sole discretion to move admission into ARD); Commonwealth v. Roeder, 353 Pa.Super. 137, 509 A.2d 373 (1976) (prosecutor’s discretion not abused by excluding applicant with thirteen-year old felony conviction); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand to allow district attorney to openly specify reasons for nonsubmission); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986), appeal denied 515 Pa. 605, 529 A.2d 1080 (1987) (where district attorney’s general considerations reasonable, particularized inquiry by court prohibited); Commonwealth v. Ryan, 358 Pa.Super. 459, 517 A.2d 1324 (1986), appeal denied 515 Pa. 577, 527 A.2d 538 (1987) (denial of motion to compel ARD not trial court error); Commonwealth v. Ebert, 369 Pa.Super. 318, 535 A.2d 178 (1987) (nonsubmission based upon prior juvenile record not abuse of discretion; equal protection not violated); Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988), appeal denied 520 Pa. 614, 554 A.2d 507 (1988) (.25 percent blood alcohol cutoff for ARD admission not unreasonable); Commonwealth v. Paul, 383 Pa.Super. 486, 557 A.2d 357 (1989) (Bucks County policy of denying ARD to DUI operator involved in collision with another occupied vehicle upheld).

Both the distinguished trial judge and Stranges place undue emphasis on the fact that Stranges’ substantial likelihood of successful rehabilitation has not been disputed by the attorney for the Commonwealth. That Stranges has had no prior contacts with the criminal justice system and has indeed been recommended for the ARD program by the investigating officer is not dispositive of this appeal. Our Supreme Court in Lutz made it clear that the criteria for admission to an ARD program may relate to either one of two distinct areas of concern: “[1] the protection of society and/or [2] the likelihood of a person’s success in rehabilitation.” Lutz, 508 Pa. at 310, 495 A.2d at 935, set forth in context, above. In fashioning Ms program for admission into ARD, the Bucks County District Attorney has chosen to place the emphasis on the protection of society. We are not prepared to declare that the district attorney has abused the discretion lodged in that office when he suspends the prosecution of (and considers recommending for ARD) only that class of drivers not involved in an accident with another occupied vehicle.

Once it is determined that the general policy bears some rational relationship to the protection of the public, it is improper to consider the manner in which or the degree to which that acceptable policy affects a specific driver. As a panel of this court said in Commonwealth v. Mowry, supra, 358 Pa.Super. at 237, 516 A.2d at 1272:

Having found that the district attorney’s considerations, in general, were reasonable, the trial court was no longer in a position to continue its inquiry. Whether the trial court would find a particular individual a likely candidate for ARD is simply not the question. At issue, is whether or not the district attorney abused his discretion. The court has failed to identify criteria relied upon by the Commonwealth “wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of (appellees) success in rehabilitation, such as race, religion or other such obviously prohibited consideration ... Commonwealth v. Lutz, 508 Pa. at 310, 495 A.2d at 935.”

The facts arising in Commonwealth v. Paul, supra, are strikingly similar to the facts present on this appeal. In Paul, the motorist was charged with driving under the influence after he had struck an occupied vehicle stopped at an intersection. His blood alcohol count was .12 percent. Paul had an otherwise safe driving record, no prior criminal record, evidence of required insurance coverage, and possession of a valid operator’s license. The driver of the struck motor vehicle had not been injured. Both the driver of the other vehicle and the arresting officer favored ARD treatment for Paul. His motion to compel placement in ARD contained all of this favorable information. The motion was refused by the trial court and Paul appealed to this court.

Essentially, the appellant in Paul, the motorist charged with DUI, argued that a district attorney should be required to “set off” or weigh purportedly mitigating factors against the considered policy of rejecting applications for ARD which otherwise do not meet the designated criteria. The appellant contended that the failure or refusal to conduct such a balancing analysis as a condition precedent to the exclusion determination constituted prosecutorial abuse. In rejecting that argument, the Paul panel stated:

Our efforts have been in vain to locate any authority, judicial or legislative, in this Commonwealth to support appellant’s claim____ Neither Lutz and its progeny nor the cases preceding Lutz condones [sic] such requirement or restricts the prosecutor’s discretion in the fashion now urged by appellant. The cases since Lutz have not broadened or restricted a District Attorney’s discretion regarding the acceptance or rejection of persons into or from participation in an A.R.D. program. We see no reason to deviate from that line of reasoning now.

This case presents no justification for diverging from established precedent. The policy of the Bucks County District Attorney of not considering for enrollment in the County A.R.D. program any person charged with driving under the influence ... who is involved in an accident with another occupied vehicle does not offend the twin purposes of A.R.D. — the rehabilitation of the offender and the protection of society — as contemplated by Lutz and the Rules of Criminal Procedure relating to A.R.D.

We are unwilling to cast aside as mere fluff, as appellant would have us do, the policy of the Bucks County District Attorney circumscribing a candidate’s acceptance into the County A.R.D. program. Instead, it is a valid and permissible expression of the sentiment of the Chief Prosecutor of that County and a proper and legal exercise of that public official’s discretion.

383 Pa.Super, at 491, 492-93, and 498, 557 A.2d at 359, 360, and 362.

We discern only two differences between the circumstances in Commonwealth v. Paul, discussed above, and the present appeal. In Paul, the appeal was brought by the motor vehicle operator following a denial of his motion to compel placement in ARD. The appeal now before us is brought by the attorney for the Commonwealth from an order directing that the operator be admitted into the ARD program. Second, in Paul, the collision of the two occupied vehicles was clearly the “fault” of the appealing operator, Paul, inasmuch as the other vehicle was stopped at an intersection. In the present appeal, the investigating police officer testified at the preliminary hearing that he believed the operator involved in this appeal, Stranges, was wholly without “fault” and the other operator was completely at “fault.” However, neither of these distinctions is relevant to a determination of whether an individual should be admitted to ARD.

An accused has no right to demand acceptance into the ARD program and cannot complain when he is precluded from participation. Commonwealth v. Lutz, supra. Pa.R.Crim.P. 176, 42 Pa.C.S. An ARD recommendation is solely the province of the prosecutor, and admission of an offender into the program is by the grace of the trial court upon the Commonwealth’s motion. Id.; Commonwealth v. Ayers, 363 Pa.Super. 232, 525 A.2d 804 (1987). The attorney for the Commonwealth must be free to submit a case or not submit a case for ARD consideration based upon her or his view of what is most beneficial for society and the. offender. Lutz, supra. Therefore, absent some abuse of the district attorney’s sound discretion, the “fault” or “lack of fault” of the applicant is totally irrelevant.

In exercising its plenary jurisdiction in Lutz and its companion appeals, our Supreme Court declared:

We conclude, therefore, that the rules of this Court governing ARD [Pa.R.Crim.P. 176 — 186], as modified by [75 Pa.C.S.] Section 3731(d)____ are the sole applicable procedure by which a person charged with drunk driving may be admitted into ARD, and that no criminal defendant, including a person charged with drunk driving, may move his own admission to ARD.

508 Pa. at 312, 495 A.2d at 936. We find the rules and the Supreme Court’s ruling in Lutz to be clear. There is no ambiguity. Were we to affirm the order of the trial court, which directed the attorney for the Commonwealth to admit Stranges into the ARD program, we would, in effect, be engaging in intermediate appellate court rule making. We declined that invitation in Commonwealth v. Simmons, 388 Pa.Super. 271, 278-80, 565 A.2d 481, 485 (1989). We decline that invitation here and now.

The order of November 15, 1988 directing that Jeffrey Stranges be admitted to the Bucks County ARD program was an intrusion upon the sound discretion of the attorney for the Commonwealth as established by the Rules of Criminal Procedure and declared by our Supreme Court in Commonwealth v. Lutz. Accordingly, we reverse the order and remand this case for further proceedings consistent with the views expressed in this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion. KELLY, J., files a concurring statement.