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decided: March 31, 1977.


Appeal from the Judgment of Sentence Imposed by the Court of Common Pleas, Criminal, of Dauphin County at No. 1727 of 1974. No. 124 March Term, 1976.


William H. Nast, Jr., Harrisburg, submitted a brief for appellant.

Reid H. Weingarten, Harrisburg, with him Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion. Spaeth, J., files a concurring and dissenting opinion.

Author: Cercone

[ 247 Pa. Super. Page 102]

Appellant was convicted, after a non-jury trial which he concedes was free of error, of driving under the influence of intoxicating liquor.*fn1 This appeal followed. His sole contention is that he was unconstitutionally denied the right to participate in the Accelerated Rehabilitative Disposition program.

The A.R.D. program was created by the Pennsylvania Supreme Court in the exercise of its supervisory power over the lower courts. The authorization is found in Pa.R.Crim.P. 175-85, 19 P.S.Appendix. A recent opinion of the United States District Court for the Middle District of Pennsylvania, Shade v. Pennsylvania Dep't of Transp., 394 F.Supp. 1237, 1240 (1975) contained the following accurate description of the program:

"The ARD program provides a means of suspension of formal criminal proceedings before conviction on the condition that the accused will do something in return, such as make restitution, participate in a rehabilitation program, undergo psychiatric treatment, hold certain employment, or otherwise modify his behavior. The ARD rules provide that after a defendant is held for court by an issuing authority or after an information or indictment, the district attorney sua sponte or at the request of defendant's attorney may move that the case be considered for ARD. The district attorney has the discretion to refuse to ask for ARD and to insist on prosecuting the defendant for the offense. Pa.R.Crim.P. 175 and 176. If the district attorney moves that the case be considered for

[ 247 Pa. Super. Page 103]

ARD, a hearing is held in open court in the presence of the defendant at which the court determines: (1) whether the defendant agrees to the conditions of the ARD program, Pa.R.Crim.P. 178; and if so, (2) whether the judge will grant the Commonwealth's motion for ARD, Pa.R.Crim.P. 179. Thus, the district attorney and the county judge must both agree that the defendant should receive the benefit of ARD, thereby avoiding criminal prosecution. The conditions of the ARD program may be the same as may be imposed with respect to probation after conviction of a crime, including restitution and costs, and any other conditions agreed to by the parties, except that a fine may not be imposed and the period of the ARD program cannot exceed two years, Pa.R.Crim.P. 182. When the defendant has satisfactorily completed the ARD program prescribed for him and complied with its conditions, the charges against him upon order of court will be dismissed. Pa.R.Crim.P. 185. Should the defendant fail to complete the ARD program satisfactorily, he may be prosecuted for the offense charged as he might have been originally. Pa.R.Crim.P. 178, 183, 184."

After appellant in this case was arraigned, he filed a "Motion for Submission of Case for Consideration under Accelerated Rehabilitative Disposition Program." The court directed the Commonwealth to file an answer, which it did, asserting that the decision to submit or not submit a case for ARD consideration was within the discretion of the District Attorney, who declined to submit the instant case for two reasons:

"First, the Dauphin County Court has requested the District Attorney not to submit this type of offense for ARD consideration; and second, the District Attorney believes that ARD of this type of offense is not in the best interest of the public in light of the ever increasing problem that the drunken driver reeks [sic] upon our society."

The court below agreed with the Commonwealth, denied the motion, and directed the District Attorney to call the case for trial. Appellant was found guilty and sentenced to pay

[ 247 Pa. Super. Page 104]

    a fine of $300 plus costs, and undergo probation for a period of one year.

Appellant asserts that prosecutorial consent cannot constitutionally be a prerequisite to the admission of a defendant into the program, because such a requirement represents an improper delegation of a judicial function. The flaw in this argument is more easily seen if the process called diversion*fn2 is separated into its two constituent parts: (1) probation and (2) eventual dismissal of charges.

A prosecutorial decision not to move a particular case for ARD does not prevent the court from ultimately placing the defendant in that case on probation in the event of a guilty verdict or a guilty plea. This appellant, in fact, was placed on probation. Since there is no interference with the judicial power to determine the mode of correction to which a particular defendant will be subjected, there is no delegation of sentencing power.

The conditional agreement to dismiss charges at a specified future time is a result of a concurrence between the prosecutor and the court. There is no deviation from the constitutionally required separation of powers here.

In contending otherwise, appellant primarily relies on People v. Superior Court of San Mateo County, 11 Cal.3d 59, 113 Cal.Rptr. 21, 520 P.2d 405 (1975), wherein the California Supreme Court held that a statutory requirement of prosecutorial concurrence in a diversion decision was unconstitutional, and stated that the decision to divert a defendant into a rehabilitation program is an exercise of a judicial power and therefore cannot constitutionally be subordinated to a veto of the prosecutor. The court also said:

"The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the

[ 247 Pa. Super. Page 105]

    prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise." [Citation omitted; emphasis added.] Id. at 25, 520 P.2d at 409.

To the reader unfamiliar with California law, the decision implies that a court has an inherent power to dismiss a criminal charge in the interests of justice. However, the power referred to is given to California courts by a provision in that state's penal code, to-wit Penn. Code Section 1385, which reads in pertinent part:

"The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."*fn3

Another California case, People v. Gonzales, 235 Cal.App.2d Supp. 887, 890, 46 Cal.Rptr. 301 (1965) makes the following observation:

"We are reminded that the powers now vested in the courts by the Legislature by virtue of Penal Code section 1385, stem from the historical powers of nolle prosequi which were traditionally vested in the Attorney General of England and in the prosecuting attorneys in the American states."

[ 247 Pa. Super. Page 106]

The authorities are virtually unanimous that the historical power to "nol pros" belonged at common law solely to the Attorney General and remains an exclusive prosecutorial power in the absence of a state constitutional or statutory provision to the contrary. See Annotation, 69 A.L.R. 233. An excerpt from the case annotated there, State ex rel. Page 106} Groesbeeck v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 177 (1930) is most enlightening:

"How firmly the rule vesting the exclusive power in the prosecuting officer to dismiss a case was established at common law is forcibly and effectively illustrated in a conversation relating to the commitment for seditious language of certain persons belonging to a sect called "Prophets." Lacy, one of the friends of the prisoners committed, assumed to intercede for them, and upon his conference with Lord Holt the following colloquy is reported:

Lacy: 'I come to you, a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for Mr. Atkins, His servant, whom thou hast cast into prison.'

Chief Justice Holt: 'Thou art a false prophet, and a lying knave. If the Lord God had sent thee, it would have been to the Attorney General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi, but as Chief Justice, I can grant a warrant to commit thee to bear him company.' 2 Campbell's Lives of the Chancellors, 173."

Returning to 1977 and to Pennsylvania, we must determine where the power of nolle prosequi now lies. The answer is found in the Act of Mar. 31, 1860, P.L. 427, § 29, 19 P.S. 492 (1964), which provides:

"No district attorney shall, in any criminal case whatsoever, enter a nolle prosequi, either before or after bill found, without the assent of the proper court in writing first had and obtained."

This Court held in Commonwealth v. Reed, 65 Pa. Super. 91, 99 (1916) that:

"[19 P.S. 492] limited the power of the prosecuting officer to enter a nolle prosequi, but it conferred no power on the court to order a nolle prosequi to be entered without the consent of the prosecuting officer. The legislation of this State and the decisions of the courts construing it indicate no intention to depart from the doctrine of the common

[ 247 Pa. Super. Page 107]

    law that a nolle prosequi can only be entered by the prosecuting officer, or with his consent."

Aside from situations in which dismissal of a prosecution is the means by which procedural rights are vindicated,*fn4 a Pennsylvania court has the power to dismiss a prosecution over the prosecuting attorney's objection only when the legislature expressly empowers it to do so. The prosecutor's authority to veto a proposed diversion stems from his general power, originating at common law and not taken away by the legislature, to decide that a particular case shall proceed to trial. While there are a few situations in which a court possesses legislatively-granted authority to terminate a prosecution before trial, regardless of the prosecutor's wishes, this case does not fall within any of those situations.*fn5

The supervisory powers of the Pennsylvania Supreme Court are limited by Article V, § 10(c) of the Pennsylvania Constitution, which grants that Court its procedural rule-making powers but qualifies that grant by stating: "[S]uch rules [must be] consistent with this Constitution and neither abridge, enlarge, nor modify the substantive rights of any litigant." The Court was thus limited to working within the existing framework of separation of powers, and therefore could not create a diversion program without requiring prosecutorial initiative, as the Commonwealth is indisputably a litigant and possesses a substantive right to insist on

[ 247 Pa. Super. Page 108]

    seeking a conviction. It follows that this court cannot do so either. While there is something to be said for allowing a court to overrule a prosecutor and order diversion, it should be said to the General Assembly.

Appellant also asserts that the exclusion of drunken drivers from ARD amounts to a denial of equal protection of the laws. The United States Supreme Court said in Gulf, C. & S. F. R. Co. v. Ellis, 165 U.S. 150, 155, 17 S.Ct. 255, 256, 41 L.Ed. 666 (1896):

"[I]t is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that, if the law deals alike with all of a certain class, it is not obnoxious to [the equal protection clause]. While, as a general proposition, this is undeniably true, . . . yet it is equally true that such classifications cannot be made arbitrarily. . . . [The classification] must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily, and without any such basis." [Citations omitted.]

It is undisputed that appellant was excluded from ARD pursuant to a prosecutorial office policy, concurred in by the court below, against the admission of drunken driving cases to ARD. It is thus clear that the law as administered in Dauphin County deals alike with all members of this class. The question is whether the classification is a reasonable one. Appellant says it is an arbitrary one, arguing that it discriminates among intoxicated persons. He points out that an intoxicated person who is arrested for a misdemeanor or a felony is eligible for ARD, unless the offense is driving an automobile. What he ignores is the fact that our penal statutes are not concerned with intoxication per se but with the activities of the person in that condition. A distinction, for example, between an intoxicated burglar and an intoxicated driver is quite logical; intoxicated burglars are no more dangerous than sober burglars, and may be less so, while the abuse of alcohol by drivers renders them extremely

[ 247 Pa. Super. Page 109]

    dangerous. Since getting behind the controls of an automobile is probably the most life-endangering thing an intoxicated person can do, at least among commonplace activities, we see nothing unreasonable or arbitrary about treating this group of intoxicated persons differently.

A second facet of appellant's fourteenth amendment claim is his argument that exclusion of drunken drivers from ARD in Dauphin County, but not in other counties, results in a denial of equal protection. Appellant contends, in effect, that residence in a particular county is an unreasonable basis for classification. This argument is answered by Salsburg v. Maryland, 346 U.S. 545, 550-51, 74 S.Ct. 280, 283, 98 L.Ed. 281 (1954). The issue there was whether a Maryland statute excepting certain gambling prosecutions in three specified counties from a general prohibition against the admission of illegally obtained evidence violated the equal protection clause. The Court held that it did not, stating:

"We find little substance in appellant's claim that distinctions based on county areas are necessarily so unreasonable as to deprive him of the equal protection of the laws guaranteed by the Federal Constitution. The Equal Protection Clause relates to equality between persons as such rather than between areas. . . . Territorial uniformity is not a constitutional requisite." [Citation omitted.]

The Court referred to Missouri v. Lewis, 101 U.S. 22, 31, 25 L.Ed. 989 (1879), where the following was said:

"The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. . . . Each State prescribes its own modes of judicial proceeding. If diversities of law and in judicial proceedings may exist in the several States without violating the equality clause in the Fourteenth Amendment, there is no solid reason why there may not be such diversities in different parts of the same State."

Of course, Salsburg would have to be decided differently today, since one of its premises, that ...

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