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filed: November 9, 1984.


No. 1557 Philadelphia, 1982, Appeal from Order, Court of Common Pleas, Criminal Division, Montgomery County, No. 3721-81


Barbara Geisz Demarest, Plymouth, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cavanaugh, McEwen and Cirillo, JJ. Cirillo, J. files concurring opinion. McEwen, J. files dissenting opinion.

[ 335 Pa. Super. Page 524]


This is an appeal from the lower court's denial of a motion to dismiss the charges on grounds of double jeopardy. A pre-trial order denying a motion to dismiss on grounds of double jeopardy is a final, appealable order. Commonwealth v. Buechele, 298 Pa. Super. 418, 444 A.2d 1246 (1982).

This case presents a difficult question that arises out of an unusual fact pattern. Appellant, John J. McSorley, Jr., was arrested on November 14, 1981 and charged with operating a motor vehicle while under the influence of alcohol.*fn2 After arraignment on December 14, 1981 McSorley received a letter dated January 18, 1982 from Dr. Vincent F. Miraglia.*fn3 Dr. Miraglia was the Director of the Main Line Council on Alcoholism. The Council operated a safe driver clinic for Montgomery County. The letter directed

[ 335 Pa. Super. Page 525]

    appellant that he was required to attend the driving school. The appellant testified that he interpreted this letter as directing him to report for the Montgomery County Accelerated Rehabilitative Disposition Program (hereinafter, "ARD"). In addition to the wording, see infra note 2, the letter came under the letterhead of the District Attorney's ARD/DUI (driving under influence) Division. The letter also stated that McSorley was required to pay a Fifty Dollar ($50.00) fee for the program.

Appellant then received a letter dated January 25, 1982 from Joseph M. Iacovitti, Chief of the ARD Division of the Montgomery County District Attorney's Office. This letter gave appellant a general description of the ARD alternative. The letter instructed McSorley to complete an enclosed questionnaire to determine his eligibility and to return it within ten (10) days in order to be considered for the program. It is not clear from the record exactly when appellant received this letter. However, appellant completed the questionnaire and hand delivered it on February 1, 1982 -- the same evening he appeared for his first session of the safe driving clinic.

Thereafter, appellant attended the remainder of the classes of the safe driving clinic. On February 22, 1982, after the last session, McSorley received a certificate signed by Dr. Miraglia stating that he had successfully completed the requirements of the clinic. Appellant next received a letter dated February 25, 1982 from Mr. Iacovitti. This correspondence stated that McSorley was ineligible for ARD because of two prior arrests in Philadelphia County. The case was then scheduled for trial.

The record demonstrates that appellant attended the safe driving clinic believing he was in ARD. He felt that successful completion of the clinic would result in dismissal of the charges against him. Before each of appellant's four sessions at the county courthouse he jotted down "ARD" on the visitors' log under "Nature of Business." McSorley was acting under his own understanding of the situation since he did not consult a lawyer during any aspect of the

[ 335 Pa. Super. Page 526]

    proceedings until after receiving the February 25 letter rejecting him for the program.

At appellant's hearing on this motion to dismiss, Mr. Iacovitti's testimony demonstrated that the district attorney's office never intended to recommend McSorley for ARD. Nevertheless, the January 18 letter directing McSorley to appear at the classes was sent only after Dr. Miraglia received notification from the district attorney's office that McSorley had been accepted into the program. This was the usual administrative method of informing the clinic about ARD participants. There was no indication why this notice was sent from the district attorney's office. Therefore, we assume it was an administrative error.

Appellant contends that his payment of a fifty dollar ($50.00) fee and attendance at the safe driving program was a restriction on his freedom and deprivation of his liberty. Accordingly, appellant maintains that the deprivation amounts to an order of sentence for double jeopardy purposes. Therefore, dismissal of the case would be necessary to protect appellant from multiple punishment.

The Commonwealth maintains that appellant's attendance at the safe driving program was a voluntary act on his part. The Commonwealth did not "direct" appellant to enter the safe driving clinic because the Commonwealth is without power to direct any defendant to enter the ARD program. Therefore, appellant was never subjected to punishment flowing from a conviction and jeopardy did not attach.

The prohibition against double jeopardy protects a defendant from multiple punishments for successive prosecutions for the same offense. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In a non-jury trial, jeopardy attaches when the court has begun to hear ...

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