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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 evidence. Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979); Serfass v. United States, 420 U.S. 377,

[ 335 Pa. Super. Page 52795]

S.Ct. 1055, 43 L.Ed.2d 265 (1975) (with the swearing of the first witness).

After extensive research, it appears that double jeopardy provisions have yet to be applied to Pennsylvania's diversion program. Indeed, our search has not revealed any case where a criminal defendant was prosecuted after successfully completing ARD.

When a criminal defendant agrees to diversion the proceedings are deferred with the state reserving the right to prosecute if the defendant violates any of the conditions of the program. Pa.R.Crim.P. 184. Where the defendant successfully meets the conditions of the program, the charges against the defendant will be dismissed and he is usually entitled to have his arrest record expunged. Pa.R.Crim.P. 185; Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981).

Nevertheless, the caselaw does not give a clear picture of how ARD effects the status of a criminal defendant. In Commonwealth v. McDevitt, 57 Pa. Commw.Ct. 589, 427 A.2d 280 (1981), the court held that by accepting ARD a defendant knowingly waives his right to prove his innocence or risk conviction by entering a plea. The court also held that admission into ARD is an offense for purposes of classifying the defendant an habitual offender even though formal convictions cannot be obtained under the program. Id. at 591, 427 A.2d at 282. On the other hand, the fact of a witness' admission into ARD is not a "conviction" for impeachment purposes. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). In Commonwealth v. Knepp, 307 Pa. Super. 535, 453 A.2d 1016 (1982), this Court went as far to say that admission into ARD is not equivalent to a conviction "under any circumstances" since charges are deferred.*fn4 Additionally, a lower court has held that successful completion of ARD is not equivalent to a finding of

[ 335 Pa. Super. Page 528]

    innocence. Commonwealth v. McKellin, 9 D. & C.3d 572 (1979).

Against this background, the lower court ruled that McSorley had not been put in prior jeopardy and had not suffered any punishment from ARD or any other criminal penalty. Also, the court held that there was not any valid evidence that McSorley had been accepted into the ARD program.

At first glance, it would appear that appellant's double jeopardy claim should fail because jeopardy had not yet attached. However, we find the law of our sister state of Ohio*fn5 to be most helpful. In State v. Urvan, 446 N.E.2d 1161, 4 Ohio App.3d 151 (1982), the court was faced with a similar double jeopardy claim. In that case, the defendant was charged in Medina County, Ohio under an allied offense statute*fn6 with receiving stolen property. The defendant was recommended for and successfully completed the diversion program in Medina County. As a result, the receiving charge was dismissed. One week later, the defendant was indicted in Cuyahoga County for grand theft relating to the same events as the Medina County charge.*fn7 The defendant filed a motion to dismiss the Cuyahoga charge on grounds of double jeopardy.

The court pointed out that

Any view of diversion processes not at war with their purposes must include a conception of them (when successfully completed) as the equivalent of served or probated time with the consequent expiation of the crime . . . . Moreover, if the program is to make logical sense and traffic at all in fair treatment, the state's election to pursue the crime of stolen property forecloses its right to undertake pursuit of the grand theft charge through a

[ 335 Pa. Super. Page 529]

    second agent (Cuyahoga County). Jeopardy must attach as a result of the activity of the first (Medina County)."

Id. 446 N.E.2d at 1166, 1167.

The court interpreted the diversion process in terms of a contractual relationship between the state and the defendant. Id. at 1167. Just as in this Commonwealth, to participate in a diversion program a defendant must waive any statute of limitations and any constitutional or statutory speedy trial rights. Pa.R.Crim.P. 178. The defendant agrees to whatever conditions the state establishes with the expectation that the charges will be dismissed when he meets those conditions.

As the Urvan court points out "if pre-trial diversion programs are to be effective, the state must live up to its obligations." Id at 1167. True, diversion programs give district attorney discretion over which cases are proposed for ARD. Commonwealth v. Boerner, 268 Pa. Super. 168, 407 A.2d 883 (1979). However, the decision to divert a defendant "comes after the prosecutor has fully discharged all discretionary functions and after the prosecutorial die has been cast." Dearborne v. State, 575 S.W.2d 259, 263 (Tenn. 1980). In placing a defendant into a diversion program, the state covenants to dismiss the charges once the defendant satisfies the conditions of the program. Unless the defendant violates one of those conditions, the state cannot prosecute him. Just as the terms of a plea bargaining arrangement are binding on the state, Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980), so must the terms of a diversion agreement bind the state. To hold otherwise, would create a disincentive for defendants to enter diversion programs. "For the state to be allowed to . . . bring a second prosecution . . . after all the terms of the diversion contract have been met, violates the spirit and the letter of constitutional double jeopardy policy and the spirit of the legislative policy in the state." Urvan, id., 446 N.E.2d at 1168.

[ 335 Pa. Super. Page 530]

In applying these principles to the case at hand, we first must determine whether appellant was participating in the ARD program. It is clear that the procedures outlined in Pa.R.Crim.P. 175, et seq., were not followed. Nevertheless, appellant was justified in relying on the January 18 letter.*fn8 A reasonable person faced with the same circumstances would not have acted differently. Dr. Miraglia's letter was sent pursuant to authorization by the Montgomery County District Attorney's Office. As the Urvan court noted, the state cannot avoid its obligations by pretending that it acts disparately. Urvan, id, at 1167. What the State of Ohio "knew and did in Medina County . . . it knew in legal contemplation in Cuyahoga County and was bound in both places by applicable federal and state constitutional principles. Whether the state acts by design or inadvertence makes no difference." (Footnote omitted.) (Emphasis added.) Id. at 1167. We find this reasoning applicable in this case where the "inadvertence" occurred within the District Attorney's Office of Montgomery County. What the district attorney's office knew and did with its right hand (sending the notification that appellant could reasonably have interpreted as evidencing his acceptance into ARD), it cannot take away with its left hand (by claiming that appellant was ineligible). A reasonable reading of both the January 18 and January 25 letters might well have indicated to appellant that a successful completion of the program would result in a dismissal of the charges against him. Appellant detrimentally relied on this reasonable interpretation. Under the circumstances, we hold that appellant was implicitly accepted into ARD.

Although the Commonwealth is restrained from prosecuting appellant at this time, we cannot dismiss the proceedings against the appellant. Appellant has completed the safe driving clinic which is ordinarily only one phase of an ARD agreement that would be given to a defendant under

[ 335 Pa. Super. Page 531]

    similar charges. Therefore, we enter an order staying the proceedings against appellant and remanding with directions to divert appellant into ARD and impose whatever remaining conditions as would be imposed on a defendant under similar circumstances. Jurisdiction relinquished.

CIRILLO, Judge, concurring:

I am troubled by the majority's seemingly casual reliance on the double jeopardy clause as grounds for reversal. While the double jeopardy clause may be invoked in various contexts, its principal design is to protect criminal defendants from multiple trials and multiple punishments for the same offense. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Where there is no threat of either successive prosecutions or multiple punishments, the double jeopardy clause is not offended. Commonwealth v. Yost, 305 Pa. Super. 316, 451 A.2d 549 (1982); Commonwealth v. Beckman, 304 Pa. Super. 239, 450 A.2d 660 (1982); United States v. Hecht, 638 F.2d 651 (3rd Cir.Pa. 1981). In my view this case does not engender double jeopardy concerns.

A criminal defendant has a "constitutional interest in finality, a cognizable interest in seeing that criminal proceedings against him are resolved once and for all." Westen and Drubel, "Toward a General Theory of Double Jeopardy," 1978 Sup.Ct.Rev. 81. Here however, appellant has no right to expect that his problems with the Commonwealth have been resolved. His constitutional interest in finality has not yet vested.

Certainly, a criminal defendant, once convicted, may rest confident that he will not be retried for the same offense. A participant in an ARD program, however, is not

[ 335 Pa. Super. Page 532]

    entitled to the same confidence. Admission to an ARD program is not equivalent to a conviction under any circumstances. Commonwealth v. Knepp, 307 Pa. Super. 535, 453 A.2d 1016 (1982). Rather, participation in a diversion program results in a deferral of criminal charges until completion of the program. Pa.R.Crim.P. 181. In the event that the program is successfully completed, the charges are dismissed and no conviction ever results. Commonwealth v. Knepp, supra. Only when the program is completed may an ARD participant feel secure in final disposition of charges, not before. Only then may he shield himself with the protection of the double jeopardy clause.

In this case, appellant has completed only one phase of his diversion program. The Commonwealth removed appellant from ARD while appellant had remaining conditions of diversion yet to complete. While I think appellant should be given the opportunity to complete ARD, it is not by reason of double jeopardy.

Rather, I view the concept of contract as the compelling analogy. Dr. Miraglia's letter written under District Attorney letterhead, which directs appellant to attend safe driving school, extends appellant an offer of the ARD alternative. When appellant accepted that offer by enrolling in the safe driving clinic, an agreement or arrangement was entered into. As the majority notes:

In placing a defendant into a diversion program, the state covenants to dismiss the charges once the defendant satisfies the conditions of the program. Unless the defendant violates one of those conditions, the state cannot prosecute him. Just as the terms of a plea bargain arrangement are binding on the state, Commonwealth v. Landi, 280 Pa. Super. 134, 421 A.2d 442 (1980), so must the terms of a diversion agreement bind the state. (Majority op. at p. 19).

By removing appellant from diversion, for reasons other than a failure to comply with conditions of diversion, the Commonwealth has breached its agreement.

[ 335 Pa. Super. Page 533]

Accordingly, I concur in the result reached by the majority, appellant should be allowed to complete ARD. This disposition is proper, not because the Commonwealth's removal of appellant from ARD is a double prosecution or double punishment, but rather, it is plainly a breach of agreement.

McEWEN, Judge, dissenting:

Since, unlike my colleagues, I do not perceive such reflections of equity or of contract law or of protection against double jeopardy that would serve to bar prosecution of appellant by the Commonwealth, I most respectfully dissent.

Appellant was arrested on November 18, 1981, at the scene of a motor vehicle accident after he failed a field sobriety test and registered 0.22% on a breathalyzer. As a result, he was charged with violation of Section 3731 of the Vehicle Code, 75 Pa.C.S. ยง 3731, Driving Under the Influence of Alcohol. Soon after his preliminary hearing in January, 1982, appellant received the following letter:

[ 335 Pa. Super. Page 534]

Appellant a few days thereafter received the following further letter concerning the offense with which he was charged:

[ 335 Pa. Super. Page 535]

Appellant completed the questionnaire enclosed with this letter of January 25 and returned it personally to the Office of the District Attorney on February 1, 1982, just hours prior to attending the first of the four safe driving classes he would eventually attend.

Appellant was thereafter notified by letter on February 25, 1982, that his application for the ARD program had been denied due to two prior convictions in Philadelphia. Appellant entered a not guilty plea on March 2, 1982, and then retained counsel for institution of the proceedings at issue.

The lead opinion finds that principles of double jeopardy preclude prosecution. Jeopardy had, however, in my view, never attached. The concurring opinion finds that principles of contract law and fairness preclude prosecution but I am unable to agree.

While appellant attended four two and one-half hour driving clinic classes, for which he was charged $50.00, he had been made aware before he attended even the first class, by the letter of January 25 from the District Attorney, that he had not been admitted to the ARD program since it was necessary to first complete two procedures, specifically, appellant had to complete an application for inclusion in the program and the District Attorney had to

[ 335 Pa. Super. Page 536]

    determine whether appellant was eligible for the program. The letter made clear that if appellant filed the application, "[t]he matter will then be carefully reviewed and a final determination made, of which you will be notified."

Twenty-five days after appellant submitted his application, he was notified of his ineligibility for the program. The only hardship occasioned as a result of the confusion by the initial letter of January 18, 1982, was appellant's attendance at four safe driving classes and the payment of a $50.00 fee. While under certain circumstances principles of fairness might operate to preclude prosecution, the facts of the instant case do not compel such a conclusion. I, therefore, dissent.

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