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COMMONWEALTH PENNSYLVANIA v. GERALD RYAN (03/31/86)

submitted: March 31, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD RYAN, APPELLANT



Appeal from the Judgment of Sentence July 12, 1985 in the Court of Common Pleas of Delaware County, Criminal, No. C-6879-83.

COUNSEL

Robert F. Pappano, Assistant Public Defender, Chester, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Com.

Brosky, Hester and Roberts, JJ.

Author: Roberts

[ 358 Pa. Super. Page 461]

Appellant was convicted of driving while intoxicated and of driving while under suspension. He contends that the trial court erred by dismissing his omnibus pre-trial motion, that 75 Pa.C.S.A. § 3731 is unconstitutional, that the court erred in failing to compel appellant's admission into accelerated rehabilitative disposition (ARD), and that the evidence was insufficient to sustain his conviction for driving while under suspension. The judgment of sentence is affirmed.

Appellant was arrested in the early morning hours of December 10, 1983 when police observed him erratically operating an automobile through Brookhaven Borough in Delaware County. At the time of his arrest, appellant could not produce a driver's license or registration card. He identified himself as Pat Ryan, a name he later claimed to be his wife's. He refused to submit to a breathalyzer test, and when informed that the refusal would lead to a twelve-month suspension of his driver's license, boasted that he had been driving without a license for 10 years.

On March 6, 1984, appellant appeared at his arraignment and pleaded not guilty to driving while intoxicated, driving while under suspension and reckless driving. Pre-trial motions were filed on May 10, 1984, seeking to compel ARD, to vacate a license suspension imposed under 75 Pa.C.S.A. § 1547, to suppress the statement made when appellant was arrested, and challenging the constitutionality of the ARD rules, Pa.R.Crim.P., Rules 175-185 and of 75 Pa.C.S.A. § 3731. The court dismissed the pre-trial motions on the ground that they were not timely filed. In its post-verdict opinion, the trial court reached the merits of two questions, upholding the constitutionality of § 3731 and holding that the District Attorney has sole discretion to determine placement in ARD.

It is well-settled that issues which are not timely raised in the trial court are foreclosed for purposes of appellate review, Commonwealth v. Griffin, 271 Pa. Super. 228, 236, 412 A.2d 897 (1980). Rule 307 of the Pennsylvania Rules of Criminal Procedure requires pre-trial motions to be

[ 358 Pa. Super. Page 462]

    filed within 30 days after arraignment. Here, the motions were filed over 60 days after arraignment, more than 30 days after they were due. Nevertheless, appellant argues that compliance with the "omnibus" requirement in Pa.R.Crim.P., Rule 306 in the 30 days required by Rule 307 was impossible to achieve in this circumstance. Specifically, he contends that to file within 30 days would have required omission of the motion to compel ARD, and, as such, would have violated Rule 306. We reject this analysis. Both Rules 306 and 307 clearly provide for the situation where grounds for additional motions come to light beyond the thirty days. Accordingly, proper procedure would have been to file motions the bases of which were clear within 30 days after arraignment. Since appellant did not follow this procedure, his claims relating to suppression of the statement, suspension of the operator's license, and the constitutionality of the ARD rules and the nonsentencing portions of § 3731 were not timely filed and are waived. See Griffin, supra. His motion to compel ARD, the grounds for which were not available within 30 days, is preserved, but is without merit. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The challenge to the mandatory sentencing provisions of § 3731 deals with a post-trial aspect of the case, but was included in a pre-trial motion. Accordingly, it was timely filed and is preserved.

Appellant contends that the mandatory sentencing provisions violate equal protection, since individuals who are not included in the ARD program are subject to a mandatory sentence, while those who are included in ARD are exempt from such a sentence. This argument overlooks the simple notion that only individuals who have been convicted of driving while intoxicated are subject to the mandatory penalty. Since those who have been placed in ARD have not been convicted of this offense, see Commonwealth v. Knepp, 307 Pa. Super. 535, 541, 453 A.2d 1016 (1982), the predicate for imposing ...


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