Appeal from the Order entered October 3, 1985 in the Court of Common Pleas of Allegheny County Criminal No. CC 8310565.
Ed Borkowski, Assistant District Attorney, Pittsburgh, for Com., appellant.
Melaine S. Rothey, Assistant Public Defender, Pittsburgh, for appellee.
Rowley, Del Sole, and Cercone, JJ.
[ 358 Pa. Super. Page 235]
Appellee, Christine Mowry, was arrested October 26, 1983, and charged with Prostitution, a violation of 18 Pa.C.S. § 5902. Appellee filed a rule to show cause why the instant action should not be deferred to Accelerated Rehabilitative Disposition (ARD). Appellee alleged she had been excluded from consideration for ARD solely because this is a prostitution case. It was asserted that the policy of the district attorney in excluding prostitution cases discriminated against women because while the vast majority of drunk drivers, car thieves and shoplifters who are placed into ARD are male, the vast majority of prostitutes are female and the policy thus violates the equal protection clause of the fourteenth amendment to the United States Constitution. Additionally, it was contended that the blanket exclusion of prostitution cases from ARD consideration was not supported by a rational basis and therefore Appellee had been denied equal protection of the law.
Following argument, the court on March 8, 1984 ordered that Appellee be considered for admission into ARD. The Commonwealth filed a motion for reconsideration which was denied after argument and the district attorney was again directed to consider Appellee for admission into the ARD program. The Commonwealth considered Appellee for admission, noted she had three prior convictions for Obstructing Traffic, and again determined that this action should not be deferred to ARD. On October 25, 1984 the court, over objection by the Commonwealth, offered Appellee admission into ARD. Appellee accepted the offer and the court entered an order placing her in the program.
The Commonwealth filed an application for Extraordinary Relief to the Supreme Court of Pennsylvania and also filed an appeal to this Court. On June 26, 1985, 508 Pa. 197, 494 A.2d 1392, our Supreme Court granted the Commonwealth's
[ 358 Pa. Super. Page 236]
request for exercise of plenary jurisdiction and entered an order reversing the October 25, 1984 order of the trial court and remanding the matter to the trial court for proceedings consistent with Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). On August 16, 1985, the appeal to this court was quashed in accordance with the Order of our Supreme Court.
On October 3, 1985 following hearing and argument, the trial court entered an order stating that the prior order of the court dated October 25, 1984, placing Appellee in the ARD program would remain in effect. The Commonwealth has appealed. Initially we note:
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 ...