Appeal from the Order January 2, 1986 in the Court of Common Pleas of Potter County, Criminal No. 87 of 1985.
Jack E. Reagle, Public Defender, Sharpsville, for appellant.
Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.
Cirillo, President Judge and Rowley and Popovich, JJ. Popovich, J., concurs in result.
[ 363 Pa. Super. Page 233]
This is an appeal by permission of the court from an interlocutory order in the Court of Common Pleas of Potter County denying the Commonwealth's motion to admit the appellant into the Accelerated Rehabilitative Disposition ("ARD") program. We affirm.
Appellant, Andy Ayers, was charged with corruption of a minor, indecent assault, harassment and furnishing liquor to a minor. Ayers persuaded the 14 year old victim to come to a beer party at 5:30 a.m. However, when she arrived she discovered the party had ended and only Ayers was present. He allegedly provided her with alcohol and stopped her when she attempted to leave. He then struck her and ripped off her top clothing, exposing her breasts. Ayers then threatened to beat her further if she did not do as he wanted. He allowed her to choose between his ejaculating inside of her or over her breasts. He felt her breasts and made her masturbate him. Ayers then masturbated himself
[ 363 Pa. Super. Page 234]
and climaxed over the victim's breasts. He also reached inside her pants to feel her vagina.
After Ayers' arrest, the district attorney signed a motion proposing his admission into ARD. The Commonwealth alleged that the defendant was twenty years of age, separated from his wife, gainfully employed and that the crime was his first offense. The court held a hearing on the petition at which the district attorney stated that the victim is reluctant to testify and that her parents do not want her to testify. The trial court refused to admit Ayers into the program, citing the violent nature of his heinous and disgusting crime as the basis for its decision. Ayers then appealed to this court.
Appellant presents a single issue for our review: whether a trial court may reject a Commonwealth motion to admit a defendant into the ARD program.
In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), our Supreme Court held that a court cannot ordinarily admit a defendant into an ARD program unless the district attorney submits the case for ARD consideration. Id., 508 Pa. at 309, 495 A.2d at 935. The Court held that the decision whether to submit a case for ARD "rests in the sound discretion of the district attorney." Id. A trial court may not object if the Commonwealth refuses to submit a case unless the district attorney has abused his discretion by refusing to submit a individual because of his race or religion or some other obviously prohibited consideration. Id. The Court held that a trial judge may not overrule the district attorney and force him to submit a case to ARD for any reason related to the protection of society or the likelihood of a successful rehabilitation. Id. The Court, per Justice Flaherty, stated that "the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender." Id.
Appellant, Ayers, and the Commonwealth urge us to extend the holding of Lutz. They argue that Lutz requires that admission to ARD ...