Appeal from the Judgment of Sentence of April 29, 1987, in the Court of Common Pleas of Lycoming County, Criminal Division, at No. 86- 10, 902.
William Caprio, III, Williamsport, for appellant.
Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com.
Beck, Tamilia and Popovich, JJ.
[ 369 Pa. Super. Page 320]
This is an appeal by Neil A. Ebert from a judgment of sentence of eighteen months probation imposed by the Court of Common Pleas of Lycoming County. The issue is whether the Lycoming County district attorney violated appellant's rights by denying appellant entry into the Accelerated Rehabilitative Disposition (ARD) program on account of appellant's record as a juvenile offender. We agree with the trial court that the district attorney's decision not to recommend appellant for ARD was a proper exercise of prosecutorial discretion. Accordingly, we affirm the judgment of sentence.
In 1986, appellant was charged with the theft of services valued at $177.46, a misdemeanor of the second degree. See 18 Pa.Cons.Stat.Ann. § 3926 (Purdon Supp.1987). He
[ 369 Pa. Super. Page 321]
filed a request for ARD with the district attorney. The district attorney's office responded by sending appellant a letter which stated that, "we find that you are ineligible for the program for the following reason(s): 1. Prior record." R.R. at 9. Appellant had no criminal record as an adult. His record consisted exclusively of adjudications of delinquency imposed after he committed a series of burglaries as a juvenile.
Appellant filed a motion with the trial court in which he asked the court to order his admission into the ARD program. This motion was denied. Appellant was then tried by a jury and convicted of the theft of services charge. Following the denial of post-verdict motions, he appealed his judgment of sentence to this court. He raises two questions for review: whether the district attorney abused his discretion by preventing appellant from participating in the ARD program; and whether appellant was denied the equal protection of the law.
ARD is a pretrial disposition of certain cases through which the defendant can earn dismissal of the charges against him if he successfully completes a rehabilitation program. See generally Pa.Rs.Crim.P. 175-185. The district attorney is entrusted with the primary responsibility for determining who should benefit from this special opportunity to avoid prosecution. See Pa.R.Crim.P. 175.*fn1 In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the Pennsylvania Supreme Court established a general standard for reviewing the district attorney's exercise of his discretion in selecting candidates for ARD. Lutz provides in relevant part:
What is relevant in moving a particular defendant's admission to ARD is whether he ...