Appeal from the Judgment of Sentence May 29, 1987 in the Court of Common Pleas of Delaware County Criminal Division, No. 6691 of 1985
Rosemary Dann, Assistant Public Defender, Wallingford, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Newtown Square, for Com., appellee.
McEwen, Olszewski and Cercone, JJ. Olszewski, J., files a dissenting opinion.
[ 378 Pa. Super. Page 44]
Barbara Jane Melnyk appeals from the Judgment of Sentence imposed following a conviction on two counts of welfare fraud.
From September, 1980 to October, 1984, Melnyk was gainfully employed while receiving public assistance. Because she failed to report the earned income, she wrongfully obtained a total of $10,789.00 ($9,967.00 for public assistance and $822.00 for food stamps). Through her attorney, Melnyk requested placement on the accelerated rehabilitative disposition (hereinafter "ARD"). An ARD hearing was scheduled for April 16, 1986 at which time appellant appeared. For some unexplained reason, the hearing was not conducted. She again appeared on April 21, 1986 for a scheduled "back up trial date". At that time, appellant requested a continuance for the scheduling of an ARD hearing.*fn1 At the April 21st hearing, appellant agreed to waive her Rule 1100 rights for any period of time involved in ARD proceedings, she asserted that she was willing and able to pay court costs for ARD, and that she was willing to make a good faith effort to pay restitution in the amount of $10,789.00. The ARD Division of the District Attorney's Office of Delaware County indicated that if Melnyk could demonstrate a present ability to pay restitution in the amount of $10,789.00 within the ARD period, she would be otherwise eligible for inclusion in the ARD program. Because Melnyk lacked the ability to pay restitution, the district attorney's office refused to recommend her as an appropriate ARD candidate. After reviewing her income and assets, the court, being satisfied that appellant lacked the present ability to pay restitution, denied her application for continuance and set the cause for trial. In a non-jury trial, she was found guilty of welfare fraud and sentenced to two years probation and ordered to pay restitution in the amount of $10,789.00. This appeal followed.
[ 378 Pa. Super. Page 45]
On appeal, Melnyk contends that the lower court and district attorney's office committed error of constitutional dimension. She argues that denying inclusion in the ARD program solely on the basis of an applicant's indigency violates the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. U.S. Const., art xiv. Appellant also contends that the district attorney's office exceeded its authority granted by the Pennsylvania Rules of Criminal Procedure governing ARD treatment. See Pa.R.Crim.P., Rules 175-185, 42 Pa.C.S.A. Finally, appellant contends that the lower court abused its discretion in the sentence imposed.*fn2
The ARD program provides a pretrial disposition of certain cases in which the attorney for the Commonwealth agrees to suspend prosecution for an agreed upon period of time in exchange for the defendant's successful participation in a rehabilitation program, the terms of which are to be determined by the court and applicable statutes. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The program is governed by Rules 175 to 185, supra. Under the rules and relevant caselaw, the district attorney has the sole discretion to submit or refuse to submit a case for ARD. Id.; Commonwealth v. Kiehl, 353 Pa. Super. 353, 509 A.2d 1313 (1986). In Lutz, the district attorney's discretion was circumscribed as follows:
[ 378 Pa. Super. Page 46]
of what is most beneficial for society and the offender. Compare Shade v. Commonwealth of Pennsylvania Department of Transportation, 394 F.Supp. 1237, 1242 (M.D.Pa.1975), citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
508 Pa. at 310, 495 A.2d at 935.
The district attorney's discretion in ARD placement is also circumscribed by the rules of criminal procedure. In Shade v. Commonwealth of Pennsylvania, Department of ...