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COMMONWEALTH PENNSYLVANIA v. JOSEPH J. PAUL (03/09/89)

filed: March 9, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH J. PAUL, APPELLANT



Appeal from the Order of the Court of Common Pleas, Criminal Division, Bucks County, at No. 6999/1987.

COUNSEL

William L. Goldman, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Brosky, McEwen and Olszewski, JJ. McEwen, J., concurs in the result.

Author: Brosky

[ 383 Pa. Super. Page 488]

This interlocutory appeal by permission lies from an Order denying appellant's Motion to compel his placement in the Bucks County A.R.D. program.

Three issues are presented for our review: (1) whether the District Attorney may refuse to submit a case for A.R.D. merely on the basis of the applicant's involvement in a two-vehicle accident; (2) whether an unwritten, unpublished policy can be enforced in a criminal prosecution so as to deny an otherwise qualified applicant admission into the Bucks County A.R.D. program; and (3) whether a trial court may compel placement of a qualified applicant into the A.R.D. program when it finds such policy to be an abuse of the prosecutor's discretion.*fn1 We affirm.

Appellant was charged with driving under the influence (75 Pa.C.S.A. ยง 3731) after he struck an occupied

[ 383 Pa. Super. Page 489]

    vehicle which was stopped at an intersection. The driver of the struck vehicle was waiting for traffic to clear so that he could make a turn. Appellant argues in his initial challenge that the decision of the Bucks County District Attorney denying his application for participation in the A.R.D. Program on the basis of his involvement in a two-vehicle accident where the struck vehicle was occupied constitutes an abuse of the prosecutor's discretion. Appellant perceives this to be an arbitrary policy which, he says, violates the twin-pronged standard adopted in Commonwealth v. Ebert, 369 Pa. Super. 318, 535 A.2d 178 (1987), limiting the exercise of prosecutorial discretion in submitting a case for A.R.D. Ebert requires, first, that the prosecutor must specify the reason or reasons for refusing to submit a case for A.R.D. Secondly, the reason or reasons must relate to the protection of society or to the likelihood of successful rehabilitation. Id.

The gravamen of this contention is that the reason given here does not meet the latter condition of the second prong

[ 383 Pa. Super. Page 490]

    of the Ebert standard. We disagree. That a District Attorney has the sole discretion to submit a case for A.R.D. is now well established in this Commonwealth. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985); Commonwealth v. Knowles, 373 Pa. Super. 203, 540 A.2d 938 (1988); Commonwealth v. Ebert, supra; Commonwealth v. Kiehl, 353 Pa. Super. 353, 509 A.2d 1313 (1986); Commonwealth v. Roeder, 353 Pa. Super. 137, 509 A.2d 373 (1986); Commonwealth v. Brown, 350 Pa. Super. 453, 504 A.2d 927 (1986); Commonwealth v. Burdge, 345 Pa. Super. 187, 497 A.2d 1367 (1985); Commonwealth v. Boerner, 268 Pa. Super. 168, 407 A.2d 883 (1979); Pa.R.Crim.P. 175, 176.

The District Attorney openly stated that it was the policy of his office to refuse to submit a case for A.R.D. in which a person charged with driving under the influence had struck another occupied vehicle. Appellant does not argue that this policy does not have as its goal the protection of society; rather, he contends that the District Attorney's reason for refusing to move his admission into the Program bears no relationship to the likelihood of appellant's successful rehabilitation, an admitted goal of the program. See Commonwealth v. Lutz, supra. He charges the District Attorney for refusing to consider his otherwise safe driving record, the lack of a criminal record, evidence of required insurance coverage, possession of a ...


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