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HomeMy WebLinkAbout02-222 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ROBERT ALLEN WAGNER, JR. OTN: L106582-0 NO. 02-0222 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., January 17, 2003. In this criminal case, Defendant was found guilty following a bench trial of driving under the influence of alcohol in violation of sections 3731(a)(1) and 373 l(a)(4) of the Vehicle Cede~ and of careless driving in violation of section 3714 efthe Vehicle Cede.2 He received the mandatory minimum sentence of forty-eight hours in prison applicable to the charge of driving under the influence and the statutory fine of $25.00 applicable to the charge of careless driving.3 From the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania Superior Ceurt.4 The sole issue on Defendant's appeal is whether the court erred in denying Defendant's pretrial motion to compel his entrance into an accelerated 1 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §§3731(a)(1) (2002 Supp.) (driving under the influence of alcohol to a degree which renders one incapable of safe driving); 75 Pa. C.S. 373 l(a)(4) (driving with a BAC level of 0.10% or greater). 2 75 Pa. C.S. §3714. ~ Order of Court, Dec. 3, 2002. The sentence of the court with respect to driving under the influence was that Defendant pay the costs of prosecution, a fine of $300.00, a $10.00 emergency medical services fund assessment, and a $50.00 CAT fund surcharge, and that he undergo imprisonment in the Cumberland County Prison for a period of not less than forty-eight hours nor more than twenty-three months, subject to automatic parole at the expiration of forty-eight hours; the sentence with respect to careless driving was that Defendant pay the costs of prosecution, a fine of $25.00, a $10.00 emergency medical services fund assessment, and a $30.00 CAT fund surcharge. Id. 4 Defendant's Notice of Appeal, filed Dec. 27, 2003. At sentencing, Defendant's continued release on his own recognizance was authorized pending disposition of the instant appeal. Order of Court, Dec. 3, 2002. rehabilitative disposition (ARD) program.5 This opinion in support of the court's pretrial order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an incident on November 18, 2001, Defendant was charged with driving under the influence and careless driving.6 He was formally arraigned on April 16, 2002.7 On August 1, 2002, Defendant filed a Motion To Compel Entry into the Accelerated Rehabilitative Disposition Program.8 The motion alleged (a) that the Cumberland County District Attorney had declined to move for Defendant's admission into the program and had declined to reconsider this position, (b) that Defendant had no prior criminal record, (c) that the affiant had recommended that Defendant be approved for the program, (d) that the District Attorney's refusal had been based solely upon "victim impact," and (e) that other defendants had been approved for ARD notwithstanding victim opposition.9 A hearing on Defendant's pretrial motion was held by the writer of this opinion on August 28, 2002. The evidence at the hearing may be summarized as follows. Defendant was charged with driving under the influence and careless driving following an incident on Sunday, November 18, 2001, around 7:00 p.m. when he allegedly rear-ended a trailer carrying two horses,l° The accident 5 Defendant's Statement of Matters Complained of on Appeal, filed Jan. 9, 2003. 6 Information, filed Apr. 10, 2002. 7 Acknowledgment of Arraignment, filed Apr. 16, 2002. 8 Defendant's Motion To Compel Entry into the Accelerated Rehabilitative Disposition Program, filed Aug. 1, 2002. l0 Commonwealth's Ex. 1, Hearing, Aug. 28, 2002 (hereinafter Commonwealth's Ex. ~; Defendant's Ex. 8, Hearing, Aug. 28, 2002 (hereinafter Defendant's Ex. ~; N.T. 13-14, Hearing, Aug. 28, 2002 (hereinafter N.T. ~. 2 allegedly occurred when Defendant crossed an intersection in South Middleton Township, Cumberland County, Pennsylvania, and, after skidding 50 feet, struck the trailer as it was being towed by a truck driven by one Sandra Kay Miller. ~ Defendant eventually requested that the Cumberland County District Attorney's Office consider him for admission into the county's ARD program. The affiant in the case, Pennsylvania State Trooper Sean M. Moyer, indicated on the request form his approval of the request.~3 The appropriateness of ARD in Defendant's case was considered by First Assistant District Attorney David J. Freed, whose duties included review of cases for purposes of determining whether defendants should be approved for entry into the program.TM In this regard, Mr. Freed subjected Defendant's case to a thorough review,~5 which included an interview of Ms. Miller by one of his assistants.~6 With respect to such reviews, Mr. Freed testified as follows: Any time we consider admission into the A.R.D. program, a myriad of factors come into play. Each case is judged on a case by case individual basis. Some of the factors that are relevant include.., what the driving record looks like, any prior criminal history for driving offenses or other criminal offenses, whether there was an accident, whether there were injuries, the blood alcohol content, victim input, police input ~7 and also any other factor that may be relevant to the case. Weighing in favor of Defendant's admission into the program were his prior good driving record,la absence of a prior criminal record,~9 the ~ Commonwealth's Ex. 1; Defendant's Ex. 8; N.T. 14-15. ~2 Defendant's Ex. 3 (Request for ARD Consideration, dated Jan. 30, ~3ld' 14 N.T. 4-5. ~s N.T. 9. 16 N.T. 20. ~7 N.T. 9. ~8 Defendant's Ex. 1; N.T. 6-7. 19 Defendant's Ex. 2; N.T. 7. 2002). 3 recommendation of the affiant,2° the absence of any statutory proscription on his admission,2~ and the absence of injuries to other persons.22 Militating against his admission, however, were a BAC test result of nearly two-and-a-half times the legal limit (0.24%),23 the occurrence of an accident with an occupied vehicle that was caused by Defendant's careless driving,24 and strong opposition to Defendant's admittance to ARD on the part of Ms. Miller.25 A letter from Ms. Miller to the District Attorney's Office in support of her position included the following: ! am the victim in the afore mentioned [sic] case against Mr. Wagner .... The night that Mr. Wagner rear-ended my horse trailer containing two horses, he was visibly intoxicated so my first instinct was to call the police. When he saw me using my cellular phone, he finally exited his vehicle .... Mr. Wagner was going to attempt to leave the scene of the accident until my passenger physically removed the keys from Mr. Wagner's vehicle and stayed next to him until the state trooper arrived. ·.. As an avid equestrian, I was left without the use of my trailer for nearly three months (over most of my holiday time off and during good weather). His insurance felt they were not liable to provide me with an alternative option during this time. It has been most frustrating being the victim of a drunk driver.26 20 N.T. 14. Defendant's Ex. 3 (Request for ARD Consideration, dated January 30, 2002). 2~ N.T. 10-11. 22 N.T. 10. 23 N.T. 18. 24 N.T. 18-19. 25 Commonwealth's Ex. 1. 26 Id. Ms. Miller was not called as a witness at the hearing, and her letter was admitted for the limited purpose of evidencing a communication considered by the District Attorney's Office in determining whether Defendant's admission into the ARD program should be moved, and not for the truth of the facts asserted in the letter. N.T. 16-17, 22. 4 After weighing the pros and cons of moving Defendant's admission into the ARD program, Mr. Freed declined to do so, both initially and following a request for reconsideration of the issue by Defendant's counsel.27 His decision in this regard was not motivated by considerations of race, religion, or any other obviously prohibited factor.28 DISCUSSION An accelerated rehabilitative disposition program for driving under the influence cases is provided for in section 1552 of the Vehicle Code. Act of Dec. 15, 1982, P.L. 1268, §8, 75 Pa. C.S. §1552 (2001). "[A]dmission into an ARD program is a privilege and.., it is within the District Attorney's discretion to determine whether an individual should be admitted into an ARD program." Commonwealth v. Pypiak, 728 A.2d 970, 971-72 (Pa. Super. Ct. 1999). [T]he decision to submit [a] 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 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. Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1985). "An ARD recommendation is solely the province of the prosecutor, and admission of an offender into the program is by the grace of the trial court upon the Commonwealth's motion." Commonwealth v. Stranges, 397 Pa. Super. 59, 68, 579 A.2d 930, 934 (1990). Thus, a prosecutor's refusal to move a defendant charged with driving under the influence into an ARD program based upon an affiant's opposition was :v N.T. 9, 12, 18-19; Defendant's Ex. 4. :8 N.T. 14, 19. Mr. Freed was not familiar with Defendant, nor did he know his race or religion. N.T. 14. 5 upheld where the prosecutor considered the officer's reasons for his position and where no evidence suggested that the decision was unrelated to the protection of society or was based on race, religion, or some other prohibited consideration. Pypiak, 728 A.2d 970. (reversing trial court's order directing defendant's admission into program, notwithstanding absence in record of officer's reasons). A trial court is not free to arrogate this prosecutorial function involving ARD to itself. Lutz, 508 Pa. at 306, 495 A.2d at 932 ("[D]istrict attorneys.., have the sole discretion in any criminal case, including drunk driving cases, to move for the admission of a defendant into ARD"); see Commonwealth v. Cline, 800 A.2d 978 (Pa. Super. Ct. 2002); Commonwealth v. Evashavik, 37 Cumberland L.J. 161 (1986) (Bayley, J.); Commonwealth v. Gouse, 34 Cumberland L.J. 405 (1984) (Bayley, J.). In the present case, although a number of proper factors favored the admission of Defendant into the ARD program, others did not. The decision of the first assistant district attorney not to move his admission represented, in the court's view, a considered exercise of judgment that was not based upon "some criteria.., wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of [Defendant's] success in rehabilitation, such as race, religion, or other such obviously prohibited" concern. See Lutz, 508 Pa. at 310, 495 A.2d at 935 (emphasis omitted). For the foregoing reasons, the court did not believe that it had been placed in a position to find that the Commonwealth had abused its discretion in declining to recommend Defendant's entry into the county's ARD program. BY THE COURT, Jaime Keating, Esq. Chief Deputy District Attorney J. Wesley Oler, Jr., J. 6 William Braught, Esq. Deputy Public Defender 7