Commonwealth v. Stranges

KELLY, Judge,

concurring:

I join in the excellent majority opinion of Judge Johnson. I write separately to address briefly some additional matters raised by this case.

Jurisdiction

This case has been taken on direct appeal without allowance of interlocutory appeal by permission. Implicit in our exercise of jurisdiction in this case is a conclusion that an appeal from an order granting ARD over the Commonwealth’s objection is effectively final, even though an order granting ARD with the consent of the Commonwealth and the defendant is deemed interlocutory. Cf. Commonwealth *74 v. Feagley, 371 Pa.Super. 593 , 538 A.2d 895 (1988); Commonwealth v. Hunter, 294 Pa.Super. 52 , 439 A.2d 745 (1982). The critical distinction between Feagiey and Hunter and this case may be explained as follows.

Orders denying acceptance into ARD are not final because the challenge to the denial of ARD properly may be brought following trial if a conviction results. See Commonwealth v. Hunter, supra; cf. Commonwealth v. Roeder, 858 Pa.Super. 187 , 509 A.2d 373 (1986). Orders granting admission to ARD, acquiesced in by the Commonwealth and accepted by the defendant, are interlocutory because the parties have expressly agreed to have the charges held in abeyance pending completion or revocation of ARD. See Commonwealth v. Feagiey, supra. When ARD is granted over an objection by either the Commonwealth or the defendant, however, any appeal would be rendered moot before appellate review could be had by the objecting party. That is the critical distinction.

In Feagiey, this author opined:

Generally, an immediate appeal may only be taken from a final order. Pa.R.A.P. 841. A final order is one which disposes of the entire case or puts an appellant out of court with respect to a claim. Commonwealth v. Wills, 328 Pa.Super. 842 , 476 A.2d 1362 (1984). In the instant case, appellant elected (wisely or not) to permit the charges against him to be held in in abeyance; the charges are not disposed of and he is not out of court on his claims. Thus, the order in question is not immediately appealable as a final order.

Alternatively, even if an order is an interlocutory order rather than a final order, immediate appeal by right may be taken if the order is one of the types of interlocutory orders listed in Pa.R.A.P. 311. The instant order, however, is not.

Consequently, the order in question is only appealable by right during appellant’s participation in the ARD program if the order is appealable under the three prong “Cohen exception” to the final order rule, also referred to as the *75 “collateral order doctrine.” See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949). The Cohen exception provides that an interlocutory order may be immediately appealed if: 1) the order is separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. See Fried v. Fried, 509 Pa. 89, 94 , 501 A.2d 211, 214 (1985); see also Zarnecki v. Shepegi, 367 Pa.Super. 230 , 532 A.2d 873 (1987). To qualify under the Cohen exception, all three factors must be met. See Fried v. Fried, supra, 501 A.2d at 214 ; Commonwealth v. Bonaparte, 366 Pa.Super. 182 , 184-185 n. 1, 530 A.2d 1351 , 1352 n. 1 (1987) (applying the Cohen test). In the instant case, any irreparable loss of appellant’s ability to challenge the ARD conditions is clearly the result of appellant’s election and not the order appealed. Consequently, I do not find this case to be appealable under the Cohen exception.

538 A.2d at 902 . (Emphasis added). This limitation on the plurality decision highlights the critical distinction between Feagley and the instant case. In this case, unlike the situation in Feagley , appellee was admitted to ARD over the Commonwealth’s objection. Because the delay in review in this case was not occasioned by an order to which the Commonwealth consented, Feagley is distinguishable and this case comes within the Cohen exception.

Finally I note that this Court and our Supreme Court have previously entertained direct appeals in virtually identical cases (where ARD have been granted over Commonwealth objections) without finding the permissive interlocutory review practice applicable or required. a9 8 6 ). Thus, this appeal is properly before this Court for review.

*76

Alleged Arbitrariness of the ARD Policy

The dissent contends that the restrictive ARD policy of the Bucks County District Attorney was arbitrary and contrary to the intent of the legislature. I respectfully disagree.

In Commonwealth v. Lutz, 508 Pa. 297 , 495 A.2d 928 (1985), our Supreme Court stated unequivocally:

... the decision to submit the 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.

495 A.2d at 395 . (Emphasis in original). The duly elected District Attorney of Bucks County Pennsylvania has decided that ARD shall not be available in Bucks County to any individual involved in a two (or more) vehicle accident while driving under the influence (DUI), regardless of fault or faultlessness on the part of the drunk driver in the causation of the accident.

The investigating officer in this case recommended ARD based upon his conclusion that:

Stranges was completely free from fault in causing the accident. Moreover, due to the curve in the road and ditches alongside the road, it was impossible for the Stranges to avoid the accident.

(N.T. 9/15/88 at 10-11).

Perhaps in this case the officer’s conclusions may be warranted, though I must confess a lingering skepticism with respect to the degree of certitude expressed by the officer as to the potential for Stranges to have avoided the accident had he been sober. Was the speed so fast, the *77 curve so sharp, the ditch so deep, and the danger so immediate that an alert and sober driver could not have ditched his car or otherwise avoided and/or minimized the collision? Are accident reconstruction techniques so precise? I have my doubts; and, apparently the District Attorney of Bucks County had his. (See N.T. 9/15/88 at 9-12) (questioning by the assistance district attorney of the investigation officer upon this issue). Regardless, it is the legitimacy of the policy in the aggregate of cases which is at issue here, and not solely its application to the facts of this case.

That a bright line rule may reap beyond the purpose for which it was sown is often a regrettable but unavoidable consequence of such rules. That fact, however, does not render such rules arbitrary or capricious.

Here, the District Attorney’s bright line rule promotes prompt and predictable prosecutorial triage regarding recommendations of ARD in DUI accident cases by avoiding entirely the often problematic issue of causation. I find no abuse of discretion in the Bucks County Prosecutor’s decision to decline to devote limited investigative and prosecutorial resources to the difficult task of separating fault involving from purely faultless accidents in deciding which DUI cases to recommend for ARD.

Moreover, such a policy might reasonably be based on a belief that one embarrassing miscalculation regarding the attribution of fault in such cases could easily so enrage the public as to endanger the continued allowance of ARD for any DUI cases in that county. There have been counties in this Commonwealth were ARD was simply not available in any DUI cases, largely as the result of public opinion in those counties regarding the seriousness of DUI offenses. Cf. Commonwealth v. Kindness, 247 Pa.Super. 99 , 371 A.2d 1346 (1977). 1 In sum, I find the challenged policy to be *78 well within the legitimate bounds of prosecutorial discretion.

With these observations noted, I join the majority.

. Unlike the dissent, I do not read 75 Pa.C.S.A. § 1552 to express an intent by the legislature to overturn Kindness or to otherwise restrict the prosecutor’s discretion over ARD in DUI cases. The statute mandates that a procedure be set forth; it is silent as to the conditions *78 for admission to be required and expressly defers to the Supreme Court’s rule making authority on this point. The Supreme Court in turn, has vested broad discretion in the prosecutors. As explained above, I find no abuse of that discretion here. Significantly, Lutz (which was decided after § 1552 was enacted by the legislature) expresses no such limitations on prosecutorial discretion.