Com. v. Agnew

• Decision Date: 17 December 1991
• Citation: 600 A.2d 1265,411 Pa.Super. 63
• Parties: COMMONWEALTH of Pennsylvania v. Liam AGNEW and Kevin O'Hara, Appellants.
• Court: Pennsylvania Superior Court

Page 1265

600 A.2d 1265

411 Pa.Super. 63

COMMONWEALTH of Pennsylvania v. Liam AGNEW and Kevin O'Hara, Appellants.

Superior Court of Pennsylvania.

Argued June 18, 1991.

Filed Dec. 17, 1991.

Jon Auritt, Media, for appellants.

Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellee.

Before ROWLEY, President Judge, and CAVANAUGH and WIEAND, JJ.

WIEAND, Judge:

Liam Agnew and Kevin O'Hara were tried non-jury and were found guilty of possession of a small amount of cocaine and criminal conspiracy. ¹ Both were sentenced to pay fines of two hundred ($200.00) dollars and serve concurrent six (6) month terms of probation. On direct appeal from the judgments of sentence, ² they argue that the trial court erred by refusing to suppress the cocaine seized by police, as well as an inculpatory statement by O'Hara, all of which were the result of a stop of their vehicle and an arrest unsupported by probable cause. Appellants argue further that the District Attorney of Delaware County abused his discretion by refusing to consider them for pre-trial placement in the Accelerated Rehabilitation Disposition program (ARD) because of an arbitrary policy which violated constitutional principles of due process and equal protection.

We consider first the challenge made by appellants to the District Attorney's refusal to recommend their placement in an ARD program. This decision was made on the basis of an unwritten policy of the District Attorney which designated the City of Chester as a drug selling zone and which, therefore, rendered persons ineligible for ARD if they were charged with participating in a drug transaction in Chester. The District Attorney concedes that this is his policy and that persons arrested for possessing small amounts of controlled substances in other parts of Delaware County are routinely considered for ARD. Appellants contend that this unwritten policy is arbitrary and unfair. It is also contended that the policy is violative of constitutional principles of due process and equal protection because it makes an impermissible distinction between two classes of individuals who, in all other respects, would be equally acceptable for the ARD program. The Commonwealth responds with the assertion that its policy is neither arbitrary nor discriminatory, but is aimed at protecting society by combating the drug problem in Delaware County at its most persistent and pervasive location. In support of the implementation of the policy to exclude from ARD consideration those who commit possessory drug offenses in the City of Chester, the District Attorney offers the following specific reasons:

1. The City of Chester has presented and continues to present the most significant problems and challenges for drug enforcement personnel in Delaware County;

2. The City of Chester is the focal point for open drug sales in public places in the County of Delaware;

3. Due to the fast-paced nature of public drug sales in the City of Chester, individuals from both inside and outside of Chester are able to drive to areas of high drug sales in Chester, quickly purchase drugs from within or near their vehicles, and promptly depart from the drug sale area; and

4. In the recent past, substantial violence has resulted from drug activities in the City of Chester; drug-related homicides, robberies and assaults have occurred at disproportionate levels in Chester during the past two years.

"A defendant's admission into an ARD program is not a matter of right but rather a privilege." Commonwealth v. Hyde, 406 Pa.Super. 445, 447, 594 A.2d 703, 704 (1991). The decision to submit a case for ARD placement is in the sole discretion of the district attorney. Commonwealth v. Paul, 383 Pa.Super. 486, 490, 557 A.2d 357, 358 (1989). The district attorney's discretion is broad, and the scope of appellate review of the exercise of that discretion is narrow. The limits of the district attorney's discretion in matters concerning admission to ARD have been established by the Pennsylvania Supreme Court as follows:

[T]he 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.

Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1985) (citations omitted). See also: Commonwealth v. Stranges, 397 Pa.Super. 59, 579 A.2d 930 (1990) (en banc); Commonwealth v. Paul, supra; Commonwealth v. Knowles, 373 Pa.Super. 203, 540 A.2d 938 (1988); Commonwealth v. Mowry, 358 Pa.Super. 233, 516 A.2d 1270 (1986); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986); Commonwealth v. Brown, 350 Pa.Super. 453, 504 A.2d 927 (1986). With respect to the Lutz decision, the Superior Court has observed:

Lutz restricts the district attorney's discretion in two significant respects. First, the prosecutor must openly specify reasons for not submitting a case for ARD. Commonwealth v. Manning, 367 Pa.Super. 624, 626-627, 533 A.2d 448, 450 (Pa.Super.1987); Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986). Second, these reasons must relate to the protection of society or to the likelihood of the candidate's successful rehabilitation.

Commonwealth v. Ebert, 369 Pa.Super. 318, 322, 535 A.2d 178, 180 (1987).

"Due process encompasses elements of equality and provides the court with a vehicle for enforcing the constitutional principle that all criminal defendants are treated with 'fundamental fairness'...." Commonwealth v. Melnyk, 378 Pa.Super. 42, 51, 548 A.2d 266, 270-271 (1988), citing Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656, 666 (1973). "The touchstone of due process is protection of the individual against arbitrary action of the government." Commonwealth v. Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982), citing Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 952 (1974).

" 'Due process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. 'Equal protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable."

Commonwealth v. Melnyk, supra, 378 Pa.Super. at 49, 548 A.2d at 269, quoting Ross v. Moffitt, 417 U.S. 600, 608-609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341, 350 (1974). " 'The concept of equal protection ... demands that uniform treatment be given to similarly situated parties.... If classifications are drawn, then the challenged policy must be reasonably justified.' " Smith v. City of Philadelphia, 512 Pa. 129, 137-138, 516 A.2d 306, 310 (1986), appeal dismissed, 479 U.S. 1074, 107 S.Ct. 1265, 94 L.Ed.2d 127 (1987), quoting Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 68, 436 A.2d 147, 155 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982).

"Absent a fundamental right, the standard of review for a substantive due process challenge is whether the [policy] at issue has a reasonable basis...." Dranzo v. Winterhalter, 395 Pa.Super. 578, 589-590, 577 A.2d 1349, 1355 (1990). To prevail under the rational basis test, the party asserting a due process violation must demonstrate that there is no relationship between the challenged policy and a legitimate state interest. Id. at 590, 577 A.2d at 1355. See also: Henne v. Wright, 904 F.2d 1208, 1215 (8th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 692, 112 L.Ed.2d 682 (1991); Morris v. Public School Employees' Retirement System, 114 Pa.Cmwlth. 369, 378, 538 A.2d 1385, 1389 (1988). Similarly, under the equal protection clause, a classification "which does not implicate 'fundamental interests' or affect with particularity a 'suspect class' " will be upheld so long as it "bears a rational relationship to a legitimate state interest." Commonwealth v. Hicks, 502 Pa. 344, 347, 466 A.2d 613, 615 (1983), appeal dismissed, 465 U.S. 1015, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984). It has been observed that, absent the deliberate use by the district attorney of such factors as race, religion or other suspect classifications, the exercise of prosecutorial discretion in decisions concerning admission into ARD does not violate constitutional principles of due process and equal protection. Shade v. Commonwealth, 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). See also: Commonwealth v. Ebert, supra, 369 Pa.Super. at 324, 535 A.2d at 181 (equal protection does not restrain prosecutorial discretion in ARD matters unless exercise of discretion was based upon unjustifiable standard such as race or religion or an arbitrary classification).

The distinction between persons committing possessory drug offenses in the City of Chester and those committing the same offense at other places in Delaware County does not involve a suspect classification. The fact that criminal offenses are punished differently in different areas is not necessarily unconstitutional. " 'The Equal Protection Clause relates to equality between persons as such rather than between areas.... Territorial uniformity is not a constitutional requisite.' " Commonwealth v. Kindness, 247 Pa.Super. 99, 109, 371 A.2d 1346, 1351 (1977), quoting Salsburg v. Maryland, 346 U.S. 545, 551-552, 74 S.Ct. 280, 283-284, 98 L.Ed. 281, 288 (1954).

After careful consideration, we agree with appellants that...