359 Pa. Super. 423 - Commonwealth v. Scheinert

*430KELLY, Judge,

¶1concurring:

¶2I join in the well-reasoned opinion of the majority. I write separately to address the apparent conflict between our finding that Accelerated Rehabilitation Disposition (ARD) participation must be considered the equivalent of a prior conviction under 75 Pa.C.S.A. § 3731(e)(2), and the statement in Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016, 1019 (1982), that “admission into an ARD program is not equivalent to a conviction under any circumstances.”

¶3Once a district attorney decides to move a defendant’s admission into ARD,1 notice is sent to defendant explaining the program. A hearing is held in open court where prosecution, defense, and the victims, if any, may present testimony to the court regarding the appropriateness of ARD. If the judge determines that ARD should be permitted, the judge then informs the defendant of the conditions of the program. If the defendant accepts the conditions and agrees to yraive áll applicable statutes of limitation and speedy trial rights, then the record is closed and the charges are held in abeyance pending completion or termination of the program. See Pa.R.Crim.P. 175-185.

¶4If the defendant successfully completes the ARD program, the charges are dismissed and no conviction results. Pa.R.Crim.P. 185. The appellant may petition to have the record of the arrest and ARD participation expunged. Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (1981).2 Because there has been no conviction, ARD partic*431ipation provides no basis for impeaching a witness. Commonwealth v. Krall, 290 Pa.Super. 1, 434 A.2d 99 (1981).3

¶5In Commonwealth v. McKellin, 9 Pa. D. & C. 3d 572, 576 (1979), the court stated, “[t]he disburdening effect of successful ARD completion is not tantamount to a finding of innocence.” The learned trial judge was correct. While ARD participation does not result in conviction, neither does it result in an acquittal. Consequently, an unexpunged ARD record may result in collateral consequences even though the direct consequences of arrest were avoided by ARD participation.

¶6In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appropriate sentencing factor. Commonwealth v. Knepp, supra.

¶7Pursuant to 75 Pa.C.S.A. § 3731(e)(2), all ARD cases arising after January 15, 1983 shall be construed as being equivalent to a conviction in determining whether the minimum mandatory sentence applies. See Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985). In Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), this Court stated that “[f]or sentencing purposes, an ARD acceptance is identical to a conviction for violating the drunk driving act.” These statements are in apparent conflict with Knepp, supra.

¶8 *432However, in Commonwealth v. Potts, 352 Pa.Super. 299, 301, 507 A.2d 1239, 1240 (1986), this Court explained that “75 Pa.C.S.A. § 3731(e)(2) defines the term conviction for sentencing purposes under the act____” In other words, the term “conviction” has a special meaning under the act which is separate and distinct from the ordinary meaning of the word in other contexts. See also Commonwealth, Dept. of Trans, v. McDevitt, 57 Pa.Cmwlth. 589, 427 A.2d 280 (1981), aff'd 500 Pa. 532, 458 A.2d 939 (1983) (“participation in ARD program shall be considered a conviction for purposes of determining whether a person is a habitual offender under Section 1542 of the Vehicle Code”).

¶9The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence.4 That the triggering factors are of unequal weight as sentencing factors is of no consequence. See 42 Pa.C.S.A. § 9714 (prior felonies of varying degrees of severity are equally effective in triggering mandatory sentence provisions). Thus, the conflict was one of semantics and not substance.

CAVANAUGH, J., joins this opinion and also the opinion of WIEAND, J.

¶10. District attorneys have the sole discretion to move a defendant’s admission into ARD. See Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). Appellate review of the district attorney’s discretion is quite limited. Id.,508 Pa. at 311-312, 495 A.2d at 935; see also Pyle v. Court of Common Pleas, 494 Pa. 323, 431 A.2d 876 (1981); but see Commonwealth v. Kiehl, 353 Pa.Super. 353, 509 A.2d 1313 (1986) (remand for hearing at which district attorney may place reasons for denying ARD on the record).

¶11. Although the Commonwealth bears the burden of establishing an overriding need for retaining the arrest records, such need is readily apparent in the context of drunk driving cases. See Lutz, supra, 508 *431Pa. at 312-313, 495 A.2d at 936; 75 Pa.C.S.A. §§ 1539(c), 1542(c), and 3731(e)(2).

¶12. "However, it is yet undecided whether the Commonwealth’s right to show bias of a defense witness is sufficient to overcome the prohibition against inquiry into such matters as a juvenile record or admission into an ARD program." Id., 290 Pa.Superior Ct. at 7, 434 A.2d at 101.

¶13. It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in 75 Pa.C.S.A. § 3731(e)(2) and similar legislative enactments, sentencing courts are not required to give equal weight to ARD participation and prior convictions. See Knepp, supra.Thus, even in a drunk driving case, the sentencing judge may accord ARD participation less weight than a prior conviction in determining whether to sentence the offender to a period of incarceration in excess of the statutory minimum.

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