Pennsylvania Cases June 10, 2021: Commonwealth v. Bailey

Case Description

MEMORANDUM BY NICHOLS, J.:

Appellant Caitlin Marie Phillips Bailey appeals the judgment of sentence imposed following her conviction of driving under the influence–high rate of alcohol (DUI–high rate of alcohol). Appellant claims the Commonwealth abused its discretion in denying her admission to the Accelerated Rehabilitative Disposition (ARD) program. We affirm.

On May 6, 2018, Trooper Robert Dittrich of the Pennsylvania State Police arrested Appellant for DUI. N.T., 8/2/19, at 74, 83. During his investigation, Trooper Dittrich determined that there was an outstanding warrant for Appellant from West Virginia. Id. at 31-32. Appellant had previously been charged with DUI in West Virginia. Id. at 32. The Pennsylvania State Police contacted the relevant authorities in West Virginia, who indicated that they did not want Appellant detained on the warrant but wanted her to turn herself in instead. Id. at 32-33, 37-38.

On August 2, 2019, Appellant filed an omnibus pretrial motion captioned "Writ of Habeas Corpus, Motion for New Preliminary Hearing, Motion to Enter ARD Program, and Motion to Conduct Pretrial Questioning" (omnibus motion). The trial court held a hearing on Appellant's omnibus motion that same day. Id. at 13. District Attorney Marjorie Fox testified that her office generally does not offer admission to the ARD program to defendants with prior DUI convictions. Id. at 47. The district attorney noted her office previously offered ARD to two individuals who each had more than one pending DUI charge. Id. at 48. However, those individuals had completed all pretrial requirements for ARD and were not "fugitives." Id. at 48. District Attorney Fox stated it was her understanding that as of January 16, 2019, Appellant was a fugitive because Appellant was supposed to turn herself in to West Virginia authorities. Id. at 48-49, 56. The district attorney argued that as a result, Appellant was not a good candidate for ARD. Id. at 69-70.

Appellant admitted that she was arrested in 2015 in West Virginia, that she was ordered to appear to resolve those charges, but that she failed to appear. Id. at 62. Appellant explained that following the arrest in this case, she went to West Virginia to address her DUI case there, and was it continued to a later date. Id. at 63-66. Appellant's West Virginia DUI case was still pending when the trial court held the hearing in the instant case. Id. at 65.

The trial court orally denied Appellant's omnibus motion with respect to the request to admit Appellant into the ARD Program. Id. at 71-72. That same day, the case proceeded to a non-jury trial at which the trial court found Appellant guilty of DUI–high rate of alcohol. Id. at 105-06.

On November 1, 2019 the trial court sentenced Appellant to six months of county intermediate punishment, which included forty-eight hours of home confinement, and imposed a $500.00 fine. That same day, Appellant filed a post-sentence motion, which the trial court denied on November 5, 2019.

Appellant timely appealed from the judgment of sentence. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed a responsive opinion incorporating its prior orders denying Appellant's omnibus motion and post-sentence motion and concluded that

the district attorney did not abuse her discretion when she failed to admit [Appellant] into the ARD Program. ... [T]he district attorney indicat[ed] that ARD was not offered to [Appellant] as there were pending charges in West Virginia and a bench warrant had been issued for [Appellant] for driving under the influence in th[at] state, and those remained unresolved. The district attorney has broad discretion for the acceptance or denial of admittance into the ARD Program.

Trial Ct. Op., 12/18/19, at 2 (some formatting altered).

Appellant raises the following issue for our review:

Did the [trial] court err in failing to ... find that the Greene County District Attorney abused her discretion when she refused to allow the Appellant to enter into the County of Greene's [ARD] Program for the Appellant's first driving under the influence charge even though the Appellant had no prior convictions?

Appellant's Brief at 8 (some formatting altered).

Appellant argues that the district attorney abused her discretion in denying Appellant's request for admission to the ARD program. Id. at 17-29. Appellant contends that the district attorney should not have refused her admission into the ARD program because of the pending West Virginia DUI case. Id. at 20. Appellant further asserts that the district attorney previously admitted defendants who have been charged with more than one DUI into the ARD program, and that Appellant had not violated any specific, evenly applied policy. Id. at 28-29. Therefore, Appellant claims that the district attorney acted arbitrarily and relied on a biased conclusion that Appellant would not successfully complete the program.

The Commonwealth responds that the district attorney did not abuse her discretion in denying Appellant admission into the ARD program because Appellant's prior DUI charge from West Virginia, for which she had an outstanding warrant, was "sufficient reason to deny her entry to the ARD program." Commonwealth's Brief at 7. The Commonwealth argues that the district attorney explained at the hearing that her office admitted individuals with more than one pending DUI charge into the ARD program if they had completed the pretrial requirements and were not fugitives. Id. The Commonwealth asserts that Appellant did not satisfy these criteria. Id. at 7-8.

This Court reviews the denial of a defendant's admission into the ARD program for an abuse of discretion. See Commonwealth v. Gano , 756 A.2d 680, 682 (Pa. Super. 2000). Likewise, "[u]pon the [district attorney's] denial of a defendant's admission into an ARD program, the trial court's role is limited to whether the [district attorney] abused its discretion." Commonwealth v. Sohnleitner , 884 A.2d 307, 313 (Pa. Super. 2005) (citation and footnote omitted).

It is well settled that

[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 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 it for ARD consideration based on his view of what is most beneficial for society and the offender. A district attorney may base a decision to grant or deny admission to ARD on any consideration related to the protection of society and the rehabilitation of the defendant. In effect, the trial court must determine the evidence was insufficient to support a finding that the district attorney's decision was related to the protection of society or the likelihood of success in rehabilitating the defendant. The Commonwealth does not have the burden of proving the absence of abuse of discretion; rather, the petitioner has the burden of proving the Commonwealth's denial of his request was based on prohibited reasons. Admission into the ARD program is intentionally restrictive to ensure the district attorney makes the decision to suspend prosecution pending the successful completion of the ARD program. If the district attorney based his [or her] decision upon criteria related to the protection of society or the likelihood of a person's success in rehabilitation, then the district attorney's decision will stand.

Sohnleitner , 884 A.2d at 313-14 (citations omitted and some formatting altered) (emphasis in original).

Instantly, having reviewed the record, the parties’ arguments, and the trial court's opinion and orders, we conclude that the trial court did not abuse its discretion. See Gano , 756 A.2d at 682. Appellant failed to carry her burden to prove that the district attorney's decision not to offer her admission to ARD was unrelated to the likelihood of her success in rehabilitation or was based on a prohibited consideration. See Sohnleitner , 884 A.2d at 313. Accordingly, the trial court was required to accept the district attorney's decision. See id. at 314. Therefore, no relief is due from the order denying Appellant's motion for admission into the ARD program.

Judgment of sentence affirmed.

Judge McLaughlin joins the memorandum.

Judge Bowes files a concurring memorandum.

CONCURRING MEMORANDUM BY BOWES, J.:

Although I am constrained to concur in the Majority's holding that the Commonwealth did not abuse its discretion in denying Appellant's request for accelerated rehabilitative disposition ("ARD"), I write separately to note my concern regarding the actions of District Attorney Marjorie Joan Fox, Esquire.

At the outset, I note that "[a]s an officer of the court and instrument of the criminal justice system, the prosecutor's duty is to seek justice, not simply convictions." Commonwealth v. Clancy , 192 A.3d 44, 59 (Pa. 2018). More pointedly, a district attorney "represents the Commonwealth, and the Commonwealth demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent [person] suffers as it is to see that no guilty [person] escapes. Hence, [she] should act impartially." Commonwealth v. Toth , 314 A.2d 275, 278 (Pa. 1974). Where a district attorney yields to "hot zeal" by improperly seeking to influence the outcome of a case, he or she is "no longer an impartial officer," but a "heated partisan." Id .

The events in this case began on June 14, 2018, when Appellant called the Pennsylvania State Police ("PSP") to report a "domestic dispute occurring inside her vehicle with her husband." Affidavit of Probable Cause, 6/14/18, at 1. Although that altercation ended without police intervention, Appellant arrived at the PSP barracks in Waynesburg, Pennsylvania, shortly thereafter. She was arrested upon suspicion of driving under the influence ("DUI"). Trooper Robert A. Dittrich testified that he learned about Appellant's outstanding warrant in West Virginia contemporaneously to her arrest. See N.T. Trial, 9/24/19, at 31-32, 54. The PSP immediately contacted authorities in West Virginia, who stated that they did not want Appellant to be detained for extradition in relation to the May 2015 capias . Id . at 32-33.

Trooper Dittrich's testimony also established that the PSP shared West Virginia's non-extradition position with the District Attorney's office in two October 2018 emails. Id . at 40-41. At a January 15, 2019 hearing on Appellant's Pennsylvania charges, the issue of Appellant's outstanding warrant came up and Appellant's attorney represented that West Virginia remained uninterested in extraditing Appellant. Id . at 52 ("[Appellant's attorney] indicated to the Court that apparently West Virginia did not want her."). Shortly after that hearing, DA Fox directed her office to contact authorities in West Virginia concerning Appellant's still-pending charges. Id . DA Fox would not directly respond to questions concerning whether she had spoken with anyone from West Virginia concerning Appellant's case, nor could she offer any description of what the substance of those communications might have been. Id. at 53. Rather, she would only speculate: "If [West Virginia] said they wanted to have her extradited, she would have been arrested as a matter of course as a fugitive." Id .

While its precise substance is unknown, the effect of DA Fox's ex parte communication with West Virginia is quite clear from the certified record. The next evening, January 16, 2019, a uniformed officer of the PSP arrived at Appellant's residence and took her into custody her pursuant to 42 Pa.C.S. § 9134, which relates exclusively to arrest prior to extradition. See Affidavit of Probable Cause, 1/16/19, at 1. The capias supporting Appellant's requisition arrest was the same one that West Virginia had issued nearly four years earlier in May 2015. See N.T. Trial, 9/24/19, at 54. Appellant was incarcerated for two days before securing bail.

Troublingly, Appellant's purported extradition to West Virginia never took place. At a preliminary hearing held less than a week later, Appellant indicated that she was already in the process of addressing the charges in West Virginia at the time of her arrest. See Order, 1/22/19, at 1. By February 13, 2019, the Commonwealth had been provided with "proof" that Appellant had submitted to process in West Virginia. Order, 2/13/19, at 1. While noting that Appellant "still has unresolved issues in the State of West Virginia," the trial court similarly concluded in March 2019 that "the lack of resolution is not attributable to [Appellant]." Order, 3/4/19, at 1 (emphasis added). Ultimately, the Commonwealth vacated the requisition charge after West Virginia declined to take any action for six months. See Order, 6/3/19, at 1.

As a general matter, the Commonwealth has a duty to cooperate with our sister jurisdictions in extraditing fugitives from justice pursuant to the Uniform Criminal Extradition Act. See 42 Pa.C.S. §§ 9121 -48. However, purview over matters related to extradition has been statutorily assigned to the Governor of Pennsylvania. See 42 Pa.C.S. § 9123 ("[I]t is the duty of the Governor of this Commonwealth to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this Commonwealth."). The local district attorneys of Pennsylvania's counties have no direct involvement in the process, as DA Fox's own testimony acknowledges. See N.T. Trial, 9/24/19, at 51-52. Thus, it is entirely unclear to me why DA Fox saw fit to involve her office in out-of-state matters over which she had no direct jurisdictional concern or authority.

It beggars belief that West Virginia would request Pennsylvania's assistance in extraditing Appellant as a putative fugitive, but then sit on their hands for one-half of a year. Stranger still, Appellant's unchallenged pre-trial testimony indicates that she was already in the process of addressing this outstanding charge at the time of her sudden detention in Pennsylvania. See N.T. Trial, 9/24/19, at 61 (Appellant testifying that her West Virginia attorney had contacted authorities concerning her outstanding charge "prior to January 16, 2019."). I emphasize that the contrived arrest of Appellant for requisition has direct bearing upon the instant appeal concerning the Commonwealth's denial of ARD. As DA Fox explained during her pre-trial testimony: "The fact that [Appellant] refused and declined to – to submit herself to the authorities in West Virginia and continues to have an unresolved [DUI] charge in West Virginia, in my opinion, made her not a good candidate for an [ARD] recommendation." Id . at 69.

DA Fox attempted to distance herself from Appellant's fruitless detention. Compare N.T. Trial, 9/24/19, at 49 ("I recall appearing before the Court when the issue of [Appellant's] nonreporting in West Virginia was raised and [her attorney] said they apparently ... don't want her so then inquiry was made and apparently, they did.") with id . at 70 ("There's nothing to suggest that I have any animus towards her or anything that – and I did not – I did not force West Virginia to say they wanted her as a fugitive."). However, I do not view it as mere coincidence that Appellant was arrested within twenty-four hours of the Greene County District Attorney's office reaching out to West Virginia.

Nonetheless, our Supreme Court has endowed the district attorneys with extraordinary discretion in the context of ARD recommendations:

The 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 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 it for ARD consideration based on his view of what is most beneficial for society and the offender."

Commonwealth v. Sohnleitner , 884 A.2d 307, 313 (Pa.Super. 2005) (emphasis in original) (quoting Commonwealth v. Lutz , 495 A.2d 928, 935 (Pa. 1985) ). Thus, "[a] district attorney may base a decision to grant or deny admission to ARD on any consideration related to the protection of society and the rehabilitation of the defendant." Id . (emphasis in original).

Appellant ultimately admitted that she had failed to appear while out on bond with regard to her West Virginia charges. See N.T. Trial, 9/24/19, at 61-62. DA Fox interpreted this oversight as an indication that Appellant would not fare well in ARD. Id . at 69 ("She skipped bail on this charge. That does not bode well for someone completing the ARD program."). This reasoning does not constitute an abuse of discretion.

However, this case is deserving of only the barest of affirmances. DA Fox's actions in seeking to ensure Appellant's arrest as a fugitive under dubious circumstances smacks of gamesmanship. Not only was requisition contrary to West Virginia's stated opposition to extradition, it was entirely unnecessary given Appellant's submission to that state's process. Tellingly, the only appreciable effect of Appellant's requisition arrest was to grant DA Fox an advantage in the plea negotiations in the above-captioned case, i.e. , by bolstering her refusal to recommend an ARD disposition. I believe that DA Fox skirted a line and failed to wield the power of her office with appropriate restraint. It is deeply distressing that she sought to exert influence over an out-of-state proceeding and, thereby, gained advantage in a domestic matter.

The true injustice here is that Appellant was subjected to needless incarceration brought about by bureaucratic whim. Given the fraught procedural history of Appellant's West Virginia case and its uncertain status, prudent caution would have served DA Fox much better.

I concur.