Commonwealth v. Jenkins, B., Aplt.
Supreme Court of Pennsylvania
Todd, Chief Justice Debra
Commonwealth v. Jenkins, B., Aplt.
Opinion
[J-17-2025]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 36 MAP 2024
:
Appellee : Appeal from the Order of the
: Superior Court at No. 1665 MDA
: 2022, entered on October 19, 2023,
v. : Affirming the Judgment of Sentence
: of the Adams County Court of
: Common Pleas, Criminal Division,
BENJAMIN JORDAN JENKINS, : at No. CP-01-CR-0001044-2021,
: entered on November 18, 2022
Appellant :
: ARGUED: April 8, 2025
OPINION
CHIEF JUSTICE TODD DECIDED: October 23, 2025
In this discretionary appeal, we consider whether the trial court erred in revoking
Appellant Benjamin Jordan Jenkins’ participation in an Accelerated Rehabilitative
Disposition (“ARD”) program on the sole basis that he failed to disclose on his ARD
application that he had a prior arrest for suspicion of driving under the influence of a
controlled substance (“DUI”), 1 for which he had not yet been charged, despite the fact
1 75 Pa.C.S. § 3802. Relevant herein, Section 3802 provides:
(d) Controlled substances.-- An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(continued…)
that the ARD application did not inquire about uncharged arrests. For the reasons that
follow, we hold that the trial court erred in revoking Appellant’s participation in the ARD
program, and, accordingly, we reverse the decision of the Superior Court which affirmed
the trial court’s order of revocation.
On May 16, 2021, Appellant was arrested on suspicion of DUI (hereinafter, “First
DUI”), and, thereafter, was charged with DUI, 2 possession of marijuana, 3 and possession
of drug paraphernalia. 4 On July 31, 2021, Appellant again was arrested on suspicion of
DUI (hereinafter, “Second DUI”). Notably, Appellant was not charged on his Second DUI
until March 22, 2022.
In the interim, on September 24, 2021, Appellant applied for admission into Adams
County’s ARD program for his First DUI by completing a document titled “Accelerated
Rehabilitative Disposition Program: DUI Application, Agreement, Motion and Order”
(hereinafter, “ARD Application”). The ARD Application contained, inter alia, the following
language:
I, the defendant above named, hereby apply for
admission into the Accelerated Rehabilitative Disposition
(i) Schedule I controlled substance, as defined
in the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug,
Device and Cosmetic Act;
***
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in
actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802(d)(1)(i), (d)(2) (footnote omitted).
2 Id. § 3802(d)(1)(i), (d)(1)(iii), (d)(2).
3 35 Pa.C.S. § 780-113(a)(31)(i).
4 Id. § 780-113(a)(32).
[J-17-2025] - 2
Program, hereinafter called the ARD Program, and hereby
represent and agree as follows:
1. Speedy trial and related rights: . . .
a) if I violate conditions of the ARD Program,
the court may remove me from the ARD
Program and place my case back on the trial
list.
***
8. No prior Convictions or ARD or Pending
Criminal Charges: In consideration for my
admission to the ARD Program, I hereby affirm
and acknowledge that I have not been convicted
of a misdemeanor or felony criminal offense in
the State of Pennsylvania or in any other state
or federal jurisdiction; that I have never been
placed on the Accelerated Rehabilitative
Disposition Program in this or any other
jurisdiction; that I have not previously been
admitted to a pre-disposition program similar to
ARD in this or in any other state; that I have not
been convicted of Driving Under the Influence or
similar statute in Pennsylvania or another state
or placed on the ARD program for Driving Under
the Influence within the last ten years from date
of this offense in Pennsylvania or in another
state and that I do not have any pending
misdemeanor or felony criminal charges
pending in the State of Pennsylvania or in any
other state or federal jurisdiction. I understand
that should this information be incorrect, that I
may be removed from the ARD Program and,
further, that I may be prosecuted subject to the
provisions of 18 Pa. C.S.A. Section 4904
relating to unsworn falsification to authorities.
ARD Application, 9/24/21, at 1-2 (emphasis added). The trial court accepted Appellant
into the ARD program.
On April 8, 2022, upon learning that Appellant had been charged with a Second
DUI offense on March 22, 2022, the Commonwealth filed a motion to revoke Appellant’s
participation in the ARD program on the ground that he violated the terms and conditions
[J-17-2025] - 3
of the ARD program, specifically, “Rule #1,” of the Adams County Rules of Criminal
Procedure, which provided: “You must not commit any violation of the law.” Adams Cty.
R.Crim.P. 705.1(D)(1) (2021). At a hearing on the Commonwealth’s motion, Appellant
argued there was no basis upon which to revoke his participation in the ARD program
because it was not a violation of the law or the terms of the ARD program to receive a
new charge for conduct which preceded the commencement of ARD. He further
maintained that Rule 705.1(D)(1) did not become applicable to him until he was admitted
to the ARD program. Finally, Appellant insisted that he truthfully answered all of the
questions on his ARD Application, as he did not have any pending criminal charges at the
time he completed the application.
On May 26, 2022, the trial court revoked Appellant’s participation in the ARD
program, noting there was no dispute that he “received new charges while on ARD from
an incident occurring shortly before his application or admission into ARD.” Trial Court
Order, 5/26/22, at 1. 5 Appellant filed a motion for reconsideration, which the trial court
denied. Thereafter, on November 18, 2022, Appellant was convicted at a bench trial of
his First DUI, and was sentenced to ten days of house arrest, and six months probation,
with restrictive DUI conditions.
Appellant appealed his judgment of sentence to the Superior Court, and the trial
court, in its Pa.R.A.P. 1925(a) opinion, acknowledged there was no overt
misrepresentation in Appellant’s ARD Application by Appellant or his counsel regarding
whether Appellant had pending criminal charges at the time he completed the ARD
5 Appellant notes that, while trial court initially indicated that it was revoking his
participation in the ARD program because he received new charges while he was in the
program, following his appeal to the Superior Court, both the trial court and the
Commonwealth “changed the reason to deception by omission,” claiming that allowing
him to remain in the ARD program would “violate the spirit and purpose of ARD.”
Appellant’s Brief at 20 (quoting Trial Court Opinion, 1/4/23, at 5).
[J-17-2025] - 4
Application. Nevertheless, the trial court opined that there was “an element of deception
by omission which if allowed to stand would defeat the spirit and purpose of the ARD
program.” Trial Court Opinion, 1/4/23, at 5. The trial court added that, had it known of
Appellant’s Second DUI arrest, it would have denied Appellant’s application for ARD with
respect to his First DUI.
Ultimately, the Superior Court affirmed Appellant’s judgment of sentence in a
unanimous published opinion. Commonwealth v. Jenkins, 305 A.3d 50(Pa. Super. 2023). The court noted that participation in an ARD program is a privilege, and a defendant’s removal from the program is within the sound discretion of the trial court. The court then observed that, “[i]n similar circumstances, [the Superior Court] has expressly held that a defendant ‘should not be permitted to benefit from the concealment of his arrests’ when applying for ARD.”Id.
at 54 (quoting Commonwealth v. Jones,650 A.2d 60, 64
(Pa. Super. 1994)).
In Jones, the defendant, after being arrested for DUI, completed an ARD
application and was accepted into the program. However, Jones failed to disclose in his
Criminal History Statement that he had been charged with simple assault two months
earlier, and that he had been arrested on charges of indecent exposure nearly ten years
earlier. After Jones completed the ARD program, the Commonwealth discovered not only
the omissions, but the fact Jones failed to disclose to his probation officer that he was
arrested and charged with involuntary deviate sexual intercourse while participating in the
ARD program, and it sought to remove him from the program and have the original
charges reinstated. The trial court did so.
On appeal to the Superior Court, Jones argued that his removal from the ARD
program and the reinstatement of the original charges against him after he had completed
the requirements of the program violated his constitutional right against double jeopardy.
[J-17-2025] - 5
The Superior Court rejected Jones’ argument, reasoning that Jones concealed
information of his prior convictions, and that “his admission into A.R.D. was an
inadvertence on the part of the district attorney’s office. Had Appellant been truthful when
filling out the form, he would not have been accepted into the A.R.D. program.” Jones,
650 A.2d at 64. Thus, the court concluded that the trial court’s removal of Jones from the
ARD program was not an abuse of discretion.
In the instant case, the Superior Court also relied on this Court’s decision in
Commonwealth v. Boos, 620 A.2d 485 (Pa. 1993). In Boos, the defendant was accepted
into an ARD program before his criminal evaluation was complete. At the time Boos was
admitted into the program, he was informed that his admission was conditional, and would
be revoked if his criminal evaluation ultimately revealed either a prior DUI conviction or
participation in an ARD program within the previous seven years. See 75 Pa.C.S. §
3731(d)(1) (repealed Sept. 30, 2003). When Boos’ criminal evaluation revealed that he
had two prior DUI convictions, the Commonwealth filed a petition to terminate his
participation in the ARD program, and the trial court granted the petition. Upon Boos’
motion for reconsideration, however, the trial court reinstated him into the program.
The Commonwealth filed an appeal, which the Superior Court quashed as
interlocutory. This Court reversed the Superior Court’s order and reinstated the trial
court’s original order revoking Boos’ participation in the ARD program and listing the
matter for trial. In so doing, we explained that Boos “did not qualify for ARD because of
his prior convictions,” and that “[h]e knew that he did not qualify but attempted,
nevertheless, to benefit from the program by concealing his prior convictions.” Boos, 620
A.2d at 488.
In affirming the trial court’s decision to revoke Appellant’s participation in the ARD
program in the case sub judice, the Superior Court reasoned:
[J-17-2025] - 6
Appellant was put on notice that he could not have any
pending criminal charges in applying for and while
participating in ARD. Appellant should not be able to benefit
from his failure to disclose to the Commonwealth or the trial
court in his ARD application the fact that he had a second DUI
arrest simply due to the delay in formal charges being filed.
We agree with the trial court’s suggestion that excusing a
defendant’s failure to disclose prior arrests in an ARD
application would “violate the spirit and intent of the ARD
program” which was designed for first-time offenders who
show a likelihood to succeed in rehabilitation after a relatively
minor charge that does not involve a serious breach of the
public trust. . . . Appellant was in the best position to report
his offense, which was clearly relevant to the prosecutor’s
decision on whether to recommend Appellant for ARD and the
trial court’s evaluation on whether to accept the ARD
recommendation. The trial court emphasized that it would
have summarily denied the application for Appellant’s
admission to ARD had it known of the second arrest.
It would be unfair to allow Appellant to deliberately withhold
information about his arrest and place the responsibility on the
prosecution to uncover Appellant’s relevant criminal history
before evaluating whether to recommend him for ARD.
Prosecutors would be less inclined to recommend defendants
for ARD in the early stages of criminal proceedings if they
were unsure whether they had an accurate account of a
defendant’s relevant criminal history when they could not yet
confirm if the defendant had withheld information of prior
arrests where formal charges had not yet been filed.
Jenkins, 305 A.3d at 55.
Finally, the Superior Court rejected Appellant’s argument that revocation of his
participation in the ARD program based on uncharged conduct committed before he was
accepted into the program was improper under the Superior Court’s decision in
Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021). In Simmons, the
defendant pled guilty to firearms violations, and was sentenced to 6 to 23 months
imprisonment, followed by 3 years probation. After being released on parole, but before
the probationary period of his sentence commenced, Simmons committed additional
[J-17-2025] - 7
offenses, and the trial court subsequently revoked both his parole and probation. On
appeal, the Superior Court held that the trial court erred in anticipatorily revoking
Simmons’ probation based on his commission of new offenses, as he could not have
violated the terms of his probation since the probationary period of his sentence had not
yet begun. Herein, the Superior Court found Appellant’s reliance on Simmons
“unconvincing as ARD is not sufficiently analogous to probation.” Jenkins, 305 A.3d at
56.
We granted Appellant’s petition for allowance of appeal to determine whether,
under the rules of ARD, an individual’s participation in an ARD program may be revoked
“in order to promote the spirit of the program,” when a defendant truthfully responds to all
questions on the ARD application, and does not violate a condition of ARD while
participating in the program. See Commonwealth v. Jenkins, 318 A.3d 757(Pa. filed May 21, 2024) (order). This is a question of law, over which our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Smith,221 A.3d 631
, 636 (Pa.
2019).
Preliminarily, ARD is a pretrial diversionary program in which the attorney for the
Commonwealth agrees to suspend prosecution for an agreed-upon period of time, in
exchange for the defendant’s successful participation in a rehabilitation program, the
requirements of which are determined by the applicable statutes and the court.
Commonwealth v. Lutz, 495 A.2d 928 (Pa. 1985). Specifically, under 75 Pa.C.S. § 3807,
defendants charged with DUI offenses “may be considered by the attorney for the
Commonwealth for participation in an [ARD] program in a county if the program includes
the minimum requirements contained in this section.” Id. § 3807(a)(1). An individual is
not eligible for ARD if he “has been found guilty of or accepted [ARD]” of a DUI charge
within 10 years of the date of the current offense, unless the charge was for an ungraded
[J-17-2025] - 8
misdemeanor and was the defendant’s first offense under Section 3802; if the events
surrounding the current offense resulted in an accident in which an individual other than
the defendant was killed or suffered serious bodily injury; or if the defendant was operating
a vehicle in which there was a passenger under the age of 14. Id. § 3807(a)(2)(i)-(iii).
In addition to specific conditions that may be imposed by the court, a defendant who
is offered ARD is subject to the requirements set forth in Section 3807(b), which include:
attendance and successful completion of an alcohol safety school; an evaluation to
determine the extent of the defendant’s involvement with alcohol or other drugs and to
assist the court in determining what conditions of ARD would benefit the defendant and
the public, such as counseling or treatment; participation and cooperation with a licensed
alcohol or drug addiction treatment program, if the defendant is assessed to be in need
of treatment; supervision by the court for at least 6 to 12 months; payment of restitution
to any person who incurred financial loss as a result of the defendant’s actions; and
payment of certain costs and fees. Id. § 3807(b)(1)(i)-(ix). A defendant’s operating
privileges also may be suspended. Id. § 3807(d)(2)-(4).
Section 3807 likewise provides that a defendant “who fails to complete any of the
conditions of participation contained in [Section 3807] shall be deemed to have
unsuccessfully participated in an Accelerated Rehabilitative Disposition program, and the
criminal record underlying participation in the program shall not be expunged.” Id. §
3807(e)(1). Further, pursuant to Section 3807(e)(2), the court shall direct the
Commonwealth’s attorney to proceed on the charges if the defendant: “fails to meet any
of the requirements of [Section 3807];” is “charged with or commits an offense under [Title
18];” or “violates any other condition imposed by the court.” Id. § 3807(e)(2)(i)-(iii). 6
6 This Court also has promulgated criminal rules of procedure related to ARD which are
consistent with the statutory provisions. For example, pursuant to Rule 319, if a defendant
“complete[s] satisfactorily the program prescribed and complied with its conditions, the
(continued…)
[J-17-2025] - 9
We now turn to the arguments of the parties. Appellant contends that, if a
defendant participating in an ARD program neither violates a condition of the ARD
program, nor an applicable condition of probation, there is no basis to revoke his
participation in the program. Along these lines, and as noted previously, Appellant
underscores that the trial court changed its reason for revocation from the fact that
Appellant received new charges while he was participating in the ARD program to a
violation of the spirit of the ARD program based on Appellant’s failure to volunteer on his
ARD Application that he had an uncharged arrest. See supra note 5.
In any event, Appellant further maintains that the conditions of an ARD program
do not apply to a defendant until he actually enters the program. Thus, Appellant
contends that revocation of a defendant’s participation in an ARD program based on
conduct which occurred prior to admission into the program is improper. In support of his
position, Appellant cites this Court’s decision in Commonwealth v. Rosario, 294 A.3d 338
(Pa. 2023), wherein we held that the anticipatory revocation of a probationary sentence
that has not yet started is illegal. Specifically, we observed that the language of 42
Pa.C.S. § 9771(d) that provides that there “shall be no revocation of probation except
after a hearing at which the court shall consider . . . evidence of the conduct of the
defendant while on probation,” Rosario, 294 A.2d at 348 (emphasis omitted), necessarily
“limit[s] the timing of revocation to the post-commencement-of-probation context,” and we
defendant may move the court for an order dismissing the charges.” Pa.R.Crim.P. 319.
If the Commonwealth has reason to believe that a defendant has failed to comply with the
conditions of ARD, it may file a motion alleging that the defendant “during the period of
the program has violated a condition thereof.” Pa.R.Crim.P. 318(A). The defendant then
shall be ordered to appear before the trial judge who entered the order for ARD, and
afforded an opportunity to be heard. If the judge finds that the defendant “committed a
violation of a condition of the program, the judge may order, when appropriate, that the
program be terminated, and that the attorney for the Commonwealth shall proceed on the
charges as provided by law.” Pa.R.Crim.P. 318(C).
[J-17-2025] - 10
reasoned that interpreting Section 9771 to permit anticipatory revocation would ignore the
language of the statute. Id. at 355.
With respect to the Superior Court’s determination that the trial court’s revocation
was permissible in order to promote the spirit of the ARD program, Appellant argues that
there is no provision in Section 3807 or the ARD rules that allows a trial court to revoke a
defendant’s participation in an ARD program simply in order to promote the spirit or
purpose thereof. Moreover, Appellant asserts that the cases relied on by the Superior
Court are distinguishable.
In this regard, Appellant emphasizes that, in Jones, the defendant falsified the
Criminal History Statement supporting his ARD application by failing to disclose his
multiple prior arrests. Appellant’s Brief at 22. Further, Appellant points out that Jones
was charged with committing a Title 18 offense during his probationary period, which
constituted an independent basis for revocation of his participation in the ARD program.
Appellant argues that, unlike the circumstances in Jones, in the instant case, there was
no “evidence of falsification” because his ARD Application did not contain a “Criminal
History Statement”; his ARD Application did not ask whether he had any “mere arrests or
uncharged criminal or other objectionable conduct”; and he answered all of the questions
on his ARD Application truthfully. Id. at 22-23. Indeed, Appellant highlights the trial
court’s concession that there was “no overt misrepresentation by Appellant or Counsel”
regarding his Second DUI. Id. at 20 (quoting Trial Court Opinion, 1/4/23, at 5).
Appellant also suggests that the Superior Court’s reliance on this Court’s decision
in Boos was misplaced, in that the defendant in Boos had prior DUI convictions that
rendered him ineligible for ARD, and, moreover, Boos was informed that an individual
with a prior DUI conviction was ineligible for ARD and that his admission into the ARD
program would be revoked if it subsequently was discovered that he had any prior
[J-17-2025] - 11
convictions. Appellant reiterates that, unlike the defendant in Boos, he answered all of
the questions on his ARD Application truthfully, including the question concerning whether
he had any pending criminal charges, and he submits that “nothing in the rules, statutes,
or [ARD] application indicated that a DUI arrest that had not resulted in charges would
render him ineligible for ARD.” Id. at 25.
Finally, in response to the Superior Court’s concern that “disallowing” revocation
of a defendant’s participation in an ARD program based on the defendant’s failure to
voluntarily disclose certain information could result in a “chilling effect” on the willingness
of prosecutors and courts to offer participation in ARD programs, Appellant avers that the
concern may be remedied simply by adding the appropriate questions to the ARD
Application. Id. at 35. In this respect, he notes that the comment to Pa.R.Crim.P. 311
provides that “[n]o particular form of ARD application or application procedure is required,”
Appellant’s Brief at 38 (quoting Pa.R.Crim.P. 311 cmt.), and that Rule 311(B) states that
information supplied by a defendant in his ARD application may not be used against him,
except in a prosecution based on the falsity of the information supplied. Thus, he
contends that courts and prosecutors are free to include on their ARD applications
questions regarding an applicant’s uncharged arrests.
In response to Appellant’s arguments, the Commonwealth maintains that a trial
court has the authority to revoke a defendant’s participation in an ARD program for
violations of any of the conditions of ARD – a fact that Appellant does not dispute – and
asserts that Appellant
did violate a condition of the ARD program, namely the
condition that he have no pending criminal charges, listed as
#8 in [Appellant’s] ARD application. [Appellant] had good
reason to know that his second DUI arrest would lead to
criminal charges, especially in view of recent experience from
his first arrest that occasioned his ARD application.
[J-17-2025] - 12
Commonwealth’s Brief at 28. 7 The Commonwealth further claims there is “at least an
implied condition that the defendant not incur criminal charges under Title 75.” Id. at 30.
With respect to Appellant’s reliance on Rosario for the proposition that conduct
that occurred prior to his admission into the ARD program is not a basis for revoking his
participation in the program, the Commonwealth distinguishes Rosario for the same
reason the Superior Court distinguished Simmons – that probation, which was at issue in
Rosario, is not sufficiently akin to ARD. The Commonwealth emphasizes that, unlike
revocation of probation cases, in which an individual is resentenced, if an individual is
removed from an ARD program, he does not automatically face criminal sanctions; rather,
his case proceeds under the law and “may possibly terminate without any punishment if
not proven beyond a reasonable doubt.” Id. at 21.
The Commonwealth additionally avers that Appellant’s reasons for claiming he
was improperly removed from the ARD program “rely unduly on technical arguments that
ignore the unique nature of the ARD program.” Id. at 4. It submits that Pennsylvania
case law “amply supports” the termination of an individual’s participation in ARD in order
to promote the spirit of the program when there has been a “glaring omission” in the
participant’s ARD application. Id. at 8.
In the Commonwealth’s view, Appellant’s failure to volunteer on his ARD
Application that he had an uncharged arrest is akin to the failure of the defendant in Jones
to disclose his prior arrests on a Criminal History Statement because, “[a]s in Jones,
[Appellant] would not have been admitted to the ARD program . . . had he disclosed his
entire arrest record.” Id. at 10-11. The Commonwealth further argues that Boos stands
for the proposition that ARD applicants have an “affirmative duty to come forward with
disqualifying information given their superior knowledge of their own backgrounds.” Id.
7 For ease of discussion, we have reordered the Commonwealth’s arguments to
correspond to Appellant’s Brief.
[J-17-2025] - 13
at 12. The Commonwealth opines that it would be “strange . . . if defendants had a duty
to disclose prior convictions but not prior arrests.” Id. at 13.
As further support for its argument that an ARD applicant has “a duty to provide all
information relevant to a decision regarding program eligibility,” id., the Commonwealth
relies on the Superior Court’s decision in Commonwealth v. Belville, 711 A.2d 510(Pa. Super. 1998). In Belville, the defendant was arrested for DUI in 1987 and admitted into an ARD program. In April 1996, Belville was arrested for a second DUI, and, in September 1996, she applied for and received an expungement of the ARD disposition on her 1987 DUI. In November 1996, Belville completed an ARD application for her April 1996 DUI; the application asked if the she had ever been “arrested, charged, cited (including Vehicle Code violations) or held by any law-enforcement or juvenile authorities in the United States regardless of whether the citation or charge was dropped or dismissed or you were found not guilty or whether the record had been ‘sealed’, expunged, or otherwise stricken from the court records on any occasion other than this arrest.”Id. at 511
. Belville responded in the negative. The District Attorney, however, was aware of her prior participation in an ARD program, and denied her application for ARD for her second offense. Thereafter, Belville proceeded to trial and was convicted. She appealed her judgment of sentence to the Superior Court, arguing that the District Attorney abused his discretion in denying her ARD for the 1996 offense. The Superior Court affirmed, concluding it was proper for the prosecutor to consider Belville’s expunged ARD, as well as her failure to disclose the same, when reviewing a subsequent ARD application. The court reasoned that “a dishonest response [regarding prior ARDs] might . . . result in a decision which will neither rehabilitate the applicant nor protect the public.”Id. at 513
. According to the Commonwealth, Belville supports the principle that “ARD
applicants’ candor is an appropriate consideration in weighing their suitability for program
[J-17-2025] - 14
admission,” and, moreover, that “Belville’s warning about the safety risks of admitting
dishonest ARD applicants is . . . fully applicable in the instant matter.” Commonwealth’s
Brief at 15.
Recognizing that it is not binding on this Court, the Commonwealth also cites the
Connecticut Supreme Court’s decision in State v. Descoteaux, 509 A.2d 1035 (Conn.
1986), in which the court held that a defendant who was participating in a diversionary
program similar to ARD was properly removed from the program when she received new
charges for the same offense while she was still in the program. In so holding, the court
rejected Descoteaux’s argument that her removal from the program violated her due
process rights because she was not given notice that refraining from driving while
intoxicated was an implied condition of her participation in the program. In this regard,
the court reasoned, inter alia, that “the very nature of the program itself, necessarily put
her on notice that driving while intoxicated would violate the spirit, if not the letter,” of the
program. Id. at 17-18 (emphasis omitted). Herein, the Commonwealth contends that, in
light of the discretionary nature of the ARD program, “strict adherence to procedural
minutiae is obviously out of place,” and a defendant should not be permitted to remain in
an ARD program based on a “technicality” when the defendant “was an unfit candidate
from the outset.” Commonwealth’s Brief at 19.
The Commonwealth hypothesizes that a “finding in [Appellant’s] favor would likely
incentivize unscrupulous defendants to answer ARD application questions with evasions
and partial truths in the hopes of gaining undeserved ARD admission, as such defendants
might face no consequences if their deception were discovered,” and would allow
defendants who are not fully transparent to argue that their answers were “technically
correct.” Id. at 23. The Commonwealth also suggests that district attorneys may be
hesitant to agree to ARD if there are no repercussions when a defendant gains admission
[J-17-2025] - 15
through “dishonest behavior,” and will be forced to devote time and resources to
conducting extensive independent reviews of ARD applicants’ backgrounds, resulting in
a delay of cases. Id. at 23-24.
Finally, the Commonwealth argues that, because Appellant’s “deceptive behavior”
regarding his Second DUI arrest preceded his admission to the ARD program, and was
only discovered after he entered the ARD program, the trial court “properly ruled on
[Appellant’s] ARD status as if the matter had been newly presented for ARD consideration
under Pa.R.Crim.P. 313(C) . . . as the ARD removal proceeding was the first proceeding
in which the trial court knew all information relevant to a decision on [Appellant’s]
suitability for ARD.” Id. at 33. 8 In support of its position, the Commonwealth cites
Commonwealth v. Gano, 756 A.2d 689 (Pa. Super. 2000) (after defendant was admitted
to ARD program in an en masse proceeding, trial court was entitled to reconsider that
admission one day later, after discovering that defendant was a state trooper, which the
trial court believed, albeit improperly in the court’s view, weighed against his admission).
It is well settled that participation in an ARD program is a privilege, not a right, and
“the district attorney has the discretion to refuse to submit a case for ARD, and if the case
is submitted for ARD, the court must approve the defendant’s admission.” Lutz, 495 A.2d
at 931. As discussed above, in order to participate in an ARD program, a defendant is
subject to, inter alia, the specific requirements set forth in Section 3807, as well as any
additional conditions of participation imposed by the court. 75 Pa.C.S. § 3807(b).
Preliminarily, it is undisputed that Appellant did not “commit any violation of the law”
while participating in the ARD program, as his Second DUI arrest occurred prior to his
admission to the program, and, thus, there is no merit to the Commonwealth’s contention
8 Rule 313(C) provides: “After hearing the facts of the case, if the judge believes that it
warrants [ARD], the judge shall order the stenographer to reopen the record and shall
state to the parties the conditions of the program.” Pa.R.Crim.P. 313(C).
[J-17-2025] - 16
that he violated Adams County Rule of Criminal Procedure 705.1(D)(1). Further, there is
no suggestion that Appellant violated any of the enumerated conditions contained in
Section 3807, or any additional conditions imposed by the trial court, while he was in the
ARD program. Finally, Appellant did not make any misrepresentations in his ARD
Application.
Nevertheless, the Commonwealth argues that Appellant violated a “condition of the
ARD program, namely the condition that he have no pending criminal charges,” because
he “had good reason to know that his second DUI arrest would lead to criminal charges.”
Commonwealth’s Brief at 28. Notably, in asserting that Appellant should have known that
his Second DUI arrest “would lead to criminal charges,” the Commonwealth necessarily
concedes that Appellant did not have any pending criminal charges in Pennsylvania,
another state, or in a federal jurisdiction at the time he completed his ARD application.
The Commonwealth, however, suggests that the term “pending charges” should be
interpreted broadly, and in the context of the “local practice before the Adams County
Court of Common Pleas,” where “additional criminal charges lead to ‘automatic removal’
from ARD.’” Id. at 29. The Commonwealth also suggests that there is “an implied
condition that the defendant not incur criminal charges under Title 75” while participating
in an ARD program. Id. at 30 (emphasis added). We reject both of these arguments.
First, we question how a defendant can be expected to understand and/or comply
with unwritten local county rules. Further, with respect to the Commonwealth’s position
that there was an implied condition that Appellant not incur criminal charges while in the
ARD program, we note that, in Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019), this
Court rejected a similar argument made by the Commonwealth in the context of probation
revocation. In Foster, the defendant entered a negotiated plea to possession of, and
possession with intent to deliver, a controlled substance, and was sentenced to four years
[J-17-2025] - 17
of probation. While Foster was on probation, it was discovered that he had posted several
photographs on his social media accounts, including photographs of guns, drugs, large
amounts of money, and his sentencing sheet. At subsequent violation of parole hearings,
the Commonwealth argued, inter alia, that Foster’s act of posting the photographs
revealed that he did not take his probation seriously. The trial court agreed, and, without
finding Foster in violation of any specific condition of his probation, revoked his probation.
Foster appealed to the Superior Court, which affirmed the trial court’s revocation of
Foster’s probation.
On appeal, we reversed. We explained that, under Section 9771 of the Sentencing
Code, revocation of probation “is sanctioned only ‘upon proof of the violation of specified
conditions of the probation.’” Id. at 1250 (quoting 42 Pa.C.S. § 9771(b)) (emphasis
original). We expressly rejected the Commonwealth’s request “for the creation of an
implied condition of probation,” noting that the applicable statute was clear and
unambiguous. Id.
Although probation and ARD are distinct, similar to the requirements for revocation
of probation set forth in Section 9771, Section 3807 requires that revocation of a
defendant’s participation in an ARD program be based on the defendant’s violation of a
specified condition of the program. 75 Pa.C.S. § 3807(e)(1) (“A defendant who fails to
complete any of the conditions of participation contained in this section shall be deemed
to have unsuccessfully participated” in the program); see also Pa.R.Crim.P. 318(C) (“If
the judge finds that the defendant has committed a violation of a condition of the program
. . . ”). Thus, we hold a defendant’s participation in an ARD program may not be revoked
based on a violation of an “implied” condition.
We likewise reject the position of the Commonwealth and the lower courts that
revocation of Appellant’s participation in the ARD program was permissible in order to
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preserve the spirit of the program, as we find this to be a variation on the argument that
ARD may be revoked based on a violation of “implied” conditions. As Appellant observes,
there is no provision in the rules or ARD statute that contemplates revocation of
participation in an ARD program merely on the basis of preserving the spirit of the
program, and the Commonwealth does not identify any statutory language allowing for
revocation on that basis. However, the Commonwealth contends that case law supports
revocation of a defendant’s participation in an ARD program when the defendant fails to
voluntarily disclose information that the district attorney or trial court would find relevant
to the defendant’s eligibility for the program. We do not agree.
In each of the cases relied on by the Commonwealth and the Superior Court, the
defendants failed to truthfully respond to questions, or requests for information, regarding
whether they had previously been convicted or charged with disqualifying offenses. In
Jones, the defendant failed to disclose in his Criminal History Statement that, inter alia,
he had been charged with simple assault two months prior to his admission to the
program. In Boos, the defendant failed to disclose, before he was admitted into the ARD
program, that he had two prior DUI convictions; Boos also admitted that the
Commonwealth had advised him that he had to be a first-time offender, and he signed a
form attesting that he understood the conditions of the program. The defendant in Belville
expressly stated on her ARD application that she had never been arrested for, or charged
with, DUI, when, in fact, she had been, and had previously participated in an ARD
program. Finally, in Descoteaux, the defendant was participating in a diversionary
program similar to ARD when she was arrested and convicted of a subsequent DUI
offense.
In the instant case, Appellant completed a three-page ARD Application, wherein
he accurately attested, in response to specific questions, that he did not have any prior
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convictions for misdemeanor or felony criminal offenses; any prior participation in an ARD
program; and, most relevantly, “any pending misdemeanor or felony criminal charges
pending in the State of Pennsylvania or in any other state or federal jurisdiction.” ARD
Application, 9/24/21, at 2. Contrary to the representations made by the defendants in
Jones, Boos, Belville, and Descoteaux, Appellant’s statements were truthful, as it is
undisputed that he did not have any pending criminal charges against him.
To the extent the Commonwealth submits it would be odd to require disclosure of
prior convictions but not arrests, we recently explained, in Commonwealth v. Berry, 323
A.3d 641 (Pa. 2024), that there is a distinction between an arrest and a conviction, in that
mere prior arrests shed no reliable light upon criminal propensity, cannot be used as
evidence of bad character or for impeachment purposes, are not a relevant sentencing
consideration, and have no probative value for establishing a defendant's likelihood of
recidivism. Regardless, while the Commonwealth and trial court may wish to consider
certain information about an applicant before determining his suitability for ARD, 9 it is the
Commonwealth’s burden to ask the questions it deems to be relevant, and we find no
basis on which to expect an applicant to guess at what information he is expected to
disclose. Indeed, in the instant case, it is possible that Appellant believed he ultimately
would not be charged in connection with his Second DUI arrest.
Herein, there was no question on Appellant’s ARD Application regarding prior
arrests, no evidence that Appellant was orally questioned about prior arrests, and no
indication that Appellant was informed that prior arrests for which he had not been
charged might disqualify him from the ARD program. As Appellant answered all of the
9 We express no opinion as to whether a question on an ARD application regarding an
applicant’s prior arrests would be prohibited under our decision in Berry, as the issue is
not presently before us.
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questions on his ARD Application truthfully, we hold there was no basis to revoke his
participation in the ARD program. 10
Order reversed. Case remanded. Jurisdiction relinquished.
Justices Donohue, Dougherty, Wecht, Mundy, Brobson and McCaffery join the
opinion.
Justice Wecht files a concurring opinion in which Justice Mundy joins.
10 As we find that Appellant did not engage in “deceptive behavior,” we do not address
the Commonwealth’s suggestion that the trial court was permitted to rule on Appellant’s
ARD status “as if the matter had been newly presented for ARD consideration under
Pa.R.Crim.P. 313(C).” Commonwealth’s Brief at 33.
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Reference
- Status
- Published