J-S67010-15



NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
                              :      PENNSYLVANIA
              Appellee        :
                              :
         v.                   :
                              :
MARK DARNELL GILMORE,         :
                              :
              Appellant       : No. 489 MDA 2015

         Appeal from the Judgment of Sentence February 13, 2015,
                   Court of Common Pleas, York County,
             Criminal Division at No. CP-67-CR-0008002-2013

BEFORE: BOWES, PANELLA AND PLATT*, JJ.

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 26, 2016

      Appellant,   Mark   Darnell   Gilmore   (“Gilmore”),   appeals   from   the

judgment of sentence entered on February 13, 2015 by the Court of

Common Pleas, York County. After careful review, we affirm.

      The trial court provided the following summary of the factual and

procedural history.

         On October 17, 2013, Officer Ryan Thomas responded to
      Walmart for a reported theft.        Walmart’s loss prevention
      representative told Officer Thomas that she observed the
      Defendant, Mark Darnell Gilmore, place two hooded sweatshirts
      and one Bluetooth device into his cart. Simultaneously, she also
      observed [Gilmore] conceal another, identical Bluetooth device
      in the sweatshirt rack. [Gilmore] then paid for the two hooded
      sweatshirts and first Bluetooth device, and left the store. A few
      minutes later, [Gilmore] reentered the store and retrieved two
      more hooded sweatshirts and the second Bluetooth device he
      had earlier concealed. [Gilmore] was observed taking these
      items to the customer service desk, where he returned those
      items using the receipt from the previous transaction. [Gilmore]



*Retired Senior Judge assigned to the Superior Court.
J-S67010-15


     was given his refund of $49.82, and he then attempted to leave
     the store. However, he was stopped before exiting and the
     police were called.

        After reading [Gilmore] his Miranda warnings, Officer
     Thomas questioned [Gilmore], at which time he admitted to
     returning items he did not purchase. [Gilmore] returned the
     $49.82 that he received from the customer service desk and was
     charged with one count of [t]heft by [d]eception.1

       A set of stipulated facts was submitted as Commonwealth’s
     Exhibit #1.

        On November 14, 2013, [Gilmore], represented by Catherine
     Himes, filed a timely [Accelerated Rehabilitation Disposition
     (“ARD”)] application with the District Attorney’s office. The
     District Attorney’s office accepted [Gilmore] into the program,
     and scheduled his ARD [p]lacement hearing for January 31,
     2014.

        Prior to the ARD hearing, and pursuant to procedures recently
     instituted by the ARD office and the [c]ourt, the ARD office
     forwarded to [the trial court] [j]udge a list of the offenses for
     each defendant being considered for ARD and a summary of
     each defendant’s prior record.

        At the time of the ARD hearing, but prior to the start of the
     actual hearing, [the trial court] [j]udge expressed concerns to
     the ARD representatives and to representatives of the District
     Attorney’s office that [Gilmore] should not be accepted on ARD
     because of his prior record. Neither [Gilmore] nor his counsel
     were involved in those discussions.

        Notwithstanding that, [Gilmore] failed to appear for the ARD
     acceptance hearing, so the [c]ourt’s concerns became moot.
     After [Gilmore’s] failure to appear, the District Attorney formally
     denied the ARD application on February 4, 2014. [Gilmore],
     through counsel, asked to be reconsidered for ARD on February
     11, 2014. On February 26, 2014, the District Attorney’s office
     denied [Gilmore’s] reconsideration request by letter.2




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        Defense counsel submitted a [m]otion for [a]dmission into
     the ARD Program on July 8, 2014. This [c]ourt scheduled a
     hearing for July 10, 2014.
_____________________________________________________________
     1
       18 Pa.C.S.A. § 3922(a)(1).
      2
         The denial letter cited[] [Gilmore’s] failure to appear at
      placement hearing; other felony within 10 years; and “District
      Attorney exercises [sic.] at last hearing court indicated would
      not accept this defendant.”

Trial Court Opinion, 12/31/14, at 1-3 (footnotes in original).

      At the hearing, Gilmore testified that he did not appear at the ARD

acceptance hearing because he never received the hearing notice. Attorney

Himes argued, and the District Attorney conceded, that ordinarily, “if

defense counsel submits an ARD reconsideration letter indicating why [the

defendant] failed to appear … [the District Attorney] will accept [him or her]

and do a new placement date, but they will add additional conditions, such

as additional community service.”      N.T., 7/19/14, at 7-9.    The District

Attorney, however, stated that the rejection in this instance was based on

the fact that the trial court expressed reservations about admitting Gilmore

to the program at the time of the ARD acceptance hearing. Attorney Himes

asserted that this constituted error because if the trial court judge had not

expressed his concerns ex parte to the District Attorney, the District

Attorney would have given Gilmore a new placement date with additional

conditions. The trial court took the matter under advisement.




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      On December 31, 2014, the trial court issued its decision denying

Gilmore’s motion for admittance into the ARD program. The trial court cited

Gilmore’s failure to appear at the initial ARD placement hearing and the

similarity between the offense with which he was charged and a prior

conviction of interstate transportation of stolen property as the reason for

the denial. Trial Court Opinion, 6/9/15, at 3.

      At a bench trial on February 13, 2015, the trial court found Gilmore

guilty of theft by deception and sentenced him to twelve months of

probation. Gilmore timely filed a notice of appeal. On appeal, he raises the

following issues for our review:

      1. Whether the District Attorney abused his discretion when he
      rescinded [Gilmore’s] acceptance into the ARD program based
      on the trial court’s ex parte communications expressing concerns
      about [Gilmore’s] admission into the program, despite [Gilmore]
      previously meeting the District Attorney’s criteria for ARD?

      2. Whether the trial court abused its discretion when it advised
      the District Attorney in an ex parte communication expressing
      concerns about [Gilmore’s] admittance into the ARD [p]rogram
      without providing [Gilmore] with a timely opportunity to respond
      before the District Attorney revoked [Gilmore’s] acceptance into
      the program?

      3. Whether the trial court abused its discretion when it denied
      [Gilmore’]s Motion for Admission into the ARD [p]rogram under
      the circumstances of his particular case?

Gilmore’s brief at 4.

      We review a denial of admission into ARD for an abuse of discretion.

Commonwealth v. Fleming, 955 A.2d 450, 453 (Pa.Super. 2008).




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            The term “discretion” imports the exercise of judgment,
      wisdom and skill so as to reach a dispassionate conclusion,
      within the framework of the law, and is not exercised for the
      purpose of giving effect to the will of the judge. Discretion must
      be exercised on the foundation of reason, as opposed to
      prejudice, personal motivations, caprice or arbitrary actions.
      Discretion is abused when the course pursued represents not
      merely an error of judgment, but where the judgment is
      manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

Id. (quoting Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

      “ARD is a privilege, not a right, and the decision to submit a matter for

ARD is in the sole discretion of the district attorney.”   Commonwealth v.

Morrow, 650 A.2d 907, 910 (Pa.Super. 1994) (citing Commonwealth v.

Hyde, 594 A.2d 703, 704 (Pa.Super. 1991)).

      [A]bsent 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 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. Cline, 800 A.2d 978, 981 (Pa.Super. 2002) (quoting

Commonwealth v. Lutz, 495 A.2d 928, 935 (Pa. 1985)).

      The crux of Gilmore’s arguments on appeal is that the District Attorney

withdrew the recommendation for his admission into the ARD program based

upon an ex parte communication between the trial court and the District

Attorney. As part of the Commonwealth’s freedom to submit a case or not




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submit a case, however, it is well settled that “the Commonwealth should be

entitled to withdraw its ARD recommendation at any point before the trial

court rules on the motion.” Cline, supra at 982. In this case, the District

Attorney’s withdrawal of the recommendation occurred after Gilmore failed

to appear at the ARD acceptance hearing and after the trial court expressed

reservations about admitting Gilmore. Because Gilmore failed to appear at

the hearing, the trial court never had an opportunity to rule on the District

Attorney’s motion.      Thus, the withdrawal was both permissible and within

the District Attorney’s discretion pursuant to Cline.

      Moreover, we are unable to discern of any abuse of discretion by the

District Attorney as “nothing in the record suggests that the Commonwealth

revoked its recommendation for ‘obviously prohibited’ considerations such as

race or religion.”      Id.   We are left to determine, therefore, whether the

District   Attorney’s    decision   to   withdraw   the   recommendation,   which

admittedly was influenced by his conversation with the trial court regarding

the trial court’s reservations about admitting Gilmore, was an abuse of

discretion.

      This Court has established that “[t]he judiciary is not afforded any role

in [the ARD] process until the Commonwealth has made the initial motion.

The facts of the case are then presented to a judge at a hearing.            That

hearing is the first time the judicial system is implicated in the ARD

process.” Commonwealth v. Ayers, 525 A.2d 804, 806 (Pa.Super. 1987)



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(internal citation omitted).    Nevertheless, “considerations of historical

spheres of responsibility and the plain language of the Rules [of Criminal

Procedure] leads us to conclude that the trial judge is required to interpose

his judgment into the ARD process once it has been initiated by the district

attorney.” Id.

     In this case, the District Attorney appeared before the trial court with

a list of defendants for admission to the ARD program. The District Attorney

was set to make the motion to recommend Gilmore’s admission, being

thwarted only by Gilmore’s failure to appear.   At that time, the trial court

expressed concerns regarding Gilmore’s prior record.      We are without a

record of the discussion between the trial court and the District Attorney,

apparently in open court, and there is no evidence otherwise in the record to

suggest that the trial court interfered with the prosecutor’s discretion to

admit Gilmore to the ARD program. The District Attorney testified:

     Normally [if] someone fails to appear and provides adequate
     excuse as to why they didn’t appear, we will consider them for
     readmission usually providing an additional five hours of
     community service for their failure to appear.

        However, in this case the rejection was based on the [c]ourt
     had indicated to us and I felt it would be inappropriate to submit
     this individual because of the [c]ourt’s concerns.

N.T., 7/19/14, at 7-8.

     Although the District Attorney’s decision was influenced by the trial

court’s discussion, Gilmore does not argue, and the record does not reflect,




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that the trial court instructed the District Attorney to withdraw the

application, nor is there evidence to suggest that the trial court otherwise

interfered with the autonomy of the District Attorney.

      Gilmore does not cite any authority to support his argument that the

trial court’s communications with the District Attorney, at the time and place

of the hearing regarding his admission to the ARD program, constitutes ex

parte communication.     Nevertheless, even assuming for the sake of this

argument that the trial court’s ex parte discussion with the District Attorney

in the absence of Gilmore or his attorney was error, we conclude that this

error does not warrant recourse as the record does not demonstrate that

Gilmore was prejudiced.1     This Court has established that the appellant

“must demonstrate some prejudice resulting from the court’s actions” to be

entitled to relief.   Commonwealth v. Ressler, 798 A.2d 221, 223

(Pa.Super. 2002); see also Commonwealth v. Rush, 426 A.2d 588, 589

(Pa. 1981) (concluding that the trial court’s improper ex parte hearing,

which had “the unmistakable appearance of impropriety [and] also was




1
   We note that our decision herein does not decide whether the discussion
between the trial court and the district attorney constitutes an ex parte
communication, which, “by definition, involves the inclusion of one party in a
consultation with a judge over the exclusion of another.” Commonwealth
v. Gonzalez, 112 A.3d 1232, 1240 (Pa.Super. 2015) (italicization omitted).
We note that the communication occurred at the time and place of a
scheduled hearing and thus, the exclusion of Gilmore was as a result of his
failure to appear.



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totally unnecessary” did not warrant relief as the appellant “neither alleged

nor the record displayed any actual prejudice to appellant’s trial”).

      In this case, the trial court stated that if Gilmore had appeared for his

hearing, the decision of whether or not to admit him to the ARD program

would have been made at that time based on the information provided to

the trial court, which included the details of Gilmore’s criminal history. N.T.,

7/19/14, at 23-24.2    The record reflects that the trial court’s decision on

Gilmore’s application did not occur until the July 19, 2014 hearing on

Gilmore’s motion to compel his admission to the program. It was in the trial

court’s discretion to make this same decision had Gilmore appeared at the

originally scheduled hearing. As a result, we conclude that the trial court’s

error in communicating with the District Attorney, if any, did not prejudice

Gilmore. Accordingly, no relief is due.

      Gilmore also contends that the trial court abused its discretion by

denying his request for admission into the ARD program because the trial

court admitted other applicants who had similar criminal records. Gilmore’s


2
   In his brief, Gilmore asserts that the factual basis for his prior conviction
was not contained in the record, and therefore, the trial court either made
assumptions or the District Attorney provided evidence ex parte regarding
his prior conviction. Gilmore’s brief at 21-22. As the trial court explained at
the July 19, 2014 hearing, the newly implemented policy of the District
Attorney was to provide the trial courts “information on the various
[d]efendant[s’] backgrounds prior to the actual proceeding that would
formally accept them into the ARD program.” N.T., 7/19/14, at 23. Thus,
the record establishes that the trial court acquired knowledge of Gilmore’s
criminal record through this established procedure, the propriety of which
Gilmore does not challenge.


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brief at 22-23.     Gilmore asserts that the trial court showed bias and

partiality in denying his admission.    Id. at 23.    As counsel for Gilmore

conceded at the July 19, 2014 hearing, however, the other applicants

Gilmore refers to did not miss their court date.     N.T., 7/19/14, at 17-18.

Gilmore does not cite to any authority to support his claim that the trial

court’s decision constituted an abuse of discretion. Thus, the claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2016




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