J-S20022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JAMES BARNETT GEFSKY,

                            Appellant               No. 1157 WDA 2014


        Appeal from the Judgment of Sentence Entered June 20, 2014
           In the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0003400-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED: MAY 1, 2015

       Appellant, James Barnett Gefsky, appeals from the judgment of

sentence entered June 20, 2014, following his conviction by a jury of theft

by failure to make required disposition of funds and misapplication of

entrusted property. We affirm.

       Appellant, an attorney, had sought admission to Westmoreland

County’s Accelerated Rehabilitative Disposition (“ARD”)1 program by filing a

Motion to Compel ARD on April 13, 2012. The trial court held a hearing on
____________________________________________


1
   ARD “is a pre-trial disposition of certain cases, 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 content of which is to be determined by the court
and applicable statutes.” Commonwealth v. LaBenne, 21 A.3d 1287,
1291 (Pa. Super. 2011) (quoting Commonwealth v. Lutz, 495 A.2d 928,
931 (Pa. 1985)).
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the motion on December 14, 2012, and denied the motion that day. Order,

12/14/12. Following a three-day trial on April 7–9, 2014, a jury convicted

Appellant of the above charges. On June 20, 2014, the trial court sentenced

Appellant to three years of intermediate punishment (intensive probation)

with six months of house arrest.

      Appellant filed a notice of appeal to this Court on July 18, 2014. The

trial court directed Appellant to comply with Pa.R.A.P. 1925, and Appellant

filed a timely Rule 1925(b) statement on August 29, 2014.       In lieu of an

opinion, the trial court referred this Court to the transcript of the December

14, 2012 hearing. Appellant raises the following single issue for our review:

“Did the pretrial motions court judge err and commit an abuse of discretion

in denying Defendant’s Motion to Compel ARD in this case?”         Appellant’s

Brief at 1.

      The standard of review when considering the trial court’s denial of

admission to ARD is an abuse of discretion. Commonwealth v. Fleming,

955 A.2d 450, 453 (Pa. Super. 2008). “In general, the district attorney has

the responsibility for determining which cases will be recommended for entry

into the ARD program.” Id. (citing Commonwealth v. Lutz, 495 A.2d 928

(Pa. 1985)).    A district attorney has broad discretion in submitting or

denying a case for ARD.    In Commonwealth v. LaBenne, 21 A.3d 1287

(Pa. Super. 2011), this Court reaffirmed the proposition that “district




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attorneys have the sole discretion in moving for admission of a defendant

into ARD[.]” Id. at 1291. We stated therein:

     [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. Once the Commonwealth denies a
     defendant admission into ARD, “the trial court’s role is limited to
     whether the Commonwealth abused its discretion.” This Court
     has emphasized that “[t]he 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.”

Id. (internal citations omitted) (emphasis in original).   “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.”

Commonwealth v. Sohnleitner, 884 A.2d 307, 313 (Pa. Super. 2005)

(quoting Commonwealth v. Jagodzinski, 729 A.2d 172, 176 (Pa. Super.

1999)).

     Appellant contends that the Westmoreland County District Attorney

offered ARD participation to “citizens accused of theft and related charges”

and to “other attorneys accused of first[-]time non-violent offenses.”

Appellant’s Brief at 6.   Appellant suggests he was denied ARD admission

because “he was a licensed attorney and member of the PA Bar at the time

of the alleged offenses.”    Id. at 11.    While acknowledging the district



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attorney’s “sole discretion as to the admission of candidates for ARD,”

Appellant avers that “the prosecutor may not summarily reject a person” for

admission. Id. at 12. He relies upon Lutz and Commonwealth v. Gano,

781 A.2d 1276, 1278 (Pa. Super. 2001).

      As noted, Lutz established that the decision to submit a case for ARD

rests in the sound discretion of the district attorney; absent an abuse of that

discretion involving some criteria for admission unrelated to society’s

protection or the likelihood of a person’s rehabilitative success, the district

attorney must be free to submit or deny a case for ARD based on his view of

what is most beneficial for society and the offender. Lutz, 495 A.2d at 935.

In establishing the parameters of this prosecutorial discretion, the Lutz

Court made clear that because the judgment regarding who can benefit from

ARD is subjective, and because society may be seriously damaged by the

wrong judgment, the district attorney is not to be faulted if he errs on the

side of caution. Id. at 934.

      In Gano, a decision by the trial court to deny a police officer entry into

the ARD program for first-time DUI offenders was overturned by this Court.

We concluded therein that a general prohibition against law enforcement

officers receiving ARD could not stand when an average citizen in the same

circumstances would have been admitted.        Our review therein disclosed a

manifest abuse of discretion, in that the appellant in Gano “was admitted

when he was seen as an average citizen, and denied when he was known to

be a law enforcement officer.” Gano, 781 A.2d at 1279.

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      Gano is distinguishable from the instant case.       There, the district

attorney recommended the defendant’s participation in ARD, and the trial

court admitted the defendant into the ARD program.              The next day,

however, “the judge vacated the order pertaining to [the defendant] after

reading a morning newspaper article reporting that he had granted ARD to a

Pennsylvania State Trooper charged with DUI.”        Gano, 781 A.2d at 682.

Following a new hearing after which the trial court denied the defendant’s

ARD application, “the court claimed that ‘when it denied ARD, [it] did so in

large measure because of [the defendant’s] status as a law enforcement

officer.’” Id.

      In the case sub judice, in contrast, the Commonwealth set forth

specific and articulable reasons why it was not recommending Appellant for

ARD participation. At the December 14, 2012 hearing on Appellant’s Motion

to Compel ARD, the Commonwealth set forth the following reasons for its

denial:

             Number one, that he was an attorney at the time that this
      occurred. Number two, the victims in the theft were, in fact,
      clients of his at the time of this offense. Number three, that he
      was, in fact, in a fiduciary relationship with those clients
      representing those clients at the time the theft of these funds
      occurred. Number four, the sheer amount of money that was
      involved is a very large amount that’s alleged in the Information.
      That was a factor that was considered. Number five, the overall
      position of the District Attorney’s Office that certain professions,
      you know, should be held in sort of a higher regard in our
      society . . . .

N.T., 12/14/12, at 15–16.



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      Here, the amount of the theft was more than $71,527.00.            N.T.,

12/14/12, at 9.     While testimony established that Appellant repaid one

client, and the client security fund repaid another client $5,000.00,

consideration of the amount of the theft was not a prohibited reason for

denial of ARD participation. Moreover, the above reasons make clear that

Appellant was not denied recommendation to ARD simply because he was an

attorney, but because he stole his client’s funds while in a fiduciary

relationship with his clients.

      “[T]he prosecution is barred only from considering impermissible

criteria, such as race, religion, or other obviously prohibited factors.”

Commonwealth v. Barton-Martin, 5 A.3d 363, 367 (Pa. Super. 2010).

We are not inclined to equate the reasons cited by the Commonwealth as

synonymous with such factors.     We emphasize that “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.” Lutz, 495 A.2d at 935. Under the circumstances of this case and

in light of the broad discretion afforded the Commonwealth in making

decisions regarding ARD, we find no abuse of discretion by the trial court’s

denial of ARD participation.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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