J-S77045-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                Appellant                :
                                         :
                  v.                     :
                                         :
TYLER CHRISTIAN SLATOFF,                 :
                                         :
               Appellee                  :      No. 1792 EDA 2018

                Appeal from the Order Entered June 6, 2018
              in the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003295-2017

BEFORE:    OTT, J., DUBOW, J. and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 11, 2019

     Because I find that the trial court erred in concluding that the

Commonwealth abused its discretion, I respectfully dissent.

     On April 27, 2017, Tyler Christian Slatoff was arrested for driving

under the influence (DUI) of alcohol, Xanax, and marijuana in Chester

County. Slatoff, who was under the age of 21 at the time, was charged with

DUI,1 disregarding traffic lanes, careless driving, accident involving damage

to unattended vehicle or property, and underage drinking, following an

incident where the police were notified of a driver who had failed to stop


1 Specifically, Slatoff was charged six times under the DUI statute: minor;
controlled substance – impaired ability; controlled substance – combination
of drugs and alcohol; controlled substance – Schedule I; controlled
substance – metabolite; and general impairment.            See 75 Pa.C.S.
§ 3802(a)(1), (d)(1)(i), (d)(1)(iii), (d)(2), (d)(3), (e). All charges were
labeled as a first offense.



*Retired Senior Judge assigned to the Superior Court.
J-S77045-18


after swerving out of his traffic lane and striking a concrete barrier. When

the police stopped Slatoff, the odor of alcoholic beverage emanated from his

breath, and he admitted to drinking alcohol and taking Xanax. Slatoff failed

field sobriety tests, and a subsequent blood test revealed a blood alcohol

content of 0.075%, as well as the presence of Xanax and THC from

marijuana.2

        At the crux of this appeal is Slatoff’s motion to compel admission into

the Accelerated Rehabilitative Disposition (ARD) Program3 without the

Commonwealth’s required Drug Court4 condition. Here, the Commonwealth


2 Slatoff has a valid prescription for Xanax. Slatoff did not have a valid
prescription for medical marijuana at the time of his traffic stop. In his
Motion to Compel, Slatoff contends that he is now eligible for medical
marijuana based on his diagnoses. See Motion to Compel, 4/11/2018, at 2.
However, the record before us is devoid of any evidence suggesting that
Slatoff had a valid prescription at the time of his arrest, or has a valid
prescription for marijuana now.

3 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. Lutz, 495 A.2d 928, 931 (Pa.
1985).
4   The Drug Court program is

        used as an alternative to the conventional criminal prosecution
        process in appropriate cases involving drug-related crimes, or
        where offenders are coping with a drug addiction, in order to
        achieve the twin goals of reducing the incidence of drug-related
        crimes, and preventing recidivism by offenders. Employing
        principles of “therapeutic jurisprudence,” these courts combine
(Footnote Continued Next Page)




                                      -2-
J-S77045-18


had not moved for Slatoff’s admission into ARD because Slatoff refused to

comply    with   the      Drug       Court       condition.    At    the   same    time,   the

Commonwealth had not denied Slatoff admission either; it had merely

placed conditions on his admission, with which Slatoff did not agree,

prompting Slatoff to withdraw his application for ARD. Therefore, the matter

was   only   before       the     trial   court     on   Slatoff’s   motion   to   force   the

Commonwealth to admit him into ARD without the Drug Court condition. On

appeal, the Commonwealth alleges the trial court erred in approving Slatoff

for ARD without the prior approval from or motion of the Commonwealth.

Commonwealth’s Brief at 4, 9.

      Given this procedural posture, I find the appropriate standard of

review to be as follows. “As with all questions of law, the appellate standard

of review is de novo and the appellate scope of review is plenary.” In re

Wilson, 879 A.2d 199, 214 (Pa. Super. 2005) (citation and footnotes

omitted).

(Footnote Continued)   _______________________



      intensive judicial supervision, drug testing, and comprehensive
      treatment to assist offenders in overcoming the substance abuse
      problems that enmeshed them in the criminal justice system. In
      Pennsylvania, drug courts comprise an integral part of the
      Commonwealth’s multi-faceted system of problem-solving
      courts, a program which th[e Supreme] Court has taken great
      pride in establishing and fostering.

Office of Disciplinary Counsel v. Pozonsky, 177 A.3d 830, 832–33 (Pa.
2018) (citations omitted).




                                                 -3-
J-S77045-18


      An accused has no right to demand acceptance into the ARD
      program and cannot complain when he is precluded from
      participation. An ARD recommendation is solely the province of
      the prosecutor, and admission of an offender into the program is
      by the grace of the trial court upon the Commonwealth’s
      motion. The attorney for the Commonwealth must be free to
      submit a case or not submit a case for ARD consideration based
      upon her or his view of what is most beneficial for society and
      the offender.

Commonwealth v. Stranges, 579 A.2d 930, 934 (Pa. Super. 1990) (en

banc) (citations omitted).

      It is well settled that [a] trial court may not object if the
      Commonwealth refuses to submit [for ARD] a case unless the
      district attorney has abused its discretion by refusing to submit
      an individual because of his race or religion or some other
      obviously prohibited consideration. The [Supreme] Court held
      that a trial judge may not overrule the district attorney
      and force him to submit a case to ARD for any reason
      related to the protection of society or the likelihood of a
      successful rehabilitation.

Commonwealth v. Cline, 800 A.2d 978, 982 (Pa. Super. 2002) (citation

and quotation marks omitted; emphasis added). An abuse of discretion will

only be found where the Commonwealth bases its decision on something

“wholly, patently and without doubt unrelated to the protection of society

and/or the likelihood of a person’s success in rehabilitation[.]”    Lutz, 495

A.2d at 935 (emphasis in original).

      In granting Slatoff’s motion to compel his admission into ARD without

the Drug Court condition, “the [trial] court found that the Commonwealth

abused its discretion when it considered Slatoff’s medical disabilities (or drug

use as a symptom of his medical disabilities) as a factor when it assessed his



                                      -4-
J-S77045-18


likelihood of rehabilitation.”   Trial Court Opinion, 7/10/2018, at 4.       In its

opinion, the trial court believes that weekly drug and alcohol counseling

sessions accompanied by testing would be preferable to Drug Court because

it accommodates the Commonwealth’s concerns while not disrupting

Slatoff’s current medical treatment. Id. at 7.

      On appeal, the Commonwealth argues that it did not abuse its

discretion in conditioning Slatoff’s admission into ARD on his participation in

Drug Court.

      Based on [Slatoff’s] repeated underage consumption of alcohol,
      [Slatoff’s] use of alcohol and benzodiazepines combined with
      illicit marijuana use, and [Slatoff’s] refusal to participate in the
      Drug Court program, the District Attorney did not believe, nor
      does it believe at this time, that he would be successfully
      rehabilitated by the ARD program. Additionally, the District
      Attorney believed [Slatoff’s] failure to properly treat his
      substance use problem would pose a continued danger to
      society. This decision was not based on any prohibited reasons,
      such as race or religion, and was based solely on the likelihood
      of [Slatoff’s] rehabilitation and the protection of society.

Commonwealth’s Brief at 30-31 (footnote and unnecessary capitalization

omitted).

      My review of the record indicates that the Commonwealth’s Drug Court

condition on Slatoff’s admission into ARD was reasonably related to the

protection of society and the likelihood of his successful rehabilitation.

Furthermore, while Slatoff’s use of Xanax may be related to the treatment of

his medical disability, his underage drinking, illegal use of marijuana, and

choice to mix alcohol and marijuana with his prescribed Xanax, particularly



                                      -5-
J-S77045-18


before driving a motor vehicle on a public roadway, are decidedly not. While

Slatoff’s doctors and the trial court may not believe that Drug Court,

including a 24-hour detoxification period, was in Slatoff’s best medical

interest, it is clear that the Commonwealth did not exclude Slatoff from ARD

because he had a disability or for any reason not reasonably related to the

protection of society or the likelihood of Slatoff’s successful rehabilitation.

Instead, based on its review of the records before it, the Commonwealth

imposed a condition, Drug Court, in an attempt to help Slatoff achieve

sobriety.   Taking into account his actions in the underlying DUI case, the

imposition of this condition is reasonably related to the protection of society

and the likelihood of a successful rehabilitation, even if the trial court

believed a different course of action would be more successful. See Cline,

800 A.2d at 982 (citation and quotation marks omitted) (noting that “a trial

judge may not overrule the district attorney and force him to submit a case

to ARD for any reason related to the protection of society or the likelihood of

a successful rehabilitation”).

      In    other   words,   this   Court   does   not   review   whether   the

Commonwealth’s imposed ARD conditions constitute the best means of

rehabilitation. This Court reviews whether the trial court erred in concluding

that the Commonwealth abused its discretion. Accordingly, I conclude that

the trial court erred when it substituted its judgment for that of the

Commonwealth, and that the Commonwealth did not abuse its discretion in



                                      -6-
J-S77045-18


conditioning Slatoff’s admission into ARD on his participation in Drug Court

because it was reasonably related to the protection of society and the

likelihood of his successful rehabilitation.

      I am cognizant of the Majority’s concern that a 24-hour detoxification

period and the dictates of Drug Court may not comport with Slatoff’s current

medical treatment.     However, that does not mean Slatoff is automatically

entitled to ARD with whatever conditions he or his doctors see fit. As noted

supra, I do not find the Drug Court condition on ARD to be an abuse of

discretion. Slatoff can choose to comply with the conditions required by the

Commonwealth for ARD, or proceed to court on his charges, as do most

defendants, while continuing his current medical regimen. That choice does

not fall into the category of “other such obviously prohibited considerations”

as posited by the Majority.       Majority at 6, quoting Commonwealth v.

Fleming, 955 A.2d 450, 451 (Pa Super. 2008).               Rather, it is the

consequence of Slatoff’s charges and the Commonwealth’s discretion in

fashioning what it deemed an appropriate condition on hisj-s77045-18

acceptance into ARD instead of proceeding to trial.

      Accordingly, I would reverse the trial court’s order granting the motion

to compel.    See Stranges, 579 A.2d at 931 (“As there was no abuse of

prosecutorial discretion, the trial court improperly granted the petition to

compel ARD.”).




                                       -7-
