source: Caselaw Access Project

author: BECK, Judge: KELLY, Judge, CIRILLO, President Judge: DEL SOLE, Judge,

license: Public Domain

text:
    530 A.2d 888
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert E. BECKER, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1986.
    Filed Aug. 10, 1987.

      Robert J. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.

      Before CIRILLO, President Judge, and ROWLEY, OLSZEWSKI, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and POPOVICH, JJ.
   BECK, Judge:

The issue is whether appellee’s acceptance into the Accelerated Rehabilitative Disposition (ARD) program after being charged with driving under the influence (DUI) exposes appellee to sentence as a second offender after a guilt determination on a second DUI charge. We find that the lower court erred in sentencing appellee as a first offender. Accordingly, we vacate judgment and remand for resentencing.

I.

Appellee Robert E. Becker was first arrested on January 2, 1984 and charged with DUI. See Drunk Driving Act, 1982, Dec. 15 Pa.Laws 1268 No. 289, § 9, 75 Pa.Cons.Stat. Ann. § 3731 (Purdon Supp.1987). Becker was offered the opportunity to avoid prosecution on this charge by entering the ARD program. He accepted placement in ARD on August 30, 1984.

Less than a week later, on September 5, 1984, Becker was again arrested and charged with driving under the influence of alcohol. He pleaded guilty to the September offense on January 25, 1985. As a consequence, Becker may be expelled from ARD and forced to stand trial in connection with the January, 1984 incident.

On February 26, 1985, Becker was sentenced for the September offense, the second charge, by the Court of Common Pleas of Allegheny County. He was ordered to spend forty-eight hours in jail, the mandatory minimum penalty for a first offender. The Commonwealth filed a Motion to Modify Sentence on the ground that Becker should have been sentenced to at least thirty days in jail, the mandatory minimum penalty for a second offender. The sentencing judge denied this motion. The Commonwealth appealed.

II.

All agree that appellee must be sentenced for the September offense in accordance with § 3731 of the Vehicle Code. This statute was extensively revised in 1982 in order to address the growing public concern with the crime of drunk driving. See Pa. House Leg. J. 1699-1754 and 1885-91 (Sept. 9, 1982, Sept. 15, 1982, Nov. 16, 1982). Section 3731(e) provides:

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(1) not less than 48 consecutive hours.
(ii) not less than 30 days if a person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years____
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction ____

The sentencing court interpreted these provisions as meaning that only acceptance and completion of ARD shall be considered a first conviction. We cannot accede to this view since it is inconsistent with the plain text of the Vehicle Code.

A fundamental principle of statutory construction is set forth at 1 Pa.Cons.Stat.Ann. § 1921(b) (Purdon Supp. 1986) (Statutory Construction Act): “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Thus, “[w]hen the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage.” Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986) (construing 42 Pa.Cons.Stat.Ann. § 9712 (Purdon 1982) (Mandatory Minimum Sentencing Act)). This is true even where a penal statute is at issue and a straightforward application of the statute would subject a defendant to criminal liability. See Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974); Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974). As the Pennsylvania Supreme Court recently noted in Commonwealth v. Sojourner, 513 Pa. 36, 41, 518 A.2d 1145, 1148 (1986), “Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity.” For this reason we read § 3731(e)(2) as meaning exactly what it says — that acceptance of ARD is sufficient to trigger an enhanced penalty upon sentencing for a subsequent offense.

The sentencing court emphasized that § 3731(e)(2) contemplates the “disposition of any charge brought under this section.” It held that acceptance of ARD is not a final disposition of a charge since ARD may be revoked and the charge revived before the program is completed. See Commonwealth v. Lutz, 508 Pa. 297, 303, 495 A.2d 928, 931 (1985). Section 3731(e)(2), however, requires only a preliminary disposition of the charge and defines acceptance of ARD as a preliminary disposition. We must therefore conclude that § 3731(e)(2) was designed to reach defendants who have failed to “graduate” from the ARD program.

III.

We emphasize that our decision in the instant case is narrow in scope. We deal here only with the proper interpretation of § 3731(e)(2). With this in mind, it is readily apparent that the straightforward application of § 3731(e)(2) is consistent with Pennsylvania case law and with the Rules of Criminal Procedure.

It is true that when the word “conviction” appears in a statute, it is usually taken to mean “the ascertainment of the guilt of the accused and judgment thereon by the court ...” Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). However, this technical definition of conviction should not be applied “where the intention of the legislature is obviously to the contrary ...” Commonwealth ex rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939). Where a statute clearly defines its terms, the fact that other legal enactments may provide alternate definitions of the same term is irrelevant. The court must construe each statute according to its internal definition. See Commonwealth v. Lobiondo, 501 Pa. 599, 603, 462 A.2d 662, 664 (1983); Commonwealth v. Massini, 200 Pa.Super. 257, 259, 188 A.2d 816, 817. (1963).

It is also true that under the Rules of Criminal Procedure, an individual who enters ARD is treated more leniently than one who is tried and found guilty of a crime. See Pa.R. Crim.P. 175-185. ARD offers the accused a unique opportunity to earn dismissal of charges. Pa.R.Crim.P. 178(1). Yet, this does not mean that § 3731(e)(2) is in conflict with the Rules. See Commonwealth v. Scheinert, 359 Pa.Super. 423, 424, 519 A.2d 422, 423 (1986). The text of the Rules is silent with respect to the collateral consequences of involvement in ARD upon sentencing for a subsequent offense. It is fair to assume that this silence did not preempt passage of § 3731(e)(2), since “it is the province of the legislature to determine the punishment imposable for criminal conduct.” Id., 359 Pa.Superior Ct. at 427, 519 A.2d at 424 (citing Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).

Furthermore, we note that our interpretation of § 3731(e)(2) is in accord with the Commonwealth Court’s interpretation of 75 Pa.Cons.Stat.Ann. § 1542 (Purdon 1977), another provision of the Vehicle Code. Section § 1542(a) directs the Department of Transportation to revoke the drivers licenses of individuals who repeatedly commit certain enumerated offenses. Section 1542(c) states that for this purpose “(acceptance of Accelerative [sic] Rehabilitative Disposition ... shall be considered an offense ...” In Department of Transportation, Bureau of Traffic Safety v. McDevitt, 57 Pa.Commw. 589, 427 A.2d 280 (1981) aff'd per curiam 500 Pa. 532, 458 A.2d 939 (1983), the court construed these words as meaning that in this particular instance, acceptance of ARD has the same effect as conviction. See also Brophy v. Dep’t of Trans., 94 Pa.Commw. 310, 503 A.2d 1010 (1986); Brewster v. Dep’t. of Trans., 94 Pa.Commw. 277, 503 A.2d 497 (1986); Dep’t. of Trans., Bureau of Traffic Safety v. Rice, 77 Pa.Commw. 34, 465 A.2d 68 (1983); In re Elias, 70 Pa.Commw. 404, 453 A.2d 372 (1982). We now follow this lead.

IV.

One significant consequence of § 3731(e)(2) is that a defendant who is guilty of only one crime will be sentenced as though he had twice broken the law. In the instant case, Becker has not yet been tried for allegedly driving while intoxicated in January, the first charge. If ARD is revoked, he will stand trial on this charge, and he may well be found not guilty. Nevertheless, for purposes of § 3731(e)(2), whether a defendant was guilty or innocent at the time he accepted ARD is irrelevant. All that matters is that he be duly convicted on a subsequent occasion.

This may be a harsh result, but it is a result which is mandated by the language and policy of the Vehicle Code. The General Assembly demonstrated a special concern with the ARD program, and sought to ensure that both guilty and innocent participants in that program would have cause to reflect on the serious nature of the crime of drunk driving. 75 Pa.Cons.Stat.Ann. § 3731(e)(6) states:

Any person who accepts Accelerated Rehabilitative Disposition of any charge brought under this section shall accept as conditions the imposition of and the judge shall impose in addition to any other conditions all of the following:
(i) A fee to cover costs referred to in section 1548(e) (relating to costs).
(ii) A mandatory suspension of operating privilege for a period of not less than one month but not more than 12 months.
(iii) A condition that the defendant, as a condition to entering the program, make restitution to any person who incurred determinable financial loss as a result of the defendant’s actions which resulted in a charge of violating this section.
(iv) Court supervision for any defendant required to make restitution or submit to counseling or treatment.
(v) Court supervision for a period of not less than six months when the Court Reporting Network indicates that counseling or treatment is not necessary and not less than 12 months when the Court Reporting Network indicates that counseling or treatment is in order.

75 Pa.Cons.Stat.Ann. § 1548(b) (Purdon Supp.1987) states:

In addition to any other requirements of the court, every person convicted of a violation of section 3731 and every person placed on Accelerated Rehabilitative Disposition or other preliminary disposition as a result of a charge of a violation of section 3731 shall, as a part of sentencing or as a condition of parole, probation or Accelerated Rehabilitative Disposition, be required to attend and successfully complete an approved alcohol highway safety school established pursuant to section 1549 (relating to establishment of schools).

Section 3731(e)(2) must be understood in the context of § 3731(e)(6) and § 1548(b). Those individuals who are sentenced as second offenders after entering ARD are usually men and women who have chosen to drive drunk after having been placed under court supervision, after having been enrolled in alcohol highway safety school, and after having had their operating privileges suspended. It is rational to conclude that such individuals are less easily deterred from continuing to drink and drive than first time offenders who have had no prior contact with the criminal justice system. In the view of the legislature, an additional criminal sanction is therefore in order.

In reviewing the policy behind § 3731(e)(2), it is also important to remember that a criminal suspect’s election of ARD is a voluntary decision. A candidate for ARD will be rejected unless the court is satisfied that he understands the nature of the program, and unless he promises the court that he will abide by its conditions. See Pa.R.Crim.P. 179(a) and (d). Moreover, “[defendants who accept ARD for drunk driving are now told that ARD will be considered a conviction for sentencing purposes in the event of an arrest for drunk driving within the next seven years.” Commonwealth v. Frost, 342 Pa.Super. 173, 178, 492 A.2d 448, 450 (1985).

When appellee entered ARD, he struck a deal with the state in order to avoid prosecution on the initial drunk driving charge. He stood ready to accept the benefits of participating in ARD. He then violated the terms of ARD. He now seeks to avoid the predictable consequences of his actions. Under these circumstances, it does not appear that counting ARD as a prior conviction will work a manifest injustice. Cf. McDevitt, supra (similar reasoning).

Finally, we must bear in mind that in Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986), Commonwealth v. Potts, 352 Pa.Super. 299, 507 A.2d 1239 (1986), and Commonwealth v. Scheinert, 359 Pa.Super. 423, 519-A.2d 422 (1986), this court has already held that a defendant who completes ARD and is later convicted of driving drunk must be sentenced as a repeat offender. In so deciding, we implicitly recognized that § 3731(e)(2) may cause a defendant who has been convicted of only one crime to be sentenced as if he were guilty of two offenses.

In Wagner, we found that the trial court erred when it sentenced appellee Roxanne Wagner as a first offender. The sequence of events in Wagner was as follows: she was arrested for driving drunk in March, 1983; she accepted ARD and finished the program; she was arrested for driving drunk in August, 1984; she was convicted and sentenced to forty-eight hours imprisonment. One must presume that Wagner is innocent of the charge of driving drunk in 1983; since she completed ARD she will never be tried or found guilty of that alleged crime. Notwithstanding this presumption of innocence, we vacated judgment and remanded for resentencing for a minimum term of thirty days.

Unlike Roxanne Wagner, appellee Robert Becker may have an opportunity to be found not guilty by a trial court. If Becker has this opportunity it will be because he violated ARD and was expelled from the program. It would therefore be curious and ironic if we were to treat Robert Becker more leniently than we treated Roxanne Wagner. Wagner had completed ARD and had not been cited for driving while under the influence for over a year. On the other hand, Becker entered ARD and was arrested for drunk driving just six days later.

We hold that under the terms of 75 Pa.Cons.Stat.Ann. § 3731(e)(2), a defendant who is convicted of drunk driving after having accepted ARD to avoid prosecution for an earlier drunk driving charge must be sentenced as a repeat offender — whether or not he has ever completed the ARD program.

V.

In order to avoid confusion, we emphasize that this finding is not in conflict with our recent decisions in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197, allowance of appeal granted, 511 Pa. 619, 515 A.2d 898 (1986) and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986). Mourar and Wolfe did not examine the Drunk Driving Act; those cases concerned the proper interpretation of the guidelines promulgated by the Pennsylvania Commission on Sentencing. See 204 Pa.Code 303.6 reprinted at 42 Cons.Stat.Ann. § 9721 (Purdon 1982). These guidelines do not supercede the Drunk Driving Act’s mandatory minimum penalties. 75 Cons.Stat.Ann. § 3731(e)(3).

Moreover, Mourar and Wolfe .involve a factual pattern which is significantly different from the facts of the case sub judice. In Mourar and Wolfe, each defendant was convicted of four offenses. Although all four offenses were committed prior to the first conviction, the trial courts had sentenced each defendant as a first offender for his first conviction, as a second offender for his second conviction, as a third offender for his third conviction, and as a fourth offender for his fourth conviction. We found this “geometric escalation of punishment ... to be an improper application of the sentencing guidelines.” Wolfe, 349 Pa.Super. at 418, 503 A.2d at 436. We interpreted the guidelines as conforming to a general principle which underlies most recidivist statutes which impose criminal penalties: “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Mourar, 349 Pa.Super. at 592, 504 A.2d at 202.

Our decision today does no violence to this basic doctrine. We merely recognize that 75 Pa.Const.Stat.Ann. § 3731(e)(2) equates “acceptance of ARD” with a “conviction.” Thus, it may well be that prior acceptance of ARD must antedate commission of the principle offense to be eligible for application as a sentence enhancer.

For present purposes, appellee’s second charge of DUI— which occurred on September 5, 1984 — is his “principal offense.” As a consequence of appellee’s first DUI charge, he accepted ARD on August 30, 1984 — prior to the commission of this principal offense. If appellee had accepted ARD after September 5, 1984, we would be faced with a very different situation.

Similarly, nothing in this opinion indicates that if appellee is eventually convicted of the charge which led to his acceptance of ARD he must be sentenced as a recidivist at that time. Upon sentencing for that charge, his “principal offense” would be driving drunk on January 2, 1984 — before he accepted ARD on August 30, 1984, and before he was convicted of a subsequent offense on January 25, 1985. We do not decide if the principle behind Mourar and Wolfe applies to the Drunk Driving Act. However, if it should apply, then any crime committed on January 2, 1984 would be counted as a first offense.

We vacate judgment of sentence and remand for resentencing in accordance with this opinion. Jurisdiction is relinquished.

KELLY, J., filed a concurring opinion and joined majority.

POPOVICH, J., concurred in the result.

CIRILLO, President Judge, filed a dissenting opinion in which DEL SOLE and TAMILIA, JJ., joined.

DEL SOLE, J., filed a dissenting opinion in which CIRILLO, President Judge, joined.

KELLY, Judge,

concurring:

I join the majority opinion for the reasons set forth in Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986) (Kelly, J., concurring; Cavanaugh, J., joining):

In Pennsylvania, prior unadjudicated arrests may properly be considered at sentencing provided the arrests are not regarded as establishing criminal conduct. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 313 A.2d 342 (1973). Even arrests which resulted in acquittals may be considered at sentencing so long as the judge is aware of the acquittal. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). Likewise, ARD participation may be considered by the sentencing judge as an appropriate sentencing factor. Commonwealth v. Knepp, [307 Pa.Super. 535, 453 A.2d 1016 (1982)].
... [i]n Commonwealth v. Potts, 352 Pa.Super. 299, 301, 507 A.2d 1239, 1240 (1986), this Court explained that ’75 Pa.C.S.A. § 3731(e)(2) defines the term conviction for sentencing purposes under the act____’ In other words, the term ‘conviction’ has a special meaning under the act which is separate and distinct from the ordinary meaning of the word in other contexts. See also Commonwealth, Dept. of Trans. v. McDevitt, 57 Pa.Cmwlth. 589, 427 A.2d 280 (1981), aff'd 500 Pa. 532, 458 A.2d 939 (1983) (‘participation in ARD program shall be considered a conviction for purposes of determining whether a person is a habitual offender under Section 1542 of the Vehicle Code’). The legislature has not turned the nonadjudicatory ARD into a conviction. Rather, it has designated two separate sentencing factors (A.R.D. participation or a prior conviction) as being equally adequate to trigger the imposition of a mandatory minimum sentence.

359 Pa.Superior Ct. at 432, 519 A.2d at 427. (Emphasis added).

I agree with Judge Beck that the plain meaning of 75 Pa.C.S.A. § 3731(e)(2) is that acceptance into an ARD program and not the successful completion of the ARD program triggers the mandatory minimum sentence provisions. Majority Opinion, supra at 57-61. I also agree with Judge Beck’s analysis of the legislature’s rational basis for using an ARD acceptance as basis to trigger a mandatory minimum sentence. Majority Opinion, supra, at 63-64.

Drunk driving is a serious crime. The Commonwealth’s interest in ending the carnage wreaked upon our highways by drunk drivers is paramount. Commonwealth v. Leninsky, 360 Pa.Super. 49, 57, 519 A.2d 984, 988-89 (1986) (citing cases and statistics). Allowance of ARD in drunk driving cases is not an indication that drunk driving is a “relatively minor” crime; rather, it is an acknowledgement that drunk driving cases may involve “social and behavioral problems which can best be solved by programs and treatments rather than punishment.” See Comment, reprinted following Pa.R.Crim.P. 185.

However, when the rehabilitative approach fails (as is the case when a individual who has been accepted into an ARD program is subsequently convicted of a drunk driving offense arising after admission into an ARD program), the legislature may reasonably conclude that reliance upon the punitive sanction of incarceration, rather than continued reliance on the rehabilitative approach, is warranted.

Judge Wieand stated in Scheinert, supra:

The law is well-settled that ‘[i]t is the province of the legislature to determine the punishment imposable for criminal conduct.’ Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), affirmed sub nom, Pennsylvania v. McMillan, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). ‘The legislature has the right to fix the maximum penalty and likewise can, if it sees fit, name the minimum.’ Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114, 11 (1959).

359 Pa.Superior Ct. at 427, 519 A.2d at 424. In the instant case, I would find that prior acceptance into an ARD program is a valid sentencing factor to be considered in sentencing a defendant upon a subsequent unrelated drunk driving conviction, and that it was within the power of the legislature to designate this sentencing factor as one of two factors sufficient to trigger mandatory minimum sentence provisions.

Therefore, I join the majority opinion.

CIRILLO, President Judge:

I join the well-reasoned dissent of Judge Del Sole and would further emphasize the necessity for distinguishing ARD acceptance from ARD completion with regard to subsequent sentencing.

The rules which establish and govern the Accelerated Rehabilitative Disposition program, Pa.R.Crim.P. 175-185, make clear that “acceptance” of ARD must be' conditional upon successful completion of the program. Specifically, under Rule 181, when a defendant is accepted into ARD, charges are postponed during the term of the program. Further, Rule 184 provides that if the defendant does commit a violation, the program is terminated, and the attorney for the Commonwealth shall proceed on the charges. Finally, upon satisfactory completion and compliance with the terms of the program, a defendant may apply to the court for an order dismissing the charges pursuant to Rule 185. Therefore, the term “acceptance,” as it is used in 75 Pa. C.S. § 3731(e)(2) for sentence enhancing purposes, must be interpreted only as a condition precedent to final completion of ARD, and participants may be removed from the program at any time for violation of its terms. These provisions are reiterated in § 3731(e)(7), which provides:

(7) Accelerated Rehabilitative Disposition or other preliminary disposition of any charge of violating this section may be revoked and the court shall direct the attorney for the Commonwealth to proceed on the charges as prescribed in general rules if the defendant:
(i) is charged with or commits any crime enumerated in Title 18 (relating to crimes and offenses) or in section 1542 within the probationary period;
(ii) fails to make restitution as provided for in this section;
(iii) fails to successfully complete the alcohol highway safety school required by section 1548(b);
(iv) fails to successfully complete any program of counseling or treatment, or both, required as a condition of Accelerated Rehabilitative Disposition; or
(v) violates the terms and conditions of Accelerated Rehabilitative Disposition in any other way.

This section of the statute must be construed in conjunction with the sentencing provision of § 3731(e)(2). The logical conclusion is that the legislature intended ARD “acceptance” to apply as a sentence enhancer only where the program has been successfully completed.

The language of § 3731(e)(2) itself is consistent with this interpretation. The statute provides that “acceptance of Accelerated Rehabilitation Disposition ...,” as opposed to acceptance “into ” the program, triggers sentence enhancement. The implication is that “acceptance” encompasses acceptance of all the terms and conditions of the program, not just acceptance into the program pursuant to Pa.R. Crim.P. 175-179 (concerning the procedure required for ARD admittance). In fact, Rule 178 provides:

Rule 178. Hearing, Explanation of Program
Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, his attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, the defendant shall be asked on the record whether he understands that:
(1) acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers him an opportunity to earn a dismissal of the charges pending against him;
(2) should he fail to complete the program satisfactorily, he may be prosecuted as provided by law;
(3) he must agree that if he is accepted into the program he waives the appropriate statute of limitations and his right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.

(Emphasis added).

This strengthens or emphasizes the ¡position that ARD admittance is conditioned upon satisfactory completion of the program, as distinguished from simple acceptance into the ARD program.

Contrary to the majority’s construction of § 3731(e)(2) equating “admittance” with “acceptance,” there has been no preliminary disposition of the charges upon acceptance into the ARD program. Rather, those charges are merely postponed until the program is either successfully completed or terminated, thereby making “acceptance” conditioned upon completion or revocation, not admittance, to the program.

Moreover, the disposition of the DUI charges is determined by the ARD participant, who by his actions chooses to either successfully complete the program, or be removed from ARD due to a violation. Therefore, the statute cannot logically be interpreted to mean that immediately upon acceptance into the program, he is automatically presumed to be a second offender for subsequent sentencing purposes. Since the intent behind successful completion of ARD was rehabilitative, not punitive, see Pa.R.Crim.P. 175-185 completion, the sentencing provisions of § 3731(e)(7) require prosecution on the charges giving rise to ARD only if a violation of the program is committed. Once this occurs, the defendant is taken out of the ARD program and put back into the criminal justice system, as though ARD had never occurred. Thus, the defendant loses one of the crucial benefits of ARD completion — the opportunity to avoid criminal prosecution. In view of the intent behind ARD, and the provision requiring prosecution upon ARD revocation, mere acceptance of ARD should not qualify the defendant for second offender status. The purpose behind such sentencing is lacking. When ARD is revoked, the defendant loses the benefit of possible rehabilitation, and will now be treated the same as any other offender. Therefore, no special provisions regarding sentencing under § 3731(e)(2) are necessary, as may be the case when ARD has been completed; Upon completion, the defendant will never be tried on those charges. Although it would be consistent with this opinion for the sentencing judge to consider ARD acceptance as an appropriate sentencing factor, see Commonwealth v. Knepp, 307 Pa.Super. 535, 453 A.2d 1016 (1982); Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986) (Kelly, J. concurring, joined by Cavanaugh, J.), mere acceptance is not sufficient for application of the mandatory penalty.

Furthermore, the majority justifies treating appellee Becker as a second offender based upon our treatment of a defendant who had completed ARD in Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986). However, the majority assumes that defendant Wagner was innocent of the charges giving rise to ARD, since completion of the program precludes adjudication of those charges. I disagree. The majority’s characterization of a defendant as innocent upon ARD completion conflicts with the penalty prescribed in § 3731(e)(2), which treats ARD participation as a conviction for subsequent sentencing purposes. When ARD has been completed, this penalty is in accordance with the legislative intent to treat repeat offenders more harshly after they are given the opportunity for rehabilitation through ARD. As the majority states, this court has recognized that, under the provisions of § 3731(e)(2), a defendant who has been convicted of only one crime can be sentenced as if he were guilty of two offenses, by virtue of ARD completion. This sentencing provision indicates a presumption that if the defendant had not participated in ARD, but rather was tried on those charges, he would be convicted. However, this issue is not even reached where ARD has been revoked, because the defendant must now be prosecuted on the original charges, and will therefore be presumed innocent. Thus, treating appellee Becker as a second offender on the instant conviction merely because he was previously accepted into ARD would serve to strip him of that presumption of innocence when he is tried on the original charges. It is precisely the fact that a defendant can never be tried on the charges if he successfully completes ARD which justifies treatment as a second offender for subsequent convictions. Commonwealth v. Wagner, 352 Pa.Super. 295, 507 A.2d 1237 (1986); Commonwealth v. Scheinert, 359 Pa.Super. 423, 519 A.2d 422 (1986) (Kelly, J., concurring, joined by Cavanaugh, J.). But where, as here, ARD is revoked, and appellee’s guilt or innocence is in fact adjudicated, there is no basis for the presumption which would treat him as a second offender on the instant conviction.

Finally, the Commonwealth should be estopped from treating appellee as a second offender on the present offense, because it chose to proceed on these charges first, despite the fact that it had already revoked appellee’s ARD and can now try him on the January offense which gave rise to ARD. Had the Commonwealth tried appellee first for the January offense upon ARD revocation, then for the present offense committed in September, appellee could now properly be sentenced as a second offender, provided he was convicted of the January offense. The Commonwealth’s approach, is supported by the majority, would not only create confusion as to subsequent sentencing, but further would create an unreasonable result which the legislature is presumed not to have intended. See Fireman’s Fund Insurance v. Nationwide Mutual Insurance, 317 Pa.Super. 497, 464 A.2d 431 (1983).

First, if appellee is sentenced on these charges, then acquitted of the offense giving rise to ARD, he will have been sentenced as a second offender even though he was convicted only once. As discussed, this situation would not be problematic had appellee completed ARD, because there he would have escaped the possibility of prosecution but would be presumed convicted under the statute for sentencing purposes on the present conviction. However, if ARD is revoked, presumptions do not apply, because an actual adjudication of guilt or innocence will occur. But if the majority’s interpretation is applied, the appellee may be punished as a second offender even if convicted only once.

Moreover, if appellee were to be sentenced on the present charges, then later convicted on the former ones, a problem arises as to sentencing on those original charges. The charges oh which appellee now appeals occurred on September 5, 1984. The original charges arose on January 2, 1984, for which he was accepted into ARD on August 30, 1984. The majority, by equating ARD “acceptance” with “conviction,” justifies appellee’s second offender status as being consistent with the principle enunciated in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197, 511 Pa. 619, 515 A.2d (1986) allowance of appeal granted, and Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986) that prior convictions must predate the commission of the principal offense to be eligible as sentence enhancers.

I believe the result of the majority’s interpretation, equating ARD acceptance with conviction, would create confusion and ambiguity for sentencing in ARD revocation cases. If appellee is specifically convicted for the January incident, the result would be two convictions for the same offense; the first time by accepting ARD, the second, by actual adjudication. The majority reconciles this ambiguity by suggesting that appellee, if later convicted for the January offense, would be treated as a first offender for the September offense so as not to violate the Mourar/Wolfe doctrine. However, this suggestion simply ignores the conviction for the September offense and treats appellee as though ARD never occurred. This is contrary to the thrust of the opinion, which emphasizes the necessity of considering ARD as a sentence enhancer.

I believe second offender status should apply only where ARD is completed, because the sole reason for allowing ARD to be used as a sentence enhancer is the fact that appellee will never be tried on those charges. Moreover, although Mourar and Wolfe are not clear about whether a conviction must be on the record at the time the second offense is committed, or whether there must be a conviction at the time of sentencing, this is irrelevant due to the unique nature of ARD.

Both Mourar and Wolfe involved sentencing for clear episodes of criminal behavior, delivery of cocaine and burglary, respectively. ARD, however, is a unique situation where criminal conduct is not implied unless there has been a revocation. Charges may not be brought unless the participant has violated ARD, and often that violation will consist of another DUI arrest. Therefore, it is the second offense which makes the first offense a criminal act for which charges will be brought. For instance, appellee’s ARD may be revoked due to his arrest and conviction for DUI on September 5, 1984. Had he not been arrested in September, or at any other time prior to completion of ARD, charges for the January offense could never be brought and thus, the incident of January 2, 1984 would not be a criminal offense.

The better rule, applicable solely to ARD revocation cases, would clearly be to stay the proceedings on the later charge until the final disposition of the ARD revocation charges. Under this view, appellee, if convicted, would properly be treated as a first offender for the January offense, then as a second offender for the present conviction. Alternately, if appellee is acquitted of the January charges, then is convicted for the September offense, he would not be treated unfairly as a second offender, as the majority requires, but rather as a first offender.

For the foregoing reasons, I would affirm the judgment of sentence.

DEL SOLE, Judge,

dissenting:

I respectfully disagree with the conclusion reached by the Majority in this case. I would hold that where one is found guilty of Driving Under the Influence in violation of 75 Pa.C.S.A. § 3731, while currently enrolled in an ARD program for a separate drunk driving indicent and that ARD enrollment is then revoked, that individual should be considered a first offender for sentencing purposes under 75 Pa.C.S.A. § 3731(e).

Appellee was placed in an Accelerated Rehabilitative Disposition program (ARD) as a result of charges having been filed against him alleging a violation of 75 Pa.C.S.A. § 3731, Driving Under the Influence of Alcohol or a Controlled Substance. Appellee’s “status under the ARD program was subsequently revoked” when he violated the requirements of the program by entering a guilty plea to a separate drunk driving offense. (Trial Court Opinion at 2). The second incident which occurred in September of 1984, was treated by the trial court as a first conviction for sentencing purposes under 75 Pa.C.S.A. § 3731(e)(l)(i). The charges which gave rise to Appellant’s admission into the ARD program, which admission was later revoked, were yet to be acted upon at the time Appellee was sentenced for the September incident.

The Majority adopts the Commonwealth’s position and holds that Appellee should be sentenced for the September offense as a second offender under 75 Pa.C.S.A. § 3731(e)(l)(ii), which calls for a minimum term of imprisonment of not less than 30 days for violators with a prior conviction. The Majority reaches its conclusion based, in part, on its view of the plain meaning of the relevant statute. The pertinent section of the Vehicle Code provides as follows:

Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa.C.S.A. § 3731(e)(2).

The Majority reads this language as requiring Appellee to be sentenced as a second offender based upon his prior acceptance into a program of ARD. Although words and phrases used in any legislation are to be construed according to their common meaning and accepted usage, Fireman’s Fund Insurance v. Nationwide Mut. Ins., 317 Pa. Super. 497, 502, 464 A.2d 431, 434 (1983), the General Assembly is presumed not to have intended a result which is absurd or unreasonable. Id. I believe this is the result which flows from the Majority’s interpretation of the statute. In spite of the fact that Appellee has not had an accelerated rehabilitative disposition, was actually removed from the program by the Commonwealth and is awaiting action to be taken involving the first incident, the Majority would have him receive the enhanced sentence provided for those with previous convictions.

I believe § 3731(e)(2) requires disposition of the charge of drunk driving.

ARD, accelerated rehabilitative disposition, is a pretrial 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 rehabilitative program
Pa.R.Crim.P. 175-185, also provides that the defendant must agree to the terms of the ARD, and that after he has completed the program successfully, the charges against him will be dismissed, upon order of court. If he does not complete and ARD successfully, he may be prosecuted for the offense with which he was charged.

Commonwealth v. Lutz, 508 Pa. 297, 303, 495 A.2d 928, 931 (1985).

75 Pa.C.S.A. § 3731(e) provides in part:

(7) Accelerated Rehabilitative Disposition or other preliminary disposition of any charge of violating this section may be revoked and the court shall direct the attorney for the Commonwealth to proceed on the charges as prescibed in general rules if the defendant:
(i) is charged with or commits any crime enumerated in Title 18....

There has been no pretrial accelerated rehabilitative disposition of Appellee’s first case. Appellee was terminated from the ARD program after he pled guilty to violating the drunk driving statute in September. Appellee must now face trial on the charges stemming from the earlier incident. I believe that if Appellee is found guilty on the charges for which he had sought ARD, he could be sentenced as a second time offender. Appellee would then properly be receiving the harsh penalty which the Legislature intended for those who repeatedly violated the statute. If, howevér, Appellee, were to be found not guilty, he would not be in the unenviable position suggested by the Majority of being sentenced as a second time offender on the charges giving rise to this appeal although he had only been convicted of one violation of the statute.

In my view, if Appellee is convicted on those charges for which he sought ARD, he could be sentenced as a second time offender. If, however, he is not convicted, he will not have received undue punishment. Accordingly, I would affirm the trial court’s decision to sentence Appellee as a first offender for the conviction which arose from the September incident.

      . Section 3731(e)(4) provides:
      The Commonwealth has the right to appeal directly to the Superi- or Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section. The Superior Court shall remand the case to the sentencing court for imposition of a sentence in accordance with the provisions of this section.

      . This finding is in accord with the recent holding of the Kansas Supreme Court in State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). Booze considered the effect on sentencing for DUI of prior acceptance into the Kansas diversion program — a program similar in several respects to ARD. The Kansas drunk driving statute states:
      For the purpose of determining whether a conviction is a first, second or third or subsequent conviction for the purpose of sentencing under this section, the term "conviction” includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section.
      Kan.Stat.Ann. 8 — 1567(J)(1) (Supp.1985). The Kansas Supreme Court held:
      "[E]ntering” into a diversion agreement is a conviction for purposes of enhancing sentence. If the drafters had intended that diversion would operate as a conviction only upon its completion, they could easily have said so.
      238 Kan. at 555, 712 P.2d at 1256.

      . Commonwealth v. Knepp, 307 Pa.Super. 535, 541, 453 A.2d 1016, 1019 (1982) states as dictum that "... admission to an ARD program is not equivalent to conviction under any circumstances ...” This statement, however, is followed by a footnote which acknowledges that ARD is equivalent to a conviction under § 1542 of the Vehicle Code. 307 Pa.Super. at 541 n. 7, 453 A.2d at 1019 n. 7. See McDevitt, supra. Thus, the Knepp court recognized that a statute will sometimes create an exception to the general policy of distinguishing between conviction and acceptance of ARD. Cf. Commonwealth v. Scheinert, 359 Pa.Super. at 430, 519 A.2d at 426-427 (Kelly, J., concurring) (interpreting Knepp ).

      . The record in the case before us does not contain a transcript of the hearing which preceeded appellee’s formal acceptance of ARD. We do not decide whether a defendant who was not informed of § 3731(e)(2) at the time he agreed to enter ARD may be sentenced as a recidivist.

      . We refrain from engaging in a constitutional analysis of the sentencing provision because we have not had the benefit of briefing or argument on the constitutionality of § 3731(e)(2) as applied to appellee. However, we note that Commonwealth v. Scheinert, 359 Pa.Super. at 429, 519 A.2d at 425-426, held that § 3731(e)(2) is not a bill of attainder under U.S. Const. Art. I, § 9, and is not so fundamentally unfair as to violate due process of law under U.S. Const. Amend. XIV or Pa. Const. Art. I, § 9.

       It is important to note that outside of the special context of the mandatory minimum sentence triggering language contained in 75 Pa.C.S.A. § 3731(e)(2) and similar legislative enactments, sentencing courts are not required to give equal weight to ARD participation and prior convictions. See Knepp, supra. Thus, even in a drunk driving case, the sentencing judge may accord ARD participation less weight than a prior conviction in determining whether to sentence the offender to a period of incarceration in excess of the statutory minimum.


author: HOFFMAN, Judge: KELLY, Judge, BECK, Judge,

text:
    530 A.2d 900
    COMMONWEALTH of Pennsylvania v. Woodrow J. ZEITLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1987.
    Filed Aug. 27, 1987.

      Peter B. Foster, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.
    Before BECK, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for violations of conditions of probation. Appellant contends that the lower court erred in (1) admitting testimony that violated the physician-patient privilege; (2) failing to state on the record its reasons for the sentence imposed; (3) finding that the Commonwealth had met its burden of proof that he had violated the terms of his probation; and (4) admitting hearsay evidence. For the reasons that follow we order appellant to supplement his brief to address our Supreme Court’s decision in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

On February 12, 1986, appellant was sentenced to a probationary term of twenty-three months. Conditions of probation included regular visits with a psychiatrist and the taking of certain prescribed medications. On August 25, 1986, the lower court conducted a revocation of probation hearing. At the conclusion of the hearing, appellant’s probation was revoked and he was sentenced to one-and-one-half-to-seven-years incarceration. Appellant filed a timely petition to modify sentence which was denied by the lower court. This appeal followed.

Three of appellant’s contentions raise challenges to the imposition of sentence. Before we can examine claims challenging the discretionary aspects of a sentence, we must first determine whether there is a “substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S.A. § 9781(b). It has been the practice of this Court to make this determination based upon an evaluation of the substantive argument advanced by appellant in the brief. See Commonwealth v. Easterling, 353 Pa.Superior Ct. 84, 509 A.2d 345 (1986); Commonwealth v. Dixon, 344 Pa.Superior Ct. 293, 496 A.2d 802 (1985); Commonwealth v. Drumgoole, 341 Pa.Superior Ct. 468, 491 A.2d 1352 (1985); Commonwealth v. Nixon, 311 Pa.Superior Ct. 450, 457 A.2d 972 (1983); Commonwealth v. Love, 295 Pa.Superior Ct. 276, 441 A.2d 1230 (1982). Our Supreme Court has recently disapproved of this practice, holding that an appellant must set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence imposed. Commonwealth v. Tuladziecki, supra, 513 Pa. at 511-12, 522 A.2d at 19 (citing Pa.R.A.P. 2119(f)). The purpose of such a separate section is to provide this Court with adequate information upon which to base our decision to exercise, or decline to exercise, our discretion to consider claims of this nature.

Mindful of our duty to liberally construe the Rules of Appellate Procedure “to secure the just, speedy and inexpensive determination of every matter to which they are applicable”, we order appellant to supplement his brief to address the concerns expressed in Tuladziecki. See Pa.R. A.P. 105. Such a supplement will ensure more effective appellate review, allow us to make a knowledgeable determination as to whether we should exercise our discretion in this matter, and curtail the needless plethora of ineffective assistance claims. The supplement shall be concise, and must be filed within thirty days of the date of this opinion.

Jurisdiction is retained.

KELLY, J., filed a concurring opinion.

BECK, J., filed a dissenting opinion.

KELLY, Judge,

concurring:

I join Judge Hoffman's well-reasoned opinion. I write separately to express additional concerns pertaining to Pa. R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

I.

There currently exists considerable uncertainty as to the effect of the failure to file a brief, concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b), as required by Pa.R.A.P. 2119(f). As recent opinions of this Court clearly demonstrate, Commonwealth v. Tuladziecki, supra, is suspectible of varied interpretations. Further clarification of the Tuladziecki decision is clearly required; additionally, review of this overly complicated procedure by the Criminal Procedure Rules Committee would appear to be more than appropriate. Nevertheless, until Tuladziecki is clarified or the rule is revised, it is incumbent upon this Court to construe, apply, and enforce the rule as it now exists and is understood.

In the cases cited (see note 1), there appears to be some question as to whether the requirement of the separate, concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) required by Pa.R.A.P. 2119(f) is jurisdictional or procedural in nature. Compare Commonwealth v. Hawthorne, supra, and Commonwealth v. Lapcevich, supra (Del Sole, J., concurring). The distinction, however, may be more one of semantics rather than of substance.

Because timely notice of appeal acts as an initial petition for allowance of appeal in such cases, at least provisional jurisdiction is thereby acquired. See Pa.R.A.P. 902 & Note. However, as Commonwealth v. Hawthorne, supra, demonstrates, the failure to comply with Pa.R.A.P. 2119(f), has a substantive effect in that without at least “substantial compliance” with Pa.R.A.P. 2119(f) {see Commonwealth v. Lapcevich, supra; Commonwealth v. Bogden, supra), the appellant/petitioner will be unable to meet his burden to establish the appearance of a substantial question regarding the appropriateness of the sentence imposed. See 42 Pa.C.S.A. § 9781(b).

While an opponent can certainly waive a procedural defect such as this, this Court is clearly not at liberty to ignore the defect and proceed to review of the merits of the claim. This Court stated in Commonwealth v. Hawthorne, supra:

In light of the unequivocal terms in which the Supreme Court views compliance with our Rules of Appellate Procedure, in this area of discretionary appeals (‘precise’ adherence is to be the benchmark and not the exception), we deem the Commonwealth’s failure to provide anywhere in its brief a ‘concise statement of reasons’ for contesting the discretionary aspect of the sentence to be fatal to its appeal.
The fact that the defendant did not raise specifically the matter in her brief is overridden by this Court’s obligation to assure itself that our rules of court are followed. See e.g., Commonwealth v. Drew, 353 Pa.Super. 632, 510 A.2d 1244 (1986); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982). Such policing of an appellant’s brief is now re-enforced by the remarks and ruling of the Court in Tuladziecki, supra.

527 A.2d at 564 (footnote omitted).

Under such analysis, a petition for allowance of appeal of discretionary aspects of sentence may be quashed, dismissed, or denied based upon the existence of a substantial procedural defect. See Pa.R.A.P. 902; Pa.R.A.P. 2101. Nonetheless, whether the petition for allowance of appeal is quashed based upon a jurisdictional defect, or it is quashed, dismissed, or denied based upon a substantial procedural defect, the effect on an appellant is the same — appellant is denied review of the merits of his challenges to the discretionary aspects of the sentence imposed based solely upon the failure of counsel to comply with Pa.R.A.P. 2119(f).

I find the Hawthorne analysis compelling up to the point that it concludes that the appeal from the discretionary aspects of sentence must be quashed. It is at that point, I believe, that Judge Hoffman’s suggestion — that we simply enforce the rule and direct compliance with Pa.R.A.P. 2119(f) — carries the weight of reason.

II.

Judge Hoffman bases the instant order upon “our duty to liberally construe the Rules of Appellate Procedure 'to secure the just, speedy, and inexpensive determination of every matter to which they are applicable____’ ” Supra at 901. He indicates that the supplement ordered will “allow us to make a knowledgeable determination as to whether we should exercise our discretion in this matter, and curtail a needless plethora of ineffective assistance claims.” Supra at 901. I agree, and would add to his analysis as follows.

Heretofore, this Court had uniformly granted allowance of appeal, and a review of the merits of an appeal challenging the discretionary aspects of sentence, when the sentence imposed was outside the guidelines, upon a finding that appellant’s argument raised a substantial question as to the reasonableness of the sentence. See Commonwealth v. Tuladziecki, supra, 522 A.2d at 22 (Larsen, J., dissenting) (citing cases); see also Commonwealth v. Porkorney, 360 Pa.Super. 384, 387, 520 A.2d 511, 512 (1987). Where, as here, an appellant may have relied upon previous appellate decisions interpreting a procedural rule, it would be inequitable to dispose of the appeal based upon a new interpretation of the rule without extending to appellant an opportunity to correct any omission which may have been caused by reasonable reliance upon our former practice.

Moreover, this Court has generally exercised great forbearance in exercising its discretionary powers under Pa.R. A.P. 902 and Pa.R.A.P. 2101 to quash briefs and dismiss appeals. Only on a few occasions, in extreme cases, and with great reluctance has this Court ordered criminal appeals quashed because of counsel’s failure to comply with rules of appellate procedure. See Commonwealth v. Drew, 353 Pa.Super. 632, 633, 510 A.2d 1244, 1245 (1986) (citing cases); Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982).

In Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982), we explained:

The Court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions which are correctable through less drastic means. However, where gross deviations from the appellate rules, which substantially impair our ability to exercise the power of review, are present, we will not hesitate to suppress the party’s brief and quash the appeal.

451 A.2d at 1361. (Emphasis added). Clearly, the omission in the instant case is “correctable through less drastic means.”

Furthermore, it is important to note that the question of whether to quash, dismiss, or deny allowance of a criminal appeal based upon counsel’s procedural errors involves constitutional questions which may not . lightly be dismissed, and policy considerations which cannot be ignored. When this Court exercises its discretionary authority to quash, dismiss, or deny allowance of appeal based upon procedural defects, it places the entire burden of counsel’s errors upon the appellant rather than the offending counsel. In appeals by the Commonwealth, the government’s right to challenge an allegedly inappropriate sentence is irretrievably lost. In appeals by a defendant, such an order delays review and merely paves the way for the defendant to file a PCHA petition on the basis of counsel’s ineffectiveness with respect to the procedural errors. These are results which should be avoided when possible.

Certainly, this Court must enforce the Pennsylvania Rules of Appellate Procedure. In Commonwealth v. Stoppie, 337 Pa.Super. 235, 236-37, 486 A.2d 994, 995 (1984), this Court noted “a trend in which appellate counsel ignore our appellate rules concerning the preparation of briefs.” See also Commonwealth v. Bell, 328 Pa.Super. 35, 41, 476 A.2d 439, 443 (1984); Commonwealth v. Casner, 315 Pa.Super. 12, 17 n. 2, 461 A.2d 324, 326 n. 2 (1983); Commonwealth v. Rose, 265 Pa.Super. 159, 166 n. 6, 401 A.2d 1148, 1152 n. 6 (1979). If this Court merely issues toothless admonitions to counsel, this Court will no doubt continue to suffer more such violations in the years to come.

However, the extreme sanctions of quashing, dismissing, or denying allowance of appeal are not the only responses available to this Court. In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the United States Supreme Court noted the existence of appropriate alternative responses when it stated:

To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney rather than against the client Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term in jail on an unlawful conviction [or sentence].

469 U.S. at 399, 105 S.Ct. at 837. I agree; when feasible, the offending counsel rather than the powerless client should bear any penalty for counsel’s violation of procedural rules.

I would affirm our statement in Commonwealth v. Taylor, supra, that “the Court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions----” 451 A.2d at 1361. Where defects are in fact minor, no action by this Court is necessary. Cf. Commonwealth v. Muller, supra.

When a brief contains substantial defects which command the attention of the Court, but which may be corrected by less drastic means than quashing, dismissing or denying allowance of appeal, the Court may enter appropriate orders directing counsel to bring the brief into compliance with the rules. Such orders may, of course, be enforced by the Court’s general contempt powers. Commonwealth v. Marcone, 487 Pa. 572, 410 A.2d 759 (1980) (power to punish for contempt is inherent in the Court and incidental to the grant of judicial power under the Pennsylvania Constitution); Hopkinson v. Hopkinson, 323 Pa.Super. 404, 411, 470 A.2d 981, 985 (1984) (same); accord Ex Parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (1873) (same constitution of the grant of judicial power under the federal constitution).

When a brief submitted to the Court is at such variance with the rules as to substantially impair the Court’s power of review, and where reasonable, less drastic measures do not exist to correct the defects, the brief will be quashed and the appeal dismissed. See Commonwealth v. Drew, supra; Commonwealth v. Sanford, supra. Though the burden on appellant is regrettable, this Court cannot act as both court and counsel.

III.

Finally, I note that I do not perceive either Judge Hoffman’s opinion or this concurrence to have set forth a mandatory rule whereby disposition of all cases involving challenges to the discretionary aspects of sentence must be held iri abeyance pending counsel’s compliance with an order to. supplement appellant’s brief. The rule regarding substantial compliance set forth in Commonwealth v. Bog-den, supra, and followed in Commonwealth v. Lapcevich, supra, is unaffected. Moreover, where success on the merits of the challenge to discretionary aspects of sentence is clearly precluded by waiver of the contention raised, I see no reason for delay in disposing of the challenge on that basis. Similarly, patent frivolity may be a reason to deny allowance of appeal without requiring compliance with Pa. R.A.P. 2119(f). The emphasis in Commonwealth v. Tuladziecki, supra, is on the requirement of precise compliance with the procedural rules before granting allowance of appeal. The same precision would not seem to be necessary to a disposition denying allowance of appeal based upon the waiver or the frivolity of the challenge asserted; nor would it appear that the reasons for directing compliance outlined herein would apply to such cases.

CONCLUSION

For the foregoing reasons, I join in Judge Hoffman’s order and opinion which directs counsel to supplement appellant’s brief with the separate concise statement of reasons for allowance of appeal under 42 Pa.C.S.A. § 9781(b) required by Pa.R.A.P. 2119(f).

BECK, Judge,

dissenting:

I respectfully dissent from the majority’s decision to order appellant to supplement his brief. I would hold that the requirements of P.R.App.P. 2119(f) are procedural, not jurisdictional. Because the rule is procedural, a failure to include in appellant’s brief a separate section, stating why an appeal should be allowed, can be waived. In the instant case, the Commonwealth has not objected to or preserved for consideration the failure of the appellant to comply with Pa.R.App.P. 2119(f). Therefore, appellee has waived the procedural defect in appellant’s brief. It is this failure to preserve the issue which distinguishes this appeal from the decision of the Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

Because the procedural defect in appellant's brief has not been preserved, we can proceed to determine for ourselves whether “there is a substantial question that the sentence imposed is not appropriate.” Appellant raises three contentions challenging the imposition of sentence. Having reviewed the record, I would find these contentions do not raise a substantial issue regarding the proper exercise of discretion by the trial court. However, appellant raises one non-sentencing issue which I would consider. He contends that the trial court erred in admitting prejudicial hearsay testimony. Although I would find error, I would not find the error prejudicial.

A parolee is entitled to minimum due process rights in a revocation hearing. Morissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Commonwealth v. Joraskie, 360 Pa.Super. 97, 519 A.2d 1010 (1987), Commonwealth v. Kavanaugh, 334 Pa.Super. 151, 482 A.2d 1128 (1984). One of the minimal due process requirements is the right to confront and cross-examine adverse witnesses unless the trial court specifically finds good cause for not allowing confrontation. Id. Where a parolee objects to offered hearsay evidence, the evidence may only be admitted upon a specific finding on the record of good cause not to allow confrontation and cross-examination. See Jefferson v. Commonwealth, Pennsylvania Bd. of Probation, 95 Pa.Cmwlth. 560, 506 A.2d 495 (1986). In the case sub judice, the trial court admitted testimony concerning criminal complaints made by appellant’s wife against him that were later dismissed. N.T. at 19-20. Additionally, police officers were permitted to testify about various incidents involving appellant that did not ultimately result in criminal charges. Id. at 22-24. The trial court also admitted testimony from appellant’s neighbor regarding appellant’s behavior. Id. at 70. Appellant objected to the aforesaid hearsay. Since the trial court made no specific finding of good cause, it erred in admitting the hearsay. However, the trial court did note that it did not rely upon this hearsay in making its decision. Id. at 70, Trial Court Opinion at 2. The court specifically stated that it based its decision solely upon the testimony of the psychiatrist and of the appellant regarding appellant’s failure to comply with the health care and medication conditions of the probation. Id. I would therefore hold that the error resulted in no prejudice to appellant.

For the above-stated reasons, I would affirm the judgment of sentence.

      . Commonwealth v. Osborne, 364 Pa.Super. 505, 528 A.2d 623 (1987); Commonwealth v. Lapcevich, 364 Pa.Super. 151, 527 A.2d 572 (1987) (per Tamilia; Rowley, J., joining; Del Sole, J., concurring); Commonwealth v. Muller, 364 Pa.Super. 346, 528 A.2d 191 (1987); Commonwealth v. Rhoades, 364 Pa.Super. 54, 527 A.2d 148 (1987); Commonwealth v. Bogden, 364 Pa.Super. 300, 528 A.2d 168 (1987); Commonwealth v. Hawthorne, 364 Pa.Super. 129, 527 A.2d 559 (1987); Commonwealth v. Thomas, 363 Pa.Super. 348, 526 A.2d 380 (1987); Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987).


author: TAMILIA, Judge:

text:
    530 A.2d 906
    MARTIN INDUSTRIAL SUPPLY CORP., Appellant. v. James RIFFERT and Lindley Supply Co.
    Superior Court of Pennsylvania.
    Argued June 25, 1987.
    Filed Aug. 31, 1987.

      Steven R. Williams, Philadelphia, for appellant.
    Cary L. Flitter, Bala Cynwyd, for appellees.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   TAMILIA, Judge:

On June 4, 1985, plaintiff/appellant hired defendant/appellee, James Riffert, to be a “cold call” salesman in its business of selling various products and supplies for use in the maintenance of commercial properties. At first, Riffert’s chief duty was to promote appellant’s business by locating new accounts. Within a short period of time, appellant decided to give Riffert established accounts in addition to any new accounts he might locate. In conjunction with turning over the established accounts, Riffert signed a boilerplate “employee non-compete” agreement with appellant on July 9, 1985. Subsequently, on September 19, 1986, Riffert gave notice of his intention to quit appellant and to work for co-defendant, Lindley Supply Company, a competitor of appellant.

Appellant commenced an action on September 24, 1986 by the filing of a complaint in equity seeking to enforce the “employee non-compete” agreement. Also, appellant filed a motion for a preliminary injunction to enjoin Riffert from violating the agreement. On December 15, 1986, after a hearing on the motion, the trial court issued findings of fact, conclusions of law and a decree nisi denying appellant’s request for a preliminary injunction. Appellant then filed a notice of appeal from the decree nisi to our Court on January 5, 1987.

Contrary to the trial court’s Opinion, we find the instant appeal properly before us despite appellant’s failure to file exceptions to the trial court’s entry of a decree nisi. Our Opinion in Agra Enterprises Inc. v. Brunozzi, 302 Pa.Super. 166, 448 A.2d 579 (1982), is controlling. In Agra Enterprises, we held that Pa.R.A.P. 311(a)(4) specifically permits a direct appeal to be taken “as of right” from a decree nisi refusing an injunction to enforce a covenant not to compete, without first filing exceptions to the decree. See Pa.R.A.P. 311(a); Bolus v. Ryder Truck Rental, Inc., 358 Pa.Super. 387, 517 A.2d 995 (1986); Commonwealth ex rel. Lewis v. Allouwill Realty Corporation, 330 Pa.Super. 32, 478 A.2d 1334 (1984); Neshaminy Constructors, Inc. v. Philadelphia, Pennsylvania Building and Construction Trades Council, AFL-CIO, 303 Pa.Super. 420, 449 A.2d 1389 (1982). Therefore, the matter is properly before us.

As we recently restated in Soja v. Factoryville Sportsmen’s Club, 361 Pa.Super. 473, 477, 522 A.2d 1129, 1131 (1987):

The purposes of a preliminary injunction are to preserve the status quo and prevent imminent and irreparable harm which might occur before the merits of the case can be heard and determined. Township of Clinton v. Carmat, Inc., 288 Pa.Super. 433, 436, 432 A.2d 238, 239 (1981). It is considered an extraordinary remedy and may only be granted if the plaintiff has established a clear right to the relief sought. Jostan Alum. Products, Inc. v. Mount Carmel Dist. Indus. Fund, 256 Pa.Super. 353, 357-58, 389 A.2d 1160, 1163 (1978).

Our Supreme Court thoroughly outlined the scope of appellate review in a preliminary injunction situation, in Bloomingdale’s By Mail Ltd. v. Commonwealth, Department of Revenue, 513 Pa. 149, 151, 518 A.2d 1203, 1204 (1986), as follows:

The limited scope of our review on appeal from the denial of a preliminary injunction has often been repeated:
[W]e will not inquire into the merits of the controversy, but will, instead, examine the record only to determine if there were any apparently reasonable grounds for the actions of the court below. [Citing cases.] Moreover, we will not “pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly not applicable.” [Citing cases.]
Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 354, 336 A.2d 316, 322 (1975) quoting Pa. P.U.C. v. Allegheny Co. Port Authority, 433 Pa. 495, 499, 252 A.2d 367, 369 (1969). Furthermore, the burden on the plaintiff who seeks an injunction is not easily met.
In order to sustain a preliminary injunction the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.
Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972). Our more recent cases have reiterated these principles. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984); Ezy Parks v. Larson, 499 Pa. 615, 454 A.2d 928 (1982); Shenango Valley Osteopathic Hospital v. Department of Health, 499 Pa. 39, 451 A.2d 434 (1982).

With this standard in mind, we have reviewed the record in the instant case.

In its finding of fact, the trial court determined that after appellant had lost not only two veteran salesmen but also, some sixty percent (60%) of its business as a result of these salesmen leaving, appellant obtained a boilerplate “employee non-compete agreement” from a form book and, without benefit of review of the form by counsel, had appellant, as well as its other four salesmen, sign it. The non-competition agreement in question, typed on appellant’s stationary and with the corporate seal, is as follows:

EMPLOYEE NON-COMPETE AGREEMENT
FOR GOOD CONSIDERATION, and in consideration of my being employed by MARTIN INDUSTRIAL SUPPLY CORPORATION, I, the undersigned, hereby agree that upon my termination of employment and notwithstanding the cause of termination, I shall not compete with the business of Martin Industrial Supply Corporation, or its successors or assigns.
The term ‘not compete’ as used in this agreement means that I shall not directly or indirectly own, be employed by or work on behalf of any firm engaged in a business substantially similar and competitive with Martin Industrial Supply Corporation.
This non-compete agreement shall remain in full force and effect for two years commencing with the date of employment termination.
Signed under seal this 9th day of July 1985.

The trial court found that by its own terms the agreement took effect upon termination for any reason whatsoever, including layoff, bankruptcy or even dismissal without cause. Although the trial court noted that the agreement had a definite time of duration of two years, the court found that the agreement had no geographical limitation, which made its restriction, by its term, apply worldwide. Within 14 months of signing the agreement, Riffert left appellant’s employ and began working for co-defendant, Lindly Supply Company.

We find the trial court had reasonable grounds for refusing a preliminary injunction against Riffert. Appellant failed to restrict the geographical parameters of the non-competition agreement in the agreement itself. This fact alone makes the terms of the agreement overbroad because such agreements must have a reasonable limitation in geographic extent. Sidco Paper Company v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976); Wainwright’s Travel Service v. Schmolk, 347 Pa.Super. 199, 500 A.2d 476 (1985). We reject appellant’s argument that the geographical area was defined by the agreement’s restricting Riffert from competing with appellant, as the area appellant currently conducts business in. Appellant’s president testified that appellant’s area of business included the states of New Jersey, Delaware, Maryland and Pennsylvania (N.H. 9/9/86, p. 6). Such a radius can be easily viewed as overbroad and we do not hold the trial court’s finding it as such, to be unreasonable. Additionally, we find no abuse of discretion on the trial court’s part in refusing to rewrite or modify the non-competition agreement to include a specific geographic area or shorter duration, as appellant suggests it could have.

Order affirmed.


author: CIRILLO, President Judge:

text:
    530 A.2d 908
    In re ADOPTION OF J.J. Appeal of James PHILLIPS, Natural Father. James PHILLIPS, Appellant v. CHILDREN AND YOUTH SERVICES OF DELAWARE COUNTY.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1983.
    Filed Sept. 1, 1987.

      Carl Oxhold III, Philadelphia, for appellant.
    Alfred J. Mattei, Media, for appellee (at 2793).
    Before: CIRILLO, President Judge, and CAVANAUGH, WIEAND, POPOVICH, MONTGOMERY, HOFFMAN and CERCONE, JJ.
   CIRILLO, President Judge:

This is an appeal from an order terminating a father’s parental rights and from an order denying a petition for visitation rights.

Appellant, James Phillips, is the alleged father of J.J., born on December 19, 1979 to Marie J. On December 31, 1979, protective custody of J.J. was awarded to appellee Children and Youth Services of Delaware County (“CYS”), because Marie was involuntarily committed to Haverford State Hospital. Marie’s parental rights were terminated on December 15, 1980 because of an incapacity to perform parental duties. CYS filed a petition to terminate James parental rights on January 23, 1981 because the agency wished to place J.J. for adoption.

Appellant’s rights were terminated pursuant to §§ 2511(a)(2) and (a)(5) of the Adoption Act following a hearing before the Honorable Francis J. Catania. At the hearing, it was established that J.J. had been in the custody of CYS since birth. James had never assumed any parental responsibility nor given or offered support for the child. In April of 1980, appellant questioned his paternity and said he wanted to take a fertility test to determine if he was truly the father. He wondered whether Marie’s statements that she had been artificially inseminated by the Duponts or Jimmy Carter were true.

Peter Spengeman, the social worker assigned to the case, testified that prior to JJ.’s first birthday, appellant did visit the child but only in the company and at the insistence of Marie, the natural mother. During these visits, James never called the child by his name, never hugged him and often teased him in a cruel manner. Appellant also told Mr. Spengeman that he had no plans to take care of J.J. and had no interest in doing so or in accepting any services from CYS to remedy the situation.

James has also been admitted to Haverford State Hospital three times since 1979 for chronic schizophrenia. At the hearing, his doctor testified that if James failed to take his medication, his illness could become more active.

Based upon this record, Judge Catania found that the grounds for terminating James’ parental rights were proven by the requisite standard of clear and convincing evidence. In a separate proceeding, James requested the right to visit J.J. pending appeal of the termination case. This petition was denied and James appealed both orders.

The superior court, per Judge Cavanaugh, reversed the hearing court (Cirillo, J. now P.J. dissenting). The superior court opinion stated that appellant raised four issues, only two of which were addressed by the court. The court stated: “appellant asks us to define the scope of appellate review in termination of parental rights cases and derivatively, to consider whether the recent U.S. Supreme Court case of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), mandates that our scope of review be broader than an abuse of discretion. Secondly, the appellant contends that the lower court erred in finding that appellee sustained the evidentiary burden of clear and convincing in its order that appellant’s parental rights be terminated.” In Re Adoption of James J., 332 Pa.Super. 486, 488-89, 481 A.2d 892, 893 (1984), rev’d 511 Pa. 590, 515 A.2d 883 (1986). In a footnote the court stated that “[t]he issues not addressed in the opinion are: whether the agency-appellee failed to aid appellant in remedying his parenting difficulties; and, whether, if the evidence relied upon by the court below met the clear and convincing standard of proof, the statute, as applied to this case, was constitutional.” Id., 332 Pa.Superior Ct. at 488, 481 A.2d at 893. The court added that it was unnecessary to reach the latter two issues because it was reversing the decision of the hearing court. The court reversed because it did not find clear and convincing evidence in the record to support a termination of James’ parental rights.

The Pennsylvania Supreme Court granted allocatur and reversed the Superior Court, reinstating the hearing court’s original decision. In Re Adoption of J.J., 511 Pa. 590, 515 A.2d 883 (1986). The court remanded the case to this court for disposition of the issues which were not reached on the first appeal. Id., 511 Pa. at 609, 515 A.2d at 893. However, a review of the appellant’s original brief demonstrates that only three issues were raised and they do not include two of the issues mentioned in the superior court opinion. The issues presented were: (1) whether the trial court erred by failing to grant James’ motion for dismissal at the close of the agency’s case; (2) whether CYS failed to prove by clear and convincing evidence that James’ parental rights should be terminated; and (3) whether §§ 2511(a)(2) and (5) are unconstitutional as applied to James.

The supreme court disposed of the second issue, concerning the agency’s burden of proof. Thus, we must determine the validity of the remaining two issues.

Appellant claims that the court should have granted his motion for dismissal at the close of the agency’s case because the evidence was insufficient to support termination. This is a vacuous argument. The hearing court and our supreme court have each determined that CYS established by clear and convincing evidence that James’ parental rights should be terminated. It would be illogical to the point of absurdity to find that CYS had met its burden of proof but their case should be dismissed. In effect, appellant has raised the same issue under separate headings and has attempted to camouflage this fact by placing his argument under two different captions.

Appellant’s final argument is that the applicable sections of the Adoption Act are unconstitutional as applied to him. In In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978), our supreme court held that the Act was not so vague as to be unconstitutional on its face. The Court recognized that a statute which is so vague as to be susceptible to arbitrary enforcement or which fails to provide adequate notice is an unconstitutional violation of due process. Id., 477 Pa. at 330, 383 A.2d at 1231. However, the court held that the Adoption Act is not such a statute. Id., 477 Pa. at 331-32, 383 A.2d at 1231.

The court' stated that vague statutes may offend the Constitution by “(1) trap[ping] the innocent by failing to give a person of ordinary intelligence reasonable opportunity to know what is prohibited so that he may act accordingly; [and] (2) they may result in arbitrary and discriminatory enforcement in the absence of explicit guidelines for their application____” Id. The court noted that the Adoption Act provides for the termination of parental rights based upon “repeated and continued incapacity [or] neglect.” See 23 Pa.C.S. § 2511(a)(2). Though this language appears at first blush to be imprecise, the court held that the statute must be evaluated in light of the meaning which has evolved via judicial interpretation. William L., 477 Pa. at 332, 383 A.2d at 1232. Because our courts adhere to strict requirements of proof before terminating parental rights, the statute was not constitutionally suspect on its face. Id. See Fabio v. Civil Service Comm. of Phila., 489 Pa. 309, 315, 414 A.2d 82, 85 (1980) (law which appears vague on its face may withstand a constitutional challenge if it has been narrowed by judicial interpretation, custom and usage).

Appellant claims that even if the statute is facially constitutional, it is unconstitutional as applied to him. He argues that the statute has been invoked in an arbitrary and discriminatory manner and that he did not receive fair notice that his behavior might cause the termination of his parental rights.

The statute specifies that parental rights may be terminated if the parent has failed to provide essential parental care because of incapacity or neglect and the parent cannot or will not remedy the problem. See 23 Pa.C.S. § 2511(a)(2). James’ behavior toward his child is the very epitome of neglect. His treatment of J.J. constitutes an unbroken litany of disdain and disinterest.

As noted previously, James originally denied paternity and took very little interest in visiting, caring for, or supporting J.J. During his visits with the child James exhibited strange and cruel behavior. He teased J.J. by snapping his fingers in front of the boy’s eyes and by dangling his bottle or a toy out of the child’s reach while he cried. Appellant was unsympathetic when the child cried, responding by snapping his fingers in the baby’s face.

James was uncooperative with Mr. Spengeman and consistently denied the social worker access to his home. He cursed him and hung up the phone on him on several occasions.

In addition to this evidence, James was consistently unemployed, suffered from chronic schizophrenia and had a history of drug use.

Certainly, any ordinary person should reasonably know that the total disregard exhibited by the above-cited acts constitutes neglect of parental duties. If James’ behavior were even to approach the societal norm in child care the consequences would be nothing short of terrifying. Though the termination statute may be vague on its face, it certainly afforded James sufficient notice that his “style” of parental care was unacceptable.

James also claims .that the termination of his rights is unconstitutional because the agency applied the statute in a discriminatory manner. He asserts that CYS pursued this case because of a personal disapproval and dislike of him and because the agency wished to place J.J. for adoption. It is often stated that the courts will not interfere with the acts of other governmental actors based on the motive behind those acts. In re Appeal by Mark-Garner Assoc., 50 Pa. Cm with. 354, 359, 413 A.2d 1142, 1145 (1980). But there are exceptions to this general rule.

The selective and discriminatory application of a statute by an arm of the government is a violation of the fourteenth amendment. Commonwealth v. Hernandez, 339 Pa.Super. 32, 44, 488 A.2d 293, 299 (1985); Commonwealth v. Stauffer, 309 Pa.Super. 176, 184, 454 A.2d 1140, 1145 (1982); Commonwealth v. Phillips, 248 Pa.Super. 400, 404, 375 A.2d 158, 160 (1977). See also Commonwealth v. Ward, 493 Pa. 115, 127, 425 A.2d 401, 408 (1981) (no constitutional violation where vindictiveness not proven).

The government must have intentionally invoked the statute for a reason unrelated to the legal matter at issue for a constitutional violation to be present. Stauffer, 309 Pa.Super at 184, 454 A.2d at 1145. The individual must establish that he has been purposefully singled out by the government for selective prosecution because of a governmental dislike unrelated to his alleged status as a law breaker. Id. However, the individual making such a claim bears the burden of proof. Id., 309 Pa.Superior Ct. at 185, 454 A.2d at 1145.

James has failed to meet this burden. He has provided nothing more than bald and unsupported assertions that the agency was after him. Appellant claims that CYS did not approve of his “lifestyle”. The hearing record indicates that the attorney for CYS questioned James about his working hours as a musician. This information was relevant as to the amount of time and care James would be able to provide J.J. James explained that though he must keep odd hours, he only works about eight hours a day. He stated that his mother would be able to care for the child during his absence from the home. The court must have been satisfied with this response because it did not cite James’ working hours as a basis for its decision to terminate his parental rights.

James’ counsel did imply that Mr. Spengeman falsified James’ address on the agency petition to terminate because of his personal enmity for the appellant. The social worker incorrectly listed James’ address as Haverford State Mental Hospital. However, as the hearing court noted, this may have been nothing more than an innocent clerical error. In any event, appellant failed to prove that CYS purposefully and wrongfully pursued him. As noted, it was James’ burden to prove this claim. Mere surmise, suggestion and implication are hardly sufficient to meet this burden.

James has also appealed from the denial of his petition for visitation rights pending appeal. In his brief, appellant recognized that this issue hinges on the outcome of his appeal of the termination order. Because we have upheld the termination, the request for visitation is moot.

We do not reach our decision in this case without much regret. The matters involved in this case are of the utmost importance and seriousness. A parent’s right to raise his child is one of the most basic rights of western civilization. It is so much a part of our cultural tradition that our courts have enshrined it with constitutional protection despite its absence from the document’s text. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). However, it is also the duty of our courts to protect children from abuse and neglect. The judicial system is society’s last line of defense against parental misconduct. Though we must respect the parent-child relationship, we cannot afford it total deference. A parent has the right to raise his child as he sees fit within the bounds of decency and reason. He does not have a license to abuse and neglect his helpless dependent.

Similarly, we take very seriously the claim that a statute is unconstitutional because it does not provide fair notice of its requirements or it has been invoked in a discriminatory manner. Our Constitution restricts the ways in which the government may deal with the citizenry out of a concern for fairness and as a protection against tyranny. It is fundamentally unfair for the government to treat one person differently from another person. If we are to remain a nation of laws and not men, the state must apply its power as even-handedly as possible. Otherwise, we have no protection from the selective use of police power against anyone who is disfavored by officialdom for any reason. Such unquestioned and unchecked power would chill our political freedoms with the raw force of an Arctic gale.

This same policy underlies the requirement that a statute must give fair notice of its provisions. Otherwise, the government could prosecute persons for statutory violations they had no way of realizing that they were committing. Our system was purposefully designed to prevent the government from acquiring such frightening power.

However, we are convinced that the governmental actions at issue in this case were constitutionally proper. Therefore, we affirm the orders of the Court of Common Pleas of Delaware County.

CAVANAUGH, WIEAND, MONTGOMERY, HOFFMAN and CERCONE, JJ., concur in result.

      . It is unclear from Judge Catania’s Opinion whether § 2511(a)(2) or § 2511(a)(5) was the basis of the termination order. Section 2511(a)(2) provides:
      The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
      Section 2511(a)(5) provides:
      The child had been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
      Any claim that § 2511(a(5) is unconstitutional because it does not provide fair notice as to the acts which it prohibits is meritless. The section explicitly specifies the behavior which it proscribes.