J-S31030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LORI JEAN JOHNSON

Appellant No. 1546 MDA 2015

Appeal from the Judgment of Sentence August 27, 2015

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000178-2015

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

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 08, 2016

Lori Jean Johnson appeals from the judgment of sentence imposed 

August 27, 2015, in the Adams County Court of Common Pleas. The trial 

court sentenced Johnson to a term of 72 hours to six months’ partial

confinement with work release, after she was convicted of two counts of 

driving under the influence of alcohol (“DUI”), and a summary violation of 

driving on roadways laned for traffic.1 On appeal, Johnson raises two claims 

concerning the denial of her admission into the Commonwealth’s accelerated 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(a)(1) (incapable of safe driving) and (c) (highest rate), 

and 3309(1), respectively.
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rehabilitative disposition (“ARD”) program. For the reasons below, we 

affirm. 

The facts and procedural history underlying Johnson’s appeal are as 

follows. On December 26, 2014, an officer found Johnson sitting in her 

vehicle, which was stopped on railroad tracks. The officer then arrested her 

for suspicion of DUI. A subsequent blood test revealed a blood alcohol 

content of .185%. Johnson was later charged with the above-mentioned 

two counts of DUI, as well as the summary offenses of driving on roadways 

laned for traffic and trespass by motor vehicle.2 

On June 3, 2015, Johnson filed a motion requesting the trial court 

compel her admission into the ARD program and remit the costs of the 

program. She averred the Commonwealth offered her ARD with the 

condition she pay for the cost of the program ($1,795.00) over the ninemonth period she would be enrolled in the program. Motion to Compel 

Admission into the ARD Program and Remit Costs of the Program, 6/3/2015, 

at ¶ 2. Johnson claimed, however, that she was indigent, and requested the 

trial court direct the costs be remitted “or at least reduced[.]” Id. at ¶ 7. 

The trial court conducted a hearing on June 22, 2015, to determine 

Johnson’s financial ability to pay for the costs associated with the ARD 

program. Following the hearing, the court entered an order denying 

____________________________________________

2 See 75 Pa.C.S. § 3717(a).
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Johnson’s motion. The court specifically concluded Johnson “has the 

financial ability to make payments toward the ARD program fees.” Order, 

6/22/2015. 

Thereafter, on August 27, 2015, the case proceeded to a bench trial on 

stipulated facts. As noted above, the trial court found Johnson guilty of two 

counts of DUI, and one of the summary offenses.3 That same day, the court 

sentenced Johnson to 72 hours to six months’ partial confinement and a 

$1,000.00 fine for DUI (highest rate). The trial court directed that Johnson 

be paroled at the completion of her minimum sentence, and immediately 

eligible for work release.4 

Johnson thereafter filed a timely post-sentence motion, claiming the 

Commonwealth’s failure to institute a system to allow indigent defendants to 

participate in the ARD program was a violation of the equal protection clause 

of the United States and Pennsylvania Constitutions. See Post-Sentence 

Motion, 9/4/2015, at ¶ 6. Further, she requested the court vacate her 

sentence, admit her into the ARD program, and either remit or reduce the 

program costs “to a level equal to what payments per month would normally 

be set at through the Clerk of Courts (likely $40/month for a total of $360).” 

____________________________________________

3 The trial court found Johnson not guilty of trespass by motor vehicle.

4 The second count of DUI merged with the first for sentencing purposes, 

and the court directed Johnson pay a $25 fine for the summary violation.
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Id. at ¶ 9. The trial court denied the motion, and this timely appeal 

followed.5

Johnson raises the following two claims on appeal: 

I. Whether the Commonwealth violated the equal protection 

clause of the 14th amendment of the United States 

Constitution and Article I, Section 1 of the Pennsylvania 

Constitution by not implementing a system to allow 

indigent defendants, like [Johnson], to participate in the 

ARD program[?]

II. Whether the lower court abused its discretion by not 

reducing the fines associated with the ARD program for 

[Johnson] who reasonably believed she would be unable to 

pay them[?]

Johnson’s Brief at 6.

In her first issue, Johnson raises a constitutional challenge to the 

Commonwealth’s application of the ARD statute. Specifically, she argues the 

Commonwealth violated her equal protection and due process rights, under 

both the United States and Pennsylvania Constitutions,6 because it has not 

implemented “a system to either remit or at least lower the costs of the ARD 

program for ... indigent defendants.” Johnson’s Brief at 11. 

____________________________________________

5 On September 14, 2015, the trial court ordered Johnson to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Johnson complied with the court’s directive, and filed a concise statement on 

October 1, 2015. We note that the trial court also granted Johnson’s 

application for bail pending appeal.

6 See U.S. CONST. amend. XIV and PA. CONST. art. I, § 1. 
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The determination of whether an equal protection or due process 

violation occurred is a question of law, such that our standard of review is de 

novo and our scope of review is plenary. See Commonwealth v. Smith, 

131 A.3d 467, 472 (Pa. 2015); Commonwealth v. Atwell, 785 A.2d 123, 

125 (Pa. Super. 2001). 

Preliminarily, we agree with the Commonwealth’s assertion that 

Johnson’s due process claim is waived because she failed to raise it before 

the trial court in either her post-sentence motion or court-ordered concise 

statement. See Commonwealth’s Brief at 18. See also Post-Sentence 

Motion, 9/4/2015; Statement of Errors Complained of on Appeal, 10/1/2015. 

It is axiomatic that issues not raised before the trial court or in a courtordered concise statement are waived on appeal. Pa.R.A.P. 302(a); 

Commonwealth v. Diamond, 83 A.3d 119, 136 (Pa. 2013), cert denied, 

135 S.Ct. 145 (U.S. 2014). Accordingly, we will restrict our focus to 

Johnson’s equal protection challenge.7 

____________________________________________

7 We note that even if we were to consider Johnson’s due process argument, 

we would conclude she is entitled to no relief. A panel of this Court 

considered a similar due process challenge in Commonwealth v. Melnyk, 

548 A.2d 266 (Pa. Super. 1988), appeal denied, 562 A.2d 319 (Pa. 1989). 

In that case, the Commonwealth refused to recommend the defendant for 

ARD because she could not demonstrate “a present ability to pay 

restitution[.]” Id. at 267. Although the defendant raised both a due 

process and equal protection challenge, the panel focused on the due 

process claim, and opined: 

[I]n ARD determinations, the district attorney and the court 

must inquire into the reasons for the petitioner’s inability to pay 

(Footnote Continued Next Page)
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“The essence of the constitutional principle of equal protection under 

the law is that like persons in like circumstances will be treated similarly.”8 

Commonwealth v. Albert, 758 A.2d 1149, 1151 (2000). In Bearden v. 

Georgia, 461 U.S. 660, (1983), the United States Supreme Court 

considered an equal protection challenge focused on the defendant’s 

indigency. In that case, the trial court revoked the defendant’s probation, 

(Footnote Continued) _______________________

restitution. If the petitioner shows a willingness to make a bona 

fide effort to pay whole or partial restitution, the State may not 

deny entrance to the ARD program. If the petitioner has no 

ability to make restitution despite sufficient bona fide efforts to 

do so, the State must consider alternative conditions for 

admittance to and completion of the ARD program. To do 

otherwise would deprive the petitioner her interest in repaying 

her debt to society without receiving a criminal record simply 

because, through no fault of her own, she could not pay 

restitution. Such a deprivation would be contrary to the 

fundamental fairness required by the Fourteenth Amendment.

Id. at 272. The Melnyk Court provided the defendant with relief because 

the trial court had simply determined the defendant was unable to pay 

restitution and denied him admission in the ARD program, without 

considering any alternatives. 

Conversely, in the present case, the Commonwealth recommended

Johnson for the ARD program, and the trial court conducted a hearing on 

Johnson’s purported indigency. However, the court determined Johnson had 

the financial ability to pay the ARD program costs. Accordingly, both the 

Commonwealth and the court ensured that Johnson’s purported indigency 

did not deprive her of “fundamental fairness required by the Fourteenth 

Amendment.” Id.

8 We note “the equal protection provisions of the Pennsylvania Constitution 

are analyzed ... under the same standards used by the United States 

Supreme Court when reviewing equal protection claims under the Fourteenth 

Amendment to the United States Constitution.” Albert, supra, 758 A.2d at 

1151 (quotation omitted). 
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and sentenced him to a term of imprisonment, based solely on the 

defendant’s failure to pay a fine. The Court opined:

There is no doubt that the State has treated the petitioner 

differently from a person who did not fail to pay the imposed fine 

and therefore did not violate probation. To determine whether 

this differential treatment violates the Equal Protection Clause, 

one must determine whether, and under what circumstances, a 

defendant’s indigent status may be considered in the decision 

whether to revoke probation. This is substantially similar to 

asking directly the due process question of whether and when it 

is fundamentally unfair or arbitrary for the State to revoke 

probation when an indigent is unable to pay the fine. Whether 

analyzed in terms of equal protection or due process, the issue 

cannot be resolved by resort to easy slogans or pigeonhole 

analysis, but rather requires a careful inquiry into such factors as 

“the nature of the individual interest affected, the extent to 

which it is affected, the rationality of the connection between 

legislative means and purpose, [and] the existence of alternative 

means for effectuating the purpose ....” 

* * *

[T]he State cannot “impos[e] a fine as a sentence and then 

automatically conver[t] it into a jail term solely because the 

defendant is indigent and cannot forthwith pay the fine in full.” 

In other words, if the State determines a fine or restitution to be 

the appropriate and adequate penalty for the crime, it may not 

thereafter imprison a person solely because he lacked the 

resources to pay it. [Prior precedent] carefully distinguished this 

substantive limitation on the imprisonment of indigents from the 

situation where a defendant was at fault in failing to pay the 

fine. As the Court made clear ..., “nothing in our decision today 

precludes imprisonment for willful refusal to pay a fine or court 

costs.” Likewise [], the Court “emphasize[d] that our holding 

today does not suggest any constitutional infirmity in 

imprisonment of a defendant with the means to pay a fine who 

refuses or neglects to do so.” 

Id. at 667-668 (citations and footnotes omitted).
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Here, the focus is on the state’s ARD program, which involves “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 

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). Pennsylvania Rule of Criminal Procedure 316 provides, inter alia, 

“the conditions of the program may include the imposition of costs, the 

imposition of a reasonable charge relating to the expense of administering 

the program, and such other conditions as may be agreed to by the parties.” 

Pa.R.Crim.P. 316(A). However, the Comment to the Rule acknowledges 

“[t]he practice has been to permit qualified individuals who are indigent to 

participate in the ARD program without payment of costs or charges.” Id., 

Comment. 

Johnson asserts that both Commonwealth and the trial court herein 

have ignored the mandate of Rule 316 by failing to remit or reduce the ARD 

program costs for indigent defendants, such as herself. She states: 

[D]efendants across the state like [Johnson], are living in 

desperate financial situations, but are being required to pay 

exorbitant amounts of money to participate in a program that is 

designed for the benefit of all, but is just benefitting those who 

have comfortable financial situations. And if they fail to do this 

then they are commonly serving jail time and receiving criminal 

records which only exasperate their already dire financial 

situations. This appears to be a violation of the Equal Protection 

Clause in that the indigent are not being treated similarly to the 

affluent[.]”
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Johnson’s Brief at 13. She further argues: “it is a violation of the fairness 

implicit in the 14th Amendment to force defendants, like [Johnson], to have 

to file motions to compel admission into the ARD Program.” Id. at 16.

We find no equal protection violation. Here, the Commonwealth 

treated Johnson, a purported indigent, the same as any other defendant, 

and recommended her admission into the ARD program. However, when 

Johnson averred that she could not pay the costs of the program, which is 

required of all defendants, the trial court conducted a hearing to determine 

Johnson’s ability to pay. The court was not obligated to blindly accept 

Johnson’s assertion that she could not afford to pay the costs of the ARD 

program. After the hearing, the court determined Johnson had the financial 

ability to pay, and denied her motion to reduce or remit the program costs.9 

Accordingly, Johnson was not denied equal protection under the law, and her

first argument fails. 

____________________________________________

9 We note Johnson asserts the District Attorney’s Office should have had a 

specific system in place “to offer reduced fines and costs for indigent 

defendant[s] seeking admission into ARD,” so that such defendants are not 

“force[d]” to file a motion to compel admission. Johnson’s Brief at 16. 

However, she fails to explain how the procedure which occurred in the 

present case was unconstitutional. The Commonwealth recommended 

Johnson for ARD without regard to her financial resources. When she 

believed she could not pay the costs associated with the program in the 

designated time period, she filed a petition with the trial court, which then 

conducted a hearing. Under this scenario, Johnson’s rights were protected.
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Second, Johnson contends the trial court abused its discretion in failing 

to reduce or remit the costs associated with the ARD program. 

It is well-settled that “[a]dmission to an ARD program is not a matter 

of right, but a privilege.” Lutz, supra, 495 A.2d at 935. The decision to 

recommend a defendant for ARD lies solely in the prosecutor’s discretion. 

Commonwealth v. Cline, 800 A.2d 978, 981 (Pa. Super. 2002), appeal 

denied, 822 A.2d 703 (Pa. 2003). “Once the Commonwealth submits an 

ARD recommendation, the trial court is vested with the discretion to decide 

whether to accept the recommendation.” Id.

Here, the trial court did not deny Johnson admission into the ARD 

program. Rather, the court refused to reduce or remit the costs associated 

with the program. As noted above, Rule 316 specifically permits the court to 

impose the payment of program costs as a condition of ARD. See 

Pa.R.Crim.P. 316(A). The Comment to the Rule clarifies, however, that 

otherwise qualified indigent defendants should be permitted to participate in 

ARD without the payment of costs or charges. See id., Comment. 

Accordingly, in the present case, when Johnson averred she was indigent 

and unable to pay the costs associated with her admission into the ARD 

program, the court conducted a hearing to determine whether she was 

financially able to pay the ARD costs. Similar to an in forma pauperis

determination, we find “[t]he trial court has considerable discretion in 

determining whether a person is indigent ... [and] in making that 

determination, it must focus on whether the person can afford to pay and 
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cannot reject allegations in an application without conducting a hearing.” 

Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008) 

(holding trial court did not err in denying motion to appoint expert witness 

when defendant failed to establish indigency) (quotation omitted), appeal 

denied, 964 A.2d 893 (Pa. 2009). 

In the present case, Johnson argues the court abused its discretion by 

not, at the very least, reducing the administrative cost of her participation in 

the ARD program. See Johnson’s Brief at 17. She notes her testimony 

during the hearing revealed her only income was $800 per month from odd 

jobs and $200 per month in food stamps, although she also indicated she 

receives financial help from her parents and boyfriend. See id. Moreover, 

she testified her monthly expenses were $700 for rent, $225 for cell phone 

service, $80 for internet and television, $30 for student loans, and $35 for a 

court fine. See id. Further, she explained she supports two daughters, 

ages 20 and four, without child support. See id. While Johnson also 

acknowledged that she spends an additional $110 per month on cigarettes 

and alcohol, she argues her ability to pay the ARD costs should not be 

“decided on whether she has any personal expenses” or whether she has 

family or friends who can help her pay expenses. Id. at 18. Rather, she 

claims, her testimony “included justifiable expenses, under anyone’s 

judgment, that eclipsed the amount of income she has.” Id. Therefore, she 

asserts, the trial court abused its discretion in refusing to reduce the 

administrative cost of ARD. 
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The trial court, however, disagreed, opining:

Here, [Johnson] claims that the typical condition that she 

pay the standard fee of $17955is unreasonable. At the June 22, 

2015, hearing it was determined that [Johnson] was a college 

graduate [who] was currently starting her own business. 

[Johnson] has split custody of [two] children, with a 20 year old 

and four year old residing with her. [Johnson] was doing odd 

jobs to have a monthly income of $800. [Johnson] had monthly 

bills of $30 for student loans; $225 for her and her 20-year-old 

daughter’s cell phone; and $80 for internet at her home. It was 

also determined that [Johnson] spent $25 per week on 

cigarettes and $10 a month on alcohol. [Johnson] makes no car 

payments as she owns her car outright and receives food 

stamps. With the exception of the student loans, all of those 

expenses are discretionary. No testimony was offered to 

suggest [Johnson] has any disability that would preclude her 

from seeking or obtaining more gainful employment. 

__________

5 The Adams County District Attorney’s office offered 

[Johnson] ARD for a 9 month period. Her payments break 

down to roughly $199 per month.

__________

Further, there is no entitlement to be allowed to participate 

in a discretionary program like ARD. While it might be financially 

challenging for her, [Johnson] nonetheless has available funds to 

pay the standard costs associated with the ARD program, but 

chooses to prioritize extra amenities over participation in this 

diversionary program. [Johnson’s] alleged inability to pay the 

standard fees and costs of the ARD program is more a desire not 

to pay than an inability to pay. 

Trial Court Opinion, 10/6/2015, at 3. 

We detect no abuse of discretion on the part of the trial court. 

Although Johnson’s monthly expenses appear to greatly exceed her income, 

we agree with the conclusion of the trial court that a large percentage of 

those expenses are discretionary. We remind Johnson that “[a]n abuse of 
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discretion is not merely an error in judgment but requires a finding of bias, 

partiality, prejudice, ill will, manifest unreasonableness, or misapplication of 

law.” Commonwealth v. Lepre, 18 A.3d 1225, 1226-1227 (Pa. Super. 

2011). Here, she failed to demonstrate the court’s ruling was an abuse of 

discretion.

Judgment of sentence affirmed.

Judge Shogan joins this memorandum.

Judge Strassburger files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2016