J-S67010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MARK DARNELL GILMORE, :

:

Appellant : No. 489 MDA 2015

Appeal from the Judgment of Sentence February 13, 2015,

Court of Common Pleas, York County,

Criminal Division at No. CP-67-CR-0008002-2013

BEFORE: BOWES, PANELLA AND PLATT*, JJ.

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

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

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

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

The trial court provided the following summary of the factual and 

procedural history.

On October 17, 2013, Officer Ryan Thomas responded to 

Walmart for a reported theft. Walmart’s loss prevention 

representative told Officer Thomas that she observed the 

Defendant, Mark Darnell Gilmore, place two hooded sweatshirts 

and one Bluetooth device into his cart. Simultaneously, she also 

observed [Gilmore] conceal another, identical Bluetooth device 

in the sweatshirt rack. [Gilmore] then paid for the two hooded 

sweatshirts and first Bluetooth device, and left the store. A few 

minutes later, [Gilmore] reentered the store and retrieved two 

more hooded sweatshirts and the second Bluetooth device he 

had earlier concealed. [Gilmore] was observed taking these 

items to the customer service desk, where he returned those 

items using the receipt from the previous transaction. [Gilmore] 
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was given his refund of $49.82, and he then attempted to leave 

the store. However, he was stopped before exiting and the 

police were called.

After reading [Gilmore] his Miranda warnings, Officer 

Thomas questioned [Gilmore], at which time he admitted to 

returning items he did not purchase. [Gilmore] returned the 

$49.82 that he received from the customer service desk and was 

charged with one count of [t]heft by [d]eception.1

A set of stipulated facts was submitted as Commonwealth’s 

Exhibit #1.

On November 14, 2013, [Gilmore], represented by Catherine 

Himes, filed a timely [Accelerated Rehabilitation Disposition 

(“ARD”)] application with the District Attorney’s office. The 

District Attorney’s office accepted [Gilmore] into the program, 

and scheduled his ARD [p]lacement hearing for January 31, 

2014.

Prior to the ARD hearing, and pursuant to procedures recently 

instituted by the ARD office and the [c]ourt, the ARD office 

forwarded to [the trial court] [j]udge a list of the offenses for 

each defendant being considered for ARD and a summary of 

each defendant’s prior record.

At the time of the ARD hearing, but prior to the start of the 

actual hearing, [the trial court] [j]udge expressed concerns to 

the ARD representatives and to representatives of the District 

Attorney’s office that [Gilmore] should not be accepted on ARD 

because of his prior record. Neither [Gilmore] nor his counsel 

were involved in those discussions.

Notwithstanding that, [Gilmore] failed to appear for the ARD 

acceptance hearing, so the [c]ourt’s concerns became moot. 

After [Gilmore’s] failure to appear, the District Attorney formally 

denied the ARD application on February 4, 2014. [Gilmore], 

through counsel, asked to be reconsidered for ARD on February 

11, 2014. On February 26, 2014, the District Attorney’s office 

denied [Gilmore’s] reconsideration request by letter.2
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Defense counsel submitted a [m]otion for [a]dmission into 

the ARD Program on July 8, 2014. This [c]ourt scheduled a 

hearing for July 10, 2014. 

_____________________________________________________________

1 18 Pa.C.S.A. § 3922(a)(1).

2 The denial letter cited[] [Gilmore’s] failure to appear at 

placement hearing; other felony within 10 years; and “District 

Attorney exercises [sic.] at last hearing court indicated would 

not accept this defendant.”

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

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

acceptance hearing because he never received the hearing notice. Attorney 

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

defense counsel submits an ARD reconsideration letter indicating why [the 

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

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

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

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

the fact that the trial court expressed reservations about admitting Gilmore 

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

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

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

Attorney would have given Gilmore a new placement date with additional 

conditions. The trial court took the matter under advisement. 
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On December 31, 2014, the trial court issued its decision denying 

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

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

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

conviction of interstate transportation of stolen property as the reason for 

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

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

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

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

following issues for our review:

1. Whether the District Attorney abused his discretion when he 

rescinded [Gilmore’s] acceptance into the ARD program based 

on the trial court’s ex parte communications expressing concerns 

about [Gilmore’s] admission into the program, despite [Gilmore] 

previously meeting the District Attorney’s criteria for ARD?

2. Whether the trial court abused its discretion when it advised 

the District Attorney in an ex parte communication expressing 

concerns about [Gilmore’s] admittance into the ARD [p]rogram 

without providing [Gilmore] with a timely opportunity to respond 

before the District Attorney revoked [Gilmore’s] acceptance into 

the program?

3. Whether the trial court abused its discretion when it denied 

[Gilmore’]s Motion for Admission into the ARD [p]rogram under 

the circumstances of his particular case?

Gilmore’s brief at 4.

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

Commonwealth v. Fleming, 955 A.2d 450, 453 (Pa.Super. 2008). 
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The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion, 

within the framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judge. Discretion must 

be exercised on the foundation of reason, as opposed to 

prejudice, personal motivations, caprice or arbitrary actions. 

Discretion is abused when the course pursued represents not 

merely an error of judgment, but where the judgment is 

manifestly unreasonable or where the law is not applied or 

where the record shows that the action is a result of partiality, 

prejudice, bias or ill will.

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

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

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

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

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

[A]bsent an abuse of that discretion involving some criteria for 

admission to ARD wholly, patently and without doubt unrelated 

to the protection of society and/or the likelihood of a person’s 

success in rehabilitation, such as race, religion or such obviously 

prohibited considerations, the attorney for the Commonwealth 

must be free to submit a case or not submit it for ARD 

consideration based on his view of what is most beneficial for 

society and the offender.

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

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

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

withdrew the recommendation for his admission into the ARD program based 

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

Attorney. As part of the Commonwealth’s freedom to submit a case or not 
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submit a case, however, it is well settled that “the Commonwealth should be

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

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

Attorney’s withdrawal of the recommendation occurred after Gilmore failed 

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

reservations about admitting Gilmore. Because Gilmore failed to appear at 

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

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

the District Attorney’s discretion pursuant to Cline.

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

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

revoked its recommendation for ‘obviously prohibited’ considerations such as 

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

District Attorney’s decision to withdraw the recommendation, which 

admittedly was influenced by his conversation with the trial court regarding 

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

discretion.

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

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

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

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

process.” Commonwealth v. Ayers, 525 A.2d 804, 806 (Pa.Super. 1987) 
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(internal citation omitted). Nevertheless, “considerations of historical 

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

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

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

attorney.” Id.

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

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

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

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

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

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

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

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

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

Normally [if] someone fails to appear and provides adequate 

excuse as to why they didn’t appear, we will consider them for 

readmission usually providing an additional five hours of 

community service for their failure to appear.

However, in this case the rejection was based on the [c]ourt

had indicated to us and I felt it would be inappropriate to submit 

this individual because of the [c]ourt’s concerns. 

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

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

court’s discussion, Gilmore does not argue, and the record does not reflect, 
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that the trial court instructed the District Attorney to withdraw the 

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

interfered with the autonomy of the District Attorney. 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

1

 We note that our decision herein does not decide whether the discussion 

between the trial court and the district attorney constitutes an ex parte

communication, which, “by definition, involves the inclusion of one party in a 

consultation with a judge over the exclusion of another.” Commonwealth 

v. Gonzalez, 112 A.3d 1232, 1240 (Pa.Super. 2015) (italicization omitted). 

We note that the communication occurred at the time and place of a 

scheduled hearing and thus, the exclusion of Gilmore was as a result of his 

failure to appear.
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totally unnecessary” did not warrant relief as the appellant “neither alleged 

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

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

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

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

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

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

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

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

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

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

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

Gilmore. Accordingly, no relief is due. 

Gilmore also contends that the trial court abused its discretion by 

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

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

 

2

 In his brief, Gilmore asserts that the factual basis for his prior conviction 

was not contained in the record, and therefore, the trial court either made 

assumptions or the District Attorney provided evidence ex parte regarding

his prior conviction. Gilmore’s brief at 21-22. As the trial court explained at 

the July 19, 2014 hearing, the newly implemented policy of the District 

Attorney was to provide the trial courts “information on the various 

[d]efendant[s’] backgrounds prior to the actual proceeding that would 

formally accept them into the ARD program.” N.T., 7/19/14, at 23. Thus, 

the record establishes that the trial court acquired knowledge of Gilmore’s 

criminal record through this established procedure, the propriety of which 

Gilmore does not challenge.
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brief at 22-23. Gilmore asserts that the trial court showed bias and 

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

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

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

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

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

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/26/2016