J-S15007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL W. MUFSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1453 MDA 2022

Appeal from the Judgment of Sentence Entered September 19, 2022

In the Court of Common Pleas of Union County Criminal Division at 

No(s): CP-60-CR-0000010-2020

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 21, 2023

Samuel W. Mufson appeals from his judgment of sentence of probation 

and fines imposed for his convictions of multiple counts of driving under the 

influence (“DUI”) and summary offenses. Specifically, Appellant challenges 

denial of his pre-trial motion to compel the District Attorney’s Office (“DA”) to 

nominate him into an Accelerated Rehabilitative Disposition (“ARD”) program. 

We vacate Appellant’s judgment of sentence and convictions and remand for 

further proceedings consistent with this memorandum.

Appellant was charged with three counts of first-offense DUI by 

complaint filed on November 26, 2019. He waived his preliminary hearing

and arraignment and submitted an application for ARD. The trial court 

summarized the subsequent history of this case as follows:

[Appellant] was scheduled for [an ARD] hearing on April 6, 

2020. Unfortunately, due to the imposition of a COVID related 
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judicial emergency order, the ARD hearing was cancelled, with a 

rescheduled date to occur after the expiration of the judicial

emergency. The Union County [DA] declined to move [Appellant]

into the ARD program in light of the holding of Commonwealth 

v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).

[1]

 [Appellant] filed 

a motion to reinstate [the ARD] program for first offense [DUI] 

cases in Union County and motion to compel nomination for [ARD] 

on September 28, 2020. The motion challenged the [DA’s] 

decision to not admit [Appellant] into an [ARD] program. 

President Judge Michael Hudock presided over the hearing and 

argument held on [Appellant]’s Motion on November 19, 2020.

Judge Hudock promulgated an order dated January 21, 2021 

dismissing [Appellant]’s motion . . on the basis of [Appellant]’s 

motion being moot [because the DA had reinstated an ARD 

program for first-time DUI offenders, albeit with preconditions for 

nomination designed to contend with Chichkin].

On or about March 5, 2021, [Appellant] filed a motion 

challenging certain pre-conditions for nomination, conditions 

imposed as part of ARD program, and post-ARD completion 

limitations. Judge Hudock presided over a hearing on May 19, 

2021 regarding [Appellant]’s challenge . . . . [The trial court], in 

its opinion and order dated June 16, 2021, sustained [Appellant]’s 

challenges to the [DA’s] preconditions to entry into the ARD 

program for DUI offenders. The court further ordered that the 

[DA] could not require a defendant to plead guilty or acknowledge 

guilty beyond a reasonable doubt or waive the right to seek 

expungement for a period of ten years. The court dismissed

[Appellant]’s challenge to the length of ARD program for DUI 

offenders as moot. The court denied [Appellant]’s challenge to 

the use of electronic monitoring in the ARD program for DUI 

offenders.

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1

In Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), this Court 

held that 75 Pa.C.S. §§ 3804 and 3806(a)(1) were unconstitutional insofar as 

they categorized prior acceptance into ARD as a prior conviction for purposes 

of sentencing on a subsequent DUI conviction. Id. at 967 (relying upon the 

requirement of Alleyne v. United States, 570 U.S. 99 (2013), that any fact 

that enhances a sentence must be determined by the fact-finder beyond a 

reasonable doubt). As we discuss infra, Chichkin was later overruled by 

Commonwealth v. Richards, 284 A.3d 214 (Pa Super. 2022) (en banc), 

appeal granted, 518 MAL 2022, 2023 WL 2520895 (Pa. March 15, 2023), and 

Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super. 2022) (en banc). 
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[In response, the DA adopted a blanket policy of refusing to 

nominate any DUI offenders for ARD. Thereafter, Appellant] filed 

a renewed motion to reinstate [ARD] on August 17, 2021. On 

September 2, 2021, after an on-the-record discussion with

counsel, the court continued [Appellant]’s pre-trial conference to 

give [Appellant] and his counsel an opportunity to review th[e trial 

c]ourt’s opinion in the case of [Commonwealth v. Vera, CP-60-

CR-0000037-2020 (Union Co. C.C.P. August 31, 2021), in which

the trial court held that while it may disagree with the DA’s 

assessment, the articulated reasons validly were based upon the 

protection of society and success in rehabilitation and therefore 

not an abuse of discretion,] and for [Appellant] to make a 

determination whether he wished to proceed on his motion to 

compel ARD or to pursue a bench trial. The court held a pre-trial 

conference on December 13, 2021 and directed the case proceed 

to a bench trial. The court denied [Appellant]’s renewed motion 

. . . on December 17, 2021. 

Trial Court Opinion, 12/2/22, at unnumbered 1-3 (cleaned up). The trial court 

found Appellant guilty of all counts on May 24, 2022, and sentenced him to 

probation and fines on September 19, 2022. This timely appeal followed, and 

both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant asserts that the trial court abused its discretion in 

denying his motion to compel nomination to the ARD program. We review a 

trial court’s order declining a request to compel the prosecutor to nominate a 

defendant for an ARD program for an abuse of discretion. See 

Commonwealth v. Fleming, 955 A.2d 450, 453 (Pa.Super. 2008). 

“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. (cleaned up). 
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Appellant contends that the trial court should have compelled the DA to 

nominate him for ARD because, inter alia, the DA’s complete Chichkin-based 

policy of refusal and the reasons behind it constitute an abuse of discretion 

and “an unlawful de facto termination of a legislatively mandated program 

pursuant to 75 Pa.C.S. § 1552[.]” Appellant’s brief at 9-10 (citation altered). 

The trial court and the Commonwealth contend that the DA’s decision 

was not an abuse of discretion for the reasons stated in Vera, supra. See

Trial Court Opinion, 12/2/22, at unnumbered 5-6; Commonwealth’s brief at 

4-5. The Commonwealth asserts that “[c]learly, the Superior Court’s decision 

in [Chichkin] impacted the [DA’s] policy regarding the admission of first 

offense [DUI] offenders into the ARD program.” Commonwealth’s brief at 2-

3. It further observes that, although Chichkin was overruled by 

Commonwealth v. Richards, 284 A.3d 214 (Pa.Super. 2022) (en banc), 

appeal granted, 518 MAL 2022, 2023 WL 2520895 (Pa. March 15, 2023), and 

Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super. 2022) (en banc),2 while 

this appeal was pending, “Chichkin was in effect at all times relevant to the 

instant case and held generally that an ARD disposition could not be used as 

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2 Subsequent to our overruling of Chichkin, its holding was affirmed per 

curiam by an equally divided Court in Commonwealth v. Verbeck, 290 A.3d 

260 (Pa. 2023). Since Verbeck has no precedential value, Richards and 

Moroz are currently the controlling law such that ARD counts as a prior 

offense for purposes of sentencing for a subsequent DUI offense. See, e.g., 

Commonwealth v. Mosley, 114 A.3d 1072, 1082 (Pa.Super. 2015) (“When 

a judgment of sentence is affirmed by an equally divided court, . . . no 

precedent is established and the holding is not binding on other cases.”). 
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a first offense when grading a second or subsequent DUI offense.” 

Commonwealth’s brief at 3.

This Court recently examined the impact of Chichkin’s overruling on a 

DA’s wholesale refusal to consider DUI defendants for ARD in 

Commonwealth v. H.C.G., 1472 MDA 2021, 2023 WL 3451897 (Pa.Super. 

May 15, 2023) (non-precedential decision), and Commonwealth v. Corson, 

___ A.3d ___, 2023 PA Super 122, 2023 WL 4441637 (Pa.Super. June 11, 

2023). In H.C.G., the Mifflin County DA, “in the wake of this Court’s decision 

in Chichkin, . . . instituted a blanket policy of refusing ARD to all defendants 

charged with DUI.” Id. at *2. When DUI defendant H.C.G. sought to compel 

the DA to nominate him for ARD, the trial court denied the motion, explaining 

that “it was persuaded by the Commonwealth that the denial of ARD for first 

time DUI offenses in light of Chichkin is for the protection of society.” Id. at 

*2 (cleaned up). 

This Court addressed H.C.G.’s challenge to the trial court’s denial of his 

motion to compel the DA to move for his admission to the ARD program as 

follows:

Chichkin . . . is no longer controlling law in Pennsylvania. 

In [Moroz, supra], this Court expressly overruled Chichkin and 

held that the Motor Vehicle Code’s recognition of acceptance of 

ARD as a prior conviction for purposes of imposing a [§] 3804 

mandatory minimum sentence passes constitutional muster. 

Since this Court has overruled Chichkin, the Commonwealth’s 

blanket policy of ARD refusal to DUI defendants is arbitrary and 

bears no relation to the protection of society or the potential for 

successful rehabilitation of the offender. The Commonwealth’s 
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refusal to admit Appellant into ARD based on this policy was, thus, 

an abuse of its discretion.9

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9 The trial court’s failure to admit Appellant into the ARD 

program is likewise an abuse of discretion. We recognize 

that this Court decided Moroz during the pendency of 

[H.C.G.]’s direct appeal. The trial court was, thus, 

proceeding according to the law in effect at the time it 

rendered its decision. [H.C.G.] is nonetheless entitled to 

application of Moroz on direct appeal.

Id. at *3 (cleaned up). Therefore, this Court vacated H.C.G.’s convictions and 

sentence and remanded for the trial court to hold an ARD hearing pursuant to 

Pa.R.Crim.P. 312 and 313. 

In Corson, which involved the Union County DA as does the case sub 

judice, we concluded that we were “persuaded in part by the reasoning of the 

H.C.G. decision.” Corson, supra (slip. op. at 9) (noting that “[w]hile nonprecedential decisions may be cited for their persuasive value in light of the 

2019 amendments to Pa.R.A.P. 126, they remain, by definition, non-binding 

in other cases.”). Specifically, we determined that the H.C.G. decision 

correctly observed that, “even when a trial court’s decision was not legally 

erroneous at the time it was made, a criminal defendant has the right to 

benefit from a change in the law on appeal when he has preserved the issue 

for review.” Id. Therefore, we agreed that Corson was “entitled to relief 

where the overruling of Chichkin wholly undermined the basis of the trial 

court’s conclusion that the DA’s blanket policy was a fair exercise of his 

discretion.” Id. 
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However, rather than remand for an ARD hearing, the Corson Court 

ruled that it was “more appropriate to remand for the DA to reconsider 

[Corson]’s application to be nominated for ARD in light of the prevailing law 

rather than proceed directly to an ARD hearing which, in accordance with Rule 

312 and 313, is premised upon a DA’s prior nomination of [Corson] into ARD.” 

Id. Accordingly, we vacated Corson’s “judgment of sentence and convictions 

to reset the case to the pre-trial stage.” Id. (slip. op. at 9-10). 

The instant case is materially indistinguishable from Corson. Indeed, 

the Union County DA’s reasons for the blanket prohibition, and argument in 

support of it despite Chichkin’s overruling, are identical in both cases. 

Therefore, we likewise vacate Appellant’s judgment of sentence and 

convictions and remand for the DA to reconsider Appellant’s application to be 

nominated for ARD in light of the prevailing law.

Judgment of sentence and convictions vacated. Case remanded for 

further proceedings consistent with this memorandum. Jurisdiction 

relinquished. 

Judge Stabile joins this Memorandum.

Judge Sullivan files a Concurring Statement.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/21/2023