PA Supreme Court: Prosecution May Not Remove Defendant from ARD for Truthful Answers

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Jenkins, ruling that a judge cannot revoke a defendant’s Accelerated Rehabilitative Disposition (ARD) status simply for failing to mention an uncharged arrest on their ARD application where the prosecution never asked about uncharged arrests on the application itself. The decision limits the idea of “deception by omission” and makes clear that ARD participants can only be removed for violating actual, written conditions of the program, not for conduct that merely offends the “spirit” of rehabilitation.

The Facts of the Case

The defendant was arrested for DUI in May 2021 and later applied for ARD in Adams County. Before charges were filed for a second DUI arrest that summer, the defendant truthfully completed his ARD application, which required him to disclose any pending criminal charges but said nothing about uncharged arrests.

He was accepted into ARD, but when prosecutors later learned of the earlier uncharged arrest, they moved to revoke his participation, arguing that he violated ARD “Rule #1” prohibiting violations of the law and that omitting the arrest “defeated the spirit of ARD.” Both the trial court and the Superior Court agreed with the District Attorney. The defendant appealed the order kicking him out of ARD to the Pennsylvania Supreme Court.

The Supreme Court Reverses

Chief Justice Debra Todd, writing for a unanimous Court, rejected that reasoning. The justices held that the defendant had not violated any ARD condition. He didn’t commit a new crime after admission, and his application contained no misrepresentation because he simply was not asked about uncharged arrests.

The Court emphasized that ARD revocation must rest on a violation of specific conditions found in statute or rule, not on implied ones. Citing Commonwealth v. Foster and Commonwealth v. Rosario, the Court refused to invent an “implied condition” that defendants must self-report uncharged arrests. The ARD statute, 75 Pa.C.S. § 3807, and Rule 318 allow removal only if a participant commits a new offense or violates an enumerated condition, and neither applied here. In other words, a defendant must answer the questions asked truthfully, but they do not have to answer questions that are not asked.

Rejecting the Commonwealth’s “Spirit of ARD” Argument

The Commonwealth urged the Court to follow older cases like Boos and Jones, which allowed revocation when applicants concealed disqualifying convictions or lied on their forms. The Court distinguished those cases: the defendant’s application was truthful, and the ARD paperwork never asked about uncharged arrests. That was the Commonwealth’s problem, not his.

Justice Todd wrote that if prosecutors want such information, they must ask for it explicitly, not rely on defendants to guess what’s relevant. In her words, “We find no basis on which to expect an applicant to guess at what information he is expected to disclose.”

Takeaway

This decision restores clear limits on when ARD can be revoked. Courts cannot terminate a defendant’s participation based on uncharged conduct that occurred before admission or on vague notions of “deception by omission.”

If an ARD application doesn’t ask about arrests, an applicant has no duty to volunteer them. The opinion also suggests that counties should update their ARD forms if they want that information in the future. The ruling is an important reminder that the ARD process is governed by written rules, not by unchecked prosecutorial discretion or moral intuitions about candor.

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