dissenting:
I cannot join in the Majority’s rationale for disposing of the instant case. Accordingly, I submit this Dissenting Opinion as a response to the appeal from the judgment of sentence for robbery and criminal conspiracy by the appellant, Brian Simmons.
The sole issue raised for review concerns a challenge to the appellant’s inclusion into the Career Criminal Program operated by the Philadelphia District Attorney’s Office, the object of which was to curb recidivism by assigning those defendants meeting the Program’s profile of career criminals to one of three “career criminal judges”.1
*284It is the appellant’s contention that such a Program violated his due process and equal protection rights under the United States and Pennsylvania Constitutions, as well as denying him the right to a non-jury trial under Pa.R.Crim.P. 1101. Moreover, the appellant protests that, even if this Court were to condone the use of the Program, his conviction would have to be reversed because the prosecutor never demonstrated that the robbery charge lodged against him (graded as a felony of the third degree following a preliminary hearing) fit within any of the Program’s established guidelines set forth in a Memorandum dated 1/19/83 from Philadelphia’s District Attorney’s Office,2 *285and, as such, constituted an “arbitrary and capricious” exercise of the prosecutor’s “discretion” in deciding what cases to include in the Career Criminal Program. See Appellant’s Brief at 17.
The appellant concedes, as he must, that this Court has had occasion in the past to reject assaults on Philadelphia’s Career Criminal Program brought under the umbrella of due process and equal protection, in addition to Rule 1101. See Commonwealth v. Vinson, 361 Pa.Super. 526, 522 A.2d 1155 (1987) (Restricting the pool of judges who may hear cases does not create bias in the presiding judge, nor does it limit the opportunity for a non-jury trial); Commonwealth v. Stinnett, 356 Pa.Super. 83, 514 A.2d 154 (1986) (Equal protection and due process claims); Commonwealth v. Carter, 347 Pa.Super. 624, 501 A.2d 250 (1985), allocatur denied, 517 Pa. 591, 535 A.2d 81 (1987) (Due process and Rule 1101 claims); Commonwealth v. Kellum, 339 Pa.Super. 513, 489 *286A.2d 758 (1985); Commonwealth v. Hailey, 332 Pa.Super. 167, 480 A.2d 1240 (1984).
This day, the appellant proffers no new argument which would cause this writer to alter any of the previous decisions upholding the propriety of the Career Criminal Program in Philadelphia.
For example, the appellant protests that his inclusion in the Program, a condition of admission being a prior criminal record, prejudiced him in the eyes of the pre-trial judge, who also presided at his jury trial.
I would note, at the outset, that during the pre-trial hearing, seeking recusal and a declaration that the Program be declared null and void, the judge stated that he was unaware of the appellant’s two prior robbery convictions until they were made known to him through appellant’s counsel’s argument that day. Further, the pre-trial judge admitted to being ignorant of the existence and substance of the rules promulgated by the District Attorney with respect to inclusion of a defendant into the Program, and, in fact, he saw no need for the Program since he applied “the same standards, the same rules of evidence, everything[,]” in his courtroom without exception to whether an accused was in or out of any career criminal program.
Thus, we do not have a situation in which a judge, exposed to prejudicial information, is unable to distance himself/herself from the disclosure so as to be fair and impartial in his/her rulings. See Commonwealth v. Davis, 491 Pa. 363, 371-72 n. 6, 421 A.2d 179, 183 n. 3 (1980) (“A judge, as a factfinder, is presumed to disregard inadmissible evidence and consider only competent evidence.”); see also Stinnett, supra, wherein this Court rejected a due process argument by reasoning that the mere fact that a trial judge is aware of a defendant’s prior record does not automatically render him biased.
Moreover, a review of the record does not establish any support for the appellant’s contention that the denial of his pre-trial motion and trial court evidentiary rulings were *287tainted by the presiding judge’s exposure to his prior criminal record. This assertion is specious, especially in the latter case given the fact that he was tried and convicted by a jury of his peers. In the same vein, the appellant’s argument that he was effectively denied his right to a non-jury trial, under Rule 1101, by his assignment to the Career Criminal Program is untenable since a similar assertion was made and denied by this Court in Carter, supra.
In Carter, a panel of this Court found that one’s designation to the Career Criminal Program of Philadelphia does not foreclose the individual his “right” to a non-jury trial where the trial judge knows of his prior convictions because “ ‘an accused does not have an absolute right to a bench trial.’ ” 347 Pa.Super. at 627, 501 A.2d at 251, quoting Hailey, supra, 332 Pa.Super. at 172-73, 480 A.2d at 1242-43 and citing Commonwealth v. Sorrell, 500 Pa. 355, 456 A.2d 1326 (1982). Rather, we pointed out, by quoting the United States Supreme Court in Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), that: “ ‘A defendant’s only constitutional right concerning the method of trial is to an impartial trial by jury.’ ” 347 Pa.Super. at 628, 501 A.2d at 252. This was afforded the appellant.
As for the appellant’s claim of being the object of unequal treatment with his induction to the Career Criminal Program, I find that its objective of attempting to control recidivism is laudable and does not smack of equal protection violations. See Carter, supra. To the extent that the appellant may have received a “harsher” sentence than that meted out to other criminals is more the result of the circumstances attendant to the appellant’s criminal behavior and past criminal predilections, and less the by-product of assignment to the Career Criminal Program. The appellant has presented no evidence to substantiate his allegation, save for his own self-serving remarks that ring hollow under scrutiny. If it were otherwise, the appellant’s recourse would be to challenge the sentence as violative of the statutorily created factors (supplemented by case law) to be weighed by a judge when formulating the type and *288length of punishment under the Sentencing Code. No such course was pursued by the appellant at bar.
No more persuasive is the appellant’s averment that his referral to the Career Criminal Program was tantamount to the prosecution being permitted to “judge-shop”, and, therefore, effectively precluding him from choosing to proceed non-jury before a jurist devoid of knowledge of his prior criminal history.
Because I would find the appellant’s recusal and Rule 1101 contentions to be wanting, I am not inclined to label the prosecutions efforts to “curb” recidivism the equivalent of “judge-shopping”. The selection of the three judges who at any one time made up the Program, the inception and implementation of which was through the joint effort of the President Judge and the District Attorney’s Office of Philadelphia County, are not viewed by this Court as a method of assuring the harshest possible sentence be issued against repeat offenders. As just stated previously, the avenue to seek redress of the punishment imposed would be via the Sentencing Code, augmented by the Pennsylvania Rules of Criminal Procedure and not under the banner of prosecutorial “judge-shopping”.
The last of the appellant’s objections, which questions his admission into the Career Criminal Program, was considered to “involve matters of sufficient importance” by this Court to warrant having the case argued en banc, with particular attention to be given by all parties to the “viability” of the Program in light of this Court’s decision in Commonwealth v. Carter, supra.
Albeit the Commonwealth informs us that the Pennsylvania Supreme Court’s reorganization of the Philadelphia criminal court system, in January of 1988, rendered the continued use of the “career criminal judges” impractical, the Program still exists to the extent that one prosecutor is relegated the task of handling a career criminal’s case from the pre-trial stage to sentencing. This modification of the Program’s “jurist” feature, however, does not dispense with our initial inquiry as to the Program’s continued operation, *289especially with regard to the use and/or existence of guidelines to formulate whether an accused is a candidate for the Program.
It is the position of the appellant that the charge of robbery, which was graded a felony of the third degree by the preliminary hearing judge,3 did not come within the perimeters of the 1988 guidelines, nor did the prosecution show any criteria that would place his case within the Program. As a result, his inclusion in the Program must be deemed arbitrary and capricious, and a violation of his rights to due process and equal protection of the law. In support of such an assertion, the appellant directs us to Commonwealth v. Carter, supra. There, in sustaining the Career Criminal Program against constitutional attack, we observed that our Supreme Court’s concern and ultimate ruling of unconstitutionality of 42 Pa.C.S. § 5104(c) in Commonwealth v. Sorrell, supra, because of a lack of prosecutorial accountability in stating on the record his reasons for exercising his absolute right to a jury trial pursuant to Section 5104(c), was lacking in Carter. We stated our reasons as follows:
The Career Criminal Program is not the product of an undisclosed and arbitrary prosecutorial policy but is, rather, a policy instituted with the approval of the President Judge which attempts to deal effectively with a serious societal problem. The prosecution is not permitted to designate whomsoever it chooses for inclusion in the program. It can only select from among those recidivists *290whose previous offenses fall within certain well-defined categories. See note 1 supra.[*] We believe that the policy underlying Sorrell mandates that the District Attorney’s Office be accountable in administering this program. Although appellant has not argued this issue on appeal, inherent in our holding is the requirement that the prosecutor exercise good faith in assigning to the program only those defendants who truly fit the criteria for inclusion, and that the criteria be reasonably adapted to effectuate the stated policy of more effectively prosecuting recidivists. It is imperative that the District Attorney not be permitted to administer this program capriciously lest Sorrell’s policy of guarding against prosecutorial unaccountability be undermined.
347 Pa.Super. at 631 & n. 1, 501 A.2d at 253-54 & n. 1 (Emphasis in original). From the preceding, the appellant draws his conclusion that the prosecution’s failure to supply him with a set of criteria, utilized in the formulation of its decision to make assignments to the Career Criminal Program, is contrary to the teaching of Carter and justifies a reversal of his conviction and judgment of sentence.
The prosecution retorts that Carter was preoccupied with making sure “the defendant’s placement into the [Pjrogram be reasonably related to the laudable goals of more effectively prosecuting recidivists”, rather than requiring, as a condition to the Program’s validity, the prosecution’s documentation of the formula for assigning an accused to career criminal status. Further, it asserts, in no other instance in which the prosecution is permitted to exercise its discretion, be it in the context of mandatory minimum sentencing, accelerated rehabilitative disposition or death penalty cases, is it required that “individual prosecutors’ offices detail what types of consideration they will factor into [a] deci*291sion” of whether to act in a particular situation. See Appellee’s Supplemental Brief at 11-12. I believe the case to be otherwise and look to our Supreme Court’s decisions in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985) and Sorrell, supra, as the underpinnings for my views of prosecutorial accountability and the documentation of the same, on the record, in assessing a challenge to the exercise of prosecutorial discretion.
In Lutz, the Court held that district attorneys, under rules pronounced by it, would be the sole arbiters of whether to move for admission of a defendant to ARD. In the case of motor vehicle violations, the statute only provided for who may not be admitted to ARD, while the Comment to Pa.R.Crim.P. 175-185 left it to the district attorney’s discretion as to which crimes he wished to prosecute.
Because the judgment about who could benefit from ARD, which was a relevant factor, in conjunction with the restrictions set out in 75 Pa.C.S. § 3731(d) (concerning persons who may not be admitted to ARD), was a subjective process resting in the sound discretion of the district attorney, the Court remarked:
This judgment, in turn, rests in the sound discretion of the district attorney. Such discretion, of course, is not without limitation, and, as is indicated by Professor David in Discretionary Justice, may be usefully circumscribed by a requirement of openness:
The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure. The reason for repeating the word “open” is a powerful one: Openness is the natural enemy of arbitrariness and a natural ally in the fight against injustice.
(1979 Ed. at 98). Although some of these categories do not particularly apply to prosecutorial discretion, but are listed because Davis is writing about administrative agencies in general, the category “open reasons” does apply. In all the cases consolidated herein, the prosecutors have openly specified their reasons for not sub*292mitting the cases for ARD, and those reasons, while they may be subject to disagreement as to their wisdom, do not amount to an abuse of discretion.
* * * * * *
In any event, the decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent 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 other 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.
508 Pa. at 309 & 310, 495 A.2d at 934 & 935 (Citations omitted; Emphasis added in part).
Thus, in Lutz we see the endorsement of a concept of “openness” when it comes to the exercise of discretion by a district attorney where the benefits4 of a program to one accused of a crime weigh in the balance. However, it is obvious to this writer that the overriding consideration in Lutz is the creation of a record from which a challenge to the exercise of discretion by the prosecution can be made. This same air of “openness” is manifested in Sorrell, supra, where the unbridled exercise of the prosecution’s demand for a jury trial (present in the form of a legislative enactment at 42 Pa.C.S. § 5104(c)) was held to be at odds with the defendant’s opportunity to seek a non-jury trial pursuant to Rule 1101, and, therefore, was held to be unconstitutional in precluding the trial court from exercising the discretion conferred upon it by Rule 1101 in deciding whether a non-jury trial should be permitted. In particular, the Sorrell Court wrote:
Unlike Rule 1101, which provides for an impartial determination and fosters public accountability on the part of *293the prosecutor by encouraging him to state his position on the record, 42 Pa.C.S. § 5104(c) provides for prosecutorial control of the accused’s motion to waive trial by jury without any provision for the prosecutor’s accountability through judicial review. Compare Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) (trial court must place on record its reasons for imposition of particular sentence).
500 Pa. at 361, 456 A.2d at 1329 (Emphasis added).
Even this Court in Commonwealth v. Kindness, 247 Pa.Super. 99, 371 A.2d 1346 (1977), impliedly embraced an “accountability” standard, for without such the means by which the Court could evaluate a district attorney’s denial of the appellant’s request for ARD treatment could not have been accomplished.
In Kindness, once the appellant had been charged with, and following his arraignment for, driving while under the influence of intoxicating liquor, he filed a motion seeking submission to ARD. The district attorney was directed by the court below to file an answer. He did so and gave two reasons for declining to act to have the appellant admitted to ARD. After the appellant was adjudged guilty of the offense charged, he filed an appeal from judgment of sentence. We affirmed, and, in doing so, held, in response to an averment that the exclusion of drunken drivers from ARD amounts to a denial of equal protection of the law, that:
It is undisputed that appellant was excluded from ARD pursuant to a prosecutorial office policy[ — the applicability of which was made known to the defendant in the form of two (2) written reasons for exclusion], concurred in by the court below, against the admission of drunken driving cases to ARD. It is thus clear that the law as administered in Dauphin County deals alike with all members of this class.
247 Pa.Super. at 108, 371 A.2d at 1350.
It is beyond cavil that Common Pleas Courts may implement procedures, provided, of course, they do not conflict *294with pronouncements of the Pennsylvania Supreme Court dealing with the orderly administration of the unified judicial system in this Commonwealth. See, e.g., Brogan v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983).
Instantly, there was a collaborative effort, on the part of the President Judge and District Attorney of Philadelphia County, leading to the creation of a program to deal with recidivism. Each accused would be subject to evaluation for possible inclusion into the program. At least up until 1983, the District Attorney had formulated a laundry list of offenses which could subject an accused to the strictures of the program, i.e., one particular assistant district attorney would oversee the case from beginning to end and one of three judges would be assigned to hear the case.
Granted, no formal rules where issued to the bar of Philadelphia County advising it of the existence of such a program, or the criteria looked to for causing an accused to be included therein. Nonetheless, I view the Career Criminal Program, in existence during the period the appellant complains of (see note 1, supra), to be more than just, paraphrasing the District Attorney’s Office, an extension of its “office” policy. Quite the contrary is true, when one considers that the Program had the imprimatur of the local judiciary (through the President Judge, who is credited with aiding the District Attorney as to its inception). Moreover, there was the active participation of three of the Criminal Division’s judges to see to the Program’s effectuation. As such, I believe we would be truly remiss in tagging this Program, and its judicial and prosecutorial participants, nothing more than an expression of the internal operating policy of the District Attorney’s Office. To do so would meld the offices of the jurist and prosecutor into one, each seemingly interacting and intermingling in the others affairs without concern with the appearance of this engagement conveyed to the bar and public alike.5 As such, I do *295not join in the prosecution’s referral to the Career Criminal Program as nothing more than an expression of “internal prosecutorial policies” to which an accused could not object or seek to have formalized (reduced to writing) for the perusal of an unwilling prospect/participant.
Having so stated, I now proceed to evaluate the Career Criminal Program in light of Lutz and Sorrell, both of which I find, at least as to the continued viability of the program, favor (or, in the language of Sorrell, “encourage”) the recordation of the assistant district attorney’s reason(s) for his/her inclusion of an accused in the Program. To require more on the part of the District Attorney’s Office would constitute a form of rule-making, a function I believe exceeds our authority as an appellate court, whose purpose it is to interpret the law and not create it. Such a role is more appropriately reserved to the Supreme Court, by way of the Pennsylvania Constitution, and, where not in conflict with established procedure, the local judiciary. See Brogan, supra.
Our authority as an appellate tribunal is set by statute, and none I am aware of authorizes our mandating that the District Attorney’s Office establish guidelines for its Career Criminal Program as a condition to its continued existence. However, to resolve the dispute at issue (disparate treatment of accused in the Program), one needs to be aware of the justification for the assistant district attorney’s action. Such is not possible from the state of the record before this Court.
At the October 13, 1987, pre-trial hearing seeking recusal and an invalidation of the Career Criminal Program, counsel for the appellant argued that, in accordance with the rules and standards last published on 1/19/83 by the District Attorney’s Office, his client’s robbery charge would “be eliminated from the Career Criminal Program” under section 5, subsection c. See note 2, supra.
The response of the assistant district attorney, Bruce Sagel, as is herein relevant, was as follows:
*296Judge, for the record, the promulgation that [counsel for the appellant] is referring to is Mr. Castille’s. It is four years old and I have my own rules. It is not required by me to furnish those rules for the benefit of the Defender Association.
(N.T. 4-5; Emphasis added)
My examination of the record has failed to uncover any statement (attributed to assistant district attorney Sagel, be it in affidavit form or a transcription of testimony) as to the reason(s) for the appellant’s inclusion in the Career Criminal Program, a deficiency which may not be remedied by reference to the content of the appellee’s supplemental brief. See, e.g., McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028 (1987). Even if, arguendo, one were to permit the rehabilitation of the barren record with the allegations in the appellee’s appellate brief, it would be to no avail since the brief was the work-product of a cadre of attorneys, one being the District Attorney Castille, which failed to include assistant district attorney Sagel. This factor is crucial given the assistant district attorney’s statement at the pre-trial hearing that the 1983 rules were those of “Mr. Castille” and not his; he had his “own rules” for determining whether an accused should be admitted to the Career Criminal Program. Thus, the remarks appearing in the appellee’s brief would not be those of the party whose reason(s) for acting as he did need to be explored.
What was looked to by the assistant district attorney, which he felt not compelled to disclose at any point in the litigation, is not discernible by this writer. To attempt to do so would be pure speculation and surmise, and, if one were to pursue such a course, it could just as reasonably be said that the prohibited trait of “race” was looked to, a matter denounced by our Supreme Court in Lutz as one of the criteria not to be factored into a district attorney’s decision whether to recommend an accused for ARD.
*297Rather than engaging in some form of legerdemain, I would deem it prudent to vacate the judgment of sentence, subject to being reinstated by the court below following the submission of an affidavit, or the conducting of a hearing, which affords the assistant district attorney who handled the appellant’s trek through the Career Criminal Program an opportunity to create a “record” stating his reason(s) for recommending the appellant for inclusion in the Program. At that time, the court below can then assess whether any abuse of discretion on the part of the prosecutor took place.6
Unlike the Majority, I would vacate the judgment of sentence, with directions that the case be remanded for compliance with the position set forth herein. Since the Majority holds otherwise, I respectfully dissent.
. It is the Commonwealth’s position that a January, 1988 directive by the Pennsylvania Supreme Court, reorganizing the criminal division of the Court of Common Pleas of Philadelphia County, has resulted in a discontinuance of career criminal cases being funnelled to designat*284ed judges, even though the practice of assigning a particular prosecutor to handle a career criminal case from pre-trial on through to sentencing has been retained. See Commonwealth's Supplemental Brief at 7, n. 3. Because the appellant assails the practice of the Philadelphia District Attorney’s Office in effect prior to the implementation of this supposedly new procedure, his argument must be viewed in light of the circumstances attendant to his prosecution and not any new practice brought into effect post hoc.
. This is consistent with the record created at the October 13, 1987, pre-trial hearing held to resolve the appellant’s motion seeking recusal of the trial judge and a declaration that the Career Criminal Program be labeled null and void. In particular, counsel for the appellant stated the basis for the motion as follows:
... the district attorney promulgated a set of rules and standards for the Career Criminal Program. In those rules and standards, the last published notice is one dated 1-19-83.
It specifically excludes from the Career Criminal Program in Section 5, Subsection “C”, robberies which involve the violation of 18 Purdon’s Statutes 3701A15. That is the physical taking or removing of property from the person of another, by force, however slight, will be eliminated from the Career Criminal Program.
The case of Commonwealth v. Carter states that one reason that the Career Criminal Program has been upheld by the Supreme Court is that there is a published or printed list of standards for the program. That by adhering to those standards, the district attorney can keep the Career Criminal Program. Those standards say this case does not belong in this courtroom before a Career Criminal Judge.
******
... It is before Your Honor at this point in time. Your Honor knows because it is in a career criminal room, that there are at least two prior robbery convictions....
(N.T. 3 and 4)
In addition to counsel for the appellant’s remarks as to the initiation of the Program's guidelines and why his client should not be included *285therein, we have this Court’s Commonwealth v. Carter, 437 Pa.Super. 624, 501 A.2d 250 (1985), allocatur denied, 517 Pa. 591, 535 A.2d 81 (1987), decision, mentioned specifically by counsel for the appellant and relied upon by all parties and the court below to buttress their respective positions.
In Carter, a panel of this Court discussed in footnote 1 some of the criteria formulated by the District Attorney prompting an accused’s insertion into the Career Criminal Program; viz:
For example, 1983, a defendant could be included in the program if he had been convicted three times of certain classes of homicide, rape, burglary, involuntary deviate sexual intercourse, and aggravated assault, or had been twice convicted of robbery. The District Attorney also considered the remoteness of the prior convictions in deciding whether an accused should be given career criminal treatment.
The justification by the assistant district attorney for his decision to assign the appellant into the Program, because of its absence from the record, is the impetus for this writer’s Dissenting Opinion.
Further, a review of the record and briefs of all the parties indicates that, albeit the Philadelphia District Attorney’s Office may have been required to alter its Career Criminal Program, with respect to assigning such cases only to one of three selected judges to participate in the Program (see note 1, supra), there is no identifiable set of criteria looked to by the Philadelphia District Attorney’s Office in making its assessment of when an accused is a candidate for submission into the Career Criminal Program. What criteria it looks to, and, in particular, what standard was utilized in the appellant’s case, will be the subject of discussion infra.
. The transcripts reveal that the appellant, with the aid of a cohort, took hold of one Alex Glen Smith and threatened to “make it difficult” if he did not part with his money. The victim relinquished the $50 he had on his person, and, when efforts to retrieve his money proved fruitless, the police were notified of the incident. Once the appellant was arrested on the "positive” identification of the victim, a preliminary hearing was held in which the simple assault and reckless endangering another person charges were removed by the judge. However, the appellant was held for court on the charges of robbery, which had been listed as a felony-two by the police on the arrest report, but was reduced to felony-three by the judge. The other charges carried over for trial were theft, receiving stolen property, conspiracy and terroristic threats. However, it appears only the offenses of robbery and criminal conspiracy were heard by the jury.
1. For example, in 1983, a defendant could be included in the program if he had been convicted three times of certain classes of homicide, rape, burglary, involuntary deviate sexual intercourse, and aggravated assault, or had been twice convicted of robbery. The District Attorney also considered the remoteness of the prior convictions in deciding whether an accused should be given career criminal treatment.
. The benefit flowing to one admitted to ARD is that, following successful completion of the program, a petition to have his record expunged may be filed and considered by the Common Pleas Court.
. This type of hybrid (judicial-prosecutorial) conduct should surely not escape scrutiny by an impartial body, such as Superior Court.
. I would point out that the reasons made reference to by the appellee in its brief to us, e.g., the appellant’s extensive juvenile and adult record punctuated with the commission of serious (felony) offenses, would be, in my opinion, sufficient justification for inclusion of the appellant in the Career Criminal Program. The only procedure I would encourage the District Attorney’s Office to pursue would be the documentation of its reason(s) for inclusion of an accused into the Program. This would be consistent with the "openness” spoken of by the Supreme Court in Lutz and Sorrell. No elaborate criteria need be formulated or published, but reason(s) for the District Attorney’s actions need to be present in the record to assist a reviewing court with its evaluation of the basis for the course taken.
As for those cases cited by the appellee in its brief, referring to the violation of or non-compliance with an agency’s internal operating procedure not entitling the complainant to relief in the form of invalidating the agency’s actions, in none of the cases was the appellate court hampered, as is the case instantly, from conducting a full and comprehensive assessment as to why the agency or its agents acted as they did. See Sullivan v. United States, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210 (1954); United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. Snell, 592 F.2d 1083 (9th Cir.1979), cert. denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979). The same can be said for “internal operating” rules cases: United States v. Nelligan, 573 F.2d 251, 254 (5th Cir.1978); Port of Jacksonville Maritime, etc. v. Hayes, 485 F.Supp. 741, 743 (M.D.Fla. 1980), aff’d (CA5), 620 F.2d 567; Herrin v. Federal Aviation Administration, 418 F.Supp. 889, 893 (W.D.Okla.1976); see also F.T.C. v. Owens-Corning Fiberglas Corp., 626 F.2d 966, 975 (U.S.Ct.App.D.C. 1980) ("Agencies are free to determine their own procedures, as long as they do not violate constitutional or statutory safeguards." (Citations omitted)).