J-S51010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellant

                   v.

DANIEL SCOTT HORN,

                        Appellee                     No. 2134 MDA 2013


         Appeal from the Judgment of Sentence October 29, 2013
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0003719-2013


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 20, 2014

      In this appeal, the Commonwealth contends that the sentencing court

erroneously computed the maximum sentence that could be imposed upon

Appellee Daniel Scott Horn with respect to a conviction for driving under the



impairment) where Appellee refused chemical testing and had a prior DUI.

The   Commonwealth       acknowledges      that    the   panel   decision   in

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), is applicable

herein. In Musau, a panel of this Court concluded that a defendant who is

convicted of DUI under 75 Pa.C.S. § 3802(a)(1), refused chemical testing for

the offense in question, and had a prior DUI could be sentenced to a

maximum of only six months.         The Commonwealth maintains that Musau
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was erroneously decided in that it improperly construed 18 Pa.C.S. § 3803.

As we are bound by the decision in question, we affirm.

     Appellee was charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1),

which prohibits a person from driving a vehicle after consuming a sufficient

amount of alcohol so as to render him incapable of safely driving. The

offense was graded as a first degree misdemeanor. At approximately 2:20

a.m. on April 6, 2013, Pennsylvania State Trooper Mathew Templin was

patrolling on George Street in North York Borough when he noticed a motor

vehicle with one of its headlights extinguished.    The trooper effectuated a

traffic stop and approached the driver, Appellee.         After Appellee exhibits

signs of being intoxicated, Trooper Templin asked him if he had been

drinking, and Appellee responded affirmatively.         Claiming to have a back

injury, Appellee refused to perform field sobriety tests. He also refused to

perform a preliminary breath test, and, after being issued the proper

warnings about the consequences of so doing, to have his blood drawn for

blood alcohol testing. Appellee had a DUI conviction in 2010.

     On September 24, 2013, Appellee pled guilty to the offense in question

and proceeded to sentencing on October 29, 2013.             The Commonwealth

acknowledged that Musau prevented imposition of a sentence in excess of

six months, objected, and contended that the case was wrongly decided.

Appellee   was   given   six   months    intermediate    punishment,   and   this

Commonwealth appeal followed. The Commonwealth complied with the trial




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sentencing court erred when it h

driving under the influence (refusal) (2nd offense) conviction was the



brief at 4.

      The question of the legal maximum sentence for a second DUI

conviction involving a BAC refusal relates to the legality of the sentence

imposed. Musau, supra        Issues relating to the legality of a sentence are

questions of law, as are claims raising a court's interpretation of a statute.

Our standard of review over such questions is de novo and our scope of

                   Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.

2014).

      As the Commonwealth concedes, Musau, supra, applies herein.

Musau was convicted of DUI general impairment under § 3802(a)(1) and

refused BAC testing at the time of his DUI arrest.    Musau also had a DUI

conviction within the ten years prior to the offense at issue.        He was

sentenced to ninety days to five years imprisonment, and, on appeal, he

contended that the statutory maximum sentence that could be imposed was

six months. We agreed and reversed the sentence.

      Our decision rested upon application of language in 75 Pa.C.S. § 3803.

We reached our result by finding a conflict between 75 Pa.C.S. § 3803(a)(1)

and § 3803(b)(4). The first provision states:



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     (a) Basic offenses.--Notwithstanding             the    provisions     of
     subsection (b):

     (1) An individual who violates section 3802(a) (relating to
     driving under influence of alcohol or controlled substance) and
     has no more than one prior offense commits a misdemeanor for
     which the individual may be sentenced to a term of
     imprisonment of not more than six months and to pay a fine
     under section 3804 (relating to penalties).

75 Pa.C.S. § 3803(a)(1). On the other hand, § 3803(b)(4) provides               (4) An

individual who violates section 3802(a)(1) where the individual refused

testing of blood or breath, or who violates section 3802(c) or (d) and who



75 Pa.C.S. § 3803(b)(4).      A first-degree misdemeanor is punishable by a

maximum of five years imprisonment. 18 Pa.C.S. § 106(b)(6); 18 Pa.C.S.

§ 1104(1).

     The     defendant   in   Musau   argued   that    the   use   of     the    term

                                                                                   ed



that a § 3802 (a)(1) conviction with a refusal and a prior DUI could be

punishable as a first degree misdemeanor with a five-year maximum. The

Commonwealth countered with a different statutory construction that gave

§ 3803(b)(4) controlling effect over § 3803(a)(1).          The panel in Musau

adopted the interpretation of § 3803 advanced by the defendant and

rejected the position that his maximum sentence could be five years.




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Instead, it ruled that six months imprisonment was the maximum sentence

that can be imposed for a second DUI offense involving BAC refusal.1

       Musau applies to Appellee.               He was convicted of DUI general

impairment under § 3802(a)(1), refused BAC testing, and had a prior DUI.

Thus, that case provides that the maximum sentence applicable in this case

was six months.          The Commonwealth suggests that our decision in

Commonwealth v. Barr, 79 A.3d 668 (Pa.Super. 2013), compels a

different result.     However, Barr did not involve an interpretation of the

conflicting provisions of § 3803 and in no way can be construed as

invalidating Musau. Instead, in that decision, we held that the question of

whether a defendant refused BAC testing had to be submitted to a jury and

proven beyond a reasonable doubt.

       The Commonwealth also implies that the grant of allowance of appeal

in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013), should impact

upon our decision herein. In Mendez, our Supreme Court agreed to review

the propriety of the memorandum decision in Commonwealth v. Mendez,

62 A.3d 456 (Pa.Super 2012). In Mendez, over President Judge Emeritus



advanced     by   the    Commonwealth          herein.   The   majority   found   that

____________________________________________


1
    We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that




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§ 3803(b)(4) rather than § 3803(a)(1) applied to a § 3802 (a)(1) DUI

conviction as a second offense where the defendant refused BAC testing.



a sentence that exceeds the statutory maximum explicitly set out in 75

Pa.C.S. § 3803, did not the majority violate the rules of statutory




Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).

        We cannot read any particular outcome as to this grant of allowance of

appeal, and it certainly cannot be viewed as an intention by our Supreme

Court to overrule Musau and affirm Mendez. Thus, the grant of allowance

of appeal has no impact herein.

        Using the tools of statutory construction, the Commonwealth also

persuasively argues that Musau was wrongly decided and suggests that we

interpret § 3803 so as to permit a five-year maximum in this case.        See

e.g.,                                    Musau reading of the statue creates



devotes a significant amount of compelling analysis to support its position

that a five-year maximum sentence is permitted in this action.      While, as

outlined in Concordia, supra at n.1, this position may have merit, we

cannot overrule Musau because we are bound by that decision. Indeed, the

Commonwealth acknowledged at the present sentencing hearing that the


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sentencing court was bound by Musau.         It complained that Musau was

wrongly decided.

     However, we are no less bound by the Musau decision than was the

sentencing court herein. As we observed in Commonwealth v. Pepe, 897

A.2d 463, 465                                              f a Superior Court

panel to overrule a prior decision of the Superior Court, Commonwealth v.

Hull, 705 A.2d 911, 912 (Pa.Super. 1998), except in circumstances where

intervening authority by our Supreme Court calls into question a previous

decision of this Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2

                                           Pepe that, even when our Supreme

Court has granted an appeal for purposes of determining the question before

the panel deciding a case, the prior

binding.   See also Regis Insurance Co. v. All American Rathskeller,

Inc., 976 A.2d 1157, 1161 n.6 (Pa.Super. 2009) (Superior Court panel

lacked the power to disregard and overrule binding prior panel decision).

Hence, we are compelled to affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014

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