J-S66036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellant             :
                                         :
             v.                          :
                                         :
BRANDON JACOB BARROW,                    :
                                         :
                   Appellee              :           No. 839 MDA 2014

        Appeal from the Judgment of Sentence entered on April 15, 2014
                  in the Court of Common Pleas of York County,
                 Criminal Division, No. CP-67-CR-0000805-2014

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 24, 2015

        In this appeal, the Commonwealth of Pennsylvania challenges the

judgment of sentence entered by the trial court following Brandon Jacob

Barrow’s (“Barrow”) guilty plea to driving under the influence of alcohol—

general impairment (second offense) (“DUI”), with refusal to submit to

chemical testing.1    The Commonwealth disputes the trial court’s reliance

upon this Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa.

Super. 2013), in which we interpreted 75 Pa.C.S.A. § 3803 as providing a

six-month maximum sentence for second DUI offenses with refusal to

submit to chemical testing. See Musau, 69 A.3d at 758. We affirm.

        The Commonwealth’s argument implicates the legality of Barrow’s

sentence and thus is appealable as of right.    Commonwealth v. Grow,



1
    75 Pa.C.S.A. § 3802(a)(1).
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2015 PA Super 186, 2015 Pa. Super. LEXIS 510, at *3 (en banc). As such,

our standard of review is de novo, and our scope of review is plenary. Id.

      The Commonwealth claims that

      in regards to second offense DUIs under 75 Pa.C.S.A.
      § 3802(a)(1) General Impairment, where a defendant refuses
      Blood Alcohol Content (BAC) testing, the grading of those
      offenses is governed by 75 Pa.C.S.A. § 3803 and constitutes a
      Misdemeanor 1 graded offense with a sentencing mandatory
      minimum of 90 days, and a statutory maximum sentence
      of five years.

Brief for the Commonwealth at 9 (emphasis added).        The Commonwealth

disputes the trial court’s reliance upon this Court’s decision in Musau. Id.

The Commonwealth contends that this Court’s subsequent decision in

Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013) controls. 2          Brief

for the Commonwealth at 9-10.




2
  In Barr, a panel of this Court held that an appellant’s refusal to submit to
chemical testing

      increased the grade of Appellant’s second DUI conviction from an
      ungraded misdemeanor to a misdemeanor of the first degree.
      75 Pa.C.S.A. § 3803(b)(4). The jury’s “refusal” determination
      also increased Appellant’s statutory maximum penalty from six
      months’ imprisonment to five years’ imprisonment and increased
      Appellant’s mandatory minimum penalty from 30 days in jail to
      90 days in jail. 75 Pa.C.S.A. §§ 3803(b)(1) and 3804(c)(2); 18
      Pa.C.S.A. § 1104(1) (prescribing the statutory maximum for
      misdemeanors).

Barr, 79 A.3d at 674.



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     Our review of the record discloses that the trial court sentenced

Barrow pursuant to 75 Pa.C.S.A. § 3803(a)(1), as in effect at the time of

Barrow’s sentencing. At that time, section 3803 provided as follows:

     § 3803. Grading

     (a) Basic offenses. –

     Notwithstanding the provisions of section (b):

        (1) An individual who violates section 3802(a) (relating to
        driving under the 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
        pay a fine under section 3804 (relating to penalties).

                                    ***

     (b) Other offenses.

                                    ***

        (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 has one or more prior offenses
        commits a misdemeanor of the first degree.

75 Pa.C.S.A. § 3803 (effective until October 27, 2014).3

     On September 4, 2015, the Pennsylvania Superior Court, sitting en

banc, filed its decision in Grow to determine whether Barr or Musau

controls in sentencing a defendant who has one prior DUI and who has

3
  On October 27, 2014, the legislature amended section 3803(a) to replace
the phrase “Notwithstanding the provisions of section (b)” with “Except as
provided in subsection (b).” 75 Pa.C.S.A. § 3803(a). As Barrow was
convicted and sentenced prior to the amendment, the amended version is
not applicable in this appeal.



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refused chemical testing upon the second DUI. In Grow, the en banc Court,

agreeing with this Court’s interpretation of section 3803 in Musau, held that

“the plain language of the statute, giving the words their ordinary meanings,

indicates [that] regardless of the … grading of the offense as a first-degree

misdemeanor, the maximum sentence for a first or second DUI conviction is

six months’ imprisonment.” Grow, slip opinion at 5-6 (quoting Musau, 69

A.3d at 758). Thus, the en banc panel concluded,

     because the meaning of the statute in question is clear and free
     from ambiguity, the Statutory Construction Act provides that the
     letter of it is not to be disregarded under the pretext of pursuing
     its spirit.”     1 Pa.C.S.[A.] § 1921(b).      Moreover, we are
     constrained to consider solely the plain meaning of section 3803,
     since “only when the words of a statute are ambiguous should a
     court seek to ascertain the intent of the General Assembly
     through consideration of statutory construction factors found in
     Section 1921(c). Commonwealth v. Brown, 603 Pa. 31, 981
     A.2d 893, 898 (Pa. 2009) (emphasis added)….

Grow, slip opinion at 6-7 (footnotes omitted).     Nevertheless, the en banc

Court considered and rejected the Commonwealth’s arguments that this

Court’s decision in Barr controls, see id. at 7-10 (concluding that the

language in Barr, relied upon by the Commonwealth, is dictum and not

controlling); 8-9 (stating that “grading and sentencing of the offense for a

defendant in Grow’s position is hardly absurd; the result merely diverges

from the typical scheme.”); 12 (stating that although section 1921(c) of the

Statutory Construction Act, 1 Pa.C.S.A. § 1921(c), permits legislative and

administrative interpretations to be considered when the wording of the

statute is ambiguous, the language of section 3803 is clear and free from


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ambiguity). As this Court’s en banc decision in Grow is binding precedent,

we cannot grant the Commonwealth relief on its challenge to the legality of

Barrow’s sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2015




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