J-S71030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JUSTIN LEE SCHREIBER

                            Appellee                  No. 1020 MDA 2014


              Appeal from the Judgment of Sentence May 22, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001014-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

JUDGMENT ORDER BY PANELLA, J.                     FILED FEBRUARY 02, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence entered by the Honorable Craig T. Trebilcock, Court of

Common Pleas of York County, contending that the trial court erred in

concluding that the statutory maximum sentence for a second-time

conviction for DUI-refusal is six months. After careful review, we affirm.

        Appellee, Justin Lee Schreiber, pled guilty to driving under the

influence of alcohol – refusal of blood test on May 22, 2014.     As this was

Schreiber’s second DUI offense in the last ten years, the offense was graded

as a first-degree misdemeanor pursuant to 75 Pa.C.S.A. § 3803(b)(4). The

trial court concluded, over the Commonwealth’s objection, that pursuant to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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this Court’s opinion in Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.

2013), the statutory maximum sentence for this conviction was six months.

As a result, the trial court sentenced Schreiber to a term of imprisonment of

time served to six months. The Commonwealth then filed this timely appeal.

      On appeal, the Commonwealth argues that the trial court’s reliance

upon Musau was mistaken.        First, the Commonwealth contends that this

Court’s opinion in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013)

overruled Musau. However, Barr did not address Musau or its holding that

the statutory maximum for a conviction under 75 Pa.C.S.A. § 3803(b)(4)

was six months. Rather, the Barr panel was concerned with the validity of a

jury instruction on the issue of the defendant’s refusal of blood testing. The

panel concluded that the instruction was erroneous. See Barr, 79 A.3d at

677. In discussing the procedural history of the appeal, the panel noted that

“the jury’s ‘refusal’ determination also increased Appellant’s statutory

maximum     penalty   from   six   months’   imprisonment     to   five   years’

imprisonment.” See id., at 674.

      It is well established that a three-judge panel of this Court is not

empowered to overrule a previously published opinion of this Court.         See

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013).                 This is

especially true if the subsequent panel does not have the exact same issue

before it and does not explicitly acknowledge that it disagrees with the prior




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case. As such, we conclude that the Barr panel did not intend, nor did it

have the power, to overrule Musau.

       In the alternative, the Commonwealth urges this Court to ignore

Musau due to the Supreme Court of Pennsylvania’s grant of review of this

issue in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).1                        The

Pennsylvania Supreme Court in Musau is holding the petition for allocatur in

abeyance pending its decision in Mendez. As such, the opinion of this Court

in Musau remains binding law.2                   We   therefore   conclude   that the

Commonwealth’s issue on appeal merits no relief.

       Judgment of sentence affirmed. Jurisdiction relinquished.




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1
  See Order Holding Petition for Allowance of Appeal, No. 510 EAL 2013,
2/11/14. The Supreme Court granted allocatur in Mendez to address the
issue of whether “in upholding 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 construction in order to avoid what it saw as
“problematic consequences” resulting from a straightforward application of
the statute?” See Commonwealth v. Mendez, 49 EAL 2013, Order
Granting Allocatur, 7/17/13.
2
  Unless and until the decision of this Court in Musau is overturned, it
remains binding precedent that we are bound to follow. See Marks v.
Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (despite the
Pennsylvania Supreme Court granting a petition for allowance of appeal, a
decision remains precedential until it has been overturned by the
Pennsylvania Supreme Court).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




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