J-S16008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

STEPHEN ALFRED WATKINS

                        Appellee                   No. 1164 MDA 2014


           Appeal from the Judgment of Sentence June 16, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000690-2014


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

JUDGMENT ORDER BY PANELLA, J.                        FILED MAY 27, 2015

     Appellant, the Commonwealth of Pennsylvania, appeals from the

judgment of sentence entered by the Honorable Gregory M. Snyder, Court of

Common Pleas of York County.        The Commonwealth argues that the trial

court erred in concluding that the statutory maximum sentence for a

second-time conviction for DUI-refusal is six months. We affirm.

     Appellee, Stephen Alfred Watkins, pled guilty to driving under the

influence of alcohol – refusal of blood test on June 16, 2014. As this was

Watkins’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

this Court’s opinion in Commonwealth v. Musau, 69 A.2d 754 (Pa. Super.

2013), the statutory maximum sentence for this conviction was six months.
J-S16008-15


As a result, the trial court sentenced Watkins 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)

implicitly 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 79

A.2d 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.” Id., at 674.

      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). 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).             However,

the Supreme Court has recently dismissed the appeal in Mendez as having


                                     -2-
J-S16008-15


been improvidently granted. See 2015 WL 1421402 (Pa., March 30, 2015).

Accordingly, the opinion of this Court in Musau1 remains binding law upon

this panel.

       Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




____________________________________________


1
  On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B.
1239, Session of 2014, Printer’s No. 2396). This is an Act amending various
provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section
3803(a), the section at issue in Musau. Act 189 amends Section 3803(a)
by changing “Notwithstanding the provisions of” to “Except as provided in.”
Section 4(1)(ii) of Act 189, states that the amendment to §3803(a) shall
take effect immediately, meaning on October 29, 2014. Since Watkins’s
sentence was entered prior to October 29, 2014, we apply the prior version
of the statute.



                                           -3-
