J-S04013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DARRYL GREGORY STEWART,

                            Appellee                  No. 840 MDA 2014


             Appeal from the Judgment of Sentence April 14, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004973-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 07, 2015

       The Commonwealth appeals from the judgment of sentence imposed

by the trial court on Appellee, Darryl Gregory Stewart, after the court found

him guilty of a second offense driving under the influence (“DUI”)

breath/blood test refusal.        The Commonwealth contends that this Court

erred in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013).1 Since

we are bound by Musau, we affirm.

       Officer Andrew Miller effectuated a traffic stop of a silver Mercedes on

April 28, 2013, at approximately 2:45 a.m.       The officer first observed the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 The issue decided in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.
2013), is currently pending en banc review. Commonwealth v. Grow,
2017 MDA 2013.
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vehicle parked in a no parking zone with its lights on and two people inside

the car.     Officer Miller activated his lights and Appellant exited from the

driver’s seat of the car. Initially, Officer Miller asked Appellant to return to

his seat, but Appellant walked around to the passenger side of the vehicle.

Officer Miller asked Appellant for a form of identification, which he could not

provide. However, Appellant informed the officer of his name and date of

birth. In addition, Appellant acknowledged having consumed two alcoholic

beverages and told the officer that he had parked his vehicle to go to a club

located down the street around midnight.

        According to Officer Miller, the car was not parked at that location at

1:15 a.m., and Appellant’s eyes were glassy and bloodshot.         Officer Miller

then conducted three field sobriety tests. Based on Appellant’s performance,

Officer Miller believed that Appellant was intoxicated and placed him under

arrest.    Subsequently, Officer Miller provided Appellant with chemical test

warnings based on Pennsylvania’s Implied Consent Law. Appellant refused

to be tested.     The court found Appellant guilty of DUI-general impairment

and determined that he refused chemical testing.2

        Thereafter, the court imposed a sentence of ninety days to six months

incarceration.     The Commonwealth noted its objection to the six-month

maximum sentence, but acknowledged that the court was bound by this

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2
    The court also found Appellant guilty of driving with a suspended license.



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Court’s case law with respect to the maximum available sentence.              This

Commonwealth appeal ensued. The trial court directed the Commonwealth

to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal.     The Commonwealth complied, and the trial court authored its

Rule 1925(a) decision.        The sole issue leveled on appeal is “whether the

sentencing court erred when it held that six months for the Defendant’s

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

statutory      maximum         allowable       sentence   it   could   consider[.]”

Commonwealth’s brief at 4.

       “In Musau, a panel of this Court concluded that a defendant convicted

of a second-time DUI under 75 Pa.C.S. § 3802(a)(1), and who refused the

breath test could only be sentenced to a maximum of six months

imprisonment.”        Commonwealth v. Concordia, 97 A.3d 366, 369

(Pa.Super. 2014).3 “The Musau Court reached its result by finding a conflict

between 75 Pa.C.S. § 3803(a)(1) and § 3803(b)(4).” Id.

       The Commonwealth argues that Musau was wrongly decided, leads to

absurd results, and is at odds with Commonwealth v. Barr, 79 A.3d 668

(Pa.Super. 2013).         In support, it offers a comprehensive discussion

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3
  The legislature has subsequently amended the DUI statute to clarify that a
defendant’s maximum sentence for the crime herein is not six months but
five years. This legislation has no effect on those convicted prior to the
change.




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regarding statutory interpretation and legislative intent and cites to this

Court’s critique of that decision in Concordia.4 In addition, it posits that our

Supreme Court’s grant of allowance of appeal in Commonwealth v.

Mendez, 71 A.3d 250 (Pa. 2013), supports its argument that Musau was

decided incorrectly.

       Despite the criticisms leveled by the Commonwealth, we are bound by

Musau. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)

(citations omitted) (“It is beyond the power of a Superior Court panel to

overrule a prior decision of the Superior Court . . . .except in circumstances

where intervening authority by our Supreme Court calls into question a

previous decision of this Court.”).

       Judgment of sentence affirmed.

       Judge Allen joins the Memorandum

       Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/7/2015
____________________________________________


4
  The author of this memorandum penned the decision in Commonwealth
v. Concordia, 97 A.3d 366 (Pa.Super. 2014), disagreeing with but applying
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). In contrast,
the learned Judge Strassburger, also on this panel, decided Musau.



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