J-S41015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

BRUCE DEWAYNE GARRETT,

                        Appellee                    No. 2159 MDA 2014


    Appeal from the Judgment of Sentence entered December 3, 2014,
              in the Court of Common Pleas of York County,
          Criminal Division, at No(s): CP-67-CR-0000633-2014


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED JULY 22, 2015

     The Commonwealth appeals from the judgment of sentence which the

trial court imposed upon Bruce Dewayne Garrett, (“Garrett”), pursuant to

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). We affirm.

     The trial court explained:

           On December 3, 2014, [Garrett] plead guilty before the
     Honorable Thomas H. Kelley, VI to driving under the influence of
     alcohol or a controlled substance (DUI) under 75 Pa.C.S.A §
     3802(a)(1).    The [December 13, 2013] DUI offense was
     [Garrett’s] second in the last ten years.     As a result, the
     Commonwealth charged [Garrett] with a Tier III, second offense.

           On December 3, 2014, the Court imposed a sentence of 6
     months intermediate punishment with the first 90 days on house
     arrest with SCRAM monitoring, followed by 45 days in the York
     County Prison.    The Commonwealth did not agree on a
     maximum sentence.     The Commonwealth now appeals the
     Court’s Sentencing Order imposing [Garrett’s] maximum
     sentence.


*Retired Senior Judge assigned to Superior Court.
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Trial Court Opinion, 2/6/15, at 1-2. The Commonwealth filed a timely notice

of appeal.    The Commonwealth and the trial court have complied with

Pa.R.A.P. 1925.

     The Commonwealth’s sole issue on appeal is:

     WHETHER THE SENTENCING COURT ERRED WHEN IT HELD
     THAT SIX MONTHS FOR [GARRETT’S] DRIVING UNDER THE
     INFLUENCE (REFUSAL) (2ND OFFENSE) CONVICTION WAS THE
     STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD
     CONSIDER[?]

Commonwealth Brief at 4.

     We recognize:

     [] Issues relating to the legality of a sentence are questions of
     law, as are claims raising a court's interpretation of a statute.
     Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super.
     2006). Our standard of review over such questions is de novo
     and our scope of review is plenary. See Leverette, 911 A.2d at
     1002.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008).

     Further, we cannot disregard that:

     “The Rules of Appellate Procedure state unequivocally that each
     question an appellant raises is to be supported by discussion and
     analysis of pertinent authority.” Estate of Haiko v. McGinley,
     799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b).
     “Appellate arguments which fail to adhere to these rules may be
     considered waived, and arguments which are not appropriately
     developed are waived. Arguments not appropriately developed
     include those where the party has failed to cite any authority in
     support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29–
     30 (Pa. Super. 2006) (citations omitted). This Court will not act
     as counsel and will not develop arguments on behalf of an
     appellant. Irwin Union National Bank and Trust Company v.
     Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa.
     Super. 2010) (citing Commonwealth v. Hardy, 918 A.2d 766,

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     771 (Pa. Super. 2007)).      Moreover, we observe that the
     Commonwealth Court, our sister appellate court, has aptly noted
     that “[m]ere issue spotting without analysis or legal citation to
     support an assertion precludes our appellate review of [a]
     matter.” Boniella v. Commonwealth, 958 A.2d 1069, 1073 n. 8
     (Pa. Cmwlth. 2008) (quoting Commonwealth v. Spontarelli, 791
     A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002)).

Coulter v. Ramsden, 94 A.3d 1080, 1088-1089 (Pa. Super. 2014).

     Here, the Commonwealth raised and developed their Musau issue.

However, the Commonwealth has failed to develop their additional assertion

that “in regards to [Garrett], 75 Pa.C.S.A. § 3804(d) expressly requires the

sentencing court to issue a maximum sentence equivalent to the statutory

maximum when the defendant’s CRN evaluation shows that the individual is

in need of additional treatment and a treatment evaluation pursuant to 75

Pa.C.S.A. § 3814(2) is needed.” Commonwealth Brief at 7; see generally 8-

24. Indeed, the Commonwealth failed to specify the Section 3804(d) issue

in their Pa.R.A.P. 1925 statement.    See Commonwealth’s Pa.R.A.P. 1925

Statement of Errors Complained of on Appeal, 1/5/15.       Accordingly, the

Commonwealth’s argument regarding the trial court’s failure to sentence

Garrett pursuant to 75 Pa.C.S.A. § 3804(d) is waived.

     With regard to the Commonwealth’s Musau issue, we quote below

from our decision:

     [S]ection 3803 of the vehicle code … provides in relevant part as
     follows[:]

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




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     (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).

                                   ***

     (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. § 3803.      The statutory maximum sentence for
     misdemeanors of the first degree is five years' imprisonment.
     18 Pa.C.S. § 106(b)(6), (e).

                                   ***

            [Musau] … claims that “[i]t is equally clear from the
     statute that subsection (a) dictates that the maximum sentence
     [Musau] could receive for this particular offense is six months
     [of] incarceration.” Id. Because the word “notwithstanding” is
     defined as “ ‘nevertheless' or ‘in spite of,’” [Musau] argues that
     “the statute clearly indicates that while subsection (b) dictates
     the grading of a second offense where there is a BAC refusal,
     subsection (a) dictates the maximum punishment for that
     offense” Id. at 9.

                                   ***

            We are constrained to agree with [Musau]. The American
     Heritage Dictionary defines the word notwithstanding as “in spite
     of” or “although.” American Heritage Dictionary of the English
     Language 1203–04 (4th ed. 2006). Our Supreme Court has
     defined “notwithstanding” as “regardless of.” See City of
     Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397,
     399 (1998) (holding that the plain meaning of the phrase
     “notwithstanding a contrary provision of law of the
     Commonwealth ...” is “regardless of what any other law provides
     ...”).     Given   these    definitions,  the    Commonwealth's
     interpretation might be persuasive if the legislature had instead

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      prefaced subsection (a) with “except as provided in subsection
      (b),” or began subsection (b) with “notwithstanding the
      provisions of subsection (a).” But it did not. Therefore, we hold
      that the plain language of the statute, giving the words their
      ordinary meanings, indicates as follows: regardless of the fact
      that refusal to submit to blood alcohol testing results in the
      grading of the offense as a first degree misdemeanor, the
      maximum sentence for a first or second DUI conviction is six
      months' imprisonment.

Musau, 69 A.3d at 757-758 (internal footnote omitted).

      This Court in Musau observed that “[i]f the legislature did not in fact

intend   to   create   a    lesser    maximum      sentence      for   the   first-degree

misdemeanor of a first or second DUI with refusal than is permissible

generally for misdemeanors of the first degree, such an ‘oversight is best left

to the Legislature to correct.’”        Id. at 758 n.2 citing Commonwealth v.

Gordon, 992 A.2d 204, 207 n. 8 (Pa. Super. 2010).                      Subsequently, on

October 27, 2014, the Legislature amended Section 3803 to read “[e]xcept

as provided in subsection (b),” rather than “[n]otwithstanding the provisions

of subsection (b).” See 75 Pa.C.S. § 3803(a). The amendment, however,

does not entitle the Commonwealth to relief in this appeal because Garrett’s

December      13,   2013    DUI      offense   pre-dated   the    amendment.        See

Commonwealth v. Williams, 871 A.2d 254, 259 n.5 (Pa. Super. 2005)

(internal citations omitted) (“A defendant can be convicted only under

statutes in effect on the date of his acts.”). It is noteworthy that at the time

of Garrett’s guilty plea and sentencing, the Commonwealth conceded the

authority of Musau.        See N.T., 12/3/14, at 1 (“At this time, Your Honor,

[Garrett] will be entering a guilty plea to the sole count of the information,

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Tier 3, second offense DUI.   Your Honor, under the Commonwealth v.

Musau case, the maximum term is six months.           The Commonwealth

understands that. However, we would note our objection for the record.”).

Id. at 1-2.    Accordingly, we affirm Garrett’s judgment of sentence.

Commonwealth v. Spease, 911 A.2d 952, 959 (Pa. Super. 2006) (citation

omitted) (a prior opinion from our Court is “binding upon this Court and we

are not at liberty to overrule it” in the absence of a superceding en banc

Superior Court opinion or a Supreme Court opinion reversing the prior

precedent).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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