J-S51008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

MATTHEW SCOTT MOFFITT,

                        Appellee                   No. 2229 MDA 2013


        Appeal from the Judgment of Sentence November 18, 2013
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0005179-2013


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 20, 2014

     In this appeal, the Commonwealth contends that the sentencing court

erroneously computed the maximum sentence that could be imposed upon

Appellee Matthew Scott Moffitt with respect to a conviction for driving under



(general impairment) where Appellee refused chemical testing and had a

prior DUI.    The Commonwealth acknowledges that the panel decision in

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), is applicable

herein. In Musau, a panel of this Court concluded that a defendant who is

convicted of DUI under 75 Pa.C.S. § 3802(a)(1), refused chemical testing for

the offense in question, and had a prior DUI could be sentenced to a

maximum of only six months.         The Commonwealth maintains that Musau
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was erroneously decided in that it improperly construed 18 Pa.C.S. § 3803.

As we are bound by the decision in question, we affirm.

     Appellee was charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1),

which prohibits a person from driving a vehicle after consuming a sufficient

amount of alcohol so as to render him incapable of safely driving. The

offense was graded as a first degree misdemeanor.         He additionally was

charged with fleeing the scene of an accident involving damage to a vehicle,

driving under DUI-related suspension, and four other summary offenses. On

March 15, 2013, Pennsylvania State Trooper Robert Schmid was on duty

and, at approximately 2:00 a.m., was called to the scene of a hit-and-run

accident on Interstate 83 North.   The driver of the struck vehicle, Richard

Druck, reported that he was traveling in the right lane of the highway when

a black Jeep Cherokee approached him rapidly from behind, hit the rear of

his vehicle, entered the left lane of I-83 and drove away. Mr. Druck had the




address in Enola, Pennsylvania. Two East Pennsboro police officers traveled

to the residence, observed the vehicle in question parked in the driveway,

and contacted Trooper Schmid. They reported that the Jeep had front-end

damage consistent with involvement in a collision and that it just had been

operated since its engine and exhaust were warm when touched. Trooper


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told Trooper Schmid that Appellee had been driving the Jeep and recently

arrived home.      Trooper Schmid asked to speak to Appellee, and Amanda

attempted to rouse Appellee, who was sleeping in a bedroom on the second

floor.    When Trooper Schmid heard Amanda unable to get Appellee to

comply with her request to come downstairs, the police officer traveled

upstairs. He observed Appellee struggling to put on his pants. He displayed

signs of extreme intoxication and was arrested.           After Trooper Schmid

disseminated the legal warnings about the consequences of a failure to

submit to blood alcohol testing, Appellee refused to have his blood drawn.

         On September 23, 2013, Appellee pled guilty to DUI, leaving the scene

of an accident, and driving under a DUI-related suspension.            The other

summary offenses were dismissed.         Appellee was sentenced on November

18, 2013.       After the Commonwealth acknowledged that the applicable

maximum       sentence   was   six   months,   Appellee   received   six   months

intermediate punishment for the DUI. He was jailed for ninety days and

given twelve months probation for the other two offenses.



directive to file a Pa.R.A.P. 1925(b) statement, wherein the Commonwealth



                                      the influence (refusal) conviction was the




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Appeal, 1/6/14, at 1.         The Commonwealth raises that same contention
                                               1
                                                   On appeal, the Commonwealth

presents on
                                                                                   nd



offense) conviction was the statutory maximum allowable sentence it could



       The question of the legal maximum sentence for a second DUI

conviction involving a BAC refusal relates to the legality of the sentence

imposed. Musau, supra             Issues relating to the legality of a sentence are

questions of law, as are claims raising a court's interpretation of a statute.

Our standard of review over such questions is de novo and our scope of

                       Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.

2014).

       As the Commonwealth concedes, Musau, supra, applies herein, and



Musau was convicted of DUI general impairment under § 3802(a)(1) and

refused BAC testing at the time of his DUI arrest.            Musau also had a DUI

____________________________________________


1
    Although the Commonwealth failed to object in the trial court to
application of a six-month maximum sentence, as noted in the text, infra,

issues   that    has   traditionally    not    needed   to   be   preserved   through

                         Commonwealth v. Boyd, 73 A.3d 1269, 1271
(Pa.Super. 2013). Hence, this claim is preserved for purposes of appeal.



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conviction within the ten years prior to the offense at issue.              He was

sentenced to ninety days to five years imprisonment, and, on appeal, he

contended that the statutory maximum sentence that could be imposed was

six months. We agreed and reversed the sentence.

     Our decision rested upon application of language in 75 Pa.C.S. § 3803.

We reached our result by finding a conflict between 75 Pa.C.S. § 3803(a)(1)

and § 3803(b)(4). The first provision states:

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

     (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).

75 Pa.C.S. § 3803(a)(1). On the other hand, § 3803(b)(4) provides                (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



75 Pa.C.S. § 3803(b)(4).      A first-degree misdemeanor is punishable by a

maximum of five years imprisonment. 18 Pa.C.S. § 106(b)(6); 18 Pa.C.S.

§ 1104(1).

     The     defendant   in   Musau   argued    that    the   use   of     the    term




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that a § 3802 (a)(1) conviction with a refusal and a prior DUI could be

punishable as a first degree misdemeanor with a five-year maximum. The

Commonwealth countered with a different statutory construction that gave

§ 3803(b)(4) controlling effect over § 3803(a)(1).         The panel in Musau

adopted the interpretation of § 3803 advanced by the defendant and

rejected the position that his maximum sentence could be five years.

Instead, it ruled that six months imprisonment was the maximum sentence

that can be imposed for a second DUI offense involving BAC refusal.2

       Musau applies to Appellee.              He was convicted of DUI general

impairment under § 3802(a)(1), refused BAC testing, and had a prior DUI.

Thus, that case provides that the maximum sentence applicable in this case

was six months.          The Commonwealth suggests that our decision in

Commonwealth v. Barr, 79 A.3d 668 (Pa.Super. 2013), compels a

different result.     However, Barr did not involve an interpretation of the

conflicting provisions of § 3803 and in no way can be construed as

invalidating Musau. Instead, in that decision, we held that the question of

whether a defendant refused BAC testing had to be submitted to a jury and

proven beyond a reasonable doubt.




____________________________________________


2
    We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that




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     The Commonwealth also implies that the grant of allowance of appeal

in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013), should impact

upon our decision herein. In Mendez, our Supreme Court agreed to review

the propriety of the memorandum decision in Commonwealth v. Mendez,

62 A.3d 456 (Pa.Super 2012). In Mendez, over President Judge Emeritus



advanced   by   the   Commonwealth   herein.   The   majority   found   that

§ 3803(b)(4) rather than § 3803(a)(1) applied to a § 3802 (a)(1) DUI

conviction as a second offense where the defendant refused BAC testing.



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




Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).

     We cannot read any particular outcome as to this grant of allowance of

appeal, and it certainly cannot be viewed as an intention by our Supreme

Court to overrule Musau and affirm Mendez. Thus, the grant of allowance

of appeal has no impact herein.

     Using the tools of statutory construction, the Commonwealth also

persuasively argues that Musau was wrongly decided and suggests that we

interpret § 3803 so as to permit a five-year maximum in this case.      See


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e.g.,                                    Musau reading of the statue creates

absurd results contrary to the legislative

devotes a significant amount of compelling analysis to support its position

that a five-year maximum sentence is permitted in this action.    While, as

outlined in Concordia, supra at n.2, this position may have merit, we

cannot overrule Musau because we are bound by that decision.

        As we observed in Commonwealth v. Pepe, 897 A.2d 463,

465

overrule a prior decision of the Superior Court, Commonwealth v. Hull,

705 A.2d 911, 912 (Pa.Super. 1998), except in circumstances where

intervening authority by our Supreme Court calls into question a previous

decision of this Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2

                                           Pepe that, even when our Supreme

Court has granted an appeal for purposes of determining the question before



binding.    See also Regis Insurance Co. v. All American Rathskeller,

Inc., 976 A.2d 1157, 1161 n.6 (Pa.Super. 2009) (Superior Court panel

lacked the power to disregard and overrule binding prior panel decision).

Hence, we are compelled to affirm.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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