J-A35024-14


                                2015 PA Super 36

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                      v.

STEVE EDWARD WILSON,

                           Appellant                   No. 1976 WDA 2013


       Appeal from the Judgment of Sentence entered November 14, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009856-2013


BEFORE: BENDER, P.J.E., BOWES, J., and ALLEN, J.

DISSENTING OPINION BY BENDER, P.J.E.:               FILED FEBRUARY 18, 2015

        I must respectfully dissent from the Majority’s conclusion that the trial

court did not impose an illegal sentence when it sentenced Appellant to a

term of twelve months’ probation. Having analyzed the applicable statute, I

believe the provisions dictate that the maximum sentence the court could

have imposed was six months’ supervision.           Accordingly, I would vacate

Appellant’s judgment of sentence, and remand for resentencing.

        In Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), our

Court analyzed a statute that, as here, simultaneously graded a DUI offense

as a first-degree misdemeanor, and set a six-month maximum sentence for

that offense.    Relying on the rules of statutory construction, this Court held

that    the   maximum      sentence    for   that   offense   was   six   months,

notwithstanding the fact that the maximum sentence for a first-degree

misdemeanor is five years.
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      Musau involved the interpretation of 75 Pa.C.S. §§ 3803 (a)(1), and

(b)(4). The first-degree misdemeanor grading was specified by subsection

(b)(4) of the statute.    Subsection (a)(1), which specified the six-month

maximum sentence, began, “Notwithstanding the provisions of subsection

(b)….” 75 Pa.C.S. §§ 3803(a)(1). As “notwithstanding” means “regardless

of,” this Court interpreted the statute to read the six-month mandatory

sentence in (a) applied regardless of the enhanced grading in (b).

Consequently, the plain language of that statute explicitly dictates both

enhanced grading and a six-month maximum sentence.

      I acknowledge that the provisions before us, 75 Pa.C.S. §§ 3803

(b)(1) and (b)(5), are not identical to the provisions in Musau.       As in

Musau, the provisions before us also specify a six-month maximum

sentence, and the direct grading of the offense in question as a first-degree

misdemeanor.    However, the provisions in the instant case do not contain

signaling language such as “notwithstanding,” or its opposite, “except as

provided in,” to guide us in determining how the subsections relate to one

another.

      Nevertheless, I believe that by applying the analysis supporting the

Musau Court’s holding, the statute in the instant case also dictates the

application of a six-month maximum sentence. Therefore, I am constrained

to dissent from the Majority’s decision.

      The provisions at issue are as follows. 75 Pa.C.S. § 3803 (b)(1) states

in applicable part: “An individual … who violates section 3802(b) … and who

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



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months.”     75 Pa.C.S. § 3803 (b)(5) states: “An individual who violates

section 3802 where a minor under 18 years of age was an occupant in the

vehicle when the violation occurred commits a misdemeanor of the first

degree.”

       I do not believe that the language of the provisions in the instant case

is unclear, even though it does not contain the word “notwithstanding.” In

fact, the Musau Court noted that the plain language of the words of the

statute in the allegedly conflicting provisions actually dealt with two discrete

matters that should not be conflated, i.e., grading and sentencing.             This

Court acknowledged that it is “entirely possible for the legislature to have

different   motives”      in   dealing    with   these   matters   separately   (and

acknowledged several occasions on which the legislature had chosen to

elevate the grading of an offense without enhancing the punishment).

Musau, 69 A.3d at 758. As such, it cannot be said that an interpretation

giving effect to both of the provisions in question violates the rules of

statutory interpretation by dictating “a result that is absurd, impossible of

execution or unreasonable.”          1 Pa.C.S. § 1922.     Our Court has held the

precise result dictated by the instant statute – a DUI graded as a first-

degree misdemeanor with a maximum sentence of six months – is not

absurd.1 Musau, 69 A.3d at 758. Moreover, even if we conclude that the

____________________________________________


1
  In its Opinion, the Majority states that “Musau has been called into doubt”
by a subsequent decision of this Court. Majority Opinion at 8 n.3. The
Majority refers to dicta in a footnote regarding the applicability of section
3803’s provisions to defendants who refuse BAC testing, which is not an
issue in the instant case.     Commonwealth v. Concordia, 97 A.3d 366,
369 n. 2 (Pa Super. 2014). Moreover, that footnote concludes,
(Footnote Continued Next Page)


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J-A35024-14



provisions in question could not be reconciled, the reasoning supporting the

Musau Court’s holding establishes that the six-month maximum sentence

applies in the instant case. The Musau Court stated “our interpretation is

consistent with the rule that the specific trumps the general.”           Id.   In so

concluding, the Court stated that 18 Pa.C.S. § 106(b)(6), the provision that

makes five years the maximum sentence for first-degree misdemeanors,

was a general provision.            The Musau Court further concluded that 75

Pa.C.S. § 3803(a)(1), which dictated a six-month maximum sentence for the

crime the appellant was convicted of, was a specific provision.

      The Musau Court could have analyzed the ostensibly conflicting

provisions of subsections 3803 (a)(1) and (b)(4), when determining which of

the provisions in question was general and which was specific. They did not

interpret the statute in this manner.            Consequently, I believe the Majority

incorrectly compares subsections (b)(1) and (b)(5) of 18 Pa.C.S. § 3803 to

determine which provision is specific and, therefore, controlling.         In light of

Musau, we are required to compare 75 Pa.C.S. § 3803(b)(1) and 18 Pa.C.S.

§ 106 to make this determination.

      This means that our comparison is identical to the Musau Court’s. I

believe that the outcome of our comparison must be the same as the Musau

Court’s as well.       In other words, the provision amended in 2004, section

3803, is a specific provision, and the provision amended in 1972, section

106, is a general provision. Therefore, I would conclude that the trial court

                       _______________________
(Footnote Continued)

“Notwithstanding this interpretation, Musau is the current law and binding
on this panel.” Id.



                                            -4-
J-A35024-14



could have imposed a sentence of no longer than six months when it

sentenced Appellant.   As Appellant’s sentence of twelve months’ probation

exceeds the statutory six-month maximum, I believe his sentence is illegal,

and I would vacate Appellant’s judgment of sentence.




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