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                                 2015 PA Super 186

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellant

                       v.

CHRISTOPHER C. GROW

                            Appellee                       No. 2017 MDA 2013


            Appeal from the Judgment of Sentence October 11, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0005071-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

DISSENTING STATEMENT BY MUNDY, J.:                    FILED SEPTEMBER 04, 2015

      After careful consideration, I respectfully dissent for the reasons given

in my unpublished memorandum in Commonwealth v. Mendez, 62 A.3d

456 (Pa. Super. 2012) (unpublished memorandum), appeal dismissed, 111

A.3d 1187 (Pa. 2015).           Therein, I noted that the rules of statutory

construction require us to give effect to all of Section 3803’s provisions if

possible.    See 1 Pa.C.S.A. § 1921(a) (stating, “[e]very statute shall be

construed, if possible, to give effect to all its provisions[]”). I also observed,

as   the    Majority   does   here,     that   the   General   Assembly   added   the

“[n]otwithstanding the provisions of subsection (b)” language to Section

3803(a) at the same time that it added “where the individual refused testing

of blood or breath” to Section 3803(b)(4). See Act of November 29, 2004,
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P.L. 1369, No. 177, § 2.          I also stress that the General Assembly titled

subsection (b) “other offenses,” indicating that when one of those provisions

is triggered by any of the extra elements listed in subsection (b), then

subsection (a) does not apply.           See generally 75 Pa.C.S.A. § 3803(b);

Commonwealth v. Mobley, 14 A.3d 887, 891 (Pa. Super. 2011) (referring

to Section 3803(b)(4) as a “sentencing enhancement”).

       Based on these considerations, I conclude that the rules of statutory

construction require the enhancement provision of Section 3803(b)(4) to be

construed as an aggravated offense apart from the general provision at

Section 3803(a)(1). This would give effect to all of the provisions of Section

3803. Accordingly, defendants who have one prior DUI conviction and do

not refuse chemical testing would be controlled by Section 3803(a)(1), the

general provisions, whereas defendants who have one prior DUI conviction

and refuse chemical testing commit an aggravated offense and would be

controlled by Section 3803(b)(4).1

       Further, I agree with the Commonwealth that the effect of Musau’s

conclusion would be to nullify all of Section 3803(b). It would be absurd to

conclude      the      General      Assembly     intended   Section   3803(a)’s


____________________________________________
1
  A different panel of this Court, subsequent to Commonwealth v. Musau,
69 A.3d 754 (Pa. Super. 2013), noted that this was “a logical interpretation”
of Section 3803, as it forwarded the plain text of and gave effect to all of its
provisions. Commonwealth v. Concordia, 97 A.3d 366, 370 n.2. (Pa.
Super. 2014), appeal denied, --- A.3d ---, 604 MAL 2014 (Pa. 2015).



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“notwithstanding” language to nullify Section 3803(b)(4), when the two

provisions were enacted together in the same legislation. See 1 Pa.C.S.A. §

1922(1) (stating, “[t]hat the General Assembly does not intend a result that

is absurd, impossible of execution or unreasonable[]”).

     Based on these considerations, I conclude that Musau was incorrectly

decided, as it failed to take into account all of the rules of statutory

construction. Accordingly, I would overrule Musau, vacate the judgment of

sentence, and remand for resentencing. I respectfully dissent.




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