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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.

OPINION BY LAZARUS, J.:                          FILED SEPTEMBER 04, 2015

        The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed by the Court of Common Pleas of York County after

Appellee, Christopher C. Grow, entered a guilty plea to driving under the

influence (DUI).     Specifically, Grow pled guilty to second-offense DUI with

refusal to submit to chemical testing of his blood alcohol content (BAC).1

For this offense, Grow was sentenced to serve six months of intermediate

punishment with forty-five days of incarceration, followed by ninety days on

house arrest with electronic monitoring.2 After careful review, we affirm.
____________________________________________


1
    75 Pa.C.S. § 3803(b)(4).
2
   The trial court also imposed twelve months’ probation for a habitual
offender violation under 75 Pa.C.S. § 6503.1 and six to twelve months’
incarceration for driving with suspended operating privileges pursuant to 75
Pa.C.S. § 1543(b)(1.1).
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      In May 2013, Grow was involved in a motor vehicle collision in which

he rear-ended a vehicle stopped at a traffic light. A police officer arrived on

the scene of the accident and spoke with Grow. The officer observed signs

that Grow was intoxicated, including the odor of alcohol and that Grow had

slurred speech, bloodshot eyes, and poor balance.         When asked, Grow

admitted to consuming alcohol. Grow unsuccessfully attempted to perform

field sobriety tests, and the officer arrested him for DUI. Grow refused to

allow his blood to be drawn to test its alcohol level.

      Thereafter, on October 11, 2013, Grow entered his guilty plea and was

sentenced.    Grow and the Commonwealth agreed to a minimum sentence

but did not reach an agreement regarding the maximum sentence to be

imposed.     The Commonwealth timely filed a notice of appeal and court-

ordered concise statement of errors complained of on appeal.

      The Commonwealth raises one issue for our review:

      Whether the sentencing court erred when it held that six months
      for [Grow’s] driving under the influence (refusal) (second
      offense) conviction was the statutory maximum allowable
      sentence it could consider[.]

Brief for Appellant, at 4.

      The Commonwealth challenges this Court’s precedential decision,

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), in which we

interpreted 75 Pa.C.S. § 3803 as providing a six-month maximum sentence

for second DUI offenses with refusal to submit to chemical testing.        The

Commonwealth’s question of statutory construction implicates the legality of


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Grow’s sentence and thus is appealable as of right.     Commonwealth v.

Ausberry, 891 A.2d 752, 754 (Pa. Super. 2006). Our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Gutierrez,

969 A.2d 584, 592 (Pa. Super. 2009).

     In considering a question of statutory construction, we are

     guided by the sound and settled principles set forth in the
     Statutory Construction Act, including the primary maxim that the
     object of statutory construction is to ascertain and effectuate
     legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we
     are mindful that “[w]hen the words of a statute are clear
     and free from all ambiguity, the letter of it is not to be
     disregarded under the pretext of pursuing its spirit.” 1
     Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best
     indication of legislative intent is the plain language of a
     statute.” In reading the plain language, “[w]ords and phrases
     shall be construed according to rules of grammar and according
     to their common and approved usage,” while any words or
     phrases that have acquired a “peculiar and appropriate meaning”
     must be construed according to that meaning. 1 Pa.C.S. §
     1903(a). However, when interpreting non-explicit statutory text,
     legislative intent may be gleaned from a variety of factors,
     including, inter alia: the occasion and necessity for the statute;
     the mischief to be remedied; the object to be attained; the
     consequences of a particular interpretation; and the
     contemporaneous legislative history.      1 Pa.C.S. § 1921(c).
     Moreover, while statutes generally should be construed liberally,
     penal statutes are always to be construed strictly, 1 Pa.C.S. §
     1928(b)(1), and any ambiguity in a penal statute should be
     interpreted in favor of the defendant.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015) (citing

Commonwealth v. Shiffler, 879 A.2d 185, 189-90 (Pa. 2005)) (emphasis

added).




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       At the time Grow was sentenced, the relevant portions of section 3803

provided:3

       Grading

       (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).

                                          ***

       (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 (amended 2014) (emphasis added).



____________________________________________


3
  On October 27, 2014, the legislature amended section 3803(a) to replace
“Notwithstanding the provisions of section (b)” with “Except as provided in
subsection (b).” 75 Pa.C.S. § 3803. As Grow pled guilty and was sentenced
prior to the effective date of the amendment to the statute, however, the
amended version does not apply to this matter. See Commonwealth v.
Bowen, 55 A.3d 1254, 1270 n.8 (Pa. Super. 2012) (interpreting prior
statute after law amended since prior version applied to time period during
which defendant was convicted and sentenced).




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      Ordinarily,   the   statutory   maximum    sentence   for   a   first-degree

misdemeanor is five years’ incarceration.      See 18 Pa.C.S. § 1104(1); see

also 18 Pa.C.S. § 106(b)(6).      However, the Musau Court determined six

months’ imprisonment to be the maximum sentence for second-offense DUI

with refusal to submit to chemical testing, despite the grading of the offense

as a first-degree misdemeanor.        In so deciding, the Court relied upon the

initial language in section 3803 of “[n]otwithstanding the provisions of

subsection (b).”     75 Pa.C.S. § 3803(a) (amended 2014).             The Court

construed this prefatory language with the other provisions of section 3803,

determining that although section 3803(b)(4) specifies the grading of the

crime as a first-degree misdemeanor, the maximum penalty is the six-month

sentence provided in section 3803(a)(1). Musau, supra, at 758.

      The definition of “notwithstanding” was critical to the Court’s decision

in Musau.     The Court discussed the ordinary meaning of the word as “in

spite of” or “although” and noted that our Supreme Court has defined it as

“regardless of.”    Id. at 757 (citing City of Philadelphia v. Clement &

Muller, Inc., 715 A.3d 397, 399 (Pa. 1998) (holding plain meaning of

phrase “notwithstanding a contrary provision of law of the Commonwealth”

is “regardless of what any other law provides”)).           These synonymous

definitions demonstrate that the word has an accepted meaning that is clear

on its face. Thus, we agree with Grow’s argument in the instant matter and

with the holding of the Musau Court that “the plain language of the statute,

giving the words their ordinary meanings, indicates [that] regardless of the

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. . . grading of the offense as a first-degree misdemeanor, the maximum

sentence for a first or second DUI conviction is six months’ imprisonment.”

Musau, supra, at 758.

        Because the plain meaning of the statute in question is clear and free

from ambiguity, the Statutory Construction Act4 provides that “the letter of it

is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §

1921(b). Moreover, we are constrained to consider solely the plain meaning

of section 3803, since “only when the words of a statute are

ambiguous should a court seek to ascertain the intent of the General

Assembly through consideration of statutory construction factors found in

[s]ection 1921(c).”5      Commonwealth v. Brown, 981 A.2d 893, 898 (Pa.
____________________________________________


4
    1 Pa.C.S. §§ 1921-1939.
5
    The statutory construction factors listed in section 1921(c) include:

        (1) The occasion and necessity for the statute.

        (2) The circumstances under which it was enacted.

        (3) The mischief to be remedied.

        (4) The object to be attained.

        (5) The former law, if any, including other statutes upon the
        same or similar subjects.

        (6) The consequences of a particular interpretation.

        (7) The contemporaneous legislative history.

        (8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921.



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2009)     (emphasis       added).        Nevertheless,    we    will   address   the

Commonwealth’s arguments regarding this Court’s interpretation of section

3803 and the application of principles of statutory interpretation.

       Initially, the Commonwealth asserts that the trial court incorrectly

relied on our holding in Musau to determine the appropriate maximum

sentence in this matter. The Commonwealth argues that Commonwealth

v. Barr, 79 A.3d 668 (Pa. Super. 2013), controls because it was decided

after Musau and indicates a five-year maximum sentence for Grow’s

offense.6    The Commonwealth’s reliance on Barr is misplaced, however,

because the issue before us in that matter involved the correct instruction

for a jury to find that the defendant “refused” blood, breath, or urine testing.

See id. at 671.        The statement that Barr’s refusal would increase the

maximum penalty from six months’ to five years’ was made in passing and

was not critical to the holding of the decision.         As a result, the statement

regarding the increased penalty is dictum and is not controlling regarding

the statutory interpretation of section 3803. See U.S. Steel Co. v. County

____________________________________________


6
   The Commonwealth also cites to the unpublished decision in
Commonwealth v. Mendez, 62 A.3d 456 (Pa. Super. 2012) (unpublished
memorandum), in which a panel of this court interpreted the same
provisions at issue instantly and determined that a five-year maximum
applied. However, Musau was later in time and, as a published opinion, is
controlling. We also note that our Supreme Court initially granted allowance
of appeal in Mendez on July 17, 2013. However, on March 30, 2015, after
the Legislature amended the relevant statute, the Court dismissed the
appeal as improvidently granted.



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of Allegheny, 86 A.2d 838, 843 (Pa. 1952) (dictum involving interpretation

of statute not controlling).

      Next, the Commonwealth asserts that “[t]he only interpretation of

section 3803 that gives effect to all provisions without resulting in absurdity

is that the particular provision controls over the general provision.”      Brief

for Appellant, at 11. The Commonwealth premises this argument on section

1933 of the Statutory Construction Act, which indicates that:

      Whenever a general provision in a statute shall be in conflict with
      a special provision in the same or another statute, the two shall
      be construed, if possible, so that effect may be given to both. If
      the conflict between the two provisions is irreconcilable, the
      special provisions shall prevail and shall be construed as an
      exception to the general provision.

1 Pa.C.S. § 1933. In relying on this principle of statutory interpretation, the

Commonwealth argues that the provisions of section 3803(b) are particular

provisions that control over the general provisions in section 3803(a). The

Commonwealth’s argument fails for several reasons.

      First, the provisions of section 3803(b) are subordinated to section

3803(a) by the statute’s plain language.         The Commonwealth merely

assumes that section 3803(a)(1) and section 3803(b)(4) are in conflict and

that both provisions cannot be given effect. However, it is noteworthy that

the conflict that occurs under these facts arises because of the general

sentencing maximum for first-degree misdemeanors provided by 18 Pa.C.S.

§ 1104(1) and 18 Pa.C.S. § 106(b)(6).       Given the general nature of the

Sentencing Code, we consider section 3803 to be a specific provision that


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controls over the general sentencing provisions.        See Commonwealth v.

Poncala, 915 A.2d 97, 105 (Pa. Super. 2006) (holding specific DUI

sentencing provisions control over general Sentencing Code provision).

       Next, to the extent a conflict exists between sections 3803(a)(1) and

(b)(4), the conflict is far from irreconcilable.7 Both provisions can be given

effect as required by section 1933 of the Statutory Construction Act, because

section 3803(b)(4) provides for grading while section 3803(a)(1) provides

for the length of the sentence.          The first-degree grading provided for in

section 3803(b)(4) is not rendered a nullity merely because the sentence

prescribed in section 3803(a)(1) is shorter than is typical for a first-degree

misdemeanor.       Indeed, grading the offense as a misdemeanor of the first

degree has effects beyond the length of the sentence that may be imposed.
____________________________________________


7
  In its argument that section 3803(a) and (b) contain conflicting provisions
and that our reading of the statute in Musau creates absurdities, the
Commonwealth discusses a situation that is outside the facts of the present
dispute. The Commonwealth notes that under our interpretation that section
3803(b) is subordinated to section 3803(a), a second DUI offense with
refusal is graded as a first-degree misdemeanor, and if this interpretation
were extended, a third DUI offense with refusal would be graded as a
second-degree misdemeanor based upon the terms of section 3803(a)(2)
(individual with “more than one prior offense commits a misdemeanor of the
second degree.”). Unlike the instant matter, in which the provisions at issue
do not directly conflict, however, a third DUI offense with refusal would
present a direct conflict between provisions: section 3803(a)(2) specifies
second-degree grading for a third offense with refusal, while section
3803(b)(4) specifies first-degree grading for the same offense. If that issue
arose, the court ruling on the matter would have to engage in statutory
interpretation to resolve the conflict between the provisions. However, we
need not do so, as that particular issue is not before us.



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For instance, the first-degree grading increases the offense gravity score

from one to five and increases the mandatory period of license suspension

from 12 months to 18 months. See 204 Pa. Code § 303.15; 75 Pa.C.S. §

3804(e)(2).

      Moreover, despite the Commonwealth’s claim to the contrary, the

grading and sentencing of the offense for a defendant in Grow’s position is

hardly absurd; the result merely diverges from the typical scheme.               It is

well-established that sentencing and grading can follow separate schemes.

See Commonwealth v. Ruffin, 16 A.3d 537, 543 (Pa. Super. 2011)

(legislature   may   have    different    motives    when    grading   offense   and

establishing its punishment); see also Commonwealth v. Davis, 618 A.2d

426, 430 (Pa. Super. 1992) (en banc) (“[T]he express classification of

possession of marijuana as a misdemeanor in the Controlled Substance Act

is clear evidence of the General Assembly’s intent to grade the offense as a

misdemeanor rather than a summary offense, notwithstanding that the

sentence for the offense is consistent with a summary offense.”).

      The      Commonwealth       also     asserts    that    though    the      term

“notwithstanding” appears to be clear on its face, it actually serves to

introduce ambiguity.        On this basis, the Commonwealth looks to the

statutory construction factors in section 1921(c) and provides an alternative

interpretation of section 3803 that would indicate the maximum sentence for

Grow’s offense is five years’ incarceration.




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      The alternate interpretation the Commonwealth advances as its

“primary argument” in this matter is that “‘notwithstanding’ is intended to

only modify ‘basic offenses’ and not the specific provisions of ‘other

offenses.’” Brief for Appellant, at 23. The Commonwealth argues that “the

use of section titles ‘Basic offenses’ for 3803(a) and ‘[O]ther offenses’ for

3803(b)     [creates]   a   clean   break   between     the    sections,”   such   that

“notwithstanding” applies only to 3803(a), thus “giv[ing] full effect to all of

the provisions of the statute.” Id. at 13. In support of this argument, the

Commonwealth        also     asserts   that     the    correct    interpretation     of

“notwithstanding” is that it means “unchanged” or “not influenced by.” Id.

      The Commonwealth’s construction of the statute and its proposed

meaning is flawed for several reasons. While section headings can be used

to interpret a statute, they are not controlling. See 1 Pa.C.S. § 1924. We

also find the Commonwealth’s argument regarding an alternative definition

for “notwithstanding” to be unpersuasive.           First, “notwithstanding” has an

accepted meaning as indicated by our Supreme Court. Clement & Muller,

Inc., supra.     Secondly, the definitions proposed by the Commonwealth

support a reading of the statute identical to that which we employed in

Musau. For instance, using the Commonwealth’s proposed definitions, the

statute indicates that: 1) the six-month maximum sentence would be

“unchanged” by the fact that the offense is a misdemeanor of the first

degree, or 2) the six-month maximum sentence would “not be influenced

by”   the    first-degree    grading   of     the   offense.      Simply    put,   the

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Commonwealth’s argument regarding headings and definitions is belied by

the statutory text.

      The Commonwealth next turns to legislative history and administrative

interpretations of the DUI statute in support of its claim that the maximum

sentence for Grow’s offense is five years’ incarceration. Pursuant to section

1921(c) of the Statutory Construction Act, legislative and administrative

interpretations of a statute may be considered when the wording of the

statute is ambiguous.    1 Pa.C.S. § 1921(c).      Here, however, as we have

already discussed, the wording of the statute is clear and free from doubt

such that the factors that may be considered in section 1921(c) lack

relevance.

      Nevertheless, the Commonwealth cites to the Pennsylvania Sentencing

Commission’s interpretation of section 3803 and a remark provided by one

legislator to support its claim that the legislature intended a maximum

sentence of five years for a second DUI offense with refusal. We note that

the Sentencing Commission’s interpretation is in no way binding on this

Court.   Moreover, the remark of one legislator is insufficient to express

legislative intent, as “[o]ne must look to what the legislature did, not what a

single legislator thought the legislation did.” Commonwealth v. Wisneski,

29 A.3d 1150, 1153 (Pa. 2011).          Thus, the legislative and administrative

interpretations   provided   by   the     Commonwealth     do   not   alter   our

interpretation of the plain language of section 3803.




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      Finally, we turn to the argument raised by Grow that the rule of strict

construction in section 1928 of the Statutory Construction Act requires us to

limit his maximum sentence to six months as provided in section

3803(a)(1).   Section 1928 provides that penal provisions shall be strictly

construed. 1 Pa.C.S. § 1928(b)(1). Strict construction in this sense means

that “where ambiguity exists in the language of a penal statute, such

language should be interpreted in the light most favorable to the accused.

More specifically, where doubt exists concerning the proper scope of a penal

statute, it is the accused who should receive the benefit of such doubt.”

Commonwealth v. Kelly, 102 A.3d 1025, 1030 (Pa. Super. 2014) (quoting

Commonwealth v. McCoy, 962 A.2d 1160, 1168-69 (Pa. 2009)).              Thus,

even if the language of section 3803 results in ambiguity, Grow is entitled to

the benefit of the doubt: a maximum sentence of six months’ rather than

five years’ incarceration.

      For the foregoing reasons, we find that the trial court did not err in

following our holding in Musau and sentencing Grow to a maximum

sentence of six months’ incarceration.

      Judgment of sentence affirmed.

      President Judge Gantman, President Judge Emeritus Bender, Judges

Panella, Donohue, Shogan, Allen and Stabile join this opinion.

      Judge Mundy files a Dissenting Statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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