J-S04030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                   v.

AMY RUCK HORN,

                         Appellee                  No. 1162 MDA 2014


      Appeal from the Judgment of Sentence entered June 27, 2014,
              in the Court of Common Pleas of York County,
          Criminal Division, at No(s): CP-67-CR-0001427-2014


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                      FILED FEBRUARY 09, 2015

     The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the judgment of sentence imposed after Amy Ruck Horn, (“Horn”), pled

guilty to her second driving under the influence (“DUI”) offense pursuant to

75 Pa.C.S. § 3802(a)(1) (general impairment), where she refused to submit

to chemical testing.    The trial court sentenced Horn to a maximum of six

months County Intermediate Punishment consistent with this Court’s

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

Commonwealth presents the following issue for our review:

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

Commonwealth Brief at 4.


*Retired Senior Judge assigned to the Superior Court.
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      Horn “agrees with and accepts the Statement and Procedural History

and factual history set forth in the Commonwealth’s Statement of the Facts.”

Horn’s Brief at 1.     Horn simply asserts, “As a result of Musau being

controlling at the time of [Horn’s] sentencing, the judgment of sentence

should be affirmed.” Id. at 5.

      The Commonwealth’s issue concerning the legal maximum sentence

for a second DUI conviction involving a chemical testing refusal relates to

the legality of the sentence. 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 review is plenary.” Commonwealth v. Akbar, 91

A.3d 227, 238 (Pa. Super. 2014).

      In Musau, this Court determined that a defendant who was convicted

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

offense at issue, and had a prior DUI, could be sentenced to a maximum of

only six months.

      Our review of the record confirms that we are bound by the Musau

decision. At the plea hearing, the assistant district attorney stated:

            Your Honor, this is a Commonwealth v. Musau case. For
      the record, the Commonwealth would note its objection to the
      six-month maximum for appeal purposes. However, we do
      understand that the Court is bound by that and would have to
      sentence [Appellant] to a six-month term of intermediate
      punishment.

N.T., 6/27/14, at 2.

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      On appeal, the Commonwealth presents a thoughtful and cohesive

argument, but reduced to its essence, the Commonwealth’s argument is that

Horn was sentenced “in error pursuant to” Musau, and “the Musau

interpretation is contrary to the entire premise of Pennsylvania’s informed

consent and driving under the influence laws.” See Commonwealth Brief at

7, 15.   The Commonwealth persuasively argues that Musau was wrongly

decided and suggests that we interpret § 3803 to permit a five-year

maximum sentence in this case. However, at this writing, although called

into doubt by Commonwealth v. Concordia, 97 A.3d 366 (Pa. Super.

2014) (noting that the Commonwealth’s interpretation of § 3803 was

logical), Musau remains precedential law, and we are bound by it.              The

Commonwealth recognized as much with the trial court, see supra at 2

(citing the notes of testimony where the assistant district attorney stated

“this is a Commonwealth v. Musau case” and “we do understand that the

Court is bound by that”).

      Although the Commonwealth suggests that our decision subsequent to

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

a   five-year   statutory   maximum   sentence,   Barr   did   not   involve   an

interpretation of the conflicting provisions of § 3803 and did not invalidate

Musau. In Barr, we held that the question of whether a defendant refused

chemical testing had to be submitted to a jury and proven beyond a

reasonable doubt.




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      The Commonwealth also suggests that our Supreme Court’s grant of

allowance of appeal in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013)

supports its argument regarding the interpretation of § 3803 and in

opposition to Musau.     In Mendez, a majority of the three-judge panel

utilized the rules of statutory construction presently advanced by the

Commonwealth in determining 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 chemical testing. Our Supreme Court granted review to

determine: “In upholding 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 construction in order to avoid what it saw as ‘problematic

consequences’ resulting from a straightforward application of the statute?”

Id.   Here, we cannot read any particular outcome as to the grant of

allowance of appeal, nor view the grant as an intention by our Supreme

Court to overrule Musau.

      In sum, like the trial court, we are bound by Musau. “It is beyond the

power of a Superior Court panel to overrule a prior decision of the Superior

Court … except in circumstances where intervening authority by our

Supreme Court calls into question a previous decision of this Court.”

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (citations

omitted). See also Regis Insurance Co. v. All American Rathskeller,

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




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lacked power to disregard and overrule binding prior decision). We are thus

constrained to affirm the trial court.

      Judgment of sentence affirmed.

      Judge Bowes joins the Memorandum.

      Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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