J-S04034-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                      Appellant          :
          v.                             :
                                         :
                                         :
SABIMANA TILLYA JASTIN,                  :
                                         :
                      Appellee           :   No. 1021 MDA 2014

       Appeal from the Judgment of Sentence Entered June 13, 2014,
               in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0000318-2014

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

JUDGMENT ORDER BY STRASSBURGER, J.:                     FILED MAY 29, 2015

      The Commonwealth of Pennsylvania (Commonwealth) appeals from

the judgment of sentence of six months of intermediate punishment imposed

for Sabimana Tillya Jastin’s second conviction for driving under the influence

(DUI) with refusal. We affirm.

      The Commonwealth contends that the trial court erred as a matter of

law in following this Court’s decision in Commonwealth v. Musau, 69 A.3d

754 (Pa. Super. 2013), in which this Court held that, under 18 Pa.C.S.

§ 3803, the maximum sentence for a first or second DUI is six months’

imprisonment, even where the refusal to submit to blood alcohol testing

requires the offense to be graded as a first-degree misdemeanor.1


1
  Our Supreme Court has held the petition for allowance of appeal in Musau
pending its decision in Commonwealth v. Mendez, No. 3274 EDA 2011
(Pa. Super. filed October 15, 2012), appeal granted, 71 A.3d 250 (Pa.

*Retired Senior Judge assigned to the Superior Court.
J-S04034-15


        The Commonwealth’s sole argument is that Musau was wrongly

decided.

        The trial court certainly did not err in following binding precedent, and

we could not overrule a decision of a prior panel of this Court even if we

wished to do so.2 See, e.g., Regis Ins. Co. v. All American Rathskeller,

Inc., 976 A.2d 1157, 1161 (Pa. Super. 2009) (“This panel has no authority

to overrule [a prior panel’s decision].”); Commonwealth v. Pepe, 897 A.2d

463, 465 (Pa. Super. 2006) (“It is beyond the power of a Superior Court

panel    to   overrule   a   prior   decision   of   the   Superior   Court.”)   (citing

Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super. 1998)).”).

Accordingly, we affirm the judgment of sentence on the basis of the Musau

opinion.

        Judgment of sentence affirmed.3


2013). In Mendez, a panel of this Court, over the dissent of President
Judge Emeritus McEwen, held in an unpublished memorandum decision filed
prior to Musau that the relevant statutory maximum sentence is five years.
Our Supreme Court granted Mendez’s petition for allowance of appeal to
decide the following issue: “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?” Mendez, 71 A.3d at 250.
2
  Judge Bowes expressed her disagreement with Musau, but acknowledged
its binding effect on this Court, in Commonwealth v. Concordia, 97 A.3d
366 (Pa. Super. 2014).
3
 Given our disposition, we deny as moot Appellee’s application to file his
brief nunc pro tunc.


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J-S04034-15


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/29/2015




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