J-S78014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

EDWARD STRICKLER STOVER, III

                            Appellee               No. 1167 MDA 2014


              Appeal from the Judgment of Sentence July 7, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001257-2014


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.:               FILED SEPTEMBER 30, 2015

       Appellant, the Commonwealth of Pennsylvania, timely appeals from

the judgment of sentence entered in the York County Court of Common

Pleas, immediately following the guilty plea of Appellee, Edward Strickler

Stover, III, on July 7, 2014, to driving under the influence (DUI), second

offense, with refusal to submit to chemical testing of blood alcohol content

(BAC).1 The Commonwealth argues the maximum sentence available under

the former statute is five years’ incarceration, citing Commonwealth v.

Barr, 79 A.3d 668 (Pa.Super. 2013). The Commonwealth contends the trial

____________________________________________


1
  75 Pa.C.S.A. §§ 3802(a)(1), 3803(b)(4). Under Section 3803(b)(4), the
offense is graded as a first-degree misdemeanor, effective July 9, 2012. The
statute was subsequently amended and made immediately effective on
October 27, 2014, after Appellee’s sentencing.
J-S78014-14


court erred when it concluded the maximum allowable sentence for

Appellee’s second DUI offense was six months’ incarceration, pursuant to

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), appeal denied,

___ Pa. ___, 117 A.3d 296 (2015).

      To resolve this exact question, our Court en banc recently decided

Commonwealth v. Grow, ___ A.3d ___, 2015 PA Super 186 (filed

September 4, 2015), holding that: (1) our Supreme Court has defined the

legislative use of the word “notwithstanding” as “regardless of,” which is

synonymous with the ordinary meaning of the word as “in spite of” or

“although”; (2) the plain language of the statute makes the provisions of

former Section 3803(b)(4) subordinate to the provisions of former Section

3803(a)(1); (3) the use of the section titles “Basic offenses” and “Other

offenses” for former Sections 3803(a) and (b), respectively, does not create

a clean break between the sections such that “notwithstanding” applies to

“basic offenses” only; (4) former Section 3803 in its entirety is a specific

provision that trumps the general sentencing provisions governing first-

degree misdemeanors; (5) the sentencing and grading of an offense can

follow separate schemes without leading to an absurd result because the

grading of the offense affects more than just the length of sentence; (6) any

conflict between former Sections 3803(b)(4) and (a)(2) (relating to

defendants with two or more prior DUI convictions), is immaterial to the

issue before the Court; (7) the Barr case involved a jury instruction, and the


                                    -2-
J-S78014-14


statement about increased penalties was made in passing, was not critical to

the holding of the decision, and was deemed dictum; (8) the legislative and

administrative interpretations of former Section 3803 are irrelevant because

the wording of the statute is unambiguous; (9) even if the language of

former Section 3803 resulted in ambiguity, the defendant would be entitled

to the benefit of the doubt under the maxim that penal provisions should be

strictly construed in favor of the accused; (10) regardless of the grading of

the offense as a first-degree misdemeanor, the maximum sentence under

former Section 3803 for a second DUI conviction, with refusal to submit to

chemical testing, is six months’ imprisonment.     After rejecting all of the

Commonwealth’s arguments, this Court held that the trial court properly

followed Musau and sentenced Grow to a maximum sentence of six months’

incarceration. See id.

     Instantly, Grow controls the Commonwealth’s challenge to the trial

court’s interpretation of former Section 3803. Accordingly, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2015




                                    -3-
