J-S34024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellant

                       v.

ALEXIS CACERES

                            Appellee                        No. 1919 MDA 2014


            Appeal from the Judgment of Sentence October 30, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000138-2014


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                          FILED JUNE 23, 2015

         The Commonwealth appeals the judgment of sentence imposed

October 30, 2014, on Alexis Caceres by the York County Court of Common

Pleas.     Caceres was sentenced to an aggregate term of six months’

intermediate punishment, followed by one year of probation, after two

separate juries found Caceres guilty of driving under the influence of alcohol

(“DUI”)    and    possession      of   drug     paraphernalia.1     On    appeal,   the

Commonwealth         argues      the    trial   court   erred     when,   relying   on

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

A.3d ___, 510 EAL 2013 (Pa. June 10, 2015), it determined the statutory
____________________________________________


1
  75 Pa.C.S. § 3802(a)(1) and 35 P.S. § 780-113(a)(32), respectively. The
trial court also found Caceres guilty of possession of a small amount of
marijuana. 35 P.S. § 780-113(a)(31).
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maximum sentence it could impose on Caceres’s conviction was only six

months.      Because we find this issue is controlled by Musau, supra, we

affirm.

        On October 30, 2013, at approximately 2:10 a.m., Caceres was

speeding and driving his vehicle in an erratic manner on Route 30 in Helam

Township, when he was stopped by police. Because the officers noticed a

smell of alcohol emanating from his vehicle and some green leafy matter on

his shirt, they directed Caceres to perform two field sobriety tests, which

indicated he was under the influence of alcohol.          Caceres subsequently

refused chemical testing, and was arrested for DUI.           The officers later

obtained a search warrant for Caceres’s vehicle, and recovered a half-

smoked marijuana cigarette and two glass smoking devices.

        Caceres was arrested and charged with DUI, possession of drug

paraphernalia, possession of a small amount of marijuana, and exceeding

the speed limit.2 His case proceeded to a jury trial. On July 10, 2014, the

jury returned a verdict of guilty on the charge of possession of drug

paraphernalia, but was unable a reach a verdict on the charge of DUI. The

court declared a mistrial. Thereafter, the Commonwealth proceeded to retry

Caceres on the DUI charge.3          On July 30, 2014, a second jury returned a
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2
    75 Pa.C.S. § 3362(a)(2).
3
 Prior to the second trial, the court granted the Commonwealth’s motion to
amend the information to include charges of DUI under Section 3802(d)(2)
(Footnote Continued Next Page)


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verdict of guilty on the charge of DUI (incapable of safe driving), and

specifically found Caceres refused to submit to chemical testing.

      On October 30, 2014, Caceres was sentenced, on the DUI offense, to a

term of six months’ intermediate punishment, with 90 days of house arrest

followed by 45 days of work release, and a $1,500 fine. 4 The trial court also

imposed a consecutive term of one-year probation for the charge of

possession of paraphernalia, and a concurrent term of 30 days’ probation for

the charge of possession of a small amount of marijuana.            This timely

Commonwealth appeal followed.5

      The Commonwealth frames its sole issue on appeal as follows:

      Whether the sentencing court erred when it held that six months
      for [Caceres’s] driving under the influence (refusal) (2nd offense)
      conviction was the statutory maximum allowable sentence it
      could consider[?]

Commonwealth’s Brief at 4.


                       _______________________
(Footnote Continued)

(under the influence of controlled substance) and 3802(d)(3) (under the
influence of combination of drugs and alcohol). At the second trial, however,
the jury returned a verdict of not guilty on both subsections (d)(2) and
(d)(3).
4
  The DUI conviction was Caceres’s second DUI conviction in the last 10
years.
5
 On November 18, 2014, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P
1925(b). The Commonwealth complied with the court’s directive and filed a
concise statement on November 20, 2014.




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       The issue raised, herein, has been the subject of numerous appeals

filed by the Office of the District Attorney in York County.6 It involves the

interplay between Subsections 3803(a) and (b) of the Vehicle Code. See 75

Pa.C.S. § 3803.

       At the time Caceres committed the DUI offense, 75 Pa.C.S. § 3803

provided, in relevant part:

       (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
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6
  See, e.g., Commonwealth v. Landes, 319 MDA 2014 (Pa. Super. May
20, 2015) (unpublished memorandum); Commonwealth v. Horan, 152
MDA 2014 (Pa. Super. May 11, 2015) (unpublished memorandum);
Commonwealth v. Brown, 841 MDA 2014 (Pa. Super. May 7, 2015)
(unpublished memorandum); Commonwealth v. Ettinger, 1165 MDA 2014
(Pa. Super. April 13, 2015) (unpublished memorandum); Commonwealth
v. Stewart, 840 MDA 2014 (Pa. Super. April 7, 2015) (unpublished
memorandum); Commonwealth v. Weipert, 1380 MDA 2014 (Pa. Super.
March 20, 2015) (unpublished memorandum).



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          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(a)(1), (b)(4) (emphasis supplied).      Although Caceres’s

prior DUI conviction, coupled with his refusal to submit to blood alcohol

testing, resulted in the grading of his offense as a first degree misdemeanor,

subject to a five year statutory maximum sentence7 under subsection (b),

the trial court, relying on Musau, found that “[t]he maximum sentence for a

Tier III refusal, second offense, is six months and not five years.”     Trial

Court Opinion, 11/25/2014, at 3. See Musau, supra, 69 A.3d at 757-758

(holding the Legislature’s use of the word “notwithstanding” indicates that

subsection (a) controls for sentencing purposes; “regardless of the fact that

refusal to submit to blood alcohol testing results in the grading of the

offense as a first degree misdemeanor, the maximum sentence for a first or

second DUI conviction is six months’ imprisonment.”).

        The Commonwealth contends, as it did in numerous other appeals,

that Musau was wrongly decided. However, it is well-established that “[i]t

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

the Superior Court,” and “we are obligated to follow the law as articulated by

the previous panel.”       Commonwealth v. Pepe, 897 A.2d 463, 465, 466

(Pa. Super. 2006), appeal denied, 946 A.2d 686 (Pa. 2008), cert. denied,


____________________________________________


7
    See 18 Pa.C.S. § 1104(1).




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555 U.S. 881 (2008). Although we are cognizant of the fact that this issue

is pending before this Court en banc,8 currently, the state of the law is

controlled by Musau.9

       Furthermore, we reject the Commonwealth’s contention that the

Legislature’s subsequent amendment of 75 Pa.C.S. § 3803(a) has any

bearing on our decision.         In October of 2014, the Legislature amended

Subsection 3803(a) to read “[e]xcept as provided in subsection (b)[,]”

rather than “[n]otwithstanding the provisions of subsection (b)[.]” Act

No. 2014-189 (effective immediately, 10/27/2014) (emphasis supplied).

The Commonwealth argues the purpose of the amendment was “to correct

the Musau Court’s error.” Commonwealth’s Brief at 11.

       However, even if this is true, the Commonwealth fails to acknowledge

the application of the amended statute would result in a potentially more

severe punishment for Caceres, and would, therefore, violate the ex post

facto provision of the Pennsylvania Constitution.     See Com. v. Rose, 81

A.3d 123, 129 (Pa. Super. 2013) (“[W]hen performing an ex post facto

analysis a court ‘is concerned solely with whether a statute assigns more

disadvantageous criminal or penal consequences to an act than did the law
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8
    See Commonwealth v. Grow, 2017 MDA 2013, Order, 9/15/2014.
9
  We note that although the Pennsylvania Supreme Court initially granted
allowance of appeal on this issue in Commonwealth v. Mendez, 71 A.3d
250 (Pa. 2013), it recently dismissed that appeal as improvidently granted.
See Commonwealth v. Mendez, 111 A.3d 1187 (Pa. March 30, 2015).



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in place when the act occurred.’”) (emphasis in original), appeal granted, 95

A.3d 274 (Pa. 2014).         Accordingly, we must apply the statute as it was

written at the time Caceres committed the offense.

        Accordingly, because we agree with the determination of the trial court

that the issue on appeal is controlled by this Court’s decision in Musau,10 we

conclude the Commonwealth is entitled to no relief.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




____________________________________________


10
     See Trial Court Opinion, 11/25/2014, at 3.



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