J-S51005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

WAYNE ALLEN YENDRIGA,

                      Appellee                 No. 1868 MDA 2013

       Appeal from the Judgment of Sentence September 13, 2013
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0009128-2012


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

DOMINICK ALAN CARTER,

                      Appellee                 No. 2018 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-0008025-2012


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

LAWRENCE M. CUNNINGHAM,

                      Appellee                 No. 2024 MDA 2013
J-S51005-14


        Appeal from the Judgment of Sentence October 21, 2013
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0005423-2013


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

MONIQUE VERA WINSTON,

                      Appellee                 No. 2135 MDA 2013

        Appeal from the Judgment of Sentence October 28, 2013
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0003800-2013


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

BRIAN KEVIN DOLL,

                      Appellee                 No. 2164 MDA 2013


        Appeal from the Judgment of Sentence November 4, 2013
             In the Court of Common Pleas of York County
          Criminal Division at No(s): CP-67-CR-0006256-2013


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

ANDREA NICOLE LUMBAN-TOBING,



                                  -2-
J-S51005-14


                          Appellee                     No. 151 MDA 2014


          Appeal from the Judgment of Sentence December 23, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0008104-2013


COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

HEIDI ARLENE HARTMAN,

                          Appellant                    No. 253 MDA 2014

           Appeal from the Judgment of Sentence January 7, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0007320-2013


COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

SHAWN MICHAEL NESS,

                          Appellee                     No. 273 MDA 2014

           Appeal from the Judgment of Sentence January 9, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0006765-2013

BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED AUGUST 20, 2014

     In    this   consolidated   appeal   involving    eight   defendants,   the

Commonwealth contends that the sentencing courts in question erroneously

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computed the maximum sentence that could be imposed upon the respective

defendants for a conviction of driving under

pursuant to 75 Pa.C.S. § 3802(a)(1) (general impairment) where each

defendant     refused   chemical   testing   and   had   a   prior   DUI.   The

Commonwealth acknowledges that the panel decision in Commonwealth v.

Musau, 69 A.3d 754 (Pa.Super. 2013), is applicable herein. In Musau, a

panel of this Court concluded that a defendant who was convicted of DUI

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

question, and had a prior DUI could be sentenced to a maximum of only six

months.      The Commonwealth maintains that Musau was erroneously

decided in that it improperly construed 18 Pa.C.S. § 3803. As we are bound

by the decision in question, we are constrained to affirm.

      Initially, we set forth the factual background of the cases at issue

herein, all of which were instituted in York County.     In each instance, the

pertinent facts have been ascertained from a review of the affidavit of

probable cause supporting the criminal complaint. We observe that, in some

of these cases, the Commonwealth was ordered to file a Pa.R.A.P. 1925(b)

statement.     In those instances, the Commonwealth timely complied and

preserved the issue now presented on appeal.

      At criminal action number 9128 of 2012, Wayne Allen Yendriga was

charged wit

Pa.C.S. § 3802(a)(1), which prohibits a person from driving a vehicle after


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consuming a sufficient amount of alcohol so as to render him incapable of

safely driving. The offense was graded as a first degree misdemeanor. The

criminal complaint indicates that at approximately 9:00 a.m. on October 19,

2012, York Police Officer Joel Hopta was dispatched to the scene of an

accident on Connelly Road, where a tractor trailer had hit a building.

Yendriga was driving the truck when the accident occurred and displayed

signs of intoxication.    Officer Hopta administered field sobriety tests to

Yendriga. Yendriga was arrested after failing the tests, was given the proper

warnings about the consequences of his failure to agree to a blood alcohol



arrested that day and released on bail in December 2012.

      Yendriga failed to appear for three scheduled pre-trial conferences,

which resulted in bail forfeiture and issuance of a bench warrant.       After

being apprehended, Yendriga, on September 13, 2013, entered a no-contest

plea to the offense.     The record of the September 13, 2013 proceeding

indicates that Yendriga had a prior DUI, and the Commonwealth requested a

sentence of one to five years in jail. Over objection, the trial court applied

Musau and sentenced Yendriga to time served to six months.

      At criminal action number 0008025-2012, Dominick Alan Carter was

charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor, endangering the welfare of a child, driving while under

a DUI license suspension, careless driving, operating a motor vehicle that


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contained an open alcoholic beverage container, and failing to have his

minor child, who was in the front seat, fastened with a seat belt.         At

approximately 1:30 p.m. on July 18, 2012, Pennsylvania State Trooper

Matthew Pavone was dispatched to a parking lot near Lake Williams after an

eyewitness observed Carter arrive at that location driving a car while visibly

intoxicated.   Carter was in the company of his child.       Trooper Pavone

interviewed Carter, concluded that he was drunk, and gave Carter the

proper warnings about the consequences of his failure to agree to a BAC

test. Carter refused BAC testing. On October 11, 2013, Carter entered a

guilty plea to DUI and endangering the welfare of a child. At sentencing, the



Musau for the DUI charge would be six months imprisonment, but it

specifically objected to that maximum. Carter received a six-month prison

term for the DUI.

      At criminal action number 5423 of 2013, Lawrence Cunningham was

charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor and driving in the wrong direction on a one-way street.

At approximately 2:45 a.m. on July 12, 2013, York Police Officer Matthew



way on the one-way North Hartley Street.              Cunningham appeared

intoxicated, Officer Dewitt gave    him   the   proper   warnings about the

consequences of his failure to agree to BAC testing, and Cunningham, who


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had been convicted of DUI in 2004, refused that testing.    On October 11,

2013, Cunningham entered an open guilty plea to the DUI offense. After the

Commonwealth again voiced its objection to the Musau holding regarding

the maximum sentence that could be imposed, on October 21, 2013,

Cunningham was sentenced to ninety days to six months in the county jail.

     At criminal action number 3800 of 2013, Monique Vera Winston was

charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor and driving with a suspended license-DUI related. At

approximately 2:30 a.m. on March 17, 2013, State Trooper Shawn Panchik

observed Winston operating her car on Interstate 83 North near mile marker

twenty-five and ascertained that she had a suspended license. After being

stopped, Winston exhibited signs of impairment and was transported to a

hospital for BAC testing. Trooper Panchik gave Winston the proper warnings

about the consequences of her failure to agree to BAC testing, but she

refused it. On July 29, 2013, Winston entered an open guilty plea to both

charges, and she was sentenced on October 28, 2013. Winston received a

jail term of ninety days for the DUI-suspension, and, over objection, a six-

month jail term for the DUI offense.

     At criminal action number 8104 of 2013, Andrea Nicole Lumban-Tobing

was charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor and driving in the incorrect lane of a roadway.       At

approximately 1:30 a.m. on October 3, 2013, West York Borough Police


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Officer Scott A. Musselman stopped Lumban-Tobing after he observed her

driving her car in an easterly direction in the westbound lane of West King

Street. After she displayed signs of intoxication, Officer Musselman arrested

Lumban-Tobing and transported her to a booking center for purposes of

drawing blood. Officer Musselman disseminated the proper warnings about

the consequences of her failure to agree to BAC testing, but Lumban-Tobing,

who had been convicted of DUI in March 2013, declined to have her blood

drawn. On December 23, 2013, Lumban-Tobing entered a guilty plea to the

DUI charge, and the Commonwealth withdrew the summary offense.            The

Commonwealth acknowledged that Musau impacted on the sentencing



           holding.   Lumban-Tobing was sentenced to forty-five days in jail

followed by ninety days house arrest.

        At criminal action number 7320 of 2013, Heidi Arlene Hartman was

charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor, failing to keep her vehicle within her lane of traffic,

failing to stop at a stop sign, careless driving, and failing to wear her seat

belt.    At about 5:00 p.m. on September 21, 2013, Pennsylvania State

Trooper Travis Kauffman was on routine patrol in York City.      He observed

Hartman fail to stop her vehicle at a stop sign and then cross into the

oncoming lane of traffic.     Trooper Kauffman initiated a traffic stop, and

Hartman displayed numerous signs of intoxication.     Hartman was arrested


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for DUI, Trooper Kauffman gave her the proper warnings about the

consequences of her failure to agree to BAC testing, and Hartman refused to

undergo that testing.     Hartman was convicted of DUI in 2004.           On

January 7, 2014, Hartman pled guilty to the DUI offense and the remaining

charges were nol prossed.      The Commonwealth noted its objection to

         prohibition to imposition of a sentence that exceeded six months.

Hartman was sentenced to six months of intermediate punishment.

     At criminal action number 6256 of 2013, Brian Kevin Doll was charged

with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first degree

misdemeanor.    At about 7:00 p.m. on August 3, 2013, Hellan Township

Police Sergeant Drew Heistand was dispatched to the site of a traffic

accident on Pleasant Valley Road.    When he arrived, there was a vehicle

upside down in the middle of the road.      Doll chanced upon the accident

scene driving a white van that stopped behind one of the fire trucks. Doll



and indicated that Doll appeared to be intoxicated.

     Sergeant Heistand approached Doll and detected a strong odor of

alcohol emanating from his breath. Sergeant Heistand advised Doll to call

for someone to retrieve him from the accident scene and said that he would

not be arrested if he complied with this directive. Doll ignored the officer,

entered his van, and attempted to leave the scene. Doll was unable to do so

due to the presence of fire trucks. After Sergeant Heistand processed the


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intoxicated driver involved in the accident, he again approached Doll, who

failed field sobriety tests and was arrested. Doll was taken to a hospital for

a blood test. After being given the correct warnings about the consequences

of his failure to agree to BAC testing, Doll refused to undergo that testing.

The record indicates that Doll had a prior DUI conviction within the ten years

prior to August 2013.    N.T. Plea, 11/4/13, at 3.    Doll pled guilty to the

charged offense on November 4, 2013, and was sentenced to six months



of Musau.

      At criminal action number 6765 of 2013, Shawn Michael Ness was

charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first

degree misdemeanor and two summary traffic offenses.        At approximately

1:30 a.m. on September 2, 2013, State Trooper Michael Levinsky was on

patrol on Highway 30 in York City. He observed Ness driving his Volkswagen

erratically and stopped him. Ness appeared intoxicated and had a prior DUI

conviction from 2008.    Ness refused to undergo BAC testing following his

arrest.   After pleading guilty on January 9, 2014, Ness was sentenced to

forty-five days in jail followed by ninety days house arrest.   The sentence

was the result of the sente                                           Musau.



been five years.




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       In these consolidated appeals, the Commonwealth presents one

                                                               held that six
                                                                  nd
                                                                       offense)




imposable for a second DUI conviction involving a BAC refusal relates to the

legality of the sentence imposed.   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                                            Commonwealth v. Akbar, 91

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

       As the Commonwealth readily concedes, as it did before each

sentencing court, Musau, supra, applies in each case.            Musau was

convicted of DUI general impairment under § 3802(a)(1) and refused BAC

testing at the time of his DUI arrest. Musau also had a DUI conviction within

the ten years prior to the offense at issue. He was sentenced to ninety days

to five years imprisonment, and, on appeal, he contended that the statutory

maximum sentence that could be imposed was six months. We agreed and

reversed the sentence.

       Our decision rested upon application of language in 75 Pa.C.S. § 3803.

We reached our result by finding a conflict between 75 Pa.C.S. § 3803(a)(1)

and § 3803(b)(4). The first provision states:


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     (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).

75 Pa.C.S. § 3803(a)(1). On the other hand, § 3803(b)(4) provides                (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

75 Pa.C.S. § 3803(b)(4).      A first-degree misdemeanor is punishable by a

maximum of five years imprisonment. 18 Pa.C.S. § 106(b)(6); 18 Pa.C.S.

§ 1104(1).

     The     defendant   in   Musau    argued   that    the   use   of     the    term




that a § 3802 (a)(1) conviction with a refusal and a prior DUI could be

punishable as a first degree misdemeanor with a five-year maximum. The

Commonwealth countered with a different statutory construction that gave

§ 3803(b)(4) controlling effect over § 3803(a)(1).           The panel in Musau

adopted the interpretation of § 3803 advanced by the defendant and

rejected the position that his maximum sentence could be five years.




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Instead, it ruled that six months imprisonment was the maximum sentence

that can be imposed for a second DUI offense involving BAC refusal.1

        Musau applies to the defendants at issue herein.                 They were all

convicted of DUI general impairment under § 3802(a)(1), refused BAC

testing, and had a prior DUI. Thus, that case provides that the maximum

sentence applicable in each case was six months.

        The Commonwealth suggests that our decision in Commonwealth v.

Barr, 79 A.3d 668 (Pa.Super. 2013), compels a different result. However,

Barr did not involve an interpretation of the conflicting provisions of § 3803

and in no way can be construed as invalidating Musau.                  Instead, in that

decision, we held that the question of whether a defendant refused BAC

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

doubt.

        The Commonwealth also implies that the grant of allowance of appeal

in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013), should impact

upon our decision herein. In Mendez, our Supreme Court agreed to review

the propriety of the memorandum decision in Commonwealth v. Mendez,

62 A.3d 456 (Pa.Super 2012). In Mendez, over President Judge Emeritus

                                                        of statutory construction now

advanced         by     the    Commonwealth      herein.    The   majority   found   that

____________________________________________
1
    We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that
                                               cal.


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§ 3803(b)(4) rather than § 3803(a)(1) applied to a § 3802 (a)(1) DUI

conviction as a second offense where the defendant refused BAC testing.

Our Supreme Court gran

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




Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).

        We cannot read any particular outcome as to this grant of allowance of

appeal, and it certainly cannot be viewed as an intention by our Supreme

Court to overrule Musau and affirm Mendez. Thus, the grant of allowance

of appeal has no impact herein.     While the Commonwealth maintains that

Mendez is ripe for review since the appellee brief was filed, we disagree.

Oral argument is not scheduled until September 9, 2014, all the justices

must consider the issue, and a decision must be written.

        Using the tools of statutory construction, the Commonwealth also

persuasively argues that Musau was wrongly decided and suggests that we

interpret § 3803 so as to permit a five-year maximum in these cases. See

e.g.,                                    Musau reading of the statue creates



devotes a significant amount of compelling analysis to support its position

that a five-year maximum sentence is permitted in these cases. While, as


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outlined in Concordia, supra at n.1, this position may have merit, we

cannot overrule Musau because we are bound by that decision. Indeed, the

Commonwealth consistently acknowledged at each sentencing in the present

cases that the sentencing court was bound by Musau. It complained that

Musau was wrongly decided.

     However, we are no less bound by the Musau decision than were the

sentencing courts herein. As we observed in Commonwealth v. Pepe, 897

A.2d 463, 465

panel to overrule a prior decision of the Superior Court, Commonwealth v.

Hull, 705 A.2d 911, 912 (Pa.Super. 1998), except in circumstances where

intervening authority by our Supreme Court calls into question a previous

decision of this Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2

                                          Pepe that, even when our Supreme

Court has granted an appeal for purposes of determining the question before



binding.   See also Regis Insurance Co. v. All American Rathskeller,

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

lacked the power to disregard and overrule binding prior panel decision).

Hence, we are compelled to affirm.

     Judgments of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




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