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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                         Appellant      :
                                        :
                    v.                  :          No. 838 MDA 2014
                                        :
WILLIAM E. BAKER                        :


           Appeal from the Judgment of Sentence, April 17, 2014,
               in the Court of Common Pleas of York County
             Criminal Division at No. CP-67-CR-0000771-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 16, 2015

      The Commonwealth appeals from the judgment of sentence of

April 17, 2014. We affirm.

      On April 17, 2014, appellee pled guilty to one count each of fleeing

and eluding, driving under the influence (“DUI”) -- refusal, and driving with

a suspended license -- DUI related. Appellee’s DUI -- refusal was a second

offense. The trial court imposed an aggregate sentence of 18 to 30 months’

incarceration, including a 3 to 6-month sentence on count 2, DUI -- refusal.

The Commonwealth filed a notice of appeal on May 14, 2014.               The

Commonwealth complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and

the trial court has filed an opinion.

      The Commonwealth argues that the statutory maximum for a second

offense refusal DUI is 5 years, not 6 months as the trial court stated. (See


* Former Justice specially assigned to the Superior Court.
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notes of testimony, 4/17/14 at 2 (“We are bound to follow the law as set

forth by the Appellate Courts to our best ability to do so. It is a 6-month

maximum, not a 5-year maximum.”).)

      This issue was directly addressed by this court in Commonwealth v.

Musau, 69 A.3d 754 (Pa.Super. 2013), wherein we concluded that a

defendant convicted of a second-time DUI under 75 Pa.C.S.A. § 3802(a)(1),

and who refused the breath test could only be sentenced to a maximum of

6 months’ imprisonment.       Although the Commonwealth contends that

Musau was wrongly decided, we are bound by its holding.                  See

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

denied, 946 A.2d 686 (Pa. 2008), cert. denied, 555 U.S. 881 (2008) (“It is

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

the Superior Court”) (citation omitted).     See also Commonwealth v.

Concordia, 97 A.3d 366, 370 n.2 (Pa.Super. 2014) (criticizing Musau but

acknowledging its binding effect).

      The Commonwealth cites Commonwealth v. Barr, 79 A.3d 668

(Pa.Super. 2013), which is wholly inapposite. Barr had nothing to do with

the maximum legal sentence for a second offense refusal DUI. Rather, Barr

held that because the implied consent warnings are a necessary component

of a valid “refusal,” and since the defendant’s alleged refusal to submit to a

chemical test increased the penalty for the defendant’s DUI conviction

beyond the prescribed statutory maximum, the issue concerning the



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defendant’s alleged refusal needed to be submitted to a jury and proved

beyond a reasonable doubt.      Apprendi v. New Jersey, 530 U.S. 466

(2000), demands that the trial court submit to the jury -- and the

Commonwealth prove beyond a reasonable doubt -- the issue of whether the

officer informed the defendant of the requisite warnings.   Barr can in no

way be construed as invalidating Musau, nor could it have, as Barr was

likewise a panel decision.

      The Commonwealth also notes that our supreme court recently

granted allowance of appeal in Commonwealth v. Mendez, 71 A.3d 250

(Pa. 2013), to address the issue. However, the grant of allowance of appeal

in Mendez cannot be viewed as an intention by our supreme court to

overrule Musau. Even when our supreme court has granted an appeal for

purposes of determining the question before the panel deciding a case, the

prior panel’s decision nevertheless remains binding. Pepe, 897 A.2d at 465

(we cannot disregard a previous decision of this court simply because the

question is currently “on appeal” to our supreme court).

      As the trial court did not err in imposing sentence pursuant to Musau,

we will affirm the judgment of sentence.




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     Judgment of sentence affirmed.1

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015




1
  We note that on October 29, 2014, the Governor signed Act 189 of 2014
into law, which amends various provisions of the Motor Vehicle Code,
including Section 3803(a). The purpose of Act 189 was clearly to remedy or
correct the language that this court interpreted in Musau. The amended
statute, which was to take effect immediately, meaning October 29, 2014,
allows for a greater statutory maximum of up to 5 years’ imprisonment for a
repeat DUI conviction with refusal.


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