J-S66029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellant         :
                                         :
           v.                            :
                                         :
ANATOLIY BROWN,                          :
                                         :
                       Appellee          :     No. 841 MDA 2014


       Appeal from the Judgment of Sentence Entered April 17, 2014,
               In the Court of Common Pleas of York County,
            Criminal Division, at No. CP-67-CR-0000577-2014.

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 07, 2015

     The Commonwealth of Pennsylvania (“the Commonwealth”) appeals

from the judgment of sentence entered against Anatoliy Brown (“Appellee”)

on April 17, 2014, in the York County Court of Common Pleas. After careful

review, we affirm.

     The trial court set forth the background of this case as follows:

            On April 17, 2014, [Appellee] entered a plea of guilty to
     driving under the influence of alcohol under 75 Pa. C.S.A. §
     3802(a)(1). This offense was [Appellee’s] second DUI in the last
     ten years, so the Commonwealth charged [Appellee] with a Tier
     III, second offense. Additionally, [Appellee’s] DUI was graded as
     a misdemeanor of the first degree under 75 Pa. C.S.A. §
     3803(b)(4) because [Appellee] refused to submit to chemical
     testing. [Appellee’s] DUI was a Tier III due to the refusal. The
     Court imposed a sentence of imprisonment not less than 45 days
     and not more than six months plus a fine of $1500. The
     Defendant was also ordered to complete all other standard DUI
     conditions.
J-S66029-14



Trial Court Opinion, 6/27/14, at 1-2.

      The Commonwealth filed a timely appeal presenting the following

question for this Court’s consideration:

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

Commonwealth’s Brief at 4 (full capitalization omitted).

      At the time Appellee committed the DUI offense, the relevant portions

of the DUI gradation statute read as follows:

      (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 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.




                                        -2-
J-S66029-14



     In Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), a

panel of this Court analyzed application of 75 Pa.C.S. § 3803(a)(1) and 75

Pa.C.S. § 3803(b)(4).      The Musau Court held that a defendant who was

convicted of a second-offense DUI under 75 Pa.C.S. § 3802(a)(1) and who

refused chemical blood and breath testing could be sentenced to a maximum

term of six months of imprisonment, as set forth in 75 Pa.C.S. § 3803(a)(1),

despite the fact that the crime is graded as a first-degree misdemeanor that

generally is subject to a five-year mandatory minimum term.               Musau, 69

A.3d at 757-758; 18 Pa.C.S. § 106(b)(6).1

     Here, the Commonwealth argues that the maximum sentence should

be five years because Musau was wrongly decided and conflicts with

Commonwealth        v.     Barr,   79     A.3d    668      (Pa.    Super.     2013).2

Commonwealth’s     Brief   at   12-14.     In    support    of    its   position,   the

Commonwealth asserts that the Pennsylvania Supreme Court’s grant of



1
  Following this Court’s decision in Musau, the Pennsylvania Legislature
amended 75 Pa.C.S. § 3803(a) by deleting the phrase “[n]otwithstanding
the provisions of” and replacing it with “[e]xcept as provided in.” 75 Pa.C.S.
§ 3803 (effective October 27, 2014). However, because Appellee committed
his crime on May 17, 2013, before the October 24, 2014 effective date of the
amendment, Appellee was subject to the prior version of the statute.
2
  Barr did not involve an interpretation of 75 Pa.C.S. § 3803. In Barr, this
Court held that the determination as to whether a defendant refused
chemical testing must be submitted to a jury and proven beyond a
reasonable doubt. The holding in Barr has no bearing on the precedential
value of Musau.



                                         -3-
J-S66029-14



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

2013), supports its argument that Musau was decided incorrectly and that

“this area of law remains unsettled.”                 Commonwealth’s Brief at 12.

However, we note that the Supreme Court recently dismissed the appeal in

Mendez as having been improvidently granted. Commonwealth v.

Mendez, 32 EAP 2013, 2015 WL 1421402 (Pa. filed March 30, 2015).3

         After review, we conclude that the Commonwealth is entitled to no

relief    because   we   are   bound   by       our    holding   in   Musau.   See

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

that “[i]t is beyond the power of a Superior Court panel to overrule a prior

decision of the Superior Court … except in circumstances where intervening

authority by our Supreme Court calls into question a previous decision of

this Court.”). Accordingly, we affirm Appellee’s judgment of sentence.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/7/2015



3
 We are cognizant that the issue decided in Musau currently is pending en
banc review before this Court. See Commonwealth v. Grow, 2017 MDA
2013, Order, 9/15/14.

                                          -4-
