J-S51006-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellant

                   v.

MANDIE NEWMAN,

                        Appellee                     No. 1899 MDA 2013


        Appeal from the Judgment of Sentence September 23, 2013
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0001679-2013


BEFORE: BOWES, OTT, and MUSMANNO, JJ.

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

      In this appeal, the Commonwealth contends that the sentencing court

erroneously computed the maximum sentence that could be imposed upon

Appellee Mandie Newman with respect to a conviction for driving under the



impairment) where Appellee 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 is

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
J-S51006-14



was erroneously decided in that it improperly construed 18 Pa.C.S. § 3803.

As we are bound by the decision in question, we affirm.

      Appellee was charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1),

which prohibits a person from driving a vehicle after consuming a sufficient

amount of alcohol so as to render him incapable of safely driving.           The

offense was graded as a first degree misdemeanor.            Appellee also was

charged with escape, flight to avoid apprehension, and failing to have a valid

vehicular registration.   At approximately 2:30 a.m. on February 1, 2013,

West Manchester Township Police Officer Adam Bruckhart was on patrol

when he started to follow a Ford Explorer that was travelling north on

Kenneth Road.     On two occasions, the driver of the Explorer took evasive

action, Officer Bruckhart lost sight of it, and the officer had to circle back to

find it.   The officer eventually found the vehicle parked in front of 1667

Westgate Drive, and he noticed that it had a registration sticker that expired

in June 2011. Officer Bruckhart approached the driver, Appellee, and asked



                                                                information was

in her house.

      Appellee appeared to be extremely intoxicated and was combative.

Officer Bruckhart ordered her to stay in her vehicle, and returned to his

cruiser to request backup assistance and to conduct a check on Appellee.

He concluded that Appellee had an outstanding bench warrant for writing



                                      -2-
J-S51006-14


bad checks.     After backup arrived, Officer Bruckhart returned to the

Explorer, but Appellee was gone. Officer Bruckhart located her in her nearby

apartment. After being given warnings about the consequences of refusing

to undergo blood alcohol content testing, Appellee declined. She had a prior

DUI offense.

      On July 15, 2013, Appellee pled guilty to the DUI and escape offenses.



acknowledged that Musau prevented imposition of a sentence in excess of

six months but contended that it was incorrect. Appellee was sentenced to

six months intermediate punishment for the DUI.          The Commonwealth

appealed the sentence and timely complied wit

file a Pa.R.A.P. 1925(b) statement.   On appeal, the Commonwealth presents



                                                                   nd
                                                                        offense)




      The question of the legal maximum sentence 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 and our scope of




                                      -3-
J-S51006-14


                   Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.

2014).

     As the Commonwealth concedes, Musau, supra, applies herein.

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:

     (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



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


                                    -4-
J-S51006-14


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.

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 Appellee.               She was 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 this 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

____________________________________________


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




                                           -5-
J-S51006-14


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



advanced   by   the   Commonwealth   herein.    The   majority   found   that

§ 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.



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




                                    -6-
J-S51006-14


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

of appeal has no impact herein.

        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 this case.     See

e.g.,                                  Musau reading of the statue creates

absurd results contrary to the legislative in

devotes a significant amount of compelling analysis to support its position

that a five-year maximum sentence is permitted in this action.   While, as

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 acknowledged at the present sentencing hearing 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 was the

sentencing court 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


                                   -7-
J-S51006-14


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.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




                                     -8-
