J-S41014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellant

                     v.

RICHARD KENTON BERGIN,

                          Appellee                  No. 1918 MDA 2014


     Appeal from the Judgment of Sentence entered October 16, 2014,
               in the Court of Common Pleas of York County,
            Criminal Division, at No: CP-67-CR-0004828-2014


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED JULY 22, 2015

      The Commonwealth appeals from the judgment of sentence which the

trial court imposed pursuant to Commonwealth v. Musau, 69 A.3d 754

(Pa. Super. 2013). We affirm.

      The trial court summarized the pertinent background relative to this

matter as follows:

      In this case, [on October 16, 2014,] Defendant plead guilty to
      [75 Pa.C.S. § 3802 (a)(1),] his second offense DUI, Count 1,
      wherein he refused to submit to chemical testing, a first-degree
      misdemeanor [on the offense date of June 26, 2014]. As the
      holding in Musau is binding on this Court, the Trial Court
      sentenced Defendant to a maximum of six months County
      Intermediate Punishment. (N.T., 10/16/14, page 5). Because
      this sentence was mandated by law, the Commonwealth’s
      complaint is without merit.

Trial Court Opinion, 1/13/15, at 2.


*Retired Senior Judge assigned to Superior Court.
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     The Commonwealth filed a timely notice of appeal, and both the

Commonwealth and trial court have complied with Pa.R.A.P. 1925.

     The Commonwealth presents a single issue for our review:

     WHETHER THE SENTENCING COURT ERRED WHEN IT HELD
     THAT SIX MONTHS FOR THE DEFENDANT’S DRIVING UNDER THE
     INFLUENCE (REFUSAL) (2nd OFFENSE) CONVICTION WAS THE
     STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD
     CONSIDER[?]

Commonwealth Brief at 4.

     In reviewing the Commonwealth’s issue, we recognize:

     [] Issues relating to the legality of a sentence are questions of
     law, as are claims raising a court’s interpretation of a statute.
     Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super.
     2006). Our standard of review over such questions is de novo
     and our scope of review is plenary. See Leverette, 911 A.2d at
     1002.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008).

     Instantly, while the Commonwealth has raised and developed its

Musau issue, it has failed to develop its additional assertion raised in its

Pa.R.A.P. 2119(f) certification that “75 Pa.C.S.A. § 3804(d) expressly

requires the sentencing court to issue a maximum sentence equivalent to

the statutory maximum when the defendant’s CRN evaluation shows that the

individual is in need of additional treatment and a treatment evaluation

pursuant to 75 Pa.C.S.A. § 3814(2) is needed.” Commonwealth Brief at 7;

see generally 8-24. Accordingly, the Commonwealth’s argument regarding

the trial court’s failure to sentence Mr. Bergin pursuant to 75 Pa.C.S.A. §



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3804(d) is waived.   See Coulter v. Ramsden, 94 A.3d 1080, 1088-1089

(Pa. Super. 2014). In Coulter, we emphasized:

           “The Rules of Appellate Procedure state unequivocally that
     each question an appellant raises is to be supported by
     discussion and analysis of pertinent authority.” Estate of Haiko
     v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P.
     2119(b). “Appellate arguments which fail to adhere to these
     rules may be considered waived, and arguments which are not
     appropriately developed are waived.             Arguments not
     appropriately developed include those where the party has failed
     to cite any authority in support of a contention.” Lackner v.
     Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006) (citations
     omitted). This Court will not act as counsel and will not develop
     arguments on behalf of an appellant. Irwin Union National Bank
     and Trust Company v. Famous and Famous and ATL Ventures, 4
     A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v.
     Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)). Moreover, we
     observe that the Commonwealth Court, our sister appellate
     court, has aptly noted that “[m]ere issue spotting without
     analysis or legal citation to support an assertion precludes our
     appellate review of [a] matter.” Boniella v. Commonwealth, 958
     A.2d 1069, 1073 n. 8 (Pa. Cmwlth. 2008) (quoting
     Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa.
     Cmwlth. 2002)).

Coulter, 94 A.3d at 1088-1089. Furthermore, the Commonwealth did not

raise the argument before the trial court at the time of sentencing, (see

N.T., 10/16/14), nor did the Commonwealth articulate the issue in its

Pa.R.A.P. 1925 statement.   See Commonwealth Pa.R.A.P. 1925 Statement

of Errors Complained of on Appeal, 11/20/14.

     As   to   the   Commonwealth’s   argument    regarding   Musau,     we

incorporate below the following discussion from Musau:




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     [S]ection 3803 of the vehicle code … provides in relevant part 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.      The statutory maximum sentence for
     misdemeanors of the first degree is five years' imprisonment.
     18 Pa.C.S. § 106(b)(6), (e).

                                  ***

            [Musau] … claims that “[i]t is equally clear from the
     statute that subsection (a) dictates that the maximum sentence
     [Musau] could receive for this particular offense is six months
     [of] incarceration.” Id. Because the word “notwithstanding” is
     defined as “‘nevertheless' or ‘in spite of,’” [Musau] argues that
     “the statute clearly indicates that while subsection (b) dictates
     the grading of a second offense where there is a BAC refusal,
     subsection (a) dictates the maximum punishment for that
     offense.” Id. at 9.

                                  ***

           We are constrained to agree with [Musau]. The American
     Heritage Dictionary defines the word notwithstanding as “in spite
     of” or “although.” American Heritage Dictionary of the English
     Language 1203–04 (4th ed. 2006). Our Supreme Court has
     defined “notwithstanding” as “regardless of.”      See City of


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        Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397,
        399 (1998) (holding that the plain meaning of the phrase
        “notwithstanding a contrary provision of law of the
        Commonwealth ...” is “regardless of what any other law provides
        ...”).     Given   these    definitions,   the   Commonwealth's
        interpretation might be persuasive if the legislature had instead
        prefaced subsection (a) with “except as provided in subsection
        (b),” or began subsection (b) with “notwithstanding the
        provisions of subsection (a).” But it did not. Therefore, we hold
        that the plain language of the statute, giving the words their
        ordinary meanings, indicates as follows: 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.

Musau, 69 A.3d at 757-758 (internal footnote omitted).

        This Court in Musau noted “[i]f the legislature did not in fact intend to

create a lesser maximum sentence for the first-degree misdemeanor of a

first   or   second   DUI   with   refusal   than   is   permissible   generally   for

misdemeanors of the first degree, such an ‘oversight is best left to the

Legislature to correct.’” Id. at 758 n.2 citing Commonwealth v. Gordon,

992 A.2d 204, 207 n.8 (Pa. Super. 2010). Thereafter, on October 27, 2014,

the Pennsylvania Legislature did amend the statute to read “[e]xcept as

provided in subsection (b),” rather than “[n]otwithstanding the provisions of

subsection (b).”      See 75 Pa.C.S. § 3803(a).          The statutory amendment,

however, does not warrant the result the Commonwealth seeks in this

appeal because Mr. Bergin’s June 26, 2014 offense pre-dated the effective

date of the amendment. See Commonwealth v. Williams, 871 A.2d 254,

259 n.5 (Pa. Super. 2005) (internal citations omitted) (“A defendant can be



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convicted only under statutes in effect on the date of his acts.”). Moreover,

as the Commonwealth acknowledged on the date of the plea colloquy and

sentencing, Musau is controlling. See N.T., 10/16/14, at 2 (“For the record,

the Commonwealth would just note its objection to [the trial court’s

application of Musau], but we understand that the Court is bound by

[Musau].”).   Id.   We are bound by Musau as well.      Commonwealth v.

Spease, 911 A.2d 952, 959 (Pa. Super. 2006) (citation omitted) (a prior

opinion from our Court is “binding upon this Court and we are not at liberty

to overrule it” in the absence of a superceding en banc Superior Court

opinion or a Supreme Court opinion reversing the prior precedent).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




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