J-S51009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                         Appellant

                    v.

CASEY SHARP WARD,

                         Appellee                     No. 2230 MDA 2013


          Appeal from the Judgment of Sentence November 15, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0004813-2013


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 Casey Sharp Ward with respect to a conviction for driving under the

influ

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
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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 two summary driving offenses and 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.    At approximately 1:45 a.m. on May 25, 2013, State Police

Trooper Jordan Geisler was traveling northbound on State Route 24 in York

Township. He observed a Chevrolet being driven by Appellee cross into the

oncoming lane of traffic and then make a right-hand turn without signaling.

Trooper Geisler initiated a traffic stop and, upon approaching Appellee,

detected numerous signs that he was intoxicated.          After he failed field

sobriety tests, Appellee was arrested. Two open liquor bottles and a case of

                                           llee was read the legal warnings

about the consequences of a failure to submit to chemical testing, but he



second.

     On November 15, 2013, Appellee was found guilty at a nonjury trial of

the DUI charge and one of the summary offenses and was sentenced to six

months of intermediate punishment.     The record indicates that the court

applied the Musau holding, although there was no objection by the

Commonwealth to the sentence imposed. The Commonwealth filed a timely




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sentencing court erred when it determined that six months for the

                            nder the influence (refusal) conviction was the



Appeal, 1/6/14, at 1.         The Commonwealth raises that same contention
                                          1



       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

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

2014).

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

the tria

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
____________________________________________


1
     Although the Commonwealth failed to object in the trial court to
application of a six-month maximum sentence, as discussed in the text,
infra
issues that has traditionally not needed to be preserved through

                         Commonwealth v. Boyd, 73 A.3d 1269, 1271
(Pa.Super. 2013). Hence, this claim is preserved for purposes of appeal.



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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

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

                                                                                    ed




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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.2

       Musau applies to Appellee.              He 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

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.




____________________________________________


2
    We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that




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     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

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


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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 this action.     While, as

outlined in Concordia, supra at n.2, this position may have merit, we

cannot overrule Musau because we are bound by that decision.

        As we observed in Commonwealth v. Pepe, 897 A.2d 463,

465                                               f a Superior Court 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

the panel deciding a case, the prior

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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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