J-S51010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
DANIEL SCOTT HORN,
Appellee No. 2134 MDA 2013
Appeal from the Judgment of Sentence October 29, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003719-2013
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 Daniel Scott Horn 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-S51010-14
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. At approximately 2:20
a.m. on April 6, 2013, Pennsylvania State Trooper Mathew Templin was
patrolling on George Street in North York Borough when he noticed a motor
vehicle with one of its headlights extinguished. The trooper effectuated a
traffic stop and approached the driver, Appellee. After Appellee exhibits
signs of being intoxicated, Trooper Templin asked him if he had been
drinking, and Appellee responded affirmatively. Claiming to have a back
injury, Appellee refused to perform field sobriety tests. He also refused to
perform a preliminary breath test, and, after being issued the proper
warnings about the consequences of so doing, to have his blood drawn for
blood alcohol testing. Appellee had a DUI conviction in 2010.
On September 24, 2013, Appellee pled guilty to the offense in question
and proceeded to sentencing on October 29, 2013. The Commonwealth
acknowledged that Musau prevented imposition of a sentence in excess of
six months, objected, and contended that the case was wrongly decided.
Appellee was given six months intermediate punishment, and this
Commonwealth appeal followed. The Commonwealth complied with the trial
-2- J-S51010-14
sentencing court erred when it h
driving under the influence (refusal) (2nd offense) conviction was the
brief at 4.
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.
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:
-3- J-S51010-14
(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
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.
-4- J-S51010-14
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. 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.
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
____________________________________________
1 We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that
-5- J-S51010-14
§ 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).
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J-S51010-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v.
DANIEL SCOTT HORN,
Appellee No. 2134 MDA 2013
Appeal from the Judgment of Sentence October 29, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003719-2013
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 Daniel Scott Horn 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-S51010-14
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. At approximately 2:20
a.m. on April 6, 2013, Pennsylvania State Trooper Mathew Templin was
patrolling on George Street in North York Borough when he noticed a motor
vehicle with one of its headlights extinguished. The trooper effectuated a
traffic stop and approached the driver, Appellee. After Appellee exhibits
signs of being intoxicated, Trooper Templin asked him if he had been
drinking, and Appellee responded affirmatively. Claiming to have a back
injury, Appellee refused to perform field sobriety tests. He also refused to
perform a preliminary breath test, and, after being issued the proper
warnings about the consequences of so doing, to have his blood drawn for
blood alcohol testing. Appellee had a DUI conviction in 2010.
On September 24, 2013, Appellee pled guilty to the offense in question
and proceeded to sentencing on October 29, 2013. The Commonwealth
acknowledged that Musau prevented imposition of a sentence in excess of
six months, objected, and contended that the case was wrongly decided.
Appellee was given six months intermediate punishment, and this
Commonwealth appeal followed. The Commonwealth complied with the trial
-2- J-S51010-14
sentencing court erred when it h
driving under the influence (refusal) (2nd offense) conviction was the
brief at 4.
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.
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:
-3- J-S51010-14
(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
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.
-4- J-S51010-14
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. 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.
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
____________________________________________
1 We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that
-5- J-S51010-14
§ 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
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.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
-6- J-S51010-14
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 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.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/20/2014
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