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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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