J-S41015-15

*Retired Senior Judge assigned to Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRUCE DEWAYNE GARRETT,

Appellee No. 2159 MDA 2014

Appeal from the Judgment of Sentence entered December 3, 2014,

in the Court of Common Pleas of York County,

Criminal Division, at No(s): CP-67-CR-0000633-2014

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 upon Bruce Dewayne Garrett, (“Garrett”), pursuant to 

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). We affirm. 

The trial court explained:

On December 3, 2014, [Garrett] plead guilty before the 

Honorable Thomas H. Kelley, VI to driving under the influence of 

alcohol or a controlled substance (DUI) under 75 Pa.C.S.A § 

3802(a)(1). The [December 13, 2013] DUI offense was 

[Garrett’s] second in the last ten years. As a result, the 

Commonwealth charged [Garrett] with a Tier III, second offense. 

On December 3, 2014, the Court imposed a sentence of 6 

months intermediate punishment with the first 90 days on house 

arrest with SCRAM monitoring, followed by 45 days in the York 

County Prison. The Commonwealth did not agree on a 

maximum sentence. The Commonwealth now appeals the 

Court’s Sentencing Order imposing [Garrett’s] maximum 

sentence. 
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Trial Court Opinion, 2/6/15, at 1-2. The Commonwealth filed a timely notice 

of appeal. The Commonwealth and the trial court have complied with 

Pa.R.A.P. 1925.

The Commonwealth’s sole issue on appeal is:

WHETHER THE SENTENCING COURT ERRED WHEN IT HELD 

THAT SIX MONTHS FOR [GARRETT’S] DRIVING UNDER THE 

INFLUENCE (REFUSAL) (2ND OFFENSE) CONVICTION WAS THE 

STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD 

CONSIDER[?]

Commonwealth Brief at 4. 

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). 

Further, we cannot disregard that:

“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, 
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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 v. Ramsden, 94 A.3d 1080, 1088-1089 (Pa. Super. 2014).

Here, the Commonwealth raised and developed their Musau issue. 

However, the Commonwealth has failed to develop their additional assertion 

that “in regards to [Garrett], 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. Indeed, the Commonwealth failed to specify the Section 3804(d) issue 

in their Pa.R.A.P. 1925 statement. See Commonwealth’s Pa.R.A.P. 1925 

Statement of Errors Complained of on Appeal, 1/5/15. Accordingly, the 

Commonwealth’s argument regarding the trial court’s failure to sentence 

Garrett pursuant to 75 Pa.C.S.A. § 3804(d) is waived. 

With regard to the Commonwealth’s Musau issue, we quote below 

from our decision:

[S]ection 3803 of the vehicle code ... provides in relevant part as 

follows[:]

(a) Basic offenses.—Notwithstanding the provisions of 

subsection (b):
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(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 

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 
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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 observed that “[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). Subsequently, on 

October 27, 2014, the Legislature amended Section 3803 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 amendment, however, 

does not entitle the Commonwealth to relief in this appeal because Garrett’s 

December 13, 2013 DUI offense pre-dated the amendment. See

Commonwealth v. Williams, 871 A.2d 254, 259 n.5 (Pa. Super. 2005) 

(internal citations omitted) (“A defendant can be convicted only under 

statutes in effect on the date of his acts.”). It is noteworthy that at the time 

of Garrett’s guilty plea and sentencing, the Commonwealth conceded the 

authority of Musau. See N.T., 12/3/14, at 1 (“At this time, Your Honor, 

[Garrett] will be entering a guilty plea to the sole count of the information, 
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Tier 3, second offense DUI. Your Honor, under the Commonwealth v. 

Musau case, the maximum term is six months. The Commonwealth 

understands that. However, we would note our objection for the record.”). 

Id. at 1-2. Accordingly, we affirm Garrett’s judgment of sentence. 

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