J-S07021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ALLEN RAY ETTINGER,

Appellee No. 1165 MDA 2014

Appeal from the Judgment of Sentence of June 16, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001996-2014

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015

The Commonwealth of Pennsylvania appeals from the judgment of 

sentence entered on June 16, 2014. We affirm.

On February 4, 2014, Mr. Ettinger was arrested for driving under the 

influence of alcohol (hereinafter “DUI”). The Commonwealth later charged 

Mr. Ettinger with DUI,1 which was enhanced based upon the averment that 

Mr. Ettinger refused to submit to chemical testing of his breath or blood. 

Commonwealth’s Information, 4/25/14, at 1; see also 75 Pa.C.S.A. § 1547. 

On June 16, 2014, Mr. Ettinger pleaded guilty to DUI, pursuant to 75 

Pa.C.S.A. § 3802(a)(1). The conviction constituted Mr. Ettinger’s second 

DUI offense within the prior ten years. N.T. Sentencing, 6/16/14, at 1. 

____________________________________________

1 75 Pa.C.S.A. § 3802(a)(1).
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Moreover, within Mr. Ettinger’s guilty plea, Mr. Ettinger admitted that he 

refused to submit to chemical testing on the night in question. Id. at 5; 75 

Pa.C.S.A. § 1547. 

That same day, the trial court sentenced Mr. Ettinger to six months’ 

intermediate punishment, consistent with this Court’s holding in 

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) (construing 75 

Pa.C.S.A. § 3803(a)(1) and § 3803(b)(4) and holding that a defendant who 

was convicted of a second-offense DUI under 75 Pa.C.S.A. § 3802(a)(1) and 

who refused chemical testing could only be sentenced to the statutory 

maximum term of six months’ imprisonment, as set forth in 75 Pa.C.S.A. 

§ 3803(a)(1) – even though the crime is graded as a first-degree 

misdemeanor and even though a first-degree misdemeanor is generally 

subject to a five-year mandatory minimum sentencing term). Further, 

during Mr. Ettinger’s sentencing hearing, the Commonwealth acknowledged 

that Musau bound the trial court and that, under Musau, the trial court was 

“obligated to impose a six-month maximum” sentence upon Mr. Ettinger. 

N.T. Sentencing, 6/16/14, at 2. However, the Commonwealth objected to 

the trial court’s sentence for purposes of issue preservation. Id.

The Commonwealth filed a timely notice of appeal from Mr. Ettinger’s 

judgment of sentence. The Commonwealth now raises one claim on appeal: 

Whether the sentencing court erred when it held that six 

months for [Mr. Ettinger’s DUI] (refusal) ([second] offense) 

conviction was the statutory maximum allowable sentence it 

could consider[?]
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Commonwealth’s Brief at 4 (some internal capitalization omitted).

The Commonwealth’s claim fails because we, like the trial court, are 

bound by our holding in Musau. 

At the time Mr. Ettinger committed his DUI offense, the relevant 

portions of the DUI gradation statute read:

(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.
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75 Pa.C.S.A. § 3803.2 The statutory maximum sentence for a misdemeanor 

of the first degree is generally five years in prison. 18 Pa.C.S.A. 

§ 106(b)(6).

In Commonwealth v. Musau, this Court was provided with an 

opportunity to interpret the above-quoted version of 75 Pa.C.S.A. § 3803(a) 

and (b)(4). In Musau, Mr. Musau was convicted of a second-offense DUI, 

where he refused to submit to chemical testing. Musau, 69 A.3d at 755-

756. At Mr. Musau’s sentencing hearing, the trial court looked to 75 

Pa.C.S.A. § 3803(b)(4) and concluded that Mr. Musau’s DUI conviction was 

to be graded as a first-degree misdemeanor. Id.; see also 75 Pa.C.S.A. 

§ 3803(b)(4). Further, the trial court held that the general, five-year 

statutory maximum sentencing term for first-degree misdemeanors – as 

found in 18 Pa.C.S.A. § 106(b)(6) – applied to Mr. Musau’s conviction. 

Musau, 69 A.3d at 755-756. In accordance with this construction, the trial 

court sentenced Mr. Musau to serve a term of 90 days to 5 years in jail. Id.

at 756.

____________________________________________

2

In response to Musau, the Pennsylvania Legislature amended 75 Pa.C.S.A. 

§ 3803(a) by deleting the phrase “[n]otwithstanding the provisions of” and 

replacing that phrase with the words “[e]xcept as provided in.” See 75 

Pa.C.S.A. § 3803 (effective October 27, 2014). However, since the 

amendment to Section 3803(a) was effective on October 27, 2014, and since 

Mr. Ettinger committed his crime before the effective date of the 

amendment, Mr. Ettinger was subject to the prior version of the statute. 
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On appeal to this Court, Mr. Musau claimed that his sentence was 

illegal because it exceeded the six-month statutory maximum penalty, as 

provided in 75 Pa.C.S.A. § 3803(a)(1). Musau, 69 A.3d at 756. This Court 

agreed with Mr. Musau. Specifically, the Musau Court read 75 Pa.C.S.A. 

§ 3803(a) and (b)(4) in accordance with principles of statutory construction 

and held that a defendant convicted of a second-offense DUI under 75 

Pa.C.S.A. § 3802(a)(1), who refused chemical testing, could only be 

sentenced to the statutory maximum term of six months’ imprisonment, as 

provided in Section 3803(a)(1). Musau, 69 A.3d at 758.

Important to the Musau Court’s holding was the fact that, in drafting 

75 Pa.C.S.A. § 3803(a), the Pennsylvania Legislature employed the phrase 

“[n]otwithstanding the provisions of subsection (b);” and, as the Musau

Court noted, the term “notwithstanding” is defined, variously, as “in spite 

of,” “although,” or “regardless of.” Id. at 757. The Musau Court held that, 

by employing the phrase “notwithstanding the provisions of subsection (b)” 

in Section 3803(a), the Legislature intended for Section 3803(a) to apply 

“regardless of” what was contained in Section 3803(b). Id. at 757-758. 

Thus, even though Section 3803(b)(4) graded Mr. Musau’s crime as a firstdegree misdemeanor, the Musau Court concluded that the statutory 

maximum term of six months’ imprisonment – contained in Section 3803(a) 

– applied “regardless of” the crime’s grade. Id. Hence, the Court held, 

since Mr. Musau’s sentence exceeded the six-month statutory maximum, the 

sentence was illegal. Id. at 758.
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Musau undoubtedly applies to the case at bar because Mr. Ettinger 

(like Mr. Musau) was convicted of a second-offense DUI under 75 Pa.C.S.A. 

§ 3802(a)(1), where he refused chemical testing and, at the time Mr. 

Ettinger committed his offense, Mr. Ettinger was subject to the same version 

of 75 Pa.C.S.A. § 3803 that was interpreted in Musau. Indeed, within the 

Commonwealth’s brief to this Court, the Commonwealth simply requests this 

Court to either overrule Musau or ignore Musau and, instead, follow 

contrary, non-binding dicta from other cases. See Commonwealth’s Brief at 

9-22. However, this Court has no power to overrule Musau or to ignore 

Musau’s clear, binding holding in favor of non-binding dicta. See 

Commonwealth v. Taggert, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010) 

(recognizing that “one three-judge panel of [the Superior] Court cannot 

overrule another” three-judge panel); Gardner v. Erie Ins. Co., 722 A.2d 

1041, 1046 (Pa. 1999) (“the Court is not bound by statements made in 

dicta”). The Commonwealth’s claim on appeal thus fails.3

____________________________________________

3 We note that the Commonwealth filed a petition for allowance of appeal in 

Musau and, on February 11, 2014, the Pennsylvania Supreme Court entered 

an order, holding the Musau petition for allowance of appeal pending its 

disposition in Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013). 

Pennsylvania Supreme Court Order, 2/11/14, at 1. Nevertheless, on March 

30, 2015, the Pennsylvania Supreme Court dismissed the appeal in Mendez

as improvidently granted. Commonwealth v. Mendez, ___ A.3d ___ (Pa. 

2015). Moreover, and regardless, Musau remains binding precedent unless 

and until it has been overturned by our Supreme Court or it has been 

overruled by an en banc panel of this Court. See Marks v. Nationwide 

Ins. Co., 762 A.2d 1098, 1101 (Pa. Super. 2000) (“we have long held that 

(Footnote Continued Next Page)
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Therefore, in accordance with Musau and 75 Pa.C.S.A. § 3803(a)(1), 

we must hold that the trial court correctly concluded that Mr. Ettinger was 

subject to the six-month statutory maximum sentence for his DUI 

conviction. 

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2015

(Footnote Continued) _______________________

as long as the decision has not been overturned by our Supreme Court, a 

decision by our Court remains binding precedent”).