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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEFF L. DAVIS

Appellant No. 1849 MDA 2013

Appeal from the Judgment of Sentence February 27, 2012

In the Court of Common Pleas of Adams County

Criminal Division at No(s): CP-01-CR-0000396-2011

 CP-01-CR-0000544-2011

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J. FILED APRIL 09, 2015

Appellant, Jeff L. Davis, appeals from the judgment of sentence 

entered by the Honorable Thomas R. Campbell, Court of Common Pleas of 

Adams County, after a jury convicted Davis of driving under the influence 

(“DUI”) and resisting arrest. After careful review, we affirm the convictions, 

but vacate the sentence and remand for resentencing.

Davis was involved in a single vehicle accident on April 9, 2011. 

Officer Chad Topper of the Cumberland Township Police Department 

responded to the scene and observed that Davis, who was sitting in the 

driver’s seat of the vehicle, was the only person present. When the window 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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of the vehicle was down, Officer Topper observed a strong odor of alcohol 

coming from the vehicle. After awakening Davis, Officer Topper noticed that 

Davis’s speech was slurred.

Officer Topper believed that Davis was intoxicated and prepared to 

arrest Davis. However, Davis became combative, and refused to comply 

with Officer Topper’s directions. Consequently, Officer Topper requested 

back up before proceeding with Davis. Other officers who responded to 

Officer Topper’s request for back up all testified that they also believed that 

Davis was severely intoxicated based upon their own observations.

After placing Davis under arrest, Officer Topper advised Davis that he 

was being transported to a local hospital for blood testing. Davis indicated 

that he did not consent to the test, and continued to be combative with 

Officer Topper. After Officer Topper finished reading the DL-26 implied 

consent form to Davis, Davis refused to sign the form. Davis was 

subsequently charged with DUI – general impairment with a finding of 

implied consent refusal, and one count of resisting arrest. After the jury 

convicted him on both counts, the trial court sentenced Davis to 60 months 

in an intermediate punishment program. This timely appeal followed.

On appeal, Davis raises two arguments for our review. First, he 

contends that his convictions were not supported by sufficient evidence, or 

alternatively, that they were against the weight of the evidence. The 

argument section of Davis’s appellate brief under this argument consists of a 
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single paragraph that sets forth our standard of review for claims of 

insufficiency of the evidence. See Appellant’s Brief, at 9. No authority is 

cited for his argument on the weight of the evidence. Nor is there any 

attempt to apply the cited authority for sufficiency of the evidence to facts 

and circumstance of this case. Further, there is no attempt to identify any 

specific element that was not established by the evidence presented by the 

Commonwealth at trial. As Davis has not made even a rudimentary effort at 

presenting an argument on the sufficiency or weight of the evidence, we find 

these issues waived. See Commonwealth v. Veon, ___ A.3d ___, ___, 

2015 WL 500887, *15 (Pa. Super., filed February 6, 2015)

In his second argument, Davis asserts that the sentence imposed by 

the trial court was illegal.1 In Commonwealth v. Musau, 69 A.3d 754 (Pa. 

Super. 2013),2the defendant was convicted of DUI. As he had a prior DUI 

conviction and because he refused chemical testing, the trial court in Musau

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1 While Davis includes a Pa.R.A.P. 2119(f) statement in his brief and argues 

that the trial court abused its discretion by imposing an excessive sentence, 

he also argues that the sentence imposed “exceeded the statutory 

maximum[.]” Appellant’s Brief, at 8.

2 On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B. 

1239, Session of 2014, Printer’s No. 2396). This is an Act amending various 

provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section 

3803(a), the section at issue in Musau. Act 189 amends Section 3803(a) 

by changing “Notwithstanding the provisions of” to “Except as provided in.” 

Section 4(1)(ii) of Act 189, states that the amendment to §3803(a) shall 

take effect immediately, meaning on October 29, 2014. Since Davis’s 

sentence was entered prior to October 29, 2014, we apply the prior version 

of the statute.
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graded his offense as a first-degree misdemeanor pursuant to 75 Pa.C.S.A. § 

3803(b)(4). As a result, the defendant was sentenced according to the 

sentencing guidelines for a first-degree misdemeanor to a period of 90 days 

to five years’ incarceration. See id., at 756. This Court found that such a 

sentence was illegal because it exceeded the statutory maximum of six 

months incarceration. See id.

In the present case, the trial court’s sentence of 60 months in 

intermediate punishment is likewise illegal. See 42 Pa.C.S.A. § 9763(a) (the 

term of county intermediate punishment imposed cannot exceed the 

maximum term for which the defendant could be imprisoned) The 

Commonwealth urges this Court to ignore Musau due to the Supreme Court 

of Pennsylvania’s grant of review of this issue in Commonwealth v. 

Mendez, 71 A.3d 250 (Pa. 2013). However, the Supreme Court has 

recently dismissed the appeal in Mendez as having been improvidently 

granted. See 2015 WL 1421402 (Pa., March 30, 2015). As such, the 

opinion of this Court in Musau remains binding law. We therefore vacate 

the judgment of sentence and remand for re-sentencing.

Convictions affirmed. Judgment of sentence vacated and remanded 

for proceedings consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/2015