J-S04013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DARRYL GREGORY STEWART,

Appellee No. 840 MDA 2014

Appeal from the Judgment of Sentence April 14, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0004973-2013

BEFORE: BOWES, ALLEN, and STRASSBURGER,*JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2015

The Commonwealth appeals from the judgment of sentence imposed 

by the trial court on Appellee, Darryl Gregory Stewart, after the court found 

him guilty of a second offense driving under the influence (“DUI”) 

breath/blood test refusal. The Commonwealth contends that this Court 

erred in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013).1 Since 

we are bound by Musau, we affirm. 

Officer Andrew Miller effectuated a traffic stop of a silver Mercedes on 

April 28, 2013, at approximately 2:45 a.m. The officer first observed the 

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.

1 The issue decided in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 

2013), is currently pending en banc review. Commonwealth v. Grow, 

2017 MDA 2013.
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vehicle parked in a no parking zone with its lights on and two people inside 

the car. Officer Miller activated his lights and Appellant exited from the 

driver’s seat of the car. Initially, Officer Miller asked Appellant to return to 

his seat, but Appellant walked around to the passenger side of the vehicle. 

Officer Miller asked Appellant for a form of identification, which he could not 

provide. However, Appellant informed the officer of his name and date of 

birth. In addition, Appellant acknowledged having consumed two alcoholic 

beverages and told the officer that he had parked his vehicle to go to a club 

located down the street around midnight.

According to Officer Miller, the car was not parked at that location at 

1:15 a.m., and Appellant’s eyes were glassy and bloodshot. Officer Miller 

then conducted three field sobriety tests. Based on Appellant’s performance, 

Officer Miller believed that Appellant was intoxicated and placed him under 

arrest. Subsequently, Officer Miller provided Appellant with chemical test 

warnings based on Pennsylvania’s Implied Consent Law. Appellant refused 

to be tested. The court found Appellant guilty of DUI-general impairment 

and determined that he refused chemical testing.2 

Thereafter, the court imposed a sentence of ninety days to six months 

incarceration. The Commonwealth noted its objection to the six-month 

maximum sentence, but acknowledged that the court was bound by this 

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2 The court also found Appellant guilty of driving with a suspended license. 
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Court’s case law with respect to the maximum available sentence. This 

Commonwealth appeal ensued. The trial court directed the Commonwealth 

to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained 

of on appeal. The Commonwealth complied, and the trial court authored its 

Rule 1925(a) decision. The sole issue leveled on appeal is “whether the 

sentencing court erred when it held that six months for the Defendant’s 

driving under the influence (refusal) (2nd offense) conviction was the 

statutory maximum allowable sentence it could consider[.]” 

Commonwealth’s brief at 4. 

“In Musau, a panel of this Court concluded that a defendant convicted 

of a second-time DUI under 75 Pa.C.S. § 3802(a)(1), and who refused the 

breath test could only be sentenced to a maximum of six months 

imprisonment.” Commonwealth v. Concordia, 97 A.3d 366, 369 

(Pa.Super. 2014).3 “The Musau Court reached its result by finding a conflict 

between 75 Pa.C.S. § 3803(a)(1) and § 3803(b)(4).” Id. 

The Commonwealth argues that Musau was wrongly decided, leads to 

absurd results, and is at odds with Commonwealth v. Barr, 79 A.3d 668 

(Pa.Super. 2013). In support, it offers a comprehensive discussion 

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3 The legislature has subsequently amended the DUI statute to clarify that a 

defendant’s maximum sentence for the crime herein is not six months but 

five years. This legislation has no effect on those convicted prior to the 

change. 
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regarding statutory interpretation and legislative intent and cites to this

Court’s critique of that decision in Concordia.

4

 In addition, it posits that our 

Supreme Court’s grant of allowance of appeal in Commonwealth v. 

Mendez, 71 A.3d 250 (Pa. 2013), supports its argument that Musau was 

decided incorrectly. 

Despite the criticisms leveled by the Commonwealth, we are bound by 

Musau. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) 

(citations omitted) (“It is beyond the power of a Superior Court panel to 

overrule a prior decision of the Superior Court . . . .except in circumstances 

where intervening authority by our Supreme Court calls into question a 

previous decision of this Court.”).

Judgment of sentence affirmed.

Judge Allen joins the Memorandum

Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015

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4 The author of this memorandum penned the decision in Commonwealth 

v. Concordia, 97 A.3d 366 (Pa.Super. 2014), disagreeing with but applying

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). In contrast, 

the learned Judge Strassburger, also on this panel, decided Musau.