J-S16035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DONALD L. ZIMMERMAN, JR.

Appellee No. 1584 MDA 2014 

Appeal from the Judgment of Sentence August 28, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001813-2014

BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 30, 2015

The Commonwealth appeals from the judgment of sentence imposed 

on August 28, 2014, in the Court of Common Pleas of York County, following 

Zimmerman’s guilty plea to driving under the influence of alcohol (DUI), 75 

Pa.C.S. § 3802(a)(1). This was Zimmerman’s second offense and, because 

he had refused to submit to chemical testing, pursuant to 75 Pa.C.S. § 

3803(b)(4), the violation was graded as an ungraded misdemeanor with a 

maximum sentence of six months’ incarceration. Accordingly, Zimmerman 

was sentenced to six months’ intermediate punishment. In this timely 

appeal, the Commonwealth claims the trial court misinterpreted the law by 

failing to recognize the legislature amended the relevant statute. After a 

thorough review of the submissions by the parties, relevant law, and the 

certified record, we affirm.
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The Commonwealth’s appeal is a challenge to the legality of the 

sentence. 

The scope and standard of review in determining the legality of a 

sentence are well established. If no statutory authorization exists 

for a particular sentence, that sentence is illegal and subject to 

correction. An illegal sentence must be vacated. In evaluating a 

trial court's application of a statute, our standard of review is 

plenary and is limited to determining whether the trial court 

committed an error of law.

Commonwealth v. Jurczak, 86 A.3d 265, 267 (Pa. Super. 2014) (citation 

omitted).

This matter involves 75 Pa.C.S § 3803, and this Court’s decision in 

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

____________________________________________

1 The relevant portions of Section 3803, at the time of Zimmerman’s 

sentencing were:

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.

(Footnote Continued Next Page)
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Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), a three judge 

panel of our Court interpreted Section 3803, specifically, the use of the 

word “notwithstanding” and concluded that a second offense DUI with a 

refusal to submit to chemical testing is an ungraded misdemeanor, not a 

misdemeanor of the first degree. The Commonwealth has consistently 

argued this interpretation improperly negates Section 3803(b)(4). 

Nevertheless, at the time of Zimmerman’s sentencing, the Musau

interpretation of Section 3803 was binding upon the trial court.

An en banc panel of our Court addressed this identical issue in 

Commonwealth v. Grow, ___ A.3d ___ (Pa. Super. 2015) (en banc) 

(9/4/2015), 2015 PA Super 186, 2015 WL 5174245. Grow affirmed the 

Musau interpretation of Section 3803. Accordingly, the Musau

interpretation has been confirmed. 

In attempting to distinguish this matter from Musau, the 

Commonwealth argues that the legislature has amended Section 3803 to 

remove the contested phrase, “Notwithstanding the provisions of section 

(b),” replacing it with “Except as provided in section (b).” The 

Commonwealth claims this amendment, which was specifically in response 

to the Musau decision, indicates the legislature never meant for the sixmonth maximum sentence to apply in a second offense refusal case. 

(Footnote Continued) _______________________

75 Pa.C.S. § 3803(a), (b)(4).
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However, this argument is unavailing. Zimmerman pled guilty and 

was sentenced on August 28, 2014. Section 3803 was not amended until 

October 27, 2014. The timing of the amendment relative to the guilty plea 

was also addressed in Grow. The en banc panel noted:

As Grow pled guilty and was sentenced prior to the effective date 

of the amendment to the statute, however, the amended version 

does not apply to this matter. See Commonwealth v. Bowen, 

55 A.3d 1254, 1270 n.8 (Pa. Super. 2012) (interpreting prior 

statute after law amended since prior version applied to time 

period during which defendant was convicted and sentenced).

Commonwealth v. Grow, supra, at n.3. Accordingly, the trial court could 

not apply an amendment that did not exist, and we are required to apply the 

law that was applicable at the time of sentencing. 

In light of the above, the trial court properly interpreted and applied 

the law as written at the time of Zimmerman’s sentencing and based on our 

Court’s en banc decision in Grow, supra, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015