J-A10009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RICHARD C. HOUSEL, III

Appellee No. 1581 MDA 2014

Appeal from the Judgment of Sentence August 21, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0003130-2014

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 30, 2015

Appellant, the Commonwealth of Pennsylvania, timely appeals from 

the judgment of sentence entered in the York County Court of Common 

Pleas, immediately following the guilty plea of Appellee, Richard C. Housel, 

III, on August 21, 2014, to driving under the influence (DUI), second 

offense, with refusal to submit to chemical testing of blood alcohol content 

(BAC).1 The Commonwealth argues the maximum sentence available under 

the former statute is five years’ incarceration, citing Commonwealth v. 

Barr, 79 A.3d 668 (Pa.Super. 2013). The Commonwealth contends the trial 

____________________________________________

1 75 Pa.C.S.A. §§ 3802(a)(1), 3803(b)(4). Under Section 3803(b)(4), the 

offense is graded as a first-degree misdemeanor, effective July 9, 2012. The 

statute was subsequently amended and made immediately effective on 

October 27, 2014, after Appellee’s sentencing. 
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court erred when it concluded the maximum allowable sentence for 

Appellee’s second DUI offense was six months’ incarceration, pursuant to 

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), appeal denied, 

___ Pa. ___, 117 A.3d 296 (2015). 

To resolve this exact question, our Court en banc recently decided 

Commonwealth v. Grow, ___ A.3d ___, 2015 PA Super 186 (filed 

September 4, 2015), holding that: (1) our Supreme Court has defined the 

legislative use of the word “notwithstanding” as “regardless of,” which is 

synonymous with the ordinary meaning of the word as “in spite of” or 

“although”; (2) the plain language of the statute makes the provisions of 

former Section 3803(b)(4) subordinate to the provisions of former Section 

3803(a)(1); (3) the use of the section titles “Basic offenses” and “Other 

offenses” for former Sections 3803(a) and (b), respectively, does not create 

a clean break between the sections such that “notwithstanding” applies to 

“basic offenses” only; (4) former Section 3803 in its entirety is a specific 

provision that trumps the general sentencing provisions governing firstdegree misdemeanors; (5) the sentencing and grading of an offense can 

follow separate schemes without leading to an absurd result because the 

grading of the offense affects more than just the length of sentence; (6) any 

conflict between former Sections 3803(b)(4) and (a)(2) (relating to 

defendants with two or more prior DUI convictions) is immaterial to the 

issue before the Court; (7) the Barr case involved a jury instruction, and the 
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statement about increased penalties was made in passing, was not critical to 

the holding of the decision, and was deemed dictum; (8) the legislative and 

administrative interpretations of former Section 3803 are irrelevant because 

the wording of the statute is unambiguous; (9) even if the language of 

former Section 3803 resulted in ambiguity, the defendant would be entitled 

to the benefit of the doubt under the maxim that penal provisions should be 

strictly construed in favor of the accused; (10) regardless of the grading of 

the offense as a first-degree misdemeanor, the maximum sentence under 

former Section 3803 for a second DUI conviction, with refusal to submit to 

chemical testing, is six months’ imprisonment. After rejecting all of the 

Commonwealth’s arguments, this Court held that the trial court properly 

followed Musau and sentenced Grow to a maximum sentence of six months’ 

incarceration. See id. 

Instantly, Grow controls the Commonwealth’s current challenge. 

Grow explicitly states that Section 3803(b)(4) is subordinate to Section 

3803(a)(1) under the plain language of the former version of the statute, 

which disposes of the Commonwealth’s arguments premised on “legislative 

intent.” Moreover, the legislature’s recent amendment of Section 3803 does 

not govern the pre-amendment interpretation of the statute. Appellee was 

sentenced before the amendment took effect, so the prior version of the 

statute applies to the instant case. See id. Accordingly, we affirm. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015