J-S51009-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellant 

v.

CASEY SHARP WARD, 

 Appellee No. 2230 MDA 2013 

Appeal from the Judgment of Sentence November 15, 2013 

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0004813-2013 

BEFORE: BOWES, OTT, and MUSMANNO, JJ. 

MEMORANDUM BY BOWES, J.: FILED AUGUST 20, 2014 

In this appeal, the Commonwealth contends that the sentencing court 

erroneously computed the maximum sentence that could be imposed upon 

Appellee Casey Sharp Ward with respect to a conviction for driving under the 

influence of alcohol (“DUI”) pursuant to 75 Pa.C.S. § 3802(a)(1) (general 

impairment) where Appellee refused chemical testing and had a prior DUI. 

The Commonwealth acknowledges that the panel decision in 

Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013), is applicable 

herein. In Musau, a panel of this Court concluded that a defendant who is 

convicted of DUI under 75 Pa.C.S. § 3802(a)(1), refused chemical testing for 

the offense in question, and had a prior DUI could be sentenced to a 

maximum of only six months. The Commonwealth maintains that Musau
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was erroneously decided in that it improperly construed 18 Pa.C.S. § 3803. 

As we are bound by the decision in question, we affirm. 

Appellee was charged with two summary driving offenses and DUI 

pursuant to 75 Pa.C.S. § 3802(a)(1), which prohibits a person from driving a 

vehicle after consuming a sufficient amount of alcohol so as to render him 

incapable of safely driving. The offense was graded as a first degree 

misdemeanor. At approximately 1:45 a.m. on May 25, 2013, State Police 

Trooper Jordan Geisler was traveling northbound on State Route 24 in York 

Township. He observed a Chevrolet being driven by Appellee cross into the 

oncoming lane of traffic and then make a right-hand turn without signaling. 

Trooper Geisler initiated a traffic stop and, upon approaching Appellee, 

detected numerous signs that he was intoxicated. After he failed field 

sobriety tests, Appellee was arrested. Two open liquor bottles and a case of 

beer were located in Appellee’s car. Appellee was read the legal warnings 

about the consequences of a failure to submit to chemical testing, but he 

refused to provide blood. The DUI offense in question was Appellee’s 

second. 

On November 15, 2013, Appellee was found guilty at a nonjury trial of 

the DUI charge and one of the summary offenses and was sentenced to six 

months of intermediate punishment. The record indicates that the court 

applied the Musau holding, although there was no objection by the 

Commonwealth to the sentence imposed. The Commonwealth filed a timely 

notice of appeal and complied with the trial court’s directive to file a 
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Pa.R.A.P. 1925(b) statement, wherein the Commonwealth maintained: “The 

sentencing court erred when it determined that six months for the 

Defendant’s driving under the influence (refusal) conviction was the 

maximum allowable sentence.” Statement of Matters Complained of on 

Appeal, 1/6/14, at 1. The Commonwealth raises that same contention 

herein. Commonwealth’s brief at 4.1

The question of the legal maximum sentence for a second DUI 

conviction involving a BAC refusal relates to the legality of the sentence 

imposed. Musau, supra. “Issues relating to the legality of a sentence are 

questions of law, as are claims raising a court's interpretation of a statute. 

Our standard of review over such questions is de novo and our scope of 

review is plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super. 

2014). 

As the Commonwealth concedes, Musau, supra, applies herein, and 

the trial court’s sentence was based upon application of that decision. 

Musau was convicted of DUI general impairment under § 3802(a)(1) and 

refused BAC testing at the time of his DUI arrest. Musau also had a DUI 

____________________________________________ 

1

 Although the Commonwealth failed to object in the trial court to 

application of a six-month maximum sentence, as discussed in the text, 

infra, this issue relates to the legality of the sentence imposed. “One class of 

issues that has traditionally not needed to be preserved through 

presentation to the court below involves what has been called the ‘legality’ 

of a criminal sentence.” Commonwealth v. Boyd, 73 A.3d 1269, 1271 

(Pa.Super. 2013). Hence, this claim is preserved for purposes of appeal. 
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conviction within the ten years prior to the offense at issue. He was 

sentenced to ninety days to five years imprisonment, and, on appeal, he 

contended that the statutory maximum sentence that could be imposed was 

six months. We agreed and reversed the sentence. 

Our decision rested upon application of language in 75 Pa.C.S. § 3803. 

We reached our result by finding a conflict between 75 Pa.C.S. § 3803(a)(1) 

and § 3803(b)(4). The first provision states: 

(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). 

75 Pa.C.S. § 3803(a)(1). On the other hand, § 3803(b)(4) provides, “(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.” 

75 Pa.C.S. § 3803(b)(4). A first-degree misdemeanor is punishable by a 

maximum of five years imprisonment. 18 Pa.C.S. § 106(b)(6); 18 Pa.C.S. 

§ 1104(1). 

The defendant in Musau argued that the use of the term 

“notwithstanding” meant “nevertheless,” or “in spite of,” and maintained 

that the explicit language of § 3803(a)(1) overrode § 3803(b)(4)’s indication 
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that a § 3802 (a)(1) conviction with a refusal and a prior DUI could be 

punishable as a first degree misdemeanor with a five-year maximum. The 

Commonwealth countered with a different statutory construction that gave 

§ 3803(b)(4) controlling effect over § 3803(a)(1). The panel in Musau

adopted the interpretation of § 3803 advanced by the defendant and 

rejected the position that his maximum sentence could be five years. 

Instead, it ruled that six months imprisonment was the maximum sentence 

that can be imposed for a second DUI offense involving BAC refusal.2

 

Musau applies to Appellee. He was convicted of DUI general 

impairment under § 3802(a)(1), refused BAC testing, and had a prior DUI. 

Thus, that case provides that the maximum sentence applicable in this case 

was six months. The Commonwealth suggests that our decision in 

Commonwealth v. Barr, 79 A.3d 668 (Pa.Super. 2013), compels a 

different result. However, Barr did not involve an interpretation of the 

conflicting provisions of § 3803 and in no way can be construed as 

invalidating Musau. Instead, in that decision, we held that the question of 

whether a defendant refused BAC testing had to be submitted to a jury and 

proven beyond a reasonable doubt. 

____________________________________________ 

2

 We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that 

the Commonwealth’s interpretation of § 3803 was logical. 
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The Commonwealth also implies that the grant of allowance of appeal 

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

upon our decision herein. In Mendez, our Supreme Court agreed to review 

the propriety of the memorandum decision in Commonwealth v. Mendez, 

62 A.3d 456 (Pa.Super 2012). In Mendez, over President Judge Emeritus 

McEwen’s dissent, we utilized the rules of statutory construction now 

advanced by the Commonwealth herein. The majority found that 

§ 3803(b)(4) rather than § 3803(a)(1) applied to a § 3802 (a)(1) DUI 

conviction as a second offense where the defendant refused BAC testing. 

Our Supreme Court granted review of that decision as follows: “In upholding 

a sentence that exceeds the statutory maximum explicitly set out in 75 

Pa.C.S. § 3803, did not the majority violate the rules of statutory 

construction in order to avoid what it saw as ‘problematic consequences’ 

resulting from a straightforward application of the statute?” 

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

We cannot read any particular outcome as to this grant of allowance of 

appeal, and it certainly cannot be viewed as an intention by our Supreme 

Court to overrule Musau and affirm Mendez. Thus, the grant of allowance 

of appeal has no impact herein. 

Using the tools of statutory construction, the Commonwealth also 

persuasively argues that Musau was wrongly decided and suggests that we 

interpret § 3803 so as to permit a five-year maximum in this case. See 
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e.g., Commonwealth’s brief at 13 (“The Musau reading of the statue creates 

absurd results contrary to the legislative intent.”). The Commonwealth 

devotes a significant amount of compelling analysis to support its position 

that a five-year maximum sentence is permitted in this action. While, as 

outlined in Concordia, supra at n.2, this position may have merit, we 

cannot overrule Musau because we are bound by that decision. 

As we observed in Commonwealth v. Pepe, 897 A.2d 463, 

465 (Pa.Super. 2006): “It is beyond the power of a Superior Court panel to 

overrule a prior decision of the Superior Court, Commonwealth v. Hull,

705 A.2d 911, 912 (Pa.Super. 1998), except in circumstances where 

intervening authority by our Supreme Court calls into question a previous 

decision of this Court. Commonwealth v. Prout, 814 A.2d 693, 695 n.2 

(Pa.Super. 2002).” We also observed in Pepe that, even when our Supreme 

Court has granted an appeal for purposes of determining the question before 

the panel deciding a case, the prior panel’s decision nevertheless remains 

binding. See also Regis Insurance Co. v. All American Rathskeller, 

Inc., 976 A.2d 1157, 1161 n.6 (Pa.Super. 2009) (Superior Court panel 

lacked the power to disregard and overrule binding prior panel decision). 

Hence, we are compelled to affirm. 

Judgment of sentence affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014