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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant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

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- 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 sent encing court erroneously computed the maximum sentence that could be imposed upon Appellee Casey Sharp Ward with respect to a conviction f or driving under the influ ence 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), refuse d chemical testing for the offense in question, and had a prior DUI could be sentenced to a maximum of only six months. The Commonwealth mainta ins that MusauJ-S51009- 14

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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 St ate Route 24 in York Township. He observed a Chevrolet being driven by Ap pellee cross into the oncoming lane of traffic and then make a right-hand t urn without signaling. Trooper Geisler initiated a traffic stop and, upon app roaching Appellee, detected numerous signs that he was intoxicated. After h e failed field sobriety tests, Appellee was arrested. Two open liquor bottles and a case of beer were located in Appellee’s car. Appe llee 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 se ntenced to six months of intermediate punishment. The record indicat es 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 di rective to file aJ-S51009- 14

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Pa.R.A.P. 1925(b) statement, wherein the Commonwealt h maintained: “The sentencing court erred when it determined that six mon ths for the Defendant’s driving u nder the influence (refusal) conviction was the maximum allowable sentence.” Statement of Matters Comp lained 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 legal ity 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 interpr etation 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 tria l court’s sentence was based upon application of that deci sion. Musau was convicted of DUI general impairment under § 3802(a)(1) and refused BAC testing at the time of his DUI arrest. Mus au also had a DUI

____________________________________________ 1 Although the Commonwealth failed to object in the tr ial court to application of a six-month maximum sentence, as discussed in the text, infra , this issue relates to the legality of the sentence impo sed. “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.J-S51009- 14

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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) (relati ng to driving under influence of alcohol or controlled substa nce) 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 i ndividual refused testing of blood or breath, or who violates section 380 2(c) or (d) and who has one or more prior offenses commits a misdemeanor of t he 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,” an d maintain ed that the explicit language of § 3803(a)(1) overrode § 3803(b)(4)’s indicationJ-S51009- 14

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that a § 3802 (a)(1) conviction with a refusal and a p rior DUI could be punishable as a first degree misdemeanor with a five- year maximum. The Commonwealth countered with a different statutory const ruction that gave § 3803(b)(4) controlling effect over § 3803(a)(1). T he 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 m aximum sentence that can be imposed for a second DUI offense involving BAC refusal. 2
Musau applies to Appellee. He was convicted of DUI genera l impairment under § 3802(a)(1), refused BAC testing, a nd had a prior DUI. Thus, that case provides that the maximum sentence appli cable in this case was six months. The Commonwealth suggests that our deci sion 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 subm itted to a jury and
pr oven 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 logica l.J-S51009- 14

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The Commonwealth also implies that the grant of allow ance 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 constr uction now advanced by the Commonwealth herein. The majority f ound that § 3803(b)(4) rather than § 3803(a)(1) applied to a § 3802 (a)(1) DUI conviction as a second offense where the defendant refuse d 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 ru les of statutory construction in order to avoid what it saw as ‘problemat ic consequences’ resulting from a straightforward application of the sta tute?” Commonwealth v. Mendez , 71 A.3d 250 (Pa. 2013). We cannot read any particular outcome as to this grant o f allowance of appeal, and it certainly cannot be viewed as an intent ion 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 Commonwe alth 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. SeeJ-S51009- 14

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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.”). T he Commonwealth devotes a significant amount of compelling analysis to s upport 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 o f 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 circu mstances 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 determini ng the question before the panel deciding a case, the prior panel’s decision nevertheless remains binding. See also Regis Insurance Co. v. All American Rathskel ler,
Inc. , 976 A.2d 1157, 1161 n.6 (Pa.Super. 2009) (Superio r Court panel lacked the power to disregard and overrule binding pr ior panel decision). Hence, we are compelled to affirm. Judgment of sentence affirmed.J-S51009- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014