J-S16008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEPHEN ALFRED WATKINS

Appellee No. 1164 MDA 2014

Appeal from the Judgment of Sentence June 16, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0000690-2014

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

JUDGMENT ORDER BY PANELLA, J. FILED MAY 27, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the 

judgment of sentence entered by the Honorable Gregory M. Snyder, Court of 

Common Pleas of York County. The Commonwealth argues that the trial 

court erred in concluding that the statutory maximum sentence for a 

second-time conviction for DUI-refusal is six months. We affirm.

Appellee, Stephen Alfred Watkins, pled guilty to driving under the 

influence of alcohol – refusal of blood test on June 16, 2014. As this was 

Watkins’s second DUI offense in the last ten years, the offense was graded 

as a first-degree misdemeanor pursuant to 75 Pa.C.S.A. § 3803(b)(4). The 

trial court concluded, over the Commonwealth’s objection, that pursuant to 

this Court’s opinion in Commonwealth v. Musau, 69 A.2d 754 (Pa. Super. 

2013), the statutory maximum sentence for this conviction was six months. 
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As a result, the trial court sentenced Watkins to a term of imprisonment of 

time served to six months. The Commonwealth then filed this timely appeal.

On appeal, the Commonwealth argues that the trial court’s reliance 

upon Musau was mistaken. First, the Commonwealth contends that this 

Court’s opinion in Commonwealth v. Barr, 79 A.3d 668 (Pa. Super. 2013) 

implicitly overruled Musau. However, Barr did not address Musau or its 

holding that the statutory maximum for a conviction under 75 Pa.C.S.A. § 

3803(b)(4) was six months. Rather, the Barr panel was concerned with the 

validity of a jury instruction on the issue of the defendant’s refusal of blood 

testing. The panel concluded that the instruction was erroneous. See 79 

A.2d at 677. In discussing the procedural history of the appeal, the panel 

noted that “the jury’s ‘refusal’ determination also increased Appellant’s 

statutory maximum penalty from six months’ imprisonment to five years’ 

imprisonment.” Id., at 674.

A three-judge panel of this Court is not empowered to overrule a 

previously published opinion of this Court. See Commonwealth v. Beck, 

78 A.3d 656, 659 (Pa. Super. 2013). We conclude that the Barr panel did 

not intend, nor did it have the power, to overrule Musau.

In the alternative, the Commonwealth urges this Court to ignore 

Musau due to the Supreme Court of Pennsylvania’s grant of review of this 

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

the Supreme Court has recently dismissed the appeal in Mendez as having 
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been improvidently granted. See 2015 WL 1421402 (Pa., March 30, 2015). 

Accordingly, the opinion of this Court in Musau1remains binding law upon 

this panel. 

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/27/2015

____________________________________________

1 On October 29, 2014, the Governor signed Act 189 of 2014 into law (S.B. 

1239, Session of 2014, Printer’s No. 2396). This is an Act amending various 

provisions of the Motor Vehicle Code, 75 Pa.C.S.A., and in particular Section 

3803(a), the section at issue in Musau. Act 189 amends Section 3803(a) 

by changing “Notwithstanding the provisions of” to “Except as provided in.” 

Section 4(1)(ii) of Act 189, states that the amendment to §3803(a) shall 

take effect immediately, meaning on October 29, 2014. Since Watkins’s 

sentence was entered prior to October 29, 2014, we apply the prior version 

of the statute.