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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant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. MANDIE NEWMAN, Appellee No. 1899 MDA 2013

Appeal from the Judgment of Sentence September 23 , 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP

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- CR -0001679-2013
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 Mandie Newman with respect to a conviction fo r driving under the influence of alcohol (“DUI”) pursuant to 75 Pa.C.S. § 38 02(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-S51006- 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 DUI pursuant to 75 Pa.C.S. § 3802(a)(1), which prohibits a person from driving a vehicle after co nsuming a sufficient amount of alcohol so as to render him incapable of safel y driving. The offense was graded as a first degree misdemeanor. Appel lee also was charged with escape, flight to avoid apprehension, and failing to have a valid vehicular registration. At approximately 2:30 a.m. o n February 1, 2013, West Manchester Township Police Officer Adam Bruckhart was on patrol when he started to follow a Ford Explorer that was tr avelling north on Kenneth Road. On two occasions, the driver of the Expl orer took evasive action, Officer Bruckhart lost sight of it, and the off icer had to circle back to find it. The officer eventually found the vehicle pa rked in front of 1667 Westgate Drive, and he noticed that it had a registrat ion sticker that expired in June 2011. Officer Bruckhart approached the drive r, Appellee, and asked for a driver’s license, car registration, and proof of i nsurance. Appellee produced a valid driver’s license. She stated that the other information was in her house. Appellee appeared to be extremely intoxicated and wa s combative. Officer Bruckhart ordered her to stay in her vehicle, and returned to his cruiser to request backup assistance and to conduct a check o n Appellee. He concluded that Appellee had an outstanding bench war rant for writingJ-S51006- 14

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bad checks. After backup arrived, Officer Bruckhart retu rned to the Explorer, but Appellee was gone. Officer Bruckhart l ocated her in her nearby apartment. After being given warnings about the conse quences of refusing to undergo blood alcohol content testing, Appellee decl ined. She had a prior DUI offense. On July 15, 2013, Appellee pled guilty to the DUI a nd escape offenses. At Appellee’s September 23, 2013 sentencing, the Commo nwealth

ac knowledged that Musau prevented imposition of a sentence in excess of six months but contended that it was incorrect. Appellee was sentenced to six months intermediate punishment for the DUI. The Commonwealth appealed the sentence and timely complied wit h the trial court’s directive to file a Pa.R.A.P. 1925(b) statement. On appeal, th e Commonwealth presents one contention: “Whether the sentencing court erred when it held that six months for the defendant’s driving under the influence (refusal) (2 nd offense) conviction was the statutory maximum allowable sentence i t could consider.” Commonwealth’s brief at 4. 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 ofJ-S51006- 14

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review is plenary.” Commonwealth v. Akbar , 91 A.3d 227, 238 (Pa.Super. 2014). As the Commonwealth concedes, Musau , supra , applies herein. 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 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 aJ-S51006- 14

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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 maintained that the explicit language of § 3803(a)(1) overrode § 3803(b)(4)’s indication 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. 1
Musau applies to Appellee. She was convicted of DUI general 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

____________________________________________ 1 We noted in Commonwealth v. Concordia , 2014 PA Super 155 n.1 that the Commonwealth’s interpretation of § 3803 was logica l.J-S51006- 14

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conflicting provisions of § 3803 and in no way can be construed a s 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 proven beyond a reasonable doubt. The Commonwealth also implies that the grant of allow ance of appea l
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 SupremeJ-S51006- 14

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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. See
e.g. , Commonwealth’s brief at 13 (“The Musau reading of the statue creates absurd results contrary to the legislative in tent.”). The 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.1, this position may have merit, we cannot overrule Musau because we are bound by that decision. Indeed, the Commonwealth acknowledged at the present sentencing hea ring that the sentencing court was bound by Musau . It complained that Musau was wrongly decided. However, we are no less bound by the Musau decision than was the sentencing court herein. As we observed in Commonwealth v. Pepe , 897 A.2d 463, 465 (Pa.Super. 2006): “It is beyond the power of a Super ior Court panel to overrule a prior decision of the Superior Co urt, Commonwealth v. Hull , 70 5 A.2d 911, 912 (Pa.Super. 1998), except in circumstan ces 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 SupremeJ-S51006- 14

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Court has granted an appeal for purposes of determini ng the question before the panel deciding a case, the prior panel’s decision n evertheless 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. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014