J-S41014-15

*Retired Senior Judge assigned to Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RICHARD KENTON BERGIN,

Appellee No. 1918 MDA 2014

Appeal from the Judgment of Sentence entered October 16, 2014,

in the Court of Common Pleas of York County,

Criminal Division, at No: CP-67-CR-0004828-2014

BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 22, 2015

The Commonwealth appeals from the judgment of sentence which the 

trial court imposed pursuant to Commonwealth v. Musau, 69 A.3d 754 

(Pa. Super. 2013). We affirm. 

The trial court summarized the pertinent background relative to this 

matter as follows:

In this case, [on October 16, 2014,] Defendant plead guilty to 

[75 Pa.C.S. § 3802 (a)(1),] his second offense DUI, Count 1, 

wherein he refused to submit to chemical testing, a first-degree 

misdemeanor [on the offense date of June 26, 2014]. As the 

holding in Musau is binding on this Court, the Trial Court 

sentenced Defendant to a maximum of six months County 

Intermediate Punishment. (N.T., 10/16/14, page 5). Because 

this sentence was mandated by law, the Commonwealth’s 

complaint is without merit.

Trial Court Opinion, 1/13/15, at 2. 
J-S41014-15

- 2 -

The Commonwealth filed a timely notice of appeal, and both the 

Commonwealth and trial court have complied with Pa.R.A.P. 1925.

The Commonwealth presents a single issue for our review:

WHETHER THE SENTENCING COURT ERRED WHEN IT HELD 

THAT SIX MONTHS FOR THE DEFENDANT’S DRIVING UNDER THE 

INFLUENCE (REFUSAL) (2nd OFFENSE) CONVICTION WAS THE 

STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD 

CONSIDER[?]

Commonwealth Brief at 4. 

In reviewing the Commonwealth’s issue, we recognize:

[] Issues relating to the legality of a sentence are questions of 

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

Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa. Super. 

2006). Our standard of review over such questions is de novo

and our scope of review is plenary. See Leverette, 911 A.2d at 

1002.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa. Super. 2008). 

Instantly, while the Commonwealth has raised and developed its 

Musau issue, it has failed to develop its additional assertion raised in its 

Pa.R.A.P. 2119(f) certification that “75 Pa.C.S.A. § 3804(d) expressly 

requires the sentencing court to issue a maximum sentence equivalent to 

the statutory maximum when the defendant’s CRN evaluation shows that the 

individual is in need of additional treatment and a treatment evaluation 

pursuant to 75 Pa.C.S.A. § 3814(2) is needed.” Commonwealth Brief at 7; 

see generally 8-24. Accordingly, the Commonwealth’s argument regarding 

the trial court’s failure to sentence Mr. Bergin pursuant to 75 Pa.C.S.A. § 
J-S41014-15

- 3 -

3804(d) is waived. See Coulter v. Ramsden, 94 A.3d 1080, 1088-1089 

(Pa. Super. 2014). In Coulter, we emphasized:

“The Rules of Appellate Procedure state unequivocally that 

each question an appellant raises is to be supported by 

discussion and analysis of pertinent authority.” Estate of Haiko 

v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 

2119(b). “Appellate arguments which fail to adhere to these 

rules may be considered waived, and arguments which are not 

appropriately developed are waived. Arguments not 

appropriately developed include those where the party has failed 

to cite any authority in support of a contention.” Lackner v. 

Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006) (citations 

omitted). This Court will not act as counsel and will not develop 

arguments on behalf of an appellant. Irwin Union National Bank 

and Trust Company v. Famous and Famous and ATL Ventures, 4 

A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. 

Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)). Moreover, we 

observe that the Commonwealth Court, our sister appellate 

court, has aptly noted that “[m]ere issue spotting without 

analysis or legal citation to support an assertion precludes our 

appellate review of [a] matter.” Boniella v. Commonwealth, 958 

A.2d 1069, 1073 n. 8 (Pa. Cmwlth. 2008) (quoting

Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa. 

Cmwlth. 2002)).

Coulter, 94 A.3d at 1088-1089. Furthermore, the Commonwealth did not 

raise the argument before the trial court at the time of sentencing, (see 

N.T., 10/16/14), nor did the Commonwealth articulate the issue in its 

Pa.R.A.P. 1925 statement. See Commonwealth Pa.R.A.P. 1925 Statement 

of Errors Complained of on Appeal, 11/20/14. 

As to the Commonwealth’s argument regarding Musau, we 

incorporate below the following discussion from Musau:
J-S41014-15

- 4 -

[S]ection 3803 of the vehicle code ... provides in relevant part as 

follows[:]

(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).

* * *

(b) Other offenses.—

* * *

(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. The statutory maximum sentence for 

misdemeanors of the first degree is five years' imprisonment. 

18 Pa.C.S. § 106(b)(6), (e). 

***

[Musau] ... claims that “[i]t is equally clear from the 

statute that subsection (a) dictates that the maximum sentence 

[Musau] could receive for this particular offense is six months 

[of] incarceration.” Id. Because the word “notwithstanding” is 

defined as “‘nevertheless' or ‘in spite of,’” [Musau] argues that 

“the statute clearly indicates that while subsection (b) dictates 

the grading of a second offense where there is a BAC refusal, 

subsection (a) dictates the maximum punishment for that 

offense.” Id. at 9. 

***

We are constrained to agree with [Musau]. The American 

Heritage Dictionary defines the word notwithstanding as “in spite 

of” or “although.” American Heritage Dictionary of the English 

Language 1203–04 (4th ed. 2006). Our Supreme Court has 

defined “notwithstanding” as “regardless of.” See City of 
J-S41014-15

- 5 -

Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397, 

399 (1998) (holding that the plain meaning of the phrase 

“notwithstanding a contrary provision of law of the 

Commonwealth ...” is “regardless of what any other law provides 

...”). Given these definitions, the Commonwealth's 

interpretation might be persuasive if the legislature had instead 

prefaced subsection (a) with “except as provided in subsection 

(b),” or began subsection (b) with “notwithstanding the 

provisions of subsection (a).” But it did not. Therefore, we hold 

that the plain language of the statute, giving the words their 

ordinary meanings, indicates as follows: regardless of the fact 

that refusal to submit to blood alcohol testing results in the 

grading of the offense as a first degree misdemeanor, the 

maximum sentence for a first or second DUI conviction is six 

months’ imprisonment.

Musau, 69 A.3d at 757-758 (internal footnote omitted). 

This Court in Musau noted “[i]f the legislature did not in fact intend to 

create a lesser maximum sentence for the first-degree misdemeanor of a 

first or second DUI with refusal than is permissible generally for 

misdemeanors of the first degree, such an ‘oversight is best left to the 

Legislature to correct.’” Id. at 758 n.2 citing Commonwealth v. Gordon,

992 A.2d 204, 207 n.8 (Pa. Super. 2010). Thereafter, on October 27, 2014, 

the Pennsylvania Legislature did amend the statute to read “[e]xcept as 

provided in subsection (b),” rather than “[n]otwithstanding the provisions of 

subsection (b).” See 75 Pa.C.S. § 3803(a). The statutory amendment, 

however, does not warrant the result the Commonwealth seeks in this 

appeal because Mr. Bergin’s June 26, 2014 offense pre-dated the effective 

date of the amendment. See Commonwealth v. Williams, 871 A.2d 254, 

259 n.5 (Pa. Super. 2005) (internal citations omitted) (“A defendant can be 
J-S41014-15

- 6 -

convicted only under statutes in effect on the date of his acts.”). Moreover, 

as the Commonwealth acknowledged on the date of the plea colloquy and 

sentencing, Musau is controlling. See N.T., 10/16/14, at 2 (“For the record, 

the Commonwealth would just note its objection to [the trial court’s 

application of Musau], but we understand that the Court is bound by 

[Musau].”). Id. We are bound by Musau as well. Commonwealth v. 

Spease, 911 A.2d 952, 959 (Pa. Super. 2006) (citation omitted) (a prior 

opinion from our Court is “binding upon this Court and we are not at liberty 

to overrule it” in the absence of a superceding en banc Superior Court 

opinion or a Supreme Court opinion reversing the prior precedent). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015