Com. v. Horn, Amy Ruck ( 2015 )


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  • J-S04030-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    AMY RUCK HORN,
    Appellee                  No. 1162 MDA 2014
    Appeal from the Judgment of Sentence entered June 27, 2014,
    in the Court of Common Pleas of York County,
    Criminal Division, at No(s): CP-67-CR-0001427-2014
    BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
    MEMORANDUM BY ALLEN, J.:                      FILED FEBRUARY 09, 2015
    The Commonwealth of Pennsylvania (“Commonwealth”) appeals from
    the judgment of sentence imposed after Amy Ruck Horn, (“Horn”), pled
    guilty to her second driving under the influence (“DUI”) offense pursuant to
    75 Pa.C.S. § 3802(a)(1) (general impairment), where she refused to submit
    to chemical testing.    The trial court sentenced Horn to a maximum of six
    months County Intermediate Punishment consistent with this Court’s
    decision in Commonwealth v. Musau, 
    69 A.3d 754
    (Pa. Super. 2013). The
    Commonwealth presents the following issue for our review:
    WHETHER THE SENTENCING COURT ERRED WHEN IT HELD
    THAT SIX MONTHS FOR [APPELLANT’S] DRIVING UNDER THE
    INFLUENCE (REFUSAL) (2ND OFFENSE) CONVICTION WAS THE
    STATUTORY MAXIMUM ALLOWABLE SENTENCE IT COULD
    CONSIDER[?]
    Commonwealth Brief at 4.
    *Retired Senior Judge assigned to the Superior Court.
    J-S04030-15
    Horn “agrees with and accepts the Statement and Procedural History
    and factual history set forth in the Commonwealth’s Statement of the Facts.”
    Horn’s Brief at 1.     Horn simply asserts, “As a result of Musau being
    controlling at the time of [Horn’s] sentencing, the judgment of sentence
    should be affirmed.” 
    Id. at 5.
    The Commonwealth’s issue concerning the legal maximum sentence
    for a second DUI conviction involving a chemical testing refusal relates to
    the legality of the sentence. 
    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).
    In Musau, this Court determined that a defendant who was convicted
    of DUI under 75 Pa.C.S. § 3802(a)(1), refused chemical testing for the
    offense at issue, and had a prior DUI, could be sentenced to a maximum of
    only six months.
    Our review of the record confirms that we are bound by the Musau
    decision. At the plea hearing, the assistant district attorney stated:
    Your Honor, this is a Commonwealth v. Musau case. For
    the record, the Commonwealth would note its objection to the
    six-month maximum for appeal purposes. However, we do
    understand that the Court is bound by that and would have to
    sentence [Appellant] to a six-month term of intermediate
    punishment.
    N.T., 6/27/14, at 2.
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    On appeal, the Commonwealth presents a thoughtful and cohesive
    argument, but reduced to its essence, the Commonwealth’s argument is that
    Horn was sentenced “in error pursuant to” Musau, and “the Musau
    interpretation is contrary to the entire premise of Pennsylvania’s informed
    consent and driving under the influence laws.” See Commonwealth Brief at
    7, 15.   The Commonwealth persuasively argues that Musau was wrongly
    decided and suggests that we interpret § 3803 to permit a five-year
    maximum sentence in this case. However, at this writing, although called
    into doubt by Commonwealth v. Concordia, 
    97 A.3d 366
    (Pa. Super.
    2014) (noting that the Commonwealth’s interpretation of § 3803 was
    logical), Musau remains precedential law, and we are bound by it.              The
    Commonwealth recognized as much with the trial court, see supra at 2
    (citing the notes of testimony where the assistant district attorney stated
    “this is a Commonwealth v. Musau case” and “we do understand that the
    Court is bound by that”).
    Although the Commonwealth suggests that our decision subsequent to
    Musau in Commonwealth v. Barr, 
    79 A.3d 668
    (Pa. Super. 2013) compels
    a   five-year   statutory   maximum   sentence,   Barr   did   not   involve   an
    interpretation of the conflicting provisions of § 3803 and did not invalidate
    Musau. In Barr, we held that the question of whether a defendant refused
    chemical testing had to be submitted to a jury and proven beyond a
    reasonable doubt.
    -3-
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    The Commonwealth also suggests that our Supreme Court’s grant of
    allowance of appeal in Commonwealth v. Mendez, 
    71 A.3d 250
    (Pa. 2013)
    supports its argument regarding the interpretation of § 3803 and in
    opposition to Musau.     In Mendez, a majority of the three-judge panel
    utilized the rules of statutory construction presently advanced by the
    Commonwealth in determining 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 chemical testing. Our Supreme Court granted review to
    determine: “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?”
    
    Id. Here, we
    cannot read any particular outcome as to the grant of
    allowance of appeal, nor view the grant as an intention by our Supreme
    Court to overrule Musau.
    In sum, like the trial court, we are bound by Musau. “It is beyond the
    power of a Superior Court panel to overrule a prior decision of the Superior
    Court … except in circumstances where intervening authority by our
    Supreme Court calls into question a previous decision of this Court.”
    Commonwealth v. Pepe, 
    897 A.2d 463
    , 465 (Pa. Super. 2006) (citations
    omitted). See also Regis Insurance Co. v. All American Rathskeller,
    Inc., 
    976 A.2d 1157
    , 1161 n.6 (Pa. Super. 2009) (Superior Court panel
    -4-
    J-S04030-15
    lacked power to disregard and overrule binding prior decision). We are thus
    constrained to affirm the trial court.
    Judgment of sentence affirmed.
    Judge Bowes joins the Memorandum.
    Judge Strassburger files a Concurring Memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/9/2015
    -5-
    

Document Info

Docket Number: 1162 MDA 2014

Filed Date: 2/9/2015

Precedential Status: Precedential

Modified Date: 2/10/2015