Com. v. Ward, C.

J-S51009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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-67-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 sentencing court
erroneously computed the maximum sentence that could be imposed upon
Appellee Casey Sharp Ward with respect to a conviction for driving under the
influ
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), refused chemical testing for
the offense in question, and had a prior DUI could be sentenced to a
maximum of only six months. The Commonwealth maintains that Musau
J-S51009-14
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 State Route 24 in York
Township. He observed a Chevrolet being driven by Appellee cross into the
oncoming lane of traffic and then make a right-hand turn without signaling.
Trooper Geisler initiated a traffic stop and, upon approaching Appellee,
detected numerous signs that he was intoxicated. After he failed field
sobriety tests, Appellee was arrested. Two open liquor bottles and a case of
llee was read the legal warnings
about the consequences of a failure to submit to chemical testing, but he
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 sentenced to six
months of intermediate punishment. The record indicates that the court
applied the Musau holding, although there was no objection by the
Commonwealth to the sentence imposed. The Commonwealth filed a timely
-2-
J-S51009-14
sentencing court erred when it determined that six months for the
nder the influence (refusal) conviction was the
Appeal, 1/6/14, at 1. The Commonwealth raises that same contention
1
The question of the legal maximum sentence for a second DUI
conviction involving a BAC refusal relates to the legality 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 interpretation of a statute.
Our standard of review over such questions is de novo and our scope of
Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.Super.
2014).
As the Commonwealth concedes, Musau, supra, applies herein, and
the tria
Musau was convicted of DUI general impairment under § 3802(a)(1) and
refused BAC testing at the time of his DUI arrest. Musau also had a DUI
____________________________________________
1
Although the Commonwealth failed to object in the trial court to
application of a six-month maximum sentence, as discussed in the text,
infra
issues that has traditionally not needed to be preserved through
Commonwealth v. Boyd, 73 A.3d 1269, 1271
(Pa.Super. 2013). Hence, this claim is preserved for purposes of appeal.
-3-
J-S51009-14
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) (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).
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 individual refused
testing of blood or breath, or who violates section 3802(c) or (d) and who
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
ed
-4-
J-S51009-14
that a § 3802 (a)(1) conviction with a refusal and a prior DUI could be
punishable as a first degree misdemeanor with a five-year maximum. The
Commonwealth countered with a different statutory construction that gave
§ 3803(b)(4) controlling effect over § 3803(a)(1). The 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 maximum sentence
that can be imposed for a second DUI offense involving BAC refusal.2
Musau applies to Appellee. He was convicted of DUI general
impairment under § 3802(a)(1), refused BAC testing, and had a prior DUI.
Thus, that case provides that the maximum sentence applicable in this case
was six months. The Commonwealth suggests that our decision 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 submitted to a jury and
proven beyond a reasonable doubt.
____________________________________________
2
We noted in Commonwealth v. Concordia, 2014 Pa. Super. 155 n.1 that
-5-
J-S51009-14
The Commonwealth also implies that the grant of allowance 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
advanced by the Commonwealth herein. The majority found 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 BAC testing.
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
Commonwealth v. Mendez, 71 A.3d 250 (Pa. 2013).
We cannot read any particular outcome as to this grant of allowance of
appeal, and it certainly cannot be viewed as an intention 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 Commonwealth 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
-6-
J-S51009-14
e.g., Musau reading of the statue creates
devotes a significant amount of compelling analysis to support 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 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 circumstances 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
Pepe that, even when our Supreme
Court has granted an appeal for purposes of determining the question before
the panel deciding a case, the prior
binding. See also Regis Insurance Co. v. All American Rathskeller,
Inc., 976 A.2d 1157, 1161 n.6 (Pa.Super. 2009) (Superior Court panel
lacked the power to disregard and overrule binding prior panel decision).
Hence, we are compelled to affirm.
Judgment of sentence affirmed.
-7-
J-S51009-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
-8-