Com. v. Horn, Amy Ruck

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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