Com. v. Horn, D.

J-S51010-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. DANIEL SCOTT HORN, Appellee No. 2134 MDA 2013 Appeal from the Judgment of Sentence October 29, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003719-2013 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 Daniel Scott Horn with respect to a conviction for driving under the 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-S51010-14 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 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 2:20 a.m. on April 6, 2013, Pennsylvania State Trooper Mathew Templin was patrolling on George Street in North York Borough when he noticed a motor vehicle with one of its headlights extinguished. The trooper effectuated a traffic stop and approached the driver, Appellee. After Appellee exhibits signs of being intoxicated, Trooper Templin asked him if he had been drinking, and Appellee responded affirmatively. Claiming to have a back injury, Appellee refused to perform field sobriety tests. He also refused to perform a preliminary breath test, and, after being issued the proper warnings about the consequences of so doing, to have his blood drawn for blood alcohol testing. Appellee had a DUI conviction in 2010. On September 24, 2013, Appellee pled guilty to the offense in question and proceeded to sentencing on October 29, 2013. The Commonwealth acknowledged that Musau prevented imposition of a sentence in excess of six months, objected, and contended that the case was wrongly decided. Appellee was given six months intermediate punishment, and this Commonwealth appeal followed. The Commonwealth complied with the trial -2- J-S51010-14 sentencing court erred when it h driving under the influence (refusal) (2nd offense) conviction was the brief at 4. 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. 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 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: -3- J-S51010-14 (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 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. -4- J-S51010-14 Instead, it ruled that six months imprisonment was the maximum sentence that can be imposed for a second DUI offense involving BAC refusal.1 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. 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 ____________________________________________ 1 We noted in Commonwealth v. Concordia, 2014 PA Super 155 n.1 that -5- J-S51010-14 § 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 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.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 hearing that the -6- J-S51010-14 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 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. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014 -7-