J-S04013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARRYL GREGORY STEWART,
Appellee No. 840 MDA 2014
Appeal from the Judgment of Sentence April 14, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004973-2013
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2015
The Commonwealth appeals from the judgment of sentence imposed
by the trial court on Appellee, Darryl Gregory Stewart, after the court found
him guilty of a second offense driving under the influence (“DUI”)
breath/blood test refusal. The Commonwealth contends that this Court
erred in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super. 2013).1 Since
we are bound by Musau, we affirm.
Officer Andrew Miller effectuated a traffic stop of a silver Mercedes on
April 28, 2013, at approximately 2:45 a.m. The officer first observed the
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*
Retired Senior Judge assigned to the Superior Court.
1
The issue decided in Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.
2013), is currently pending en banc review. Commonwealth v. Grow,
2017 MDA 2013.
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vehicle parked in a no parking zone with its lights on and two people inside
the car. Officer Miller activated his lights and Appellant exited from the
driver’s seat of the car. Initially, Officer Miller asked Appellant to return to
his seat, but Appellant walked around to the passenger side of the vehicle.
Officer Miller asked Appellant for a form of identification, which he could not
provide. However, Appellant informed the officer of his name and date of
birth. In addition, Appellant acknowledged having consumed two alcoholic
beverages and told the officer that he had parked his vehicle to go to a club
located down the street around midnight.
According to Officer Miller, the car was not parked at that location at
1:15 a.m., and Appellant’s eyes were glassy and bloodshot. Officer Miller
then conducted three field sobriety tests. Based on Appellant’s performance,
Officer Miller believed that Appellant was intoxicated and placed him under
arrest. Subsequently, Officer Miller provided Appellant with chemical test
warnings based on Pennsylvania’s Implied Consent Law. Appellant refused
to be tested. The court found Appellant guilty of DUI-general impairment
and determined that he refused chemical testing.2
Thereafter, the court imposed a sentence of ninety days to six months
incarceration. The Commonwealth noted its objection to the six-month
maximum sentence, but acknowledged that the court was bound by this
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2
The court also found Appellant guilty of driving with a suspended license.
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Court’s case law with respect to the maximum available sentence. This
Commonwealth appeal ensued. The trial court directed the Commonwealth
to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. The Commonwealth complied, and the trial court authored its
Rule 1925(a) decision. The sole issue leveled on appeal is “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’s brief at 4.
“In Musau, a panel of this Court concluded that a defendant convicted
of a second-time DUI under 75 Pa.C.S. § 3802(a)(1), and who refused the
breath test could only be sentenced to a maximum of six months
imprisonment.” Commonwealth v. Concordia, 97 A.3d 366, 369
(Pa.Super. 2014).3 “The Musau Court reached its result by finding a conflict
between 75 Pa.C.S. § 3803(a)(1) and § 3803(b)(4).” Id.
The Commonwealth argues that Musau was wrongly decided, leads to
absurd results, and is at odds with Commonwealth v. Barr, 79 A.3d 668
(Pa.Super. 2013). In support, it offers a comprehensive discussion
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3
The legislature has subsequently amended the DUI statute to clarify that a
defendant’s maximum sentence for the crime herein is not six months but
five years. This legislation has no effect on those convicted prior to the
change.
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regarding statutory interpretation and legislative intent and cites to this
Court’s critique of that decision in Concordia.4 In addition, it posits that our
Supreme Court’s grant of allowance of appeal in Commonwealth v.
Mendez, 71 A.3d 250 (Pa. 2013), supports its argument that Musau was
decided incorrectly.
Despite the criticisms leveled by the Commonwealth, we are bound by
Musau. Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)
(citations omitted) (“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.”).
Judgment of sentence affirmed.
Judge Allen joins the Memorandum
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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4
The author of this memorandum penned the decision in Commonwealth
v. Concordia, 97 A.3d 366 (Pa.Super. 2014), disagreeing with but applying
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013). In contrast,
the learned Judge Strassburger, also on this panel, decided Musau.
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