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2015 PA Super 186
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHRISTOPHER C. GROW
Appellee No. 2017 MDA 2013
Appeal from the Judgment of Sentence October 11, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005071-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J.,
SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.
DISSENTING STATEMENT BY MUNDY, J.: FILED SEPTEMBER 04, 2015
After careful consideration, I respectfully dissent for the reasons given
in my unpublished memorandum in Commonwealth v. Mendez, 62 A.3d
456 (Pa. Super. 2012) (unpublished memorandum), appeal dismissed, 111
A.3d 1187 (Pa. 2015). Therein, I noted that the rules of statutory
construction require us to give effect to all of Section 3803’s provisions if
possible. See 1 Pa.C.S.A. § 1921(a) (stating, “[e]very statute shall be
construed, if possible, to give effect to all its provisions[]”). I also observed,
as the Majority does here, that the General Assembly added the
“[n]otwithstanding the provisions of subsection (b)” language to Section
3803(a) at the same time that it added “where the individual refused testing
of blood or breath” to Section 3803(b)(4). See Act of November 29, 2004,
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P.L. 1369, No. 177, § 2. I also stress that the General Assembly titled
subsection (b) “other offenses,” indicating that when one of those provisions
is triggered by any of the extra elements listed in subsection (b), then
subsection (a) does not apply. See generally 75 Pa.C.S.A. § 3803(b);
Commonwealth v. Mobley, 14 A.3d 887, 891 (Pa. Super. 2011) (referring
to Section 3803(b)(4) as a “sentencing enhancement”).
Based on these considerations, I conclude that the rules of statutory
construction require the enhancement provision of Section 3803(b)(4) to be
construed as an aggravated offense apart from the general provision at
Section 3803(a)(1). This would give effect to all of the provisions of Section
3803. Accordingly, defendants who have one prior DUI conviction and do
not refuse chemical testing would be controlled by Section 3803(a)(1), the
general provisions, whereas defendants who have one prior DUI conviction
and refuse chemical testing commit an aggravated offense and would be
controlled by Section 3803(b)(4).1
Further, I agree with the Commonwealth that the effect of Musau’s
conclusion would be to nullify all of Section 3803(b). It would be absurd to
conclude the General Assembly intended Section 3803(a)’s
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1
A different panel of this Court, subsequent to Commonwealth v. Musau,
69 A.3d 754 (Pa. Super. 2013), noted that this was “a logical interpretation”
of Section 3803, as it forwarded the plain text of and gave effect to all of its
provisions. Commonwealth v. Concordia, 97 A.3d 366, 370 n.2. (Pa.
Super. 2014), appeal denied, --- A.3d ---, 604 MAL 2014 (Pa. 2015).
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“notwithstanding” language to nullify Section 3803(b)(4), when the two
provisions were enacted together in the same legislation. See 1 Pa.C.S.A. §
1922(1) (stating, “[t]hat the General Assembly does not intend a result that
is absurd, impossible of execution or unreasonable[]”).
Based on these considerations, I conclude that Musau was incorrectly
decided, as it failed to take into account all of the rules of statutory
construction. Accordingly, I would overrule Musau, vacate the judgment of
sentence, and remand for resentencing. I respectfully dissent.
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