Com. v. Yendriga, W. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WAYNE ALLEN YENDRIGA,
Appellee No. 1868 MDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0009128-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DOMINICK ALAN CARTER,
Appellee No. 2018 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-0008025-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LAWRENCE M. CUNNINGHAM,
Appellee No. 2024 MDA 2013
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Appeal from the Judgment of Sentence October 21, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005423-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MONIQUE VERA WINSTON,
Appellee No. 2135 MDA 2013
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003800-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
BRIAN KEVIN DOLL,
Appellee No. 2164 MDA 2013
Appeal from the Judgment of Sentence November 4, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006256-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANDREA NICOLE LUMBAN-TOBING,
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Appellee No. 151 MDA 2014
Appeal from the Judgment of Sentence December 23, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0008104-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HEIDI ARLENE HARTMAN,
Appellant No. 253 MDA 2014
Appeal from the Judgment of Sentence January 7, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007320-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SHAWN MICHAEL NESS,
Appellee No. 273 MDA 2014
Appeal from the Judgment of Sentence January 9, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006765-2013
BEFORE: BOWES, OTT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 20, 2014
In this consolidated appeal involving eight defendants, the
Commonwealth contends that the sentencing courts in question erroneously
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computed the maximum sentence that could be imposed upon the respective
defendants for a conviction of driving under
pursuant to 75 Pa.C.S. § 3802(a)(1) (general impairment) where each
defendant 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 was 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 was erroneously
decided in that it improperly construed 18 Pa.C.S. § 3803. As we are bound
by the decision in question, we are constrained to affirm.
Initially, we set forth the factual background of the cases at issue
herein, all of which were instituted in York County. In each instance, the
pertinent facts have been ascertained from a review of the affidavit of
probable cause supporting the criminal complaint. We observe that, in some
of these cases, the Commonwealth was ordered to file a Pa.R.A.P. 1925(b)
statement. In those instances, the Commonwealth timely complied and
preserved the issue now presented on appeal.
At criminal action number 9128 of 2012, Wayne Allen Yendriga was
charged wit
Pa.C.S. § 3802(a)(1), which prohibits a person from driving a vehicle after
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consuming a sufficient amount of alcohol so as to render him incapable of
safely driving. The offense was graded as a first degree misdemeanor. The
criminal complaint indicates that at approximately 9:00 a.m. on October 19,
2012, York Police Officer Joel Hopta was dispatched to the scene of an
accident on Connelly Road, where a tractor trailer had hit a building.
Yendriga was driving the truck when the accident occurred and displayed
signs of intoxication. Officer Hopta administered field sobriety tests to
Yendriga. Yendriga was arrested after failing the tests, was given the proper
warnings about the consequences of his failure to agree to a blood alcohol
arrested that day and released on bail in December 2012.
Yendriga failed to appear for three scheduled pre-trial conferences,
which resulted in bail forfeiture and issuance of a bench warrant. After
being apprehended, Yendriga, on September 13, 2013, entered a no-contest
plea to the offense. The record of the September 13, 2013 proceeding
indicates that Yendriga had a prior DUI, and the Commonwealth requested a
sentence of one to five years in jail. Over objection, the trial court applied
Musau and sentenced Yendriga to time served to six months.
At criminal action number 0008025-2012, Dominick Alan Carter was
charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor, endangering the welfare of a child, driving while under
a DUI license suspension, careless driving, operating a motor vehicle that
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contained an open alcoholic beverage container, and failing to have his
minor child, who was in the front seat, fastened with a seat belt. At
approximately 1:30 p.m. on July 18, 2012, Pennsylvania State Trooper
Matthew Pavone was dispatched to a parking lot near Lake Williams after an
eyewitness observed Carter arrive at that location driving a car while visibly
intoxicated. Carter was in the company of his child. Trooper Pavone
interviewed Carter, concluded that he was drunk, and gave Carter the
proper warnings about the consequences of his failure to agree to a BAC
test. Carter refused BAC testing. On October 11, 2013, Carter entered a
guilty plea to DUI and endangering the welfare of a child. At sentencing, the
Musau for the DUI charge would be six months imprisonment, but it
specifically objected to that maximum. Carter received a six-month prison
term for the DUI.
At criminal action number 5423 of 2013, Lawrence Cunningham was
charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor and driving in the wrong direction on a one-way street.
At approximately 2:45 a.m. on July 12, 2013, York Police Officer Matthew
way on the one-way North Hartley Street. Cunningham appeared
intoxicated, Officer Dewitt gave him the proper warnings about the
consequences of his failure to agree to BAC testing, and Cunningham, who
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had been convicted of DUI in 2004, refused that testing. On October 11,
2013, Cunningham entered an open guilty plea to the DUI offense. After the
Commonwealth again voiced its objection to the Musau holding regarding
the maximum sentence that could be imposed, on October 21, 2013,
Cunningham was sentenced to ninety days to six months in the county jail.
At criminal action number 3800 of 2013, Monique Vera Winston was
charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor and driving with a suspended license-DUI related. At
approximately 2:30 a.m. on March 17, 2013, State Trooper Shawn Panchik
observed Winston operating her car on Interstate 83 North near mile marker
twenty-five and ascertained that she had a suspended license. After being
stopped, Winston exhibited signs of impairment and was transported to a
hospital for BAC testing. Trooper Panchik gave Winston the proper warnings
about the consequences of her failure to agree to BAC testing, but she
refused it. On July 29, 2013, Winston entered an open guilty plea to both
charges, and she was sentenced on October 28, 2013. Winston received a
jail term of ninety days for the DUI-suspension, and, over objection, a six-
month jail term for the DUI offense.
At criminal action number 8104 of 2013, Andrea Nicole Lumban-Tobing
was charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor and driving in the incorrect lane of a roadway. At
approximately 1:30 a.m. on October 3, 2013, West York Borough Police
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Officer Scott A. Musselman stopped Lumban-Tobing after he observed her
driving her car in an easterly direction in the westbound lane of West King
Street. After she displayed signs of intoxication, Officer Musselman arrested
Lumban-Tobing and transported her to a booking center for purposes of
drawing blood. Officer Musselman disseminated the proper warnings about
the consequences of her failure to agree to BAC testing, but Lumban-Tobing,
who had been convicted of DUI in March 2013, declined to have her blood
drawn. On December 23, 2013, Lumban-Tobing entered a guilty plea to the
DUI charge, and the Commonwealth withdrew the summary offense. The
Commonwealth acknowledged that Musau impacted on the sentencing
holding. Lumban-Tobing was sentenced to forty-five days in jail
followed by ninety days house arrest.
At criminal action number 7320 of 2013, Heidi Arlene Hartman was
charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor, failing to keep her vehicle within her lane of traffic,
failing to stop at a stop sign, careless driving, and failing to wear her seat
belt. At about 5:00 p.m. on September 21, 2013, Pennsylvania State
Trooper Travis Kauffman was on routine patrol in York City. He observed
Hartman fail to stop her vehicle at a stop sign and then cross into the
oncoming lane of traffic. Trooper Kauffman initiated a traffic stop, and
Hartman displayed numerous signs of intoxication. Hartman was arrested
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for DUI, Trooper Kauffman gave her the proper warnings about the
consequences of her failure to agree to BAC testing, and Hartman refused to
undergo that testing. Hartman was convicted of DUI in 2004. On
January 7, 2014, Hartman pled guilty to the DUI offense and the remaining
charges were nol prossed. The Commonwealth noted its objection to
prohibition to imposition of a sentence that exceeded six months.
Hartman was sentenced to six months of intermediate punishment.
At criminal action number 6256 of 2013, Brian Kevin Doll was charged
with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first degree
misdemeanor. At about 7:00 p.m. on August 3, 2013, Hellan Township
Police Sergeant Drew Heistand was dispatched to the site of a traffic
accident on Pleasant Valley Road. When he arrived, there was a vehicle
upside down in the middle of the road. Doll chanced upon the accident
scene driving a white van that stopped behind one of the fire trucks. Doll
and indicated that Doll appeared to be intoxicated.
Sergeant Heistand approached Doll and detected a strong odor of
alcohol emanating from his breath. Sergeant Heistand advised Doll to call
for someone to retrieve him from the accident scene and said that he would
not be arrested if he complied with this directive. Doll ignored the officer,
entered his van, and attempted to leave the scene. Doll was unable to do so
due to the presence of fire trucks. After Sergeant Heistand processed the
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intoxicated driver involved in the accident, he again approached Doll, who
failed field sobriety tests and was arrested. Doll was taken to a hospital for
a blood test. After being given the correct warnings about the consequences
of his failure to agree to BAC testing, Doll refused to undergo that testing.
The record indicates that Doll had a prior DUI conviction within the ten years
prior to August 2013. N.T. Plea, 11/4/13, at 3. Doll pled guilty to the
charged offense on November 4, 2013, and was sentenced to six months
of Musau.
At criminal action number 6765 of 2013, Shawn Michael Ness was
charged with DUI pursuant to 75 Pa.C.S. § 3802(a)(1) graded as a first
degree misdemeanor and two summary traffic offenses. At approximately
1:30 a.m. on September 2, 2013, State Trooper Michael Levinsky was on
patrol on Highway 30 in York City. He observed Ness driving his Volkswagen
erratically and stopped him. Ness appeared intoxicated and had a prior DUI
conviction from 2008. Ness refused to undergo BAC testing following his
arrest. After pleading guilty on January 9, 2014, Ness was sentenced to
forty-five days in jail followed by ninety days house arrest. The sentence
was the result of the sente Musau.
been five years.
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In these consolidated appeals, the Commonwealth presents one
held that six
nd
offense)
imposable 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 Commonwealth v. Akbar, 91
A.3d 227, 238 (Pa.Super. 2014).
As the Commonwealth readily concedes, as it did before each
sentencing court, Musau, supra, applies in each case. 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:
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(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
has one or more prior offenses commits a
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
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.
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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 the defendants at issue herein. They were all
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 each 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
of statutory construction now
advanced by the Commonwealth herein. The majority found that
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1
We noted in Commonwealth v. Concordia, 2014 Pa. Super. 155 n.1 that
cal.
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§ 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.
Our Supreme Court gran
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. While the Commonwealth maintains that
Mendez is ripe for review since the appellee brief was filed, we disagree.
Oral argument is not scheduled until September 9, 2014, all the justices
must consider the issue, and a decision must be written.
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 these cases. 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 these cases. While, as
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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 consistently acknowledged at each sentencing in the present
cases that the sentencing court was bound by Musau. It complained that
Musau was wrongly decided.
However, we are no less bound by the Musau decision than were the
sentencing courts herein. As we observed in Commonwealth v. Pepe, 897
A.2d 463, 465
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
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.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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