Commonwealth v. Grow

• Citation: 2015 PA Super 186,122 A.3d 425
• Decision Date: 04 September 2015
• Docket Number: No. 2017 MDA 2013,2017 MDA 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Christopher C. GROW, Appellee.
• Court: Superior Court of Pennsylvania

122 A.3d 425

2015 PA Super 186

COMMONWEALTH of Pennsylvania, Appellant

v.Christopher C. GROW, Appellee.

No. 2017 MDA 2013

Superior Court of Pennsylvania.

Argued June 30, 2015.

Filed Sept. 4, 2015.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellant.

Anthony J. Tambourino, York, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., DONOHUE, J., SHOGAN, J., ALLEN, J., LAZARUS, J., MUNDY, J., and STABILE, J.

Opinion

OPINION BY LAZARUS, J.:

The Commonwealth of Pennsylvania appeals from the judgment of sentence imposed by the Court of Common Pleas of York County after Appellee, Christopher C. Grow, entered a guilty plea to driving under the influence (DUI). Specifically, Grow pled guilty to second-offense DUI with refusal to submit to chemical testing of his blood alcohol content (BAC).¹ For this offense, Grow was sentenced to serve six months of intermediate punishment with forty-five days of incarceration, followed by ninety days on house arrest with electronic monitoring.² After careful review, we affirm.

In May 2013, Grow was involved in a motor vehicle collision in which he rear-ended a vehicle stopped at a traffic light. A police officer arrived on the scene of the accident and spoke with Grow. The officer observed signs that Grow was intoxicated, including the odor of alcohol and that Grow had slurred speech, bloodshot eyes, and poor balance. When asked, Grow admitted to consuming alcohol. Grow unsuccessfully attempted to perform field sobriety tests, and the officer arrested him for DUI. Grow refused to allow his blood to be drawn to test its alcohol level.

Thereafter, on October 11, 2013, Grow entered his guilty plea and was sentenced.

Grow and the Commonwealth agreed to a minimum sentence but did not reach an agreement regarding the maximum sentence to be imposed. The Commonwealth timely filed a notice of appeal and court-ordered concise statement of errors complained of on appeal.

The Commonwealth raises one issue for our review:

Whether the sentencing court erred when it held that six months for [Grow's] driving under the influence (refusal) (second offense) conviction was the statutory maximum allowable sentence it could consider[.]

Brief for Appellant, at 4.

The Commonwealth challenges this Court's precedential decision, Commonwealth v. Musau, 69 A.3d 754 (Pa.Super.2013), in which we interpreted 75 Pa.C.S. § 3803 as providing a six-month maximum sentence for second DUI offenses with refusal to submit to chemical testing. The Commonwealth's question of statutory construction implicates the legality of Grow's sentence and thus is appealable as of right. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super.2006). Our standard of review is de novo and our scope of review is plenary. Commonwealth v. Gutierrez, 969 A.2d 584, 592 (Pa.Super.2009).

In considering a question of statutory construction, we are

guided by the sound and settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we are mindful that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. ” 1 Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best indication of legislative intent is the plain language of a statute. ” In reading the plain language, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage,” while any words or phrases that have acquired a “peculiar and appropriate meaning” must be construed according to that meaning. 1 Pa.C.S. § 1903(a). However, when interpreting non-explicit statutory text, legislative intent may be gleaned from a variety of factors, including, inter alia: the occasion and necessity for the statute; the mischief to be remedied; the object to be attained; the consequences of a particular interpretation; and the contemporaneous legislative history. 1 Pa.C.S. § 1921(c). Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa.Super.2015) (citing Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189–90 (2005) ) (emphasis added).

At the time Grow was sentenced, the relevant portions of section 3803 provided:³

Grading

(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).

* * *

(b) Other offenses. —

* * *

(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 misdemeanor of the first degree.

75 Pa.C.S. § 3803 (amended 2014) (emphasis added).

Ordinarily, the statutory maximum sentence for a first-degree misdemeanor is five years' incarceration. See 18 Pa.C.S. § 1104(1) ; see also 18 Pa.C.S. § 106(b)(6). However, the Musau Court determined six months' imprisonment to be the maximum sentence for second-offense DUI with refusal to submit to chemical testing, despite the grading of the offense as a first-degree misdemeanor. In so deciding, the Court relied upon the initial language in section 3803 of “[n]otwithstanding the provisions of subsection (b).” 75 Pa.C.S. § 3803(a) (amended 2014). The Court construed this prefatory language with the other provisions of section 3803, determining that although section 3803(b)(4) specifies the grading of the crime as a first-degree misdemeanor, the maximum penalty is the six-month sentence provided in section 3803(a)(1). Musau, supra, at 758.

The definition of “notwithstanding” was critical to the Court's decision in Musau. The Court discussed the ordinary meaning of the word as “in spite of” or “although” and noted that our Supreme Court has defined it as “regardless of.” Id. at 757 (citing City of Philadelphia v. Clement & Muller, Inc., 552 Pa. 317, 715 A.2d 397, 399 (1998) (holding plain meaning of phrase “notwithstanding a contrary provision of law of the Commonwealth” is “regardless of what any other law provides”)). These synonymous definitions demonstrate that the word has an accepted meaning that is clear on its face. Thus, we agree with Grow's argument in the instant matter and with the holding of the Musau Court that “the plain language of the statute, giving the words their ordinary meanings, indicates [that] regardless of the ... grading of the offense as a first-degree misdemeanor, the maximum sentence for a first or second DUI conviction is six months' imprisonment.” Musau, supra, at 758.

Because the plain meaning of the statute in question is clear and free from ambiguity, the Statutory Construction Act⁴ provides that “the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Moreover, we are constrained to consider solely the plain meaning of section 3803, since “only when the words of a statute are ambiguous should a court seek to ascertain the intent of the General Assembly through consideration of statutory construction factors found in [s]ection 1921(c).”⁵

Commonwealth v. Brown, 603 Pa. 31, 981 A.2d 893, 898 (2009) (emphasis added). Nevertheless, we will address the Commonwealth's arguments regarding this Court's interpretation of section 3803 and the application of principles of statutory interpretation.

Initially, the Commonwealth asserts that the trial court incorrectly relied on our holding in Musau to determine the appropriate maximum sentence in this matter. The Commonwealth argues that Commonwealth v. Barr, 79 A.3d 668 (Pa.Super.2013), controls because it was decided after Musau and indicates a five-year maximum sentence for Grow's offense.⁶ The Commonwealth's reliance on Barr is misplaced, however, because the issue before us in that matter involved the correct instruction for a jury to find that the defendant “refused” blood, breath, or urine testing.See id. at 671. The statement that Barr's refusal would increase the maximum penalty from six months' to five years' was made in passing and was not critical to the holding of the decision. As a result, the statement regarding the increased penalty is dictum and is not controlling regarding the statutory interpretation of section 3803. See U.S. Steel Co. v. County of Allegheny, 369 Pa. 423, 86 A.2d 838, 843 (1952) (dictum involving interpretation of statute not controlling).

Next, the Commonwealth asserts that “[t]he only interpretation of section 3803 that gives effect to all provisions without resulting in absurdity is that the particular provision controls over the general provision.” Brief for Appellant, at 11. The Commonwealth premises this argument on section 1933 of the Statutory Construction Act, which indicates that:

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision.

1 Pa.C.S. § 1933. In relying on this principle of statutory interpretation, the Commonwealth argues that the provisions of section 3803(b) are particular provisions that control over the general provisions in section 3803(a). The Commonwealth's argument fails for several reasons.

First, the provisions of section 3803(b) are...