Com. v. Ansell, W.

J-A13007-16
2016 PA Super 151COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM ANSELL,
Appellant No. 1051 WDA 2015
Appeal from the Judgment of Sentence of June 10, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0002729-2014
BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:
OPINION BY OLSON, J.: FILED JULY 15, 2016
Appellant, William Ansell, appeals from the judgment of sentence
entered on June 10, 2015 in the Court of Common Pleas of Allegheny County
following his two summary convictions for unlawful parking in violation of 75
Pa.C.S.A. § 3353(a)(3)(ii). We affirm.
The relevant facts are as follows. On August 20, 2012, Ross Township
enacted Ordinance No. 2321, which created a no parking zone on Fairley
Road within the municipality. Thereafter, on October 4, 2014, Officer
Jonathan Killmeyer of the Ross Township Police Department responded to a
complaint from Appellant’s neighbor regarding an illegally parked vehicle
along Fairley Road. Officer Killmeyer traveled to the scene and observed
Appellant’s car parked unlawfully where “No Parking” signs were erected
pursuant to Ordinance No. 2321. Officer Killmeyer issued a citation and had
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the vehicle towed. The following day, October 5, 2014, Office Killmeyer
returned to the area and found Appellant’s vehicle parked in the same
location. He again issued a citation and mailed it to Appellant.
Appellant pleaded not guilty to both citations and appeared before a
magistrate on November 12, 2014. The magistrate found Appellant guilty of
parking in a no parking zone in violation of 75 Pa.C.S.A. § 3353(a)(3)(ii).
Thereafter, Appellant filed a summary appeal from the magistrate’s
determination. At a de novo hearing on February 23, 2015, the
Commonwealth called Officer Killmeyer to testify, inter alia, that he observed
Appellant’s vehicle parked illegally on October 4th and 5th, 2014. Appellant
did not dispute that he was parked in a no parking area on both occasions.
Instead, he called Robert Ansell, his brother and the owner of Appellant’s
Fairley Road residence, to testify that Ross Township never acquired
ownership of Fairley Road and that it remained private land. After the
parties concluded their examination of the witnesses, the Commonwealth
argued that Fairley Road was open to the public for purposes of vehicular
traffic and, therefore, subject to regulation under the Motor Vehicle Code.
Appellant argued that Fairley Road had not been dedicated and was not open
to the public. Accordingly, Appellant asserted that Fairley Road was not
subject to regulation enacted by Ross Township. The trial court took the
matter under advisement and directed the parties to submit briefs.
After the parties submitted briefs, the court reconvened Appellant’s
hearing de novo on June 10, 2015. At the commencement of the hearing,
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the Commonwealth moved the court to reopen the record so that it could
introduce the testimony of Officer Thomas of the Ross Township Police
Department, who conducted a traffic study of Fairley Road.1 Appellant
objected to the Commonwealth’s motion and the trial court sustained his
objection. After argument by both sides, the court found that Fairley Road
was a public highway subject to regulation under the Motor Vehicle Code.
The court also determined that Appellant waived his challenge asserting the
lack of a traffic or engineering study because he failed to raise the issue at
the February 23, 2015 de novo hearing. Consequently, the court dismissed
Appellant’s appeal and sustained the judgment finding him guilty of two
summary violations of 75 Pa.C.S.A. § 3353(a)(3)(ii). Additionally, the court
imposed two fines in the amount of $100.00 plus costs. Appellant filed a
timely notice of appeal from the court’s June 10, 2015 order. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following questions for our review:
Did the trial court commit an error [of] law in finding Ross
Township had complied with the provisions of 75. Pa.C.S.
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1
The Commonwealth offered the testimony of Officer Thomas to address a
claim raised in Appellant’s brief submitted to the trial court. Specifically,
Appellant argued that the Commonwealth failed to adduce sufficient
evidence in support of Appellant’s conviction because it did not come
forward with proof that Ross Township conducted a required traffic and
engineering study of Fairley Road that supported the need to proscribe
parking either because parking on Fairley Road created a safety hazard or
impeded the free flow of vehicular movement. Appellant’s brief is not
included in the certified record.
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§3353(a)(3)(d) by passing an ordinance prohibiting parking on
Fairley Road without first conducting both engineering and traffic
studies indicating stopping, standing or parking would constitute
a safety hazard or where the stopping, standing or parking of
vehicles would unduly interfere with the free movement of
traffic?
Did the trial court err in finding the Commonwealth had
introduced evidence of record sufficient to prove beyond a
reasonable doubt each of the elements necessary to find the
Appellant guilty of parking where prohibited by a sign in violation
of 75 Pa.C.S. §3353 (a)(3)(ii)?
Did the trial court err when it found that the evidence of record
was sufficient to prove beyond a reasonable doubt that Fairley
road was a public highway as defined by 75 Pa.C.S. §102?
Did the trial court err in concluding the Appellant did not timely
raise the Commonwealth’s failure to comply with the
requirements of 75 Pa.C.§3353(d) during the de novo hearing on
February 23, 2015, so as to constitute waiver?
Appellant’s Brief at 2-3.
Appellant’s first three claims purport to challenge the sufficiency of the
Commonwealth’s evidence introduced against him. Appellant’s claims are
unique, however, in that he does not object to the sufficiency of the factual
proof of his guilt.2 Instead, Appellant argues that the Commonwealth’s
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2
Indeed, there is little doubt in this case that Appellant violated 75
Pa.C.S.A. § 3353(a)(3)(ii). Section 3353(a)(3)(ii) provides:
3353. Prohibitions in specified place
(a) General rule.—Except when necessary to avoid conflict with
other traffic or to protect the safety of any person or vehicle or
in compliance with law or the directions of a police officer or
official traffic-control device, no person shall:…
(Footnote Continued Next Page)
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evidence was insufficient because it failed to prove beyond a reasonable
doubt that Ross Township completed a traffic study finding that parking on
Fairley road constituted a safety hazard or unduly interfered with vehicular
movement before passing Ordinance No. 2321. Alternatively, Appellant
contends that that the Commonwealth failed to prove that Fairley Road
constituted a highway such that it was subject to regulation under the Motor
Vehicle Code. We address these claims separately.
Citing 75 Pa.C.S.A. § 3353(d),3 Appellant’s first and second claims
treat Ross Township’s performance of a traffic study as an element of the
_______________________
(Footnote Continued)
(3) Park a vehicle: …
(ii) At any place where official signs prohibit parking.
75 Pa.C.S.A. § 3353(a)(3)(ii).
At Appellant’s de novo hearing, the Commonwealth introduced
uncontroverted evidence that Officer Killmeyer personally observed
Appellant’s vehicle parked in the vicinity of a “No Parking” sign on Fairley
Road on October 4 and 5, 2014. Robert Ansell confirmed the presence of
the “No Parking” sign. Officer Killmeyer issued two citations charging
Appellant with violating 75 Pa.C.S.A. § 3353(a)(3)(ii). Appellant offered no
evidence to refute the Commonwealth’s proof that he parked his car in a
place where an official sign prohibited parking. Thus, the Commonwealth
clearly met its burden in proving two violations of section 3353(a)(3)(ii).
3
Section 3353(d) states:
(d) Restrictions by appropriate authorities.--The department on
State-designated highways and local authorities on any highway
within their boundaries may by erection of official traffic-control
devices prohibit, limit or restrict stopping, standing or parking of
vehicles on any highway where engineering and traffic studies
indicate that stopping, standing or parking would constitute a
safety hazard or where the stopping, standing or parking of
(Footnote Continued Next Page)
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offense set forth in section 3353(a)(3)(ii). Specifically, Appellant’s first
claim asserts that the Commonwealth had the burden of proving beyond a
reasonable doubt that Ross Township conducted a traffic study prior to
enacting Ordinance No. 2321. Appellant’s second claim emphasizes that the
Commonwealth needed to prove that the traffic study concluded that,
“stopping, standing or parking would constitute a safety hazard or [that]
stopping, standing or parking of vehicles would unduly interfere with the free
movement of traffic.” See Appellant’s Brief at 18, quoting 75 Pa.C.S.A.
§ 3353(d).
Appellant is not entitled to relief on his claim that the Commonwealth
failed to meet its burden of proving that Ross Township performed a traffic
study prior to the enactment of Ordinance No. 2321. Section 102 defines
official traffic-control devices in the following manner:
“Official traffic-control devices.” Signs, signals, markings
and devices not inconsistent with this title placed or erected by
authority of a public body or official having jurisdiction, for the
purpose of regulating, warning or guiding traffic.
75 Pa.C.S.A. § 102. Under the Motor Vehicle Code, official traffic-control
devices are presumed to comply with lawful requirements unless competent
evidence establishes the contrary. Section 3111 of the Motor Vehicle Code,
_______________________
(Footnote Continued)
vehicles would unduly interfere with the free movement of
traffic.
75 Pa.C.S.A. § 3353(d).
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which governs the legal presumption that attaches to official traffic-control
devices, provides:
§ 3111. Obedience to traffic-control devices
(d) Presumption of proper devices.--Any official traffic-control
device placed or held pursuant to the provisions of this title and
purporting to conform to the lawful requirements pertaining to
such devices shall be presumed to comply with the requirements
of this title, unless the contrary shall be established by
competent evidence.
75 Pa.C.S.A. § 3111(d). Applying section 3111, this Court has consistently
held that, “it is not the Commonwealth’s initial burden to offer into evidence
the results of an engineering and traffic study[]” and that “[where official
traffic-control signals are] posted so as to [be] readily observable by the
motoring public[, t]he Commonwealth [is] entitled to the presumption that
they were lawfully authorized.” Commonwealth v. Kerns, 420 A.2d 542,
543 (Pa. Super. 1980); see also Commonwealth v. Gernsheimer, 419
A.2d 528, 530 (Pa. Super. 1980).
At his hearing de novo, Appellant came forward with no evidence to
establish that Ross Township failed to perform the traffic study required
under section 3353(d). Thus, the presumption of validity codified at section
3111(d) defeats Appellant’s claim that the Commonwealth failed to meet its
burden of proving the performance of a traffic study.
We are unpersuaded by Appellant’s reliance on our decision in
Commonwealth v. Kittleberger, 616 A.2d 1 (Pa. Super. 1992). In
Kittleberger, the trial court found the defendant guilty of traveling in
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excess of a posted speed limit. On appeal, the defendant questioned
whether the Commonwealth met its burden of proving that a speed timing
device was approved by the Department of Transportation, which was an
element of his offense. We noted in our decision that the Commonwealth
was not limited to the production of a certificate expressly indicating the
Department’s approval of a particular timing device. Instead, the
Commonwealth enjoyed the option of asking the court to take judicial notice
of the Department’s approval, if the approval had been published in the
Pennsylvania Bulletin. Kittleberger, 616 A.2d at 3. At trial, the
Commonwealth offered only a certificate of accuracy to demonstrate the
Department’s approval of the device used to detect the defendant’s speed.
We held this evidence to be insufficient and discharged the defendant.
Appellant’s attempt to equate the absence of proof of a traffic study to
the Commonwealth’s failure in Kittleberger to adduce sufficient evidence of
the Department’s approval of a speed timing device is unavailing. As we
observed, the “No Parking” sign erected by Ross Township on Fairley Road is
entitled to a presumption of validity that does not apply to the speed timing
device at issue in Kittleberger. Accordingly, Appellant is entitled to no
relief on his first two claims.
Appellant’s next claim alleges that Fairley Road is not subject to
regulation under the Motor Vehicle Code and that Ross Township lacked
authority to enforce its prohibition on parking. Appellant bases this claim on
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his contention that the Commonwealth failed to prove that Fairley Road is a
“highway” within the meaning of that term as defined in 75 Pa.C.S.A. § 102
since “the evidence in the record is that Fairley Road is a private road; that
it is a loop providing access to [only] a handful of houses in Ross Township;
and that [Fairley Road] cannot be used by the public to travel anywhere.”
Appellant’s Brief at 22 (emphasis in original). We disagree with Appellant’s
position.
Appellant advances a sufficiency challenge in which he objects to Ross
Township’s authority to enforce a parking prohibition on Fairley Road. The
key question in determining whether a local authority has appropriately
erected an official traffic-control device that prohibits or restricts parking
within its boundary is whether the regulated area constitutes a highway
open to the public for vehicular traffic.4 See 75 Pa.C.S.A. § 3353(d). The
Motor Vehicle Code defines “highway” as follows:
“Highway.” The entire width between the boundary lines of
every way publicly maintained when any part thereof is open to
the use of the public for vehicular travel. The term includes a
roadway open to the use of the public for vehicular travel on
grounds of a college or university or public or private school or
public or historic park.
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4
We conclude that the Commonwealth is not entitled to the presumption of
validity codified at section 3111(d) on this question. The certified record
establishes that Appellant came forward at his February 23, 2015 hearing de
novo with evidence tending to show that Fairley Road was not open to the
public. In so doing, Appellant offset the presumption of validity under
section 3111(d) and the Commonwealth was required to prove the highway
status of Fairley Road beyond a reasonable doubt.
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75 Pa.C.S.A. 102. In assessing Appellant’s sufficiency challenge, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that the Commonwealth proved
this element of the crime beyond a reasonable doubt. Commonwealth v.
Zabierowsky, 730 A.2d 987, 988-989 (Pa. Super. 1999).
Our case law holds that the public use component of section 102 of the
Motor Vehicle Code can be met despite certain restrictions on access to the
regulated area so long as the record establishes that a sufficient number of
drivers use the roadway for vehicular traffic. See id. at 989-990; see also
Commonwealth v. Wilson, 553 A.2d 452 (Pa. Super. 1989) (legislature
intended parking lots to be included within definition of trafficways and
parking lot used by members of the public constituted trafficway for purpose
of Motor Vehicle Code even where it was marked “private” by signage);
Commonwealth v. Proctor, 625 A.2d 1221 (Pa. Super. 1993) (parking lot
of mall was open to public for shopping; thus, sufficient evidence existed for
jury to conclude that parking area was a trafficway for purposes of Motor
Vehicle Code); Commonwealth v. Cozzone, 593 A.2d 860 (Pa. Super.
1991) (unrestricted parking area of a condominium complex generally open
to public constituted trafficway under Motor Vehicle Code); Commonwealth
v. Baughman, 516 A.2d 390 (Pa. Super. 1986) (one lane, dead-end, dirt
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road located on private property deemed trafficway where evidence revealed
intermittent use by vehicular traffic).5
Appellant relies heavily on the testimony of Robert Ansell, his brother,
who stated that there was no documentation to show that Ross Township
adopted or acquired Fairley Road through legislative measures. Whether
Fairley Road was dedicated to Ross Township is not a relevant factor,
however, in determining whether it is a highway under section 102 of the
Motor Vehicle Code. Instead, the dispositive question is whether Fairley
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5
Our cases in which we have held that roadways were not open to the public
and therefore not subject to the motor vehicle laws do not compel a different
conclusion. See Commonwealth v. Aircraft Service International
Group, 917 A.2d 328 (Pa. Super. 2007) (airport service road on which
defendant’s fuel truck overturned was open only to those people who had
been fingerprinted and had attended classes; thus, road was not open to
public and was not subject to enforcement of motor vehicle laws); see also
Commonwealth v. Wyland, 987 A.2d 802 (Pa. Super. 2010) (road
traversing Air Force base was open only to those individuals who received
authorization from chief of security; hence, road was not open to the public
and did not constitute a trafficway for purposes of Motor Vehicle Code).
Moreover, Appellant’s reliance on Commonwealth v. McFadden, 547 A.2d
A.2d 774 (Pa. Super. 1988) is unavailing. In that case, we determined that
the Commonwealth failed to prove that the road in question, a dead-end,
private drive in a trailer court, was customarily open to vehicular traffic. We
reasoned that intermittent drivers on the private road did not create the
requisite customary public use to constitute a trafficway under section 102.
The facts here are compellingly different. In addition, McFadden is a
plurality decision in which one judge authored the decision, another judge
concurred in the result, and the third panel member dissented. McFadden,
therefore, is not binding authority. See In re O.A., 717 A.2d 490, 492 n.4
(Pa. 1998) (legal conclusions adopted by a plurality do not constitute binding
authority).
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Road is open to the public for vehicular traffic. We conclude there is
sufficient evidence in the record to support highway status for Fairley Road.
Robert Ansell testified that there is no signage designating Fairley
Road as a private roadway and he assumed that anyone could drive on the
road. He also testified that cars travel along Fairley Road to get to the
homes situated along the street. No signage erected on the road instructs
motorists that trespassing is not permitted. Officer Killmeyer explained that
Fairley Road is part of a plan of lots and that Appellant lives on Lot 4, which
is one of seven lots on the road. Officer Killmeyer described Fairley Road as
a “loop” on which the means of entrance and exit are the same. He testified
that Fairley Road is a public road maintained by Ross Township. In addition,
Ross Township erected the street sign showing the name of the road. There
is no evidence in the record establishing that Fairley Road is not open to
members of the public. Consistent with our standard of review, we may
infer from the foregoing circumstances that Fairley Road was open to postal
authorities, delivery services, visitors, and other members of the public
without restriction. Under these circumstances, we conclude there was
ample evidence to support the trial court’s finding that Fairley Road
constituted a highway within the meaning of section 102 of the Motor
Vehicle Code. Thus, Appellant’s third claim fails.
In his final claim, Appellant asserts that the trial court erred in finding
that he waived his traffic study claim because he failed to raise the issue at
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the February 23, 2015 de novo hearing. As we stated above, the
Commonwealth, under section 3111(d) of the Motor Vehicle Code, was
entitled to a presumption of validity and, therefore, had no obligation to
come forward with evidence regarding a traffic study. Instead, Appellant
bore the initial burden to adduce competent evidence that a traffic study was
never completed. He failed to discharge this burden. In essence, then, the
trial court correctly found that Appellant waived his challenge involving the
performance of a traffic study. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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