Commonwealth v. Lees

J-S24043-16
2016 PA Super 72COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ALISON LEES
Appellee No. 1625 MDA 2015
Appeal from the Order Entered August 25, 2015
In the Court of Common Pleas of Montour County
Criminal Division at No(s): CP-47-CR-0000036-2015
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
OPINION BY GANTMAN, P.J.: FILED MARCH 24, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Montour County Court of Common Pleas, which granted the
petition for habeas corpus relief filed on behalf of Appellee, Alison Lees. We
reverse and remand for further proceedings.
The relevant facts and procedural history of this appeal are as follows.
On August 15, 2014, Appellee was charged with two counts of driving under
the influence of alcohol (“DUI”), reckless driving, and careless driving.1
Appellee filed an omnibus pretrial motion on May 26, 2015, for habeas
corpus relief, suppression of evidence, and a motion in limine regarding
potential trial testimony. The trial court held a pre-trial hearing on July 6,
____________________________________________
1
75 Pa.C.S.A. §§ 3802(a)(1); 3802(c); 3736(a); 3714(a), respectively.
J-S24043-16
2015. The trial court’s opinion continues:
The evidence adduced at the hearing began with testimony
by Tiffany Mowrer that, on August 15, 2014, around 3:00-
3:30 p.m., she heard a loud bang and saw [Appellee] get
out of a vehicle which had just struck a green electrical
box in a grassy area adjacent to the parking spaces of
Montgomery Village. Ms. Mowrer testified that the parking
lot in general was open to the public, and that the sign
upon entry from Bloom Road states “Private Property.”
Further, an alternate entry point from Woodbine Land is
obstructed with a chain on which is hung a sign [that]
states “No Trespassing.” The area between the
demarcated parking space from which [Appellee] had
emerged and the green electrical box is planted with grass.
Ms. Mowrer’s [cousin] Tony Mowrer confirmed that he, too,
had seen [Appellee’s] vehicle strike the green electrical
box. Mr. Mowrer testified that the U.S. Postal Service and
UPS regularly traverse the parking lot in general, but Mr.
Mowrer also confirmed that a sign at the entrance to the
parking lot in general which serves both Evergreen Point
and Montgomery Village states that the parking lot is
“Private Property.” Mr. Mowrer confirmed that [Appellee]
had been parked in a parking space marked with a number
on a portable concrete curb, that she proceeded forward
over the concrete curb marked with the number, into the
grass and into the green electrical box, and that [Appellee]
did not drive anywhere else. There was absolutely no
evidence that [Appellee] had been in actual physical
control of a vehicle in the parking lot in general.
It was stipulated that [Appellee’s] blood alcohol content
was 0.189% at 4:47 p.m. on August 15, 2014. It was also
stipulated that the grassy area between the curb and the
green electrical box is not a “highway” or “trafficway.”
Finally, the parties stipulated that [Appellee] did not
operate her vehicle anywhere except in her parking space
and the grassy area into which she drove.
Officer Matthew Gerst testified that he was dispatched to
the scene on August 15, 2014, at 3:35 p.m. He proceeded
through the joint access into the complex shared by
Evergreen Point and Montgomery Village. Officer Gerst
confirmed that the curbs in Montgomery Village are
-2-
J-S24043-16
marked with the unit numbers to which the respective
parking spaces are assigned. Officer Gerst did state that,
when he parked his vehicle at the scene, he parked in a
numbered space, but this fact is discounted in weight due
to the fact that a reasonable person would be hesitant to
tell a police officer to move his vehicle while he is dealing
with an incident, a fact admitted by the officer on cross-
examination. Officer Gerst stated that the curb in front of
[Appellee’s] vehicle was marked with an “11,” and that
[Appellee’s] address in Montgomery Village is “11.” The
officer testified that he assumed that the space was
[Appellee’s] parking space.
The hearing resumed on August 3, 2015, with the
stipulated admission into evidence of several documents
including [Appellee’s] deed dated March 22, 2011 which
stated that [Appellee’s] title was subject to the
Montgomery Village Declarations of covenants, conditions
and restrictions (the “Declarations”). Also admitted by
stipulation was Ex. C-4, the Declarations. Article IV,
Section 2 states that the purpose of assessments are to
promote the recreation, health, safety and welfare of the
residents and for the improvement and maintenance of the
Common Area and of private streets, curbs, and other
maintenance expenses. The Declarations were also
admitted as D-1, which also contains “Proposed
Amendments…” to the Declarations (the “Amendments”)
and a map which were not included in Ex. C-4. The
[Proposed] Amendments, at p. 2, Article VII, Section 1,
states that one parking space is reserved for each Lot
Owner “for the use of that particular Lot Owner.” Section
2 states that vehicles improperly parked “will be towed….”
(Trial Court Opinion, filed August 25, 2015, at 1-4).
On August 25, 2015, the court granted Appellee habeas corpus relief
and dismissed all charges against her. The Commonwealth timely filed a
notice of appeal on September 21, 2015. On September 30, 2015, the court
ordered the Commonwealth to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely
-3-
J-S24043-16
complied.
The Commonwealth raises one issue for our review:
WHETHER A PARKING SPACE, WHICH IS CLEARLY
CONTAINED [WITHIN] THE PROPERTY LINES OR
BOUNDARY LINES OF A COMMON AREA PARKING LOT, IS
A “HIGHWAY” OR “TRAFFICWAY” OF THE COMMONWEALTH
OF PENNSYLVANIA?
(Commonwealth’s Brief at 4).
The relevant scope and standard of review for a grant of a habeas
corpus petition is as follows:
Our scope of review is limited to deciding whether a
prima facie case was established…. The
Commonwealth must show sufficient probable cause
that the defendant committed the offense, and the
evidence should be such that if presented at trial,
and accepted as true, the judge would be warranted
in allowing the case to go to the jury.
When deciding whether a prima facie case was established,
we must view the evidence in the light most favorable to
the Commonwealth, and we are to consider all reasonable
inferences based on that evidence which could support a
guilty verdict. The standard…does not require that the
Commonwealth prove the [defendant’s] guilt beyond a
reasonable doubt at this stage.
Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa.Super. 2007) (en
banc), appeal denied, 596 Pa. 705, 940 A.2d 364 (2007) (quoting
Commonwealth v. James, 863 A.2d 1179, 1182 (Pa.Super. 2004) (en
banc)). See also Commonwealth v. Marti, 779 A.2d 1177, 1180
(Pa.Super. 2001) (stating prima facie standard requires evidence of each
and every element of crime charged; weight and credibility of evidence are
-4-
J-S24043-16
not factors at this stage of proceedings).
On appeal, the Commonwealth contends generally that a parking lot is
a “trafficway” for purposes of the DUI statute. The Commonwealth asserts it
established a prima facie case that the parking space Appellee drove in was
part of a trafficway as defined by 75 Pa.C.S.A. § 102. The Commonwealth
maintains that even if the trial court correctly distinguished parking lots from
assigned parking spaces, the evidence presented at the hearing did not
demonstrate Appellee actually had any claim of title to the specific parking
space. The Commonwealth indicates the proposed amendments to
Appellee’s housing code, including reference to a reserved parking space,
were not officially adopted. The proposed amendments are the only
document that references a “reserved” parking space, which is not
mentioned anywhere in the deed. The Commonwealth avers the proposed
amendments are also inconsistent with the story Appellee told the court; the
amended declarations purport to allot one parking space to each resident,
while Appellee insisted in her testimony she is “entitled” to two parking
spaces. The Commonwealth contends Appellee’s own hand-drawn map
makes it unclear whether Appellee’s car was actually parked in “her” space
at the time of the accident. The Commonwealth concludes the trial court
erred in granting Appellee habeas corpus relief on the grounds asserted, and
this Court must reverse and remand the matter for further proceedings. We
agree.
-5-
J-S24043-16
The Motor Vehicle Code governs “serious traffic offenses,” which occur
“upon highways and trafficways throughout this Commonwealth.” 75
Pa.C.S.A. 3101(b). DUI is classified as a serious traffic offense. 75
Pa.C.S.A. § 3802(a)(1), (c). The Motor Vehicle Code defines “Highways” and
“Trafficways” as follows:
§ 102. Definitions
Subject to additional definitions contained in subsequent
provisions of this title which are applicable to specific
provisions of this title, the following words and phrases
when used in this title shall have, unless the context
clearly indicates otherwise, the meanings given to them in
this section:
* * *
“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 purposes of
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
historical park.
* * *
“Trafficway.” The entire width between property lines or
other boundary lines of every way or place of which any
part is open to the public for purposes of vehicular travel
as a matter of right or custom.
* * *
75 Pa.C.S.A. § 102. The DUI statute in relevant part provides:
§ 3802. Driving under influence of alcohol or
controlled substance
(a) General impairment.—
-6-
J-S24043-16
(1) An individual may not drive, operate or be
in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol
such that the individual is rendered incapable of
safely driving, operating or being in actual physical
control of the movement of the vehicle.
* * *
(c) Highest rate of alcohol.—An individual may
not drive, operate or be in actual physical control of
the movement of a vehicle after imbibing a sufficient
amount of alcohol such that the alcohol
concentration in the individual’s blood or breath is
0.16% or higher within two hours after the individual
has driven, operated or been in actual physical
control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1), (c). The term “operate” as used in the DUI
statute “requires evidence of actual physical control of either the machinery
of the motor vehicle or the management of the vehicle’s movement, but not
evidence that the vehicle was in motion.” Commonwealth v. Johnson,
833 A.2d 260, 263 (Pa.Super. 2003).
Pennsylvania law recognizes that roadways in private areas, or areas
restricted to permit-holders, can still meet the “public use” requirement for
purposes of Sections 3101, 102 and the DUI statute. Commonwealth v.
Zabierowsky, 730 A.2d 987, 989 (Pa.Super. 1999) (holding parking garage
met “public use” for purposes of Sections 102 and 3101, although use was
limited to patrons who accepted conditional rental arrangement and paid for
garage access). “Even if restricted by signs, if a parking lot is used by
members of the public, it is a trafficway for purposes of 75 Pa.C.S.A. §
-7-
J-S24043-16
3101.” Commonwealth v. Wilson, 553 A.2d 452, 454 (Pa.Super. 1989),
appeal denied, 522 Pa. 603, 562 A.2d 826 (1989) (affirming DUI conviction
where intoxicated driver operated vehicle within private Elks Club parking
lot). See also Commonwealth v. Cameron, 668 A.2d 1163 (Pa.Super.
1995), appeal denied, 544 Pa. 653, 676 A.2d 1194 (1996) (holding parking
lot adjacent to apartment building constituted trafficway for purposes of DUI
statute). Compare Commonwealth v. Wyland, 987 A.2d 802 (Pa.Super.
2010), appeal denied, 608 Pa. 623, 8 A.3d 346 (2010) (holding road within
Air Force base did not constitute trafficway, as matter of right or custom,
where base was open only to civilians who obtained proper security
clearances and express approval to enter from U.S. Air Force personnel);
Commonwealth v. Aircraft Service Intern. Group, 917 A.2d 328(Pa.Super. 2007) (holding airport service road was not “highway” open for
use of public for vehicular traffic, where access to road was limited to
employees with proper airport identification, which can be obtained only by
getting fingerprinted and attending several training classes);
Commonwealth v. Owen, 580 A.2d 412 (Pa.Super. 1990) (affirming
habeas corpus relief, where Commonwealth failed to present any evidence to
demonstrate character of parking lot where incident occurred).
Instantly, the DUI incident occurred within the parking lot serving both
the Evergreen Point and Montgomery Village housing complexes. The
parking lot is marked with a sign stating “Private Property,” but non-
-8-
J-S24043-16
residents frequently cross the premises, including mailmen, deliverymen,
and other visitors. At the hearing, the Commonwealth and Appellee
stipulated Appellee drove her motor vehicle within her parking space, onto
an adjacent grassy area, and the grassy area was not a trafficway. The
parties also stipulated Appellee’s blood alcohol content was 0.189% when it
was tested within two hours following the incident. The Commonwealth
presented evidence that the incident took place between 3:00 p.m. and 3:30
p.m., and Appellee’s blood alcohol content was measured at 4:47 p.m. the
same day. The Commonwealth also presented Appellee’s deed, which
specifically indicated she owned a townhome in the complex, but the deed
made no mention of a parking space. Additionally, the Commonwealth
offered testimony that Appellee struck a green electrical box located on the
grassy area.
Appellee presented a photograph showing how the parking spaces are
numbered, a fact confirmed by Officer Gerst in his testimony. Appellee
produced a signed copy of the “Declaration of Covenants, Conditions and
Restrictions for Montgomery Village Homeowners Association,” listing her
rights and responsibilities as a homeowner. Appellee also produced a
document entitled “Proposed Amendments,” which purports to reserve one
parking space for each homeowner. The copy of the Proposed Amendments
was not signed, and there was no evidence that the housing complex had
ever adopted the Amendments.
-9-
J-S24043-16
The Commonwealth’s burden at this stage of the prosecution was to
demonstrate evidence of each element of the charges, committed on a
highway or trafficway in the Commonwealth. See Patrick, supra. The
Commonwealth did not have to prove the offenses beyond a reasonable
doubt. See id. Here, the stipulations confirmed Appellee drove her vehicle
while intoxicated, over the tire stop, and onto an adjacent grassy area where
she struck a green electrical box. The evidence given at the hearing by
Appellee and the Commonwealth’s witnesses showed members of the public
routinely used the Montgomery Village parking lot, satisfying the public use
requirement of a trafficway under the DUI statute. See 75 Pa.C.S.A. § 102;
Zabierowsky, supra; Cameron, supra; Wilson, supra. Though
Appellee’s argument for habeas corpus relief at the hearing rested on a
distinction between the parking lot generally and a private parking space,
the Commonwealth was able to show Appellee’s asserted ownership of the
parking space was unclear both as to right and custom. See 75 Pa.C.S.A. §
102. The evidence, viewed in the light most favorable to the Commonwealth
at this stage, established a prima facie case. Under these circumstances and
at this juncture of the proceedings, the trial court improperly dismissed all
charges against Appellee. Accordingly, we reverse the court’s order
dismissing all charges and remand for further proceedings.
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
- 10 -
J-S24043-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2016
- 11 -