J-S24043-16

2016 PA Super 72

COMMONWEALTH 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.
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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 
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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 crossexamination. 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 
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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 
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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. 
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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.—
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(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. § 
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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-
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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. 
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2016