J-A13007-16 

2016 PA Super 151 

COMMONWEALTH 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. 

____________________________________________ 

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. 

____________________________________________ 

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 

____________________________________________ 

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