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, 20 15 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 judgme nt of sentence entered on June 10, 2015 in the Court of Common Ple as 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 park ing zone on Fairley Road within the municipality. Thereafter, on Octob er 4, 2014, Officer Jonathan Killmeyer of the Ross Township Police Depa rtment responded to a complaint from Appellant’s neighbor regarding an il legally 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 hadJ-A13007-16

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the vehicle towed. The following day, October 5, 2 014, 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 fo und 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 t he 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 4 th and 5 th , 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 t he owner of Appellant’s Fairley Road residence, to testify that Ross Townsh ip never acquired ownership of Fairley Road and that it remained priv ate land. After the parties concluded their examination of the witnesse s, 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 ded icated and was not open to the public. Accordingly, Appellant asserted tha t Fairley Road was not subject to regulation enacted by Ross Township. Th e trial court took the matter under advisement and directed the parties to submit briefs. After the parties submitted briefs, the court recon vened Appellant’s hearing de novo on June 10, 2015. At the commencement of the hear ing,J-A13007-16

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the Commonwealth moved the court to reopen the reco rd so that it could introduce the testimony of Officer Thomas of the Ro ss Township Police Department, who conducted a traffic study of Fairle y 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 th e Motor Vehicle Code. The court also determined that Appellant waived his challenge asserting the lack of a traffic or engineering study because he f ailed to raise the issue at the February 23, 2015 de novo hearing. Consequently, the court dismissed Appellant’s appeal and sustained the judgment findi ng 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 cos ts. Appellant filed a timely notice of appeal from the court’s June 10, 2 015 order. Both Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant raises the following questions for our r eview: Did the trial court commit an error [of] law in fin ding 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 ad duce sufficient evidence in support of Appellant’s conviction becau se it did not come forward with proof that Ross Township conducted a r equired traffic and engineering study of Fairley Road that supported th e need to proscribe parking either because parking on Fairley Road crea ted a safety hazard or impeded the free flow of vehicular movement. Appel lant’s brief is not included in the certified record.J-A13007-16

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§3353(a)(3)(d) by passing an ordinance prohibiting parking on Fairley Road without first conducting both engineer ing and traffic studies indicating stopping, standing or parking wo uld constitute a safety hazard or where the stopping, standing or parking of vehicles would unduly interfere with the free movem ent of traffic? Did the trial court err in finding the Commonwealth had introduced evidence of record sufficient to prove b eyond a reasonable doubt each of the elements necessary to find the Appellant guilty of parking where prohibited by a s ign in violation of 75 Pa.C.S. §3353 (a)(3)(ii)? Did the trial court err when it found that the evid ence of record was sufficient to prove beyond a reasonable doubt t hat 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 challeng e the sufficiency of the Commonwealth’s evidence introduced against him. Ap pellant’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

____________________________________________ 2 Indeed, there is little doubt in this case that Ap pellant 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 co nflict with other traffic or to protect the safety of any perso n or vehicle or in compliance with law or the directions of a polic e officer or official traffic-control device, no person shall:... (Footnote Continued Next Page)J-A13007-16

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evidence was insufficient because it failed to prov e 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. Altern atively, Appellant contends that that the Commonwealth failed to prove that Fairley Road constituted a highway such that it was subject to r egulation 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 stud y as an element of the (Footnote Continued) _______________________

(3) Park a vehicle: ... (ii) At any place where official signs prohibit p arking. 75 Pa.C.S.A. § 3353(a)(3)(ii). At Appellant’s de novo hearing, the Commonwealth introduced uncontroverted evidence that Officer Killmeyer pers onally observed Appellant’s vehicle parked in the vicinity of a “No Parking” sign on Fairley Road on October 4 and 5, 2014. Robert Ansell confi rmed the presence of the “No Parking” sign. Officer Killmeyer issued tw o 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. T hus, 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 d epartment 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, stand ing or parking of vehicles on any highway where engineering and traff ic studies indicate that stopping, standing or parking would c onstitute a safety hazard or where the stopping, standing or pa rking of (Footnote Continued Next Page)J-A13007-16

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offense set forth in section 3353(a)(3)(ii). Speci fically, Appellant’s first claim asserts that the Commonwealth had the burden of proving beyond a reasonable doubt that Ross Township conducted a tra ffic study prior to enacting Ordinance No. 2321. Appellant’s second cl aim emphasizes that the Commonwealth needed to prove that the traffic study concluded that, “stopping, standing or parking would constitute a s afety hazard or [that] stopping, standing or parking of vehicles would und uly 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 t hat the Commonwealth failed to meet its burden of proving that Ross Town ship performed a traffic study prior to the enactment of Ordinance No. 2321. Section 102 defines official traffic-control devices in the following m anner: “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 juris diction, 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 requirem ents unless competent evidence establishes the contrary. Section 3111 of the Motor Vehicle Code,

(Footnote Continued) _______________________ vehicles would unduly interfere with the free movem ent of traffic. 75 Pa.C.S.A. § 3353(d).J-A13007-16

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which governs the legal presumption that attaches t o official traffic-control devices, provides: § 3111. Obedience to traffic-control devices (d) Presumption of proper devices.--Any official tr affic-control device placed or held pursuant to the provisions of this title and purporting to conform to the lawful requirements pe rtaining to such devices shall be presumed to comply with the r equirements of this title, unless the contrary shall be establi shed by competent evidence. 75 Pa.C.S.A. § 3111(d). Applying section 3111, thi s Court has consistently held that, “it is not the Commonwealth’s initial bu rden 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] r eadily observable by the motoring public[, t]he Commonwealth [is] entitled t o 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 va lidity codified at section 3111(d) defeats Appellant’s claim that the Commonwe alth failed to meet its burden of proving the performance of a traffic stud y. We are unpersuaded by Appellant’s reliance on our d ecision in Commonwealth v. Kittleberger , 616 A.2d 1 (Pa. Super. 1992). In Kittleberger , the trial court found the defendant guilty of tra veling inJ-A13007-16

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excess of a posted speed limit. On appeal, the def endant questioned whether the Commonwealth met its burden of proving that a speed timing device was approved by the Department of Transporta tion, which was an element of his offense. We noted in our decision t hat 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 b een 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 discha rged 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 Tow nship 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 Ro ss Township lacked authority to enforce its prohibition on parking. A ppellant bases this claim onJ-A13007-16

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his contention that the Commonwealth failed to prov e that Fairley Road is a “highway” within the meaning of that term as define d in 75 Pa.C.S.A. § 102 since “the evidence in the record is that Fairley R oad is a private road; that it is a loop providing access to [only] a handful o f houses in Ross Township; and that [Fairley Road] cannot be used by the publi c 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 prohibiti on on Fairley Road. The key question in determining whether a local authori ty has appropriately erected an official traffic-control device that pro hibits or restricts parking within its boundary is whether the regulated area c onstitutes 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 te rm includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or pri vate 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 questi on. The certified record establishes that Appellant came forward at his Febr uary 23, 2015 hearing de novo with evidence tending to show that Fairley Road wa s not open to the public. In so doing, Appellant offset the presumpt ion of validity under section 3111(d) and the Commonwealth was required t o prove the highway status of Fairley Road beyond a reasonable doubt.J-A13007-16

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75 Pa.C.S.A. 102. In assessing Appellant’s suffici ency challenge, we must determine whether, viewing the evidence in the ligh t most favorable to the Commonwealth as verdict winner, together with all r easonable 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 restr ictions on access to the regulated area so long as the record establishes th at 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 definit ion of trafficways and parking lot used by members of the public constitut ed trafficway for purpose of Motor Vehicle Code even where it was marked “pri vate” by signage); Commonwealth v. Proctor , 625 A.2d 1221 (Pa. Super. 1993) (parking lot of mall was open to public for shopping; thus, suff icient 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 c omplex generally open to public constituted trafficway under Motor Vehicl e Code); Commonwealth v. Baughman , 516 A.2d 390 (Pa. Super. 1986) (one lane, dead-en d, dirtJ-A13007-16

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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 legislativ e measures. Whether Fairley Road was dedicated to Ross Township is not a relevant factor, however, in determining whether it is a highway und er section 102 of the Motor Vehicle Code. Instead, the dispositive quest ion 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 r oad 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 in dividuals who received authorization from chief of security; hence, road w as 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 q uestion, a dead-end, private drive in a trailer court, was customarily o pen to vehicular traffic. We reasoned that intermittent drivers on the private r oad did not create the requisite customary public use to constitute a traf ficway under section 102. The facts here are compellingly different. In addi tion, 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 pluralit y do not constitute binding authority).J-A13007-16

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Road is open to the public for vehicular traffic. We conclude there is sufficient evidence in the record to support highwa y status for Fairley Road. Robert Ansell testified that there is no signage de signating Fairley Road as a private roadway and he assumed that anyon e could drive on the road. He also testified that cars travel along Fai rley Road to get to the homes situated along the street. No signage erecte d on the road instructs motorists that trespassing is not permitted. Offic er Killmeyer explained that Fairley Road is part of a plan of lots and that App ellant lives on Lot 4, which is one of seven lots on the road. Officer Killmeye r described Fairley Road as a “loop” on which the means of entrance and exit ar e the same. He testified that Fairley Road is a public road maintained by Ro ss Township. In addition, Ross Township erected the street sign showing the n ame of the road. There is no evidence in the record establishing that Fair ley Road is not open to members of the public. Consistent with our standar d 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 tri al court erred in finding that he waived his traffic study claim because he f ailed to raise the issue atJ-A13007-16

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the February 23, 2015 de novo hearing. As we stated above, the Commonwealth, under section 3111(d) of the Motor Ve hicle Code, was entitled to a presumption of validity and, therefor e, had no obligation to come forward with evidence regarding a traffic stud y. Instead, Appellant bore the initial burden to adduce competent evidenc e that a traffic study was never completed. He failed to discharge this burde n. In essence, then, the trial court correctly found that Appellant waived h is 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