J-A13007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

MEMORANDUM BY OLSON, J.:                              FILED JUNE 29, 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 law in finding Ross Township
       had complied with the provisions of 75. Pa.C.S. §3353(a)(3)(d)
       by passing an ordinance prohibiting parking on Fairley Road
____________________________________________


1
  The Commonwealth offered the testimony of Officer Thomas to address a
claim raised in Appellant’s brief submitted to the trial court that which
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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       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:…

              (3) Park a vehicle: …
(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)

              (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

have 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


____________________________________________


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: 6/29/2016




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