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 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

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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




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