J-A18008-17
                              2017 PA Super 365


COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

FREDERICK W. KARASH

                         Appellant                  No. 263 WDA 2017


         Appeal from the Judgment of Sentence January 24, 2017
              In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-SA-0000161-2016


BEFORE: BOWES, LAZARUS, AND OTT, JJ.

OPINION BY BOWES, J.:                         FILED NOVEMBER 16, 2017

     Frederick W. Karash appeals from the fine imposed following his

summary conviction for one count of violating his duties as a motorist at a

stop sign. We reverse.

     Appellant was charged with one summary offense for failing to stop at

a stop sign. The pertinent statute reads:

     (b) Duties at stop signs.--Except when directed to
     proceed by a police officer or appropriately attired
     persons authorized to direct, control or regulate traffic,
     every driver of a vehicle approaching a stop sign shall stop at a
     clearly marked stop line or, if no stop line is present, before
     entering a crosswalk on the near side of the intersection or, if no
     crosswalk is present, then at the point nearest the intersecting
     roadway where the driver has a clear view of approaching traffic
     on the intersecting roadway before entering. If, after stopping at
     a crosswalk or clearly marked stop line, a driver does not have a
     clear view of approaching traffic, the driver shall, after yielding
     the right-of-way to any pedestrian in the crosswalk, slowly pull
     forward from the stopped position to a point where the driver
     has a clear view of approaching traffic. The driver shall yield the
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      right-of-way to any vehicle in the intersection or approaching on
      another roadway so closely as to constitute a hazard during the
      time when the driver is moving across or within the intersection
      or junction of roadways and enter the intersection when it is safe
      to do so.

75 Pa.C.S. § 3323(b) (emphasis added).

      The dispute in this case is whether the Commonwealth was obligated

to present, in its case-in-chief, evidence as to whether a police officer

directed Appellant to proceed through the stop sign.       The answer to this

question is dictated by whether the emphasized prefatory language operates

as a proviso that supplies a defense that must be introduced and proven by

Appellant, or whether it constitutes an element of the offense that must be

proven by the Commonwealth. These issues present questions of law, and

our standard of review is de novo.      See Commonwealth v. Miller, 130

A.3d 1, 3 (Pa.Super. 2015).

      We do not write on a blank slate. Commonwealth v. Banellis, 682

A.2d 383 (Pa.Super. 1996), interpreted the exact statutory language at

issue herein in Appellant’s favor. “Banellis argues that the language ‘except

when directed to proceed by a police officer’ is an integral part of the offense

and, therefore, the Commonwealth must produce evidence negating the

exception as part of its burden of proof. We agree.” Id. at 385. Banellis

therefore directly controls.

      The Commonwealth, adopting the opinion of the trial court in this

matter, recognizes Banellis. However, the trial court, and by extension the


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Commonwealth, interpret Commonwealth v. Williams, 872 A.2d 186

(Pa.Super. 2005), as overruling Banellis.           The trial court reasoned,

“[Appellant’s] interpretation of the statute was originally accepted by a three

judge panel of the Superior Court in [Banellis]. It has since been rejected

by other Superior Court panels because it constitutes a judicial re-drafting of

the statute which leads to an absurd result.” Trial Court Opinion, 3/16/17,

at 2-3. We disagree.

      First, neither the trial court nor the Commonwealth recognizes that a

panel of this Court cannot overrule the decision by another panel.          Had

Williams directly contradicted Banellis, we would be compelled to request

en banc certification to resolve the conflict.           However, Williams is

distinguishable, as that case did not interpret 75 Pa.C.S. § 3323. Instead,

the statute at issue in Williams was 75 Pa.C.S. § 3111, entitled Obedience

to traffic-control devices, reading in pertinent part:

      (a) General rule.--Unless otherwise directed by a
      uniformed police officer or any appropriately attired
      person authorized to direct, control or regulate traffic, the
      driver of any vehicle shall obey the instructions of any applicable
      official traffic-control device placed or held in accordance with
      the provisions of this title, subject to the privileges granted the
      driver of an emergency vehicle in this title.




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75 Pa.C.S. § 3111 (emphasis added).1 The appellant therein asserted that

the prefatory language was an element of the offense that must be proven

beyond a reasonable doubt.           We expressed our disagreement in cursory

fashion:

       Finally, we are not persuaded by Williams' argument that unless
       he was “otherwise directed by a uniformed police officer or any
       appropriately attired person authorized to direct, control, or
       regulate traffic,” he did not violate the Vehicle Code.
       Specifically, he contends that this factor is an element of the
       offense under section 3111 and that, as such, it was the
       Commonwealth's burden to prove that he was not directed by a
       police officer while approaching the stop sign. While this may
       seem to be a crafty reworking of the statutory language of
       section 3111, we are not inclined to accept its absurd result. As
       the trial court and 75 Pa.C.S.A. § 3323 note, the duties at stop
       signs include: (1) stopping at a clearly marked stop line or
       intersection before entering it; (2) having a clear view of
       approaching traffic or yielding the right-of-way to any pedestrian
       in a crosswalk; (3) slowly pulling forward from stopped position
       to see clear view of approaching traffic; (4) and entering the
       intersection when it is safe to do so. The exception to following
       these duties is where an officer or authorized person has
       directed traffic in contravention of the normally observed
       procedure attendant to a traffic-control device. In other words, it
       would be an affirmative defense to a violation under section
       3111 to prove that one had actually been “otherwise directed” to
       not obey the traffic rules. Having neither alleged nor proven this
       defense, Williams' argument fails.



____________________________________________


1
  The definitions section, set forth at 75 Pa.C.S. § 102, defines “Official
traffic-control devices” as: “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.”



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Williams, supra at 189 (emphasis in original, footnote omitted).          The

Commonwealth likewise adopts this position, positing that Appellant’s

argument is absurd, without reference to Banellis.

        It is true that Williams cited § 3323 to reference a motorist’s duties

when approaching a stop sign, perhaps suggesting that the same analysis

would apply.     However, that language is clearly dicta, as the fact of the

matter is that the defendant in Williams was not charged with violating §

3323.     Furthermore, Williams did not cite, let alone discuss, Banellis.

Moreover, the quoted paragraph represented the extent of the statutory

analysis.    In this regard, unlike the directly controlling precedent of

Banellis, the Williams analysis did not account for the body of law

interpreting whether a criminal statute contains a proviso.

        A trio of cases from the Supreme Court of Pennsylvania illustrates the

principles involved. First, in Commonwealth v. McNeil, 337 A.2d 840 (Pa.

1975), our Supreme Court interpreted a firearms offense, then codified at 18

P.S. § 4628(e), which stated as follows: “No person shall carry a firearm in

any vehicle or concealed on or about his person, except in his place of abode

or fixed place of business, without a license therefor as hereinafter

provided.” Id. at 843. McNeil held that, “The structure of the statute and

the nature of the prohibition convince us that the absence of a license is an

essential element of the crime.” Id. at 843.




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      In Commonwealth v. Bigelow, 399 A.2d 392, 395 (Pa. 1979), the

Supreme Court refused to extend that construction to 18 Pa.C.S. § 6108,

which reads:

      No person shall carry a firearm, rifle or shotgun at any time
      upon the public streets or upon any public property in a city of
      the first class unless:

      (1) such person is licensed to carry a firearm; or

      (2) such person is exempt from licensing under section 6106(b)
      of this title (relating to firearms not to be carried without a
      license).

18 Pa.C.S. § 6108. Bigelow noted that § 6108, unlike the statute analyzed

in McNeil, employed an “unless” clause.

      In section 6106, the phrase “without a license” appears without
      any words of exception. In section 6108, however, the material
      regarding licensure is set off by the word of exception
      “unless”, indicating it is in the nature of a proviso. The
      purpose of a proviso is to “qualify, restrain or otherwise modify
      the general language of the enabling provision.” Material placed
      in proviso is not an element of the crime but rather a matter of
      defense and need not be either plead or proved by the
      prosecution.

Id. at 482-83 (citations omitted, emphasis added). Thus, Bigelow drew a

distinction between the words “except” and “unless.”

      Our brief review ends with Commonwealth v. Lopez, 565 A.2d 437

(Pa. 1989), wherein the High Court again interpreted a firearms statute. At

that time, the crime at issue stated:

      § 6106. Firearms not to be carried without a license




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      (a) offense defined.-No person shall carry a firearm in any
      vehicle or concealed on or about his person, except in his
      place of abode or fixed place of business, without a license
      therefor as provided in this subchapter.,

      (b) Exceptions. . . .

Id. at 438 (quoting 18 Pa.C.S. § 6106) (emphasis supplied by Lopez).

      The Lopez analysis largely focused on Bigelow, due to the fact that

the trial court relied on Bigelow in holding that the emphasized language

was a proviso. Lopez stated:

      That reliance upon this Court's decision in Commonwealth v.
      Bigelow, supra, is clearly misplaced. In Bigelow, this Court
      considered the proper interpretation of section 6108 of the
      “Firearms & Other Dangerous Articles Act,” 18 Pa.C.S. § 6108.
      At issue in that case was whether the Commonwealth had the
      burden of proving non-licensure as an element of the offense of
      “carrying firearms on public streets or public property in
      Philadelphia.”
      ....

      The language of Bigelow itself evidences the improper
      application of that decision by the Superior Court in its
      interpretation of subsection (a) of section 6106. Bigelow
      specifically states that a proviso modifies the general language
      of the enabling provision. Bigelow, 484 Pa. at 482, 399 A.2d at
      395, citing Commonwealth ex rel. Margiotti v. Lawrence,
      326 Pa. 526, 531, 193 A. 46, 48 (1937). According to this
      reasoning, we conclude the language herein cannot be
      considered a proviso, but rather is clearly a part of the definition
      of the offense.

Id. at 440 (emphasis in original).

      Unlike Williams, Banellis dealt with this body of law, and concluded

that the prefatory except clause was a part of the offense.




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      We are persuaded by . . . the preceding analogous appellate
      court cases that the “except clause” in section 3323(b) is an
      integral part of the offense. The clause, “Except when directed
      to proceed by a police officer ...” directly precedes the words
      “every driver of a vehicle approaching a stop sign shall stop....”
      Against the wording of this statute, it is obvious that the “except
      clause” is not divorced from the definition of the offense. In
      addition, there is no indication that the exception is in the nature
      of a proviso. See Bigelow, supra. The language of the
      exception aids in a more clear and accurate description of the
      offense. The structure of the statute convinces us that lack of
      traffic direction at a stop sign is an essential element of the
      crime. In reaching this decision, we must place upon the
      Commonwealth the burden of negating the foregoing exception.

Banellis, supra at 387–88 (citation omitted).

      Hence, the statement in Williams finding absurd a construction that

places the burden on the Commonwealth to establish that an officer did not

direct the driver through the traffic sign is perhaps overstated. As we have

indicated, Williams did not apply any of the analogous appellate precedents

discussed supra, and therefore signals, at most, a disagreement with the

reasoning employed by Banellis.        We here quote a concurring opinion

authored   by   then-Justice,   now   Chief   Justice,   Saylor   explaining   the

interpretation of prefatory “except clauses:”

      With respect to language and structure, various interpretive
      presumptions are frequently employed. First, a distinction is
      drawn between exceptions fused integrally into the definition of
      the offense (and therefore deemed to reflect integral aspects of
      the forbidden conduct) and those styled as distinct provisos. As
      noted above, elements treatment has been favored for “except
      clauses,” particularly those preceding the core description of the
      offense, versus an inclination toward construction of subsequent
      “unless      clauses”       as     affirmative     defenses. See
      also Commonwealth v. Bigelow, 484 Pa. 476, 483, 399 A.2d

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     392, 395 (1979) (“The United States Supreme Court has never
     required the prosecution to negate the language of a
     proviso.”); Commonwealth v. Banellis, 452 Pa.Super. 478,
     485, 682 A.2d 383, 387 (1996) (distinguishing a proviso from an
     “except clause”).

Commonwealth v. Bavusa, 832 A.2d 1042, 1058–59 (Pa. 2003) (Saylor,

J., concurring) (footnote and some citations omitted).

     As such, we can reconcile Williams with Banellis on these grounds.

The “unless otherwise directed” clause at issue in Williams, while not a

subsequent clause appearing after the description of the forbidden conduct,

nonetheless employs the “unless otherwise” construction.      See Bigelow,

supra at 395 (noting that the material regarding licensure was “set off by

the word of exception ‘unless’”). Therefore, Williams can be reconciled with

Banellis on these grounds and the decisions are not in conflict. Accordingly,

Williams holds only that the prefatory “unless otherwise directed” clause in

§ 3111 operates as a proviso, and merely suggests in dicta that the same




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J-A18008-17



construction might apply to the instant statute.2 Since the two precedents

are not in conflict, Banellis controls.3

       Finally, we note that the trial court claims Banellis leads to absurd

results because “it is highly unlikely a police officer would stop a vehicle for a

stop sign violation when the driver was directed to proceed by a police

officer or other authorized person.”           Trial Court Opinion, 3/16/17, at 3-4.

This analysis treads close to the dangerous belief that the mere fact the

Commonwealth charges a citizen with an offense is itself evidence that the

offense has been committed. Consistent with its constitutional obligations,

all the Commonwealth had to do in this case was ask the officer whether

there was a police officer directing Appellant through the stop sign. It failed

to do so, and we therefore reverse pursuant to Banellis.
____________________________________________


2
  We also note that the Commonwealth does not offer any guidance on the
issue of prospective versus retroactive application. Herein, Banellis clearly
controlled the instant proceedings. Were this Court to overrule Banellis en
banc, the question becomes how the ruling would apply to Appellant herein,
in that the trial court failed to apply the correct law. In this regard, the
Commonwealth could not appeal a finding of not guilty.
3
   The trial court holds that, in the alternative, the officer’s testimony
implicitly established that element. “Officer Kowalski did not testify he saw
an authorized person waving Appellant through the intersection which
means sub silentio there was no such person.”               While circumstantial
evidence may satisfy the elements of an offense, the Commonwealth cannot
meet its burden through mere conjecture. See Banellis, supra at 388
(“The Commonwealth's only witness, Officer Mecca, testified that he
observed Banellis exit the ramp and just continue right through the stop
sign. The Commonwealth, however, failed to address the issue of whether
Officer Mecca was directing traffic at this particular intersection.”).



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J-A18008-17



     Conviction reversed. Appellant is discharged.

     Judge Lazarus concurs in the result.

     Judge Ott files a concurring statement in which Judge Lazarus joins.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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