J-A15014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEPHEN JEFFREY JOHNSON                  :
                                          :
                    Appellant             :   No. 1895 MDA 2017

         Appeal from the Judgment of Sentence November 7, 2017
              In the Court of Common Pleas of Fulton County
           Criminal Division at No(s): CP-29-SA-0000012-2017


BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                            FILED MARCH 07, 2019

      Stephen Jeffrey Johnson appeals from the judgment of sentence entered

in the Fulton County Court of Common Pleas following his summary conviction

for violating 18 Pa.C.S.A. § 5507, obstructing highways. We affirm.

      On December 31, 2016, Johnson was cited for obstructing highways.

Following a summary appeal, the case proceeded to a bench trial at which the

Commonwealth presented the testimony of Pennsylvania State Trooper Craig

Strait and Jack D. Fields, the secretary for the borough of McConnellsburg.

Johnson testified on his own behalf.

      At approximately 10:20 a.m. on December 31, 2016, Trooper Strait was

dispatched to the 300 block of North Third Street in the Borough of

McConnellsburg to investigate a report that Johnson’s pick-up truck was

blocking a public alley. Trooper Strait was familiar with the location as police

had been called numerous times for similar complaints involving Johnson’s
J-A15014-18



vehicle. Upon his arrival at 10:30 a.m., Trooper Strait observed Johnson’s

vehicle parked in the alley, not running. Further, Trooper Strait saw no

evidence that the vehicle was in the process of being loaded or unloaded. After

making contact with Johnson and another individual, Donald Truax, at the

scene, Trooper Strait issued Johnson a citation for obstructing highways.

      Borough Secretary Fields testified that he is the only employee of

McConnellsburg Borough, and as such, is uniquely familiar with the Borough

Code. As Fields explained, in order for someone to lawfully block an alley, they

must “appear before the cou[cil] and ask for permission. Then the [M]ayor

had the ability to, through borough coun[cil], to issue a permit to do that.”

Notes of Testimony, Summary Appeal, 11/7/17, at 13. Fields noted that

although Johnson was given permission by the Borough Council to

immediately “load and unload” in the alley, he had not been issued a permit

to block the alley in question.

      Finally, Johnson testified that he pulled his truck into the alley at 10

a.m. to load items into the truck. After approximately five minutes, Truax

pulled his own vehicle into the alley behind Johnson’s vehicle and demanded

Johnson move his truck. Johnson testified that he had ten to fifteen previous

run-ins with Truax over parking his vehicle in the alley. Instead of moving his

vehicle as requested, Johnson decided to retreat to his home and call the

police. Further, Johnson testified that he did not emerge from his home until

the police arrived twenty minutes later.




                                     -2-
J-A15014-18



       Following this testimony, the trial court found Johnson guilty of

obstructing highways as a summary offense.1 This timely appeal follows.

       On appeal, Johnson presents the following question for our review:

       Did the [t]rial [c]ourt err as a matter of law when it found that
       [Johnson] committed a violation of 18 Pa.C.S.[A.] when [Johnson]
       was given permission by the borough code 509.01 to obstruct
       public streets for the purpose of immediate loading and unloading
       and the court applied an arbitrary time limit of how long such
       unloading should take, while ignoring evidence that [Johnson’s]
       loading and unloading was delayed by an individual threatening
       [Johnson] in a way that caused [Johnson] to retreat to his house
       and call the police.

Appellants’ Brief, at 7.

       Preliminarily, we address the Commonwealth’s claim that Johnson’s

appeal should be dismissed for failure to prepare or file a reproduced record.

See Commonwealth’s Brief, at 4-5; see also Pa.R.A.P. 2154(a) (requiring

appellants file a reproduced record within thirty days of filing appellate brief).

In support of its argument, the Commonwealth highlights Rule 2188 of the

Pennsylvania Rules of Appellate Procedure which provides that “an appellee

may move for dismissal of the matter” upon failure of the appellant to file the

designation of the reproduced record. See Pa.R.A.P. 2188. However, the

Commonwealth fails to recognize that Rule 2188 requires the appellee move

for dismissal; an official motion is required for this Court to consider dismissing


____________________________________________


1 As the magisterial district judge had not imposed any penalties beyond the
finding of guilt, the trial court decided not to impose additional penalties upon
its own finding of guilt. See Trial Court Opinion, 1/24/18, at 2 n. 2.

                                           -3-
J-A15014-18


an appeal for this reason. See Pa.R.A.P. 123(a) (stating procedure for a party

to move for dismissal is by filing an application for relief); Pa.R.A.P. 1972

(providing that motions to dismiss or quash appeals are subject to Rule 123).

The Commonwealth failed to file an application for relief. Thus, it would be

improper     to   dismiss    his   appeal      pursuant   to   Pa.R.A.P.   2188.   See

Commonwealth v. Sohnleitner, 884 A.2d 307, 312-313 (Pa. Super. 2005).

       “Our standard of review from an appeal of a summary conviction heard

de novo by the trial court is limited to a determination of whether an error of

law has been committed and whether the findings of fact are supported by

competent evidence.” Commonwealth v. Marizzaldi, 814 A.2d 249, 251

(Pa. Super. 2002) (citation omitted). “[W]e may not disturb the credibility

determinations of the trial court on review. Thus, we must solely limit our

review to a consideration of the elements of the statute and the evidence

presented.” Commonwealth v. Askins, 761 A.2d 601, 603 (Pa. Super.

2000).

       Through his appellate brief,2 Johnson challenges the trial court’s

interpretation of section 509.9 of the McConnellsburg Borough Code and its

application of section 509.9 to the obstructing highways statute. See

Appellant’s Brief, at 15-16. We interpret municipal codes in the same manner


____________________________________________


2Johnson’s issue on appeal seems to suggest a challenge to the sufficiency
and weight of the evidence underlying his conviction. However, Johnson does
not pursue these challenges in the argument section of his brief. Therefore,
we will not consider them.

                                           -4-
J-A15014-18


we interpret statutes. See City of Philadelphia v. City of Philadelphia Tax

Review Board ex rel Keystone Health Plan East, Inc., 132 A.3d 946, 952

(Pa. 2015). When interpreting a statute or code, our primary goal is “to

ascertain the intent of the enacting entity[.]” Id. “When the words of a statute

are clear and free from all ambiguity, the letter of it is not to be disregarded

under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). Additionally,

we construe every statute “if possible, to give effect to all its provisions.” Id.

§ 1921(a).

      The statute prohibiting the obstruction of a highway provides:

            § 5507. Obstructing highways and other public passages

             (a) Obstructing.- A person, who, having no legal privilege to
             do so, intentionally or recklessly obstructs any highway,
             railroad track or public utility right-of-way, sidewalk,
             navigable waters, other public passage, whether alone or
             with others, commits a summary offense, or, in case he
             persists after warning by a law officer, a misdemeanor of
             the third degree….

             (c) Definition. – As used in this section, the word “obstructs”
             means      renders     impassable      without   unreasonable
             inconvenience or hazard.

18 Pa.C.S.A. § 5507. Meanwhile, section 509.01 of the Borough Code of

McConnellsburg states:

      (a)    No person shall obstruct the public streets, alley, or sidewalk
             within the borough by coal, wood, boxes or automobiles or
             any other means whatsoever, except for the purpose of
             immediately loading or unloading, or for the purpose of
             building and construction and then only after application had
             been made to the mayor and the permit authorizes the same
             has been granted.



                                      -5-
J-A15014-18


      (b)   Whoever violates any of the provisions of this section shall
            be guilty of maintaining a public nuisance which may be
            abated in any manner provided by law.

McConnellsburg Borough Code § 509.01.

      Johnson argues that section 509.01(a) of the Borough Code provides

individuals “immediately loading and unloading” their vehicles with the “legal

privilege,” described in section 5507, to obstruct a highway. As the trial court

found that section 509.01(a) did not provide Johnson with the “legal privilege”

to obstruct the alley, Johnson contends the trial court misinterpreted the

Borough Code, and therefore, erred as a matter of law in convicting him of

obstructing highways.

      Ultimately, Johnson’s faulty logic dispenses with our need to analyze the

trial court’s interpretation of the Borough Code. Johnson’s argument relies

upon a finding that he was “immediately loading and unloading” his vehicle

when he received the obstructing highways citation. However, the trial court

specifically found that Johnson was not in the process of immediately loading

or unloading when the troopers issued Johnson the citation. See Trial Court

Opinion, 1/24/18, at 7 (finding Johnson’s activities for the preceding half-hour

did not constitute “immediate loading or unloading”). Our review of the record

supports this conclusion. As Johnson’s argument that he had the legal privilege

to block the alley hinges on the condition that he was actually loading and

unloading his vehicle when issued the citation, the trial court’s finding

otherwise defeats Johnson’s sole argument on appeal.

      Judgment of sentence affirmed.


                                     -6-
J-A15014-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/07/2019




                          -7-
