Com. v. Karash, F. , 175 A.3d 306 ( 2017 )

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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.
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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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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.
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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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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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