Commonwealth v. Karash

175 A.3d 306

COMMONWEALTH of Pennsylvania

v.Frederick W. KARASH, Appellant

No. 263 WDA 2017

Superior Court of Pennsylvania.

Argued July 18, 2017

Filed November 16, 2017

Frederick W. Karash, appellant, pro se.

Grant T. Miller, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: BOWES, LAZARUS, AND OTT, JJ.

OPINION BY BOWES, J.:

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 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 , 452 Pa.Super. 478, 682 A.2d 383 (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 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.

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.

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 , 461 Pa. 709, 337 A.2d 840 (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.

In Commonwealth v. Bigelow , 484 Pa. 476, 399 A.2d 392, 395 (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 , 523 Pa. 126, 565 A.2d 437 (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

(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."

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