Commonwealth v. Wituszynski

ZAPPALA, J.,

Dissenting.

Because I disagree with the majority that Sergeant Traeger had reasonable and articulable grounds to believe Appellant violated the Vehicle Code, I dissent.

Contrary to the majority, I do not believe that it was reasonable for Sergeant Traeger to have concluded that Appellant violated 75 Pa .C.S. § 3304, entitled “Overtaking vehicle on the right.” Specifically, Section 3304 states the following:

(a) General rule. — The driver of a vehicle may overtake and pass upon the right of another vehicle only under one of the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn, except that such movement shall not be made by driving off the berm or shoulder of the highway.
(2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaken vehicle, except that such movement shall not be made by driving off the roadway.
(b) Limitation. — No passing movement under this section shall be made unless the movement can be made in safety.

Under the facts of this case, we are not concerned with subsection (a)(1) of Section 3304, as Appellant was not attempting to pass a vehicle making a left turn; what is at issue here is whether Appellant failed to comply with subsection (a)(2). The majority points out that the Vehicle Code does not define the term “off the roadway” for purposes of Section 3304. The majority rejects Appellant’s assertion that Section 3304’s prohibition against a motorist overtaking vehicles on the right if the motorist drives “off the roadway” only applies where the motorist drives on the berm, shoulder or sidewalk of the road. The majority concludes that Appellant’s interpre*59tation is “unwarranted^ narrow” and is not restricted by the plain language of the statute. The majority thus concludes that Appellant violated subsection (a)(2) because

appellant clearly drove “off the roadway” that was Pearce Mill Road when he entered the parking lot which was adjacent to the roadway. It became immediately apparent that he did not do so in order to employ the parking lot as a parking lot. Instead, he immediately overtook vehicles that had been ahead of him on Pearce Mill Road by passing them upon the right, and attempted to re-enter the roadway. This was a clear violation of § 3304(a). Moreover, appellant passed the vehicles in such a manner that Sgt. Traeger reasonably determined that it was unsafe in violation of § 3304(b). Appellant’s conduct was exactly what the statute, by its plain terms, prohibits.

Maj. op. at 1288.

The majority’s conclusion, however, leads to an absurd result and does not take into consideration other relevant statutory provisions. While the term “off the roadway” is not defined in the Vehicle Code, the Code does define the term “roadway.” Section 102 of the Code defines “roadway” for purposes of the Code as follows:

That portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the sidewalk, berm, or shoulder even though such sidewalk, berm or shoulder is used by pedalcycles. In the event a highway includes two or more separate roadways the term “roadway” refers to each roadway separately but not to all such roadways collectively.

75 Pa.C.S. § 102 (emphasis added). This section specifies that the terms “sidewalk, berm or shoulder!,]” although part of a highway, are excluded from the definition of the term “roadway”. Thus, it is reasonable to conclude that, when motorists travel off the “roadway” for purposes of Section 3304, their travel will place them upon a sidewalk, berm or shoulder. Here, Appellant did not pass cars by going off the “roadway,” as that term is defined in the Vehicle Code; to the contrary, *60Appellant turned into the adjacent parking lot and legally-traveled through the lot.1

In addition to the foregoing, I disagree with the majority’s conclusion that it was reasonable for Sergeant Traeger to conclude that Appellant violated Section 3304 when he drove off the roadway that was Pearce Mill Road and traveled through the adjacent parking lot for the following reason. As noted by Judge Cercone in his dissenting opinion below,

parking lots have been traditionally viewed as “trafficways” in this Commonwealth. See Commonwealth v. Proctor, 425 Pa.Super. 527, 625 A.2d 1221, 1224 (1993) (evidence sufficiently established that mall parking lot was a “trafficway” because it was open to the public for shopping purposes in matter involving a DUI conviction) citing Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991) (parking area of condominium complex is trafficway as it is generally open to the public) and Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989) (parking lot to Elk’s Lounge is trafficway as it is generally open to the public).

Commonwealth v. Wituszynski, 750 A.2d 349, 353 (Pa.Super.2000). Additionally, the Code defines a trafficway as:

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. § 102.

Based on the foregoing, in my view, the parking lot upon which Appellant traveled was a trafficway as defined in the *61Code and as traditionally viewed in case law. Thus, I do not believe Section 3304 of the Code even applied to Appellant’s travel thereon based upon the language of Section 3101 of the Code. This provision relates to the scope of Part III of the Code relating to the operation of vehicles, including Section 3304, and specifies the following:

(a) General rule. — Except as provided in subsection (b), the provisions of this part relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a particular provision.
(b) Serious traffic offenses. — The provisions of Subchap-ter B of Chapter 37 (relating to serious ■ traffic offenses) shall apply upon highways and trafficways throughout this Commonwealth.

75 Pa.C.S. § 3101 (emphasis added).

Based upon the foregoing provision, as I believe Appellant was traveling on a trafficway when he traveled through the parking lot, I do not believe Part III of the Code was applicable to his travel.2

In order for a police officer’s stop of a motor vehicle to be justified, the officer must have articulable and reasonable grounds to suspect a violation of the Vehicle Code. 75 Pa.C.S. § 6308(b). In reviewing this standard, this Court noted the following in Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113, 1116 (1995),

If the alleged basis of a vehicular stop is to permit a determination whether there has been compliance with the Motor Vehicle Code of this Commonwealth, it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code.

*62As I do not believe Sergeant Traeger possessed the requisite articulable and reasonable grounds, i.e., the probable cause to believe that Appellant was in violation of the Vehicle Code, I do not believe the stop of his vehicle was proper. Accordingly, I would reverse the lower court decisions since I believe Appellant’s motion to suppress should have been granted.

FLAHERTY, C.J., joins this dissenting opinion.

. Judge Cercone, in his dissenting opinion below, aptly notes the absurdity that would result if the Commonwealth's broad interpretation of Section 3304 is to stand:

Finally, if we were to construe that statute in the manner the majority suggests, then ever)' driver who exits a roadway and enters a parking lot for any lawful purpose, potentially, would be in violation of the statute. This is a patently absurd result and in contravention to the law of this Commonwealth. Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa.Super.1998) (recognizing the legal concept that "when interpreting a statute, it is presumed that the legislature did not intend an absurd or unreasonable result.”) citing 1 Pa.C.S.A. § 1922(1).

Commonwealth v. Wituszynski, 750 A.2d 349, 355 n. 3 (Pa.Super.2000).

. Conversely, travel upon a sidewalk, berm or shoulder, which are part of a highway, although not part of a roadway, would be governed by Part III ol the Code and, specifically, Section 3304.