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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES C. BABB, :
:
Appellant : No. 3594 EDA 2014
Appeal from the Judgment of Sentence December 4, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division No(s).: CP-46-SA-0000588-2014
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015
Appellant, James C. Babb, appeals pro se from the judgment of
sentence entered in the Montgomery County Court of Common Pleas
following his conviction of failing to stop at a stop sign 1 and fine of $25.00
plus court costs. Appellant contends the Vehicle Code requires an
engineering and traffic investigation to justify a multiway stop and the court
erred in refusing to enforce a subpoena he served on the township. We
affirm.
We glean the facts from the notes of testimony from the trial de novo.
Officer Zack Wise, of the Lower Providence Township Police Department,
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3323(b).
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testified that he made a traffic stop for a stop sign violation on April 16,
2014. N.T., 12/4/14, at 4, 5. He was “sitting at Pinetree Drive watching a
four-way stop sign at Pinetree Drive and Pinetown road. [He] stopped a
silver Honda Odyssey on Pinetree Road at Brenda Lane.” Id. at 5. The
officer identified Appellant as the individual who was in the vehicle. Id. at 6.
He “advised [Appellant] of the reason of the stop after first receiving his
license, registration, insurance. Again, [Officer Wise] identified him as the
owner of the vehicle . . . .” Id. at 6. He observed Appellant go through the
stop sign. Id. at 10.
Appellant advised the court he had a subpoena for the township
records officer, Denise Walsh. Id. at 11. He had requested certain
documents from the township. Id. as 12. He stated to the court:
The documents that I requested from the township are the
traffic studies, ordinances, and correspondence with
Pennsylvania Department of Transportation regarding the
intersection of Pinetown Road and Brenda Lane, meeting
minutes for the meeting where ordinances related to the
intersection of Pinetown Road and Brenda Lane were
enacted, and for the 12 months preceding the enactment
of those ordinances.
Id. Appellant introduced into evidence a letter from the Lower Providence
Township dated May 14, 2014.2 Id. at 17. Appellant argued the stop sign
2
The letter stated as follows:
Thank you for contacting Lower Providence Township with
your Request for Information pursuant to the Pennsylvania
Right to Know Law. On May 7, 2014, the Township
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did not meet the requirements of “Title 75, Section 6109, Paragraph (e).”
Id. at 13. He stated that in response to his request for “a copy of the
required investigation from the township [he] was informed there is none.”
Id. Appellant argued the “township has failed to perform the required study
by law and therefore cannot enforce this stop sign.” Id. at 18.
Judgment of sentence was entered on December 4, 2014. This timely
appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal3 and the trial court filed a
responsive opinion. Appellant raises the following issues for our review:
received your request for “all engineering and traffic
investigations related to the stop signs at the intersection
of Pinetown Road and Brenda Lane.”
No record exists in response to the information requested.
You have a right to appeal this response in writing to Terry
Mutchler, Executive Director, Office of Open Records,
Commonwealth Keystone Building, 400 North Street, 4th
Floor, Harrisburg, PA 17120. If you choose to file an
appeal you must do so within 15 business days of the
mailing date of the agency’s response.
Appellant’s Unmarked Ex.. The letter was signed by Denise Walsh, Opens
Records Officer. Id. There is no evidence in the record that Appellant took
an appeal. We note the letter was dated May 14, 2014, and the trial de
novo did not take place until December 4th.
3
Appellant raised an additional issue in his Rule 1925(b) statement
denominated as “Procedural Errors.” Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal, 1/21/14, at 1. He claimed the judge was acting as
a prosecutor. Id. This issue is not identified in the statement of questions
presented section of his brief or developed in the argument section of his
brief. Therefore, the issue is abandoned on appeal. See Commonwealth
v. Dunphy, 20 A.3d 1215, 1218 (Pa. Super. 2011).
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1. Does the Vehicle Code and specifically 75 Pa.C.S.A. §
6109(e) along with the associated regulations promulgated
by the department require an engineering and traffic
investigation to justify a multiway stop that was
established after the Vehicle Code of 1976 was published?
2. Did the trial court err when it refused to enforce the
subpoena [Appellant] served upon the township requesting
documents relevant to establishing the legality of the
multiway stop?
Appellant’s Brief at 4.
First, Appellant contends Section 6109(e)4 of the Vehicle Code
required an engineering and traffic investigation to justify a multiway stop.
He argues the Pennsylvania Code, specifically, Subsection 212.106(c), and
The Manual of Uniform Traffic Control Devices (“MUTCD”)5 outline the
restrictions that apply to the use of multiway stop signs. Appellant’s Brief at
9-10. He claims Section 6109(e) along with the aforementioned regulations
require an engineering and traffic investigation to establish a multiway stop.
Id. at 11.
4
This section provides:
(e) Engineering and traffic investigation
required.─Action by local authorities under this section
shall be taken only after completing an engineering and
traffic investigation when and in such manner as required
by regulations promulgated by the department. No
engineering and traffic investigation is required to establish
a speed limit under section 3362(a)(1.2) (relating to
maximum speed limits).
75 Pa.C.S. § 6109(e).
5
We note Appellant did not argue these regulations before the trial court.
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Our review is governed by the following principle: “Where the trial
court has heard a case de novo, we must determine whether the findings of
fact are supported by competent evidence or any error of law has occurred.”
Commonwealth v. Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004).
In the case sub judice, the trial court opined:
[A]ppellant presented no contrary testimony at trial,
and raises no challenge on appeal, to Lower Providence
Township Zachary Wise’s testimony that on April 6, 2014
he observed and cited [A]ppellant for the stop sign
violation.
[A]ppellant’s argument, predicated on 6109(e),
Engineering and Traffic Investigation Required─ is
meritless. 75 Pa.C.S. [ ] § 3323(b)[6] contains no
6
Section 3323(b) provides:
(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.
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provision that requires the Commonwealth to prove that
the stop sign at issue was reasonably and properly placed
at the intersection. It clearly and simply requires every
driver to stop before proceeding through a stop sign. The
Commonwealth has no burden to prove that the placement
of the stop sign was proper; it is not an element of the
offense.
* * *
[Appellant] failed to rebut the statutory presumption
that the township acted reasonably in the placement of the
stop sign. 75 Pa.C.S. § 6109(a)[7] . . . .
75 Pa.C.S. 3323(b) (emphasis added).
7
The statute enumerates presumed exercises of police power in pertinent
part as follows:
(a) Enumeration of police powers.─The provisions of
this title shall not be deemed to prevent the
department on State-designated highways and local
authorities on streets or highways within their
physical boundaries from the reasonable exercise of
their police powers. The following are presumed to be
reasonable exercises of police power:
* * *
(6) Designating any highway as a through highway or
designating any intersection or junction of roadways
as a stop or yield intersection or junction.
75 Pa.C.S. § 6109(a)(6) (emphases added). It is well-established that
[o]ur General Assembly has established certain
presumptions to guide the courts in interpreting statutory
enactments, including presumptions that the legislature
“does not intend a result that is absurd, impossible of
execution or unreasonable” and “intends the entire statute
to be effective and certain.” 1 Pa.C.S. § 1922. In
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* * *
[The trial court] note[d] further that 75 Pa.C.S.[ ]
§6124[8] authorizes local authorities to erect and maintain
stop signs at intersections under their jurisdiction.
* * *
The Commonwealth was entitled to the presumption
that the placement of the stop sign at issue was
reasonable and authorized. [Appellant] offered no
evidence that the stop sign was non-conforming or was not
placed by the official act or direction of lawful authority
and therefore his argument must fail.
Trial Ct. Op., 2/6/15, at 3-4 (some citations omitted). We agree no relief is
due. We discern no abuse of discretion or error of law. See 75 Pa.C.S. §
3323(b); 75 Pa.C.S. § 6109(a)(6); Kaufman, 849 A.2d at 1259.
Lastly, Appellant contends the court erred in refusing to enforce the
subpoena he served on the township requesting documents that would
accordance with Section 1922, we will not interpret a
statute in such a way as to render it meaningless.
McGrory v. Com., Dept. of Transp., 915 A.2d 1155, 1160 (Pa. 2007).
8
The statute provides:
The department on State-designated highways, including
intersections with local highways, and local authorities
on intersections of highways under their jurisdiction may
erect and maintain stop signs, yield signs or other
official traffic-control devices to designate through
highways or to designate intersections at which vehicular
traffic on one or more of the roadways should yield or stop
and yield before entering the intersection.
75 Pa.C.S. § 6124 (emphasis added).
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establish that the multiway stop sign was not compliant with the law.
Appellant’s Brief at 12. Appellant avers the court “dismissed [his]
arguments as meritless and elected not to enforce the subpoena that would
have established [his] case.” Id. at 16.
As a prefatory matter, we consider whether Appellant has waived this
issue on appeal. At trial, Appellant advised the court that he had a
subpoena for a witness that was not in the courtroom. The record reveals
the following regarding this issue.
[Appellant]: . . . First, I have a subpoena for a witness that
I do not see is here. I subpoenaed the records officer from
the township, Denise Walsh.
Can I give you a copy of the subpoena?
* * *
Now, I’d like to try to proceed without the witness,
but I don’t know if you would be willing to accept her letter
as evidence.
But we may need the witness to be here, and I may
need to ask you to enforce the subpoena.
The Court: Let me see the letter.
But now do you have questions of the [police] officer
with respect to the substance of what he said?
Do you have questions of the officer?
N.T. at 11, 14. Appellant proceeded to cross-examine the police officer. At
the conclusion of his cross-examination, Appellant stated:
I would like to introduce this letter as evidence.
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Will you accept this letter as evidence?
The Court: Sure.
───
(Unmarked letter from Lower Providence Township
dated 5-14-14 was received in evidence.)
───
[Appellant]: Okay.
The Court: Sure.
Do you wish to present evidence?
Any other testimony?
[Appellant]: Not at this time, no.
The Court: All right.
Any argument? Do you have argument?
[Appellant]: Well, my argument is that the township has
failed to perform the required study by law and therefore
cannot enforce this stop sign.
The Court: I find you guilty of this citation. You’re
sentenced to pay a fine of $25, plus the court costs.
You have 30 days in which to appeal to the Superior
Court of Pennsylvania.
Wait for a copy of the order.
[Appellant]: I would like to object to that.
The Court: Sir, wait for a copy of the order. The [c]ourt
has ruled. You have the right of appeal within 30 days to
the Superior Court.
N.T. at 11, 17-19.
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Appellant did not ask the trial court to enforce the subpoena. “Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a); accord Commonwealth v. Wholaver,
989 A.2d 883, 892 (Pa. 2010). Therefore, this issue is waived. See
Pa.R.A.P. 302(a); Wholaver, 989 A.2d at 892.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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Com. v. Babb, J.
Combined Opinion