Com. v. Cozzone

• Decision Date: 30 July 1991
• Citation: 593 A.2d 860,406 Pa.Super. 42
• Parties: COMMONWEALTH of Pennsylvania v. Anthony COZZONE, Appellant.
• Court: Pennsylvania Superior Court

Page 860

593 A.2d 860

406 Pa.Super. 42

COMMONWEALTH of Pennsylvania v. Anthony COZZONE, Appellant.

Superior Court of Pennsylvania.

Argued April 3, 1991.

Filed June 11, 1991.

Reargument Denied July 30, 1991.

Joseph P. Green, Jr., West Chester, for appellant.

Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.

Before WIEAND, OLSZEWSKI and BROSKY, JJ.

WIEAND, Judge:

Anthony Cozzone was charged with driving while under the influence of alcohol when, on March 12, 1989, the vehicle which he was driving went out of control and struck two parked cars and a multi-unit mailbox in the parking lot of a residential condominium complex. He was tried by jury and was found guilty on August 18, 1989. Sentencing was deferred pending determination of post-trial motions. The motions were denied on April 25, 1990.

In the meantime, on November 18, 1989, Cozzone was again arrested and charged with driving while under the influence of alcohol. As a condition for being released on bail, he entered an inpatient alcohol treatment center, where he remained for thirty-two (32) days. On June 21, 1990, he entered a plea of guilty to this charge.

On July 30, 1990, Cozzone appeared for sentencing on both convictions. For the first offense, he was sentenced to serve a term of imprisonment for not less than forty-eight (48) hours nor more than twenty-three (23) months. For the second offense, Cozzone was sentenced to serve a consecutive sentence of imprisonment for not less than thirty (30) days nor more than twenty-three (23) months. A motion to modify the sentence was denied, and Cozzone appealed. ¹

In the first case, Cozzone contends that the evidence was insufficient to sustain the jury's guilty verdict because the Commonwealth failed to prove that he had operated his vehicle on a highway or trafficway. In the second case, he argues that the sentencing court committed error by (1) imposing a mandatory minimum sentence for a second offense when he was being sentenced for both offenses on the same day; and (2) failing to give him credit for time spent in an inpatient, alcohol treatment facility prior to his entering a plea of guilty to the second drunk driving offense.

The First Offense

Section 3731 of the Vehicle Code, which makes it a misdemeanor of the second degree to operate a vehicle while under the influence of alcohol, applies "upon highways and trafficways throughout this Commonwealth." 75 Pa.C.S. § 3101(b). Therefore, an essential element of the offense is that a vehicle be operated on a highway or trafficway while the operator is under the influence of alcohol. Commonwealth v. Karenbauer, 393 Pa.Super. 491, 494, 574 A.2d 716, 718 (1990); Commonwealth v. McFadden, 377 Pa.Super. 454, 457, 547 A.2d 774, 775 (1988). A highway is defined as follows:

The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.

75 Pa.C.S. § 102. A trafficway is defined 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.

Id.

In determining whether the Commonwealth's evidence was sufficient to prove this element of the offense, we determine, as in all challenges to the sufficiency of the evidence, "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984). See also: Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989). " 'Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.' " Commonwealth v. Stockard, 489 Pa. 209, 213, 413 A.2d 1088, 1090 (1980), quoting Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975).

The evidence in this case is clear that the parking lot on which appellant had his accident was not a publicly maintained highway. Whether it was a trafficway must be determined according to whether the evidence shows that the parking lot was "open to the public for purposes of vehicular travel as a matter of right or custom." 75 Pa.C.S. § 102.

Officer Charles E. Althouse, a member of the Willistown Township Police Department, was a resident of the Village Knoll condominium complex in Malvern, Chester County. On March 12, 1989, at or about 3:15 p.m., he was seated in his vehicle in the parking lot of the condominium complex, waiting for his wife. Althouse observed appellant driving a red Dodge truck through the parking lot at a high rate of speed. Appellant's vehicle struck the vehicle in which Althouse was seated, then struck another vehicle, and finally collided with a multi-unit mailbox at the entrance to the Knoll Village complex. Althouse described the parking lot and its accessibility to members of the public as follows:

Q. Officer Althouse, is the Village Knoll complex located off a main road?

A. Yes. It is off of King Road, King Street.

Q. And is the lot paved?

A. Yes, it is.

Q. And are there any barriers that prohibit entrance to that lot such as a gate that comes down or any sort of barrier whatsoever?

A. Not at all.

Q. And back on March 12, 1989, were there any no parking signs?

A. None.

Q. And were there any signs that said reserve parking?

A. None whatsoever.

Q. And on the twelfth of March were there any private property signs?

A. No, there was not.

Q. And were there any no trespassing signs?

A. No, there was not.

Q. In order to gain entrance to that lot from King Road or King Street do you need any sort of sticker or a pass?

A. Nothing whatsoever.

Q. And can visitors who are visitors of the condominium residence enter that lot and park there?

A. Yes, they can.

Q. And have they in fact done that?

A. Oh, yes.

Q. Mr. Althouse, could you give the members of the jury and the Court some sense what you have seen this lot used for, the circumstances under which it has been used?

A. Well, I have seen the delivery vehicles in there such as UPS.

....

THE COURT: ....

Officer Althouse, can you tell us what use was made of this area in terms of vehicular traffic for the two weeks prior to and up to and including March 12, the time of the accident? Can you do that for us?

THE WITNESS: Well, it has traffic on it, constant basis, coming and going with the residents that live there, visitors, mail deliveries, service trucks coming in and out, trash trucks on a frequent basis, every other day.

BY MR. SIEGEL [Assistant District Attorney]:

Q. What if any transportations were provided?

A. Cabs enter. There is a disabled gentleman that lives in the complex. Cabs come in there to pick him up on a frequent basis.

Q. And prior to March 12, had you, prior to that time, had people place[d] their condominiums up for sale?

A. There was--at that particular time there was a unit in the complex that was up for rent and there is--

Q. Could you tell the Court what you observed with respect to this use?

A. I have observed cars coming through slowly looking at the different units, check out the complex area.

Q. And within this complex, the Village Knoll complex, is there--could you describe for the members of the jury what if any area there is for driving as opposed to parking?

A. Well, the specific marked places for driving is on the left as you proceed around and on the right is the traffic where traffic can move, the movement for traffic.

A review of the decided cases suggests that this evidence was sufficient to support a determination by the jury that appellant had been driving on a trafficway.

In Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), a unanimous panel of the Superior Court held that the parking lot of an Elks Club was a trafficway, even though the lot had been posted with a sign declaring it to be private property. The Court reasoned as follows:

It would raise form to towering levels above substance if parking lots, in which vehicular traffic is encouraged and occurs, sometimes at high rates of speed, were to become "DWI-free zones," in which drunk driving is tolerated from entrance to exit. Such a construction would seriously undermine the effectiveness of any drunk driving prohibitions.

In Wilson's case, the trial court found the Elks Club parking lot to be open to the public by custom even though the lot was marked private by a sign. This fulfills the prerequisite that a trafficway, by definition, must be open to the public. Even if restricted by signs, if a parking lot is used by members of the public, it is a trafficway for purposes of 75 Pa.C.S.A. § 3101.

Commonwealth v. Wilson, supra at 257, 553 A.2d at 454. The facts of the instant case are stronger, for the parking lot at the Knoll Village condominium complex was not posted with notices declaring it to be private property, and public access thereto was not restricted in any way. As in Wilson, however, the lot was open to and used by the public.

A similar conclusion was reached by the Commonwealth Court in Commonwealth, Department of Transportation v. Bendik, 112 Pa.Commw....