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2018 PA Super 52

COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. TYLEESIA KITCHEN, Appellant No. 148 EDA 2016

Appeal from the Judgment of Sentence Entered December 9 , 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0006204

- 2015

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,

SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY BENDER, P.J.E.: FILED MARCH 09, 2018 Appellant, Tyleesia Kitchen, appeals from the judg ment of sentence of

6

- 23 months’ incarceration, followed by an aggregate term of two years’ probation , imposed after she was convicted for drug offenses and, most pertinent to this appeal, false ide ntification to law enforcement (“False ID”), 18 Pa.C.S. § 4914. Appellant claims the Commonwealth failed to present
sufficient evidence that she was “informed” that she was “the subject of an official investigation of a violation of law” when she falsely identified herself.
Id. After careful review, we agree, and reverse Appellant’s conviction for
False ID , vacate the corresponding sentence, but othe rwise leave th e remainder of Appellant’s judg ment of sentence intact

. The trial court summarized the facts adduced at trial as follows:J

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- Philadelphia Police Officer Thomas Dempsey, assigned to the 35th District, testified that on June 2, 2015, at appro ximately 3:00 a.m., he performed his tour of duty in the 5531 North 5 th Street ar ea of the city of Philadelphia. Officer Dempsey stated that he was traveling northbound on 5th Street in a patrol car with his partn er, Officer Hanton, approaching Duncannon [street] when he came into contact with [Appellant] operat ing a white Nissan Altima with New York tag GSD4632. He observed [Appellant] head westbound on Duncannon at 5 th Street and then make a right

- hand turn onto 5th Street, heading northbound, with out u sing a turn signal. Officer Dempsey activated his l ights and sirens and pulled [Appellant] over approximately three to four (3

- 4) blocks up at 5531 North 5th Street for failing to signal on the turn. Officer Dempsey stated that he then appr oached the dri ver's side of the vehicle and that [Appellant] was the only person in the vehicle. Officer Dempsey testified that he asked [Appellant] for her license, registration, and insurance. [Appellant] was unable to provide any form of id entification and notified Officer D empsey that the car was rented. [Appellant] could not produce any documen ts to prove a rental agreement. Subsequent to fail ing to give Officer Dempsey any of the requested identification, [Appellant] gave him the name of "Chelsea Thomas" with a date of birth of 12/21/90. [Appellant] provided Office r Dempsey with a TD Bank credit card with the name "Chelsea Thomas" and a social securi ty number. Officer Dempsey stated that from his investigation, the name "Chelsea Thomas" came back with a suspended license. Officer Dempsey stated that he and his partner then decided to live s top the vehicle for the suspended license. Officer Dempsey te stified that he and his partner followed procedure: they notified the P arking Authority, removed [Appellant] from the vehicle, and performed a search incident to the live stop of the vehicl e to "make sure there was [ sic ] no dangerous things in the vehicle and to inventory anythin g of the driver, money that was there, whatever was valuable, just to cover all of my bases." Officer Dempsey testified that upon searching the vehicle pursuant to the live stop, he noticed a 12

- ounce green can of Mountain Dew in the driver's seat cup holder, which he testified caught his eye because i t was larger than usual, looked swollen, and there was no condensation. Officer Dempsey testified tha t he possesses ample experience discovering narcotics hidden inside soda cans; during his years on the force, he has uncoveredJ

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approximately fifteen (15) to twenty (20) false cans, most of them soda ca ns, and only one of them was empty and did not contain narcotics. From this experience, Officer Dempsey stated that he has made several na rcotics arrests where narcotics were hidden in false cans.
Officer Dem psey testified that he touched the can and f elt that it was rock hard [,] which further indicated from his experience that this was a false can

. Officer Dempsey proceeded to pick up the can and to unscrew the top, which revealed that the can was indeed fal se; inside the can were seventy

- six (76) small baggies with an off

- white c hunky substance, crack cocaine. Officer Dempsey stated that he arrested [Appellant] and placed her in the back of his vehicle. He continued his search of the vehicle pursuant to li ve stop procedure and discovered a driver's license with a different name under the b rake pedal on the driver's side floor area. Officer Dempsey ran the disc overed driver's license through the system to find that name also had a suspended license

. Officer Dempsey testified that he continued with the liv e stop and [was] completing paperwork when O fficer Snell arrived as backup. Officer Snell completed an inventory search of the trunk of [Appellant] 's vehicle in Officer Dempsey's presence. Upon opening the trunk, Officer Dempsey observed a clear san dwich bag with eighty

- four (84) zip tie bag gies with crack cocaine, an off

- whit e chunky substance inside them. Officer Dempsey stated that in total he recovered one hundred and sixty (160) baggies of crack cocai ne later placed on Property Receipt No. 31976333. The false Mountain Dew can was placed on Property Receipt No. 3197634. A search i ncident to arrest recovered one hundred and forty

- five dollars ($145) in US currency from [Appellant] 's front pants pocket later placed o n Property Receipt No. 3197635. Officer Demp sey stated that the vehicle was live stopped and [Appellant] transported to the 3 5th District for processing. Officer Dempsey testified that the identification was found on the driver's side floor area under the brake pedal. Officer Demp sey stated that the name of the driver's license was [Appellant] 's, Tyleesia Kitchen, and had a date of birth of 7/10/90 with a picture matching what [Appellant] looked like on the day in q uestion. Officer Dempsey stated that this information was inconsistent w ith the information provided by [Appellant] when he first asked her for her identification. He explained that [Appellant]J

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first gave him the name "Chelsea Thomas" which, through furthe r investigation, he beli eved to be [Appellant] 's girlfriend. Officer Dempsey restat ed that he determined that both "Tyleesia Kitchen" and "Chelsea Thoma s" did not have valid licenses. Officer Dempsey further testified that in his nine years on the job he has seen fifteen to twen ty (15

- 20) false cans. Officer Dempsey stated that most of these cans are soda cans and th at he has also observed "Fix

- A

- Flat cans, a Pringles can, but the majority are soda cans." Officer Dempsey stated that h e has found narcotics in these false cans f ourteen (14) out of fifteen (15) times, speci fying only one occasion where a false can was empty. Officer Dempsey testif ied that the can in the instant case caught his eye before he touched i t. He stated, "[i]t looked like it was swelled up. There was n o water drippi ng off of it as if it was cold. It was swel led

- up looking and that caught my eye and that's why I touched it. I imme diately felt it was rock hard."
When asked to describe the area where [Appellant] 's vehicle was stopped, Officer Dempsey tes tified that it was at 5 th and Olney where [Appellant] pulled over to the right, placing her vehicle on ly partially in a parking spot. Officer D empsey stated that [Appellant] 's vehicle was interfering with traffic as half of [Appellant] 's vehicle was stick ing out in the north bound [ sic ] lane causing cars to have to g o partly in the southbound lane to get past her. Officer Dempsey describe d the area as heavily populated and busy. Officer Dempse y stated that this area is well [ ] know n by police to be a common site for loud musi c, narcotics calls and arrests.
On cross

- examination, Officer Dempsey affirmed that [Appellant] 's car had New York plates and that it was rented. [Appellant] told Officer Dempsey that "Chelsea rented it ." Beca use [Appellant] did not refer to herself in the first person, Officer Dempsey stated "that was one of the things th at stuck out because either she was talking about herself in the third person or she just messe d up." When asked to review the notes of test imony from the preliminary hearing, marked as De fense Exhibit 1 (D

- 1), Officer Dempsey affirmed that he stated that there were no cars parked on 5 th Street, there were plenty of spots, and that [Appellant] had pulled over in a legal park ing spot. Officer Dempsey further affirmed that he answered in the affirma tive at the preliminary hearing when asked if it was not until he had removed [Appellant] from the vehicle and actually picked up the can that he realized it was a false can.J

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- Officer Dempsey testifie d that after he determined that Chelsea Thomas had a suspended license, he removed [Appellant] from the car and placed her in the police car, un

- handcuffed and shut the police car door. Officer Dem psey affirmed that he began the inventory search of the ve hicle once he verified that [Appellant] had a suspended license

. Officer Dempsey explained that he believ ed [Appellant] to be "Chelsea Thomas" because she provided that name and the social security number. Trial Court Opinion, 6/15/16, at 2

- 6 (footnote an d citations omitted)

. The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance (PWID) , 35 P.S. § 780

- 113 (a)(30); possession of a controlled substance, 35 P.S. § 780

- 113 (a)(16); and False ID. Appellant filed a timely suppre ssion motion on August 4, 2015. On October 7, 2015, the trial court denied Appellant’s suppression motion, conducted a non

- jury trial, and found Appellant guilty on all counts. On December 9, 2015, the trial court sentenced Appellan t to 6

- 23 months’ incarceration and 2 years’ probation for PWID, and a concurrent term of 12 m onths’ probation for False ID. The court imposed n o further penalty for Appellant’s possession

conviction

. Appellant filed a timely notice of appeal on January 5, 2016 , and

a timely, court

- order ed Pa.R.A.P. 1925(b) statement on February 25, 2016

. The trial court filed its Rule 1925(a) statement on June 15, 2016. A panel of this Court affirmed Appellant’s judgment of sentence on January 12, 2017. On January 26, 2017, Appellant filed a timely application
for en banc reargument. On March 10, 2017, this Court granted en banc reargument, and simultaneously withdrew the January 12, 2017 memorandum affirming Appellant’s judgment of sentence.J

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Appellant now presents t he following question for our review: “Was not
the evidence insufficient to sustain a conviction for false identification to law
enforcement where the police officers never informed [A] ppellant that she was the subjec t of an official investigation?” Appel lant’s Substituted Brief at 3.
Our standard of revie w of sufficiency claims is well settled: A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonab le doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[, ] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000) (internal

ci tations omitted). In essence, Appellant’s claim challenges the trial court’s interpretation
of the False ID statute , which reads as follows : A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law. 18 Pa.C.S. § 4914(a) (emphasis added) . False ID constitutes a misdemeanor of the third degree. 18 Pa.C.S. § 4914(b). Appellant argues that the police must expressly inform an individual that they are “ the subject of an official inve stigation of a violation of law[,]”J

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for that individual’s subsequ ent presentation of false ident ification to constitute a crime. 18 Pa.C.S. § 4914(a). The Commonwealth disagrees , contending that an individual can be so “informed ” by t he attendant circumstances, including the conduct of the investigating officer, and that no spoken pronouncement is required by the statute. Commonwealth’s
Substituted Brief at 7

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The trial court adopted the Commonwealth’s position . It found that Appellant was informed that s he was subject to an investigation by “the surrounding circ umstances of the traffic stop[,]” which the court concluded, “implied there was an official investigation of a violation of law prior to the presentment of false identification.” TCO at 11. The trial court distinguished
the facts of this case from this C ourt’s decision in Commonwealth v. Barnes , 14 A.3d 128 (Pa. Super. 2011). The Commonwealth supports the trial court’s reasoning, arguing that the statute “does not require a verbal pronouncement, or any particular method of informing.” Commonwe alth’s Su bstituted Brief

at 5. Appellant argues that the trial court’s interpretation of the False ID

statute was rejected by our Supreme Court’s decision In re D.S. , 39 A.3d 968 (Pa. 2012).
Here, t he police did not mak e an express statement to Appellant that
she was under investigation prior to her presentment of f alse credentials. There is also no question before us whether Appellant’s credentials were false,

or whether the police were in uniform

. Appellant does not dispute that a reasonable person would likely understand that they were under investigationJ

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given the attendant circumstances of this case. Accordingly, there are no facts in dispute, and the matter before us is a pure question of law regarding the interpretation of the legislature’s use of the term , “informed [,] ” in the
False ID statute . Under such circumstances, “our standard of review is de

novo and our scope of [review] is plenary.” Commonwealth v. Crawley , 924 A.2d 612, 614 (Pa. 2007).

W hen interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. § 1921(a); Commonwealth v. Brown , 423 Pa. Super. 264, 266, 620 A.2d 121 3, 1214 (1993); Commonwealth v. Edwards , 384 Pa. Super. 454, 460, 559 A.2d 63, 66 (1989), appeal denied , 523 Pa. 640, 565 A.2d 1165 (1989). In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. 1 Pa.C.S.A. § 1903(a). See Commonwealth v. Berryman , 437 Pa. Super. 258, 649 A.2d 961 (1994) ( en banc ). When construing one section of a sta tute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in drafting the statute, the General Assembly intended the entire statute to be effective. 1 Pa.C.S.A. § 1922

. See Commonwealth v. Mayhue , 536 Pa. 271, 307, 639 A.2d 421, 439 (1994); Commonwealth v. Berryman , supra at 268, 649 A.2d at 965. Statute headings may be considered in construing a statute. 1 Pa.C.S.A. § 1924. However, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921(b); Commonwealth v. Reeb , 406 Pa. Super. 28, 34, 593 A.2d 853, 856 (1991), appeal denied , 530 Pa. 665, 610 A.2d 45 (1992). Commonwealth v. Lopez , 663 A.2d 746, 748 (Pa. Super. 1995). Our first impression of the express language of the False ID statute coincides with Appellant’s interpretation . The statute does not specificallyJ

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state that a person may be “informed” of an investigation by inference alone

. In crafting the Fal se ID statute, the legislature immediately modified the term
“informed” with the phrase, “ by a law enforcement officer [

. ] ” 18 Pa.C.S. § 4914(a). The use of the term “informed” in this context strongly suggests that the legislature intended a statutory el ement akin to a formal notice requirement , rather than imposing a n additional mens rea element focused on
the accused’s inferential knowledge about the presence of an investigation at the time he or she presents false credentials . Our review of the releva nt
caselaw confirms this view.

In Barnes , a police officer stopped a vehicle for having air fresheners hanging from the rear view mirror

. See 75 Pa.C.S. § 4524(c) (prohibiting “any object or material hung from the inside rearview mirror”). When the officer asked the passenger, Barnes, for his identification, Barnes offered a
false name and birthdate. The officer ran a co mputer check on the given name, and no matching record was found. When the officer asked Barnes for his name again, Bar nes replied with the same fake name and a different birthdate, but that information also did not check out. At that point, the officer
informed Barnes that he was unde r investigation. Barnes then repeated the
fake name and birthdate.
The Commonwealth c harged Barnes with False ID. However, the trial court granted his motion for habeas corpus , thereby dismissing the charge, on the basis that “the official investigation element [of 18 Pa.C.S. § 4914(a)] cannot be satisfied solely by an investigation of th e individual's providing falseJ

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information as to his identity.” Barnes , 14 A.3d at 131. On appeal, this Court agreed with that determination. Id. The Commonwealth argued , alternatively , that Barnes was the subject of an investigation into the Section 45 24(c) violation or potential drug crimes. We also rejected that argument, reasoning: The Commonwealth further suggests that the circumstances surrounding the traffic stop provided Officer Reeder grounds for an official investigation for a violation of law . The Commonwealth cites the presence of the air fresheners, which are recognized as useful in masking the odor of narcotics, the high crime area, and the fact that neither the driver nor [Barnes] could produce any actual identification. Assuming, for pu rposes of this discussion, that the circumstances of the stop provided grounds for an investigative detention, we would agree that the statute would be violated by the provision of false information after being provided proper notice . However, the stumbli ng block to the Commonwealth's argument is Officer Reeder's admission that the investigation he referenced in notifying [Barnes] that he was now the subject of an official investigation was the failure to provide truthful information. Officer Reeder was a sked, “So your official investigation was involving that he was giving you a false name?” To this question, Officer Reeder replied, “Yes, after the second time.” Going back to our initial point of discussion, if [Barnes] was not yet under official invest igation for a violation of law when asked for his name and DOB, the provision of false information was not a violation of law. Thus, that failure to provide true information cannot constitute the basis for the official investigation of a violation of law. Officer Reeder may very well have been investigating [Barnes’] provision of false information regarding his identity; however, such investigation was not for a violation of law pursuant to Section 4914.
Barnes , 14 A.3d at 131

– 32 (emphasis added). The Ba rnes Court then rejected the Commonwealth’s final argument that the attendant circumstances imposed a duty on Barnes to answer the officer’s inquiriesJ

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truthfully. We dismissed that claim for want of any legal authority outside the “parameters set forth in Section 4914.” Id. at 132.
We find no support in our Barnes decision for the Commonwealth’ s interpretation of Section 4914(a) , and at least some modicum of support for Appellant’s claim. Barnes is technically off

- point in that it did not concern

any legal determination regarding the form of the notice given. Indeed, the
officer in that case specifically told Barnes that he was under investigation
before Barnes offered false credentials for the third time. The only False ID
violation at issue in Barn es appears to be the false statement Barnes made
after he was specifically and verbally informed that he was under investigation. However, t he Barnes Court did note that, “ [l] iterally read, the statute in question does not make it illegal to provide to a law enforcement authority false information as to one's identity unless and until one is first apprised that he is the subject of an official investigation of a violation
of law .” Id. at 131 (emphasis added). 1 Our Supreme Court’s decision in D.S. prov ides more recent and compelling support for Appellant’s stricter interpretation of Section 4914(a). In that case, while investigating an armed robbery, plaincloth es officers approached D.S. and two other individuals in a park , as D.S. matched the robbery victim’s description of his assailant. D.S. , 39 A.3d at 970. The police

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1 The term “apprise,” means to “inform or tell (someone) .” The New Oxford American Dictionary 76 (1st ed. 2001) (emphasis added). This dovetails with the Barnes Court’s reference to “ proper notice ” elsewhere in the opinion. Barnes , 14 A.3d at 131.J

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ordered D.S. and his cohorts to put their hands in the air, and then demanded their names, ages, and addresses. Id. D.S. responded with a fake name.
Id. The officers did not iden tify themselves as police, nor did they specifically
and /or verbally inform D.S. that he was under investigation. Id. Nevertheless, D.S. was charged with, and ultimately adjud icated delinquent of, a False ID offense. On appeal, D.S. argued, “the evidence was insufficient to support his adjudication of delinquency ... because the officers failed to identify
themselves or advise D.S. that he was the subject of an official investigation prior to D.S. [’s] providing police with a false name .” Id. at
971 (emphasis added)

. This Court initially “upheld the adjudication of delinquency[,]” reasoning that “ although there was no direct evidence that the police officers affirmatively identified themselves, or indicated they were investigating a robbery, t he totality of the circumstances established that D.S. was aware of these facts when he provided the police with a false name and
birthdate. ” Id

. (summarizing the Superior Court’s memorandum). However, our Supreme Court reversed that decision, reasonin g: Upon review, we find the language used by the General Assembly in Section 4914 is clear and free from ambiguity. As noted above, a person violates the statute if he furnishes law enforcement authorities with false information about his identity “after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.” 18 Pa.C.S.A. § 4914. Under the plain language of t he statute, three conditions must be satisfied before an individual will be found to have violated the statute by providingJ

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false information about his identity. First, if the law enforcement officer is not in uniform, the officer must identify himself as a law enforcement officer. Second, the individual must be informed by the law enforcement officer that he is the subject of an official investigation of a violation of law. Third, the individual must have furnished law enforcement authorities with false information after being informed by the law enforcement officer that he was the subject of an official investigation of a violation of law. We cannot agree with the Commonwealth's suggestion that an individual may be “informed” of an officer's identity an d/or purpose by surrounding circumstances. In stating that an individual violates Section 4914 when he provides false information to law enforcement authorities “after being informed by a law enforcement officer” that he is the subject of an official inve stigation, the General Assembly made clear its intent that such information must be provided to the individual by the law enforcement officer. While the word “informed” might in other contexts carry the broader meaning the Commonwealth suggests, here it i s linked to the law enforcement officer, indicating that the information conveyed must come from the law enforcement officer. In short, there is no language in the statute to suggest that the General Assembly intended that an individual's knowledge could b e derived from the surrounding circumstances. Accordingly, the Superior Court's holding to the contrary in the case sub judice was erroneous, and, indeed, inconsistent with its subsequent interpretation in Barnes

. D.S. , 39 A.3d at 974

– 75 (Pa. 2012) (emphas is added). Thus, not only is D.S. directly on point for the issue before us , it supports Appellant’s interpretation of Section 4914 (a), contradicts the interpretation offered by the Commonwealth, and resolves any ambiguity left
in the wake of our decisi on in Barnes . In order to sustain a conviction for
False I D , the Commonwealth must prove that the individual was told by policeJ

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that he or she was under investigation , and that must occur prior to the individual’s presentment of false identity information. Nevertheless, the Commonwealth argues further that it was not the “surrounding circumstances,” but “the uniformed officer’s conduct[,]” which informed Appellant that she was under investigation. Commonwealth’s Brief

at 8

- 9. This further par sing of the D.S. decision and the text of Section

4914 (a) is unconvincing. The un i formed officer’s conduct is a “surrounding
circumstance” that preceded Appellant’s presentment of false identification.
We note that the Commonwealth’s loose interpretation of Section

4914 (a) appears to mirror Former Justice Eakin’s dissent ing opinion in D.S. If there is any doubt about the meaning and effect of the Majority ’s decision

in that case , such doubt should have been resolved by Justice Eakin’s
characterization of the D.S. Majority ’s position: “I disagree with the Majority that an individual cannot be informed of an officer's identity or purpose in ways other than a formal scripted pronouncement. ” D.S. , 39 A.3d at 975 (Eakin, J., dissenting).

In sum , we conclude that Appellant’s sufficiency claim is meritorious. As such, we reverse her conviction for False ID , and vacate the corresponding sentence. As our decision does not appear to upset the trial court’s sentencing scheme, 2 we decline to remand for resentencing.

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2 The trial court ordered Appellant’s sentence of 1 year probation for False ID to run concurrent to the 2

- year probation ary tail attached to her sentence for PWID

. As such, Appellant’s aggregate sentence is not affected by our decision.J

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Judg ment of sentence affirmed in part, reversed in part. Jurisdiction relinquished

. President Judge Gantman, Judge Bowes, Judge Panella, Judge Lazarus, Judge Olson, Judge Stabile and Judge Dubow join this opinio n. Judge Shogan files a concurring and dissenting opinion.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/9/18