Com. of Pa. v. Kitchen

J-E04001-17

2018 PA Super 52

COMMONWEALTH OF PENNSYLVANIA, 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 judgment 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 identification 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 otherwise leave the

remainder of Appellant’s judgment of sentence intact.

The trial court summarized the facts adduced at trial as follows:
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Philadelphia Police Officer Thomas Dempsey, assigned to
the 35th District, testified that on June 2, 2015, at approximately
3:00 a.m., he performed his tour of duty in the 5531 North 5 th
Street area of the city of Philadelphia. Officer Dempsey stated
that he was traveling northbound on 5th Street in a patrol car with
his partner, Officer Hanton, approaching Duncannon [street] when
he came into contact with [Appellant] operating a white Nissan
Altima with New York tag GSD4632. He observed [Appellant]
head westbound on Duncannon at 5th Street and then make a
right-hand turn onto 5th Street, heading northbound, without
using a turn signal. Officer Dempsey activated his lights 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 approached the driver'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 identification and notified Officer Dempsey
that the car was rented. [Appellant] could not produce any
documents to prove a rental agreement. Subsequent to failing 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 Officer Dempsey with
a TD Bank credit card with the name "Chelsea Thomas" and a
social security 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 stop the vehicle for the suspended
license. Officer Dempsey testified that he and his partner followed
procedure: they notified the Parking Authority, removed
[Appellant] from the vehicle, and performed a search incident to
the live stop of the vehicle to "make sure there was [sic] no
dangerous things in the vehicle and to inventory anything 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 it was larger than usual, looked swollen,
and there was no condensation. Officer Dempsey testified that he
possesses ample experience discovering narcotics hidden inside
soda cans; during his years on the force, he has uncovered

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approximately fifteen (15) to twenty (20) false cans, most of them
soda cans, and only one of them was empty and did not contain
narcotics. From this experience, Officer Dempsey stated that he
has made several narcotics arrests where narcotics were hidden
in false cans.

Officer Dempsey testified that he touched the can and felt
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 false; inside the can were seventy-six (76) small
baggies with an off-white chunky 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 live stop procedure and discovered a driver's
license with a different name under the brake pedal on the driver's
side floor area. Officer Dempsey ran the discovered driver's
license through the system to find that name also had a
suspended license.

Officer Dempsey testified that he continued with the live
stop and [was] completing paperwork when Officer 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
sandwich bag with eighty-four (84) zip tie baggies with crack
cocaine, an off-white chunky substance inside them. Officer
Dempsey stated that in total he recovered one hundred and sixty
(160) baggies of crack cocaine later placed on Property Receipt
No. 31976333. The false Mountain Dew can was placed on
Property Receipt No. 3197634. A search incident to arrest
recovered one hundred and forty-five dollars ($145) in US
currency from [Appellant]'s front pants pocket later placed on
Property Receipt No. 3197635. Officer Dempsey stated that the
vehicle was live stopped and [Appellant] transported to the 35th
District for processing.

Officer Dempsey testified that the identification was found
on the driver's side floor area under the brake pedal. Officer
Dempsey 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
question. Officer Dempsey stated that this information was
inconsistent with the information provided by [Appellant] when he
first asked her for her identification. He explained that [Appellant]

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first gave him the name "Chelsea Thomas" which, through further
investigation, he believed to be [Appellant]'s girlfriend. Officer
Dempsey restated that he determined that both "Tyleesia Kitchen"
and "Chelsea Thomas" did not have valid licenses.

Officer Dempsey further testified that in his nine years on
the job he has seen fifteen to twenty (15 -20) false cans. Officer
Dempsey stated that most of these cans are soda cans and that
he has also observed "Fix-A-Flat cans, a Pringles can, but the
majority are soda cans." Officer Dempsey stated that he has
found narcotics in these false cans fourteen (14) out of fifteen (15)
times, specifying only one occasion where a false can was empty.
Officer Dempsey testified that the can in the instant case caught
his eye before he touched it. He stated, "[i]t looked like it was
swelled up. There was no water dripping off of it as if it was cold.
It was swelled-up looking and that caught my eye and that's why
I touched it. I immediately felt it was rock hard."

When asked to describe the area where [Appellant]'s vehicle
was stopped, Officer Dempsey testified that it was at 5th and Olney
where [Appellant] pulled over to the right, placing her vehicle only
partially in a parking spot. Officer Dempsey stated that
[Appellant]'s vehicle was interfering with traffic as half of
[Appellant]'s vehicle was sticking out in the north bound [sic] lane
causing cars to have to go partly in the southbound lane to get
past her. Officer Dempsey described the area as heavily
populated and busy. Officer Dempsey stated that this area is well[
]known by police to be a common site for loud music, 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."
Because [Appellant] did not refer to herself in the first person,
Officer Dempsey stated "that was one of the things that stuck out
because either she was talking about herself in the third person
or she just messed up." When asked to review the notes of
testimony from the preliminary hearing, marked as Defense
Exhibit 1 (D-1), Officer Dempsey affirmed that he stated that
there were no cars parked on 5th Street, there were plenty of
spots, and that [Appellant] had pulled over in a legal parking spot.
Officer Dempsey further affirmed that he answered in the
affirmative 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.

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Officer Dempsey testified 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 Dempsey affirmed that he began
the inventory search of the vehicle once he verified that
[Appellant] had a suspended license. Officer Dempsey explained
that he believed [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 and 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 suppression 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 Appellant to 6-23 months’ incarceration and 2 years’

probation for PWID, and a concurrent term of 12 months’ probation for False

ID. The court imposed no further penalty for Appellant’s possession

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

a timely, court-ordered 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.

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Appellant now presents the 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 subject of an official investigation?” Appellant’s Substituted Brief at 3.

Our standard of review 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 reasonable
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

citations 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 investigation of a violation of law[,]”

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for that individual’s subsequent presentation of false identification to

constitute a crime. 18 Pa.C.S. § 4914(a). The Commonwealth disagrees,

contending that an individual can be so “informed” by the attendant

circumstances, including the conduct of the investigating officer, and that no

spoken pronouncement is required by the statute. Commonwealth’s

Substituted Brief at 7-9.

The trial court adopted the Commonwealth’s position. It found that

Appellant was informed that she was subject to an investigation by “the

surrounding circumstances 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 Court’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.” Commonwealth’s Substituted 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, the police did not make an express statement to Appellant that

she was under investigation prior to her presentment of false 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 investigation

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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).

When 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
1213, 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 statute, 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 specifically

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

In crafting the False 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 element akin to a formal notice

requirement, rather than imposing an 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 relevant

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 computer check on the given

name, and no matching record was found. When the officer asked Barnes for

his name again, Barnes 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 under investigation. Barnes then repeated the

fake name and birthdate.

The Commonwealth charged 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 the individual's providing false

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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 4524(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 purposes 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 stumbling 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 asked, “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 investigation 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 Barnes Court then

rejected the Commonwealth’s final argument that the attendant

circumstances imposed a duty on Barnes to answer the officer’s inquiries

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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 Barnes appears to be the false statement Barnes made

after he was specifically and verbally informed that he was under

investigation. However, the 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. provides more recent and

compelling support for Appellant’s stricter interpretation of Section 4914(a).

In that case, while investigating an armed robbery, plainclothes 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
____________________________________________

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.

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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 identify 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 adjudicated 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, the 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, reasoning:

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 the statute, three conditions must be satisfied before an
individual will be found to have violated the statute by providing

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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 and/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 investigation, 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
is 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 be 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) (emphasis 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 decision in Barnes. In order to sustain a conviction for

False ID, the Commonwealth must prove that the individual was told by police

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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 parsing of the D.S. decision and the text of Section

4914(a) is unconvincing. The uniformed 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 dissenting 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.
____________________________________________

2 The trial court ordered Appellant’s sentence of 1 year probation for False ID
to run concurrent to the 2-year probationary tail attached to her sentence for
PWID. As such, Appellant’s aggregate sentence is not affected by our
decision.

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Judgment 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 opinion.

Judge Shogan files a concurring and dissenting opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/9/18

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