Com. of Pa. v. Kitchen

181 A.3d 337

COMMONWEALTH of Pennsylvania, Appellee

v.Tyleesia KITCHEN, Appellant

No. 148 EDA 2016

Superior Court of Pennsylvania.

Argued December 12, 2017

Filed March 9, 2018

Mark P. Cichowicz, Public Defender, Philadelphia, for appellant.

Matthew M. LaMonaca, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

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.:

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:

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 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] 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 5^th 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 5^th 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.

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'...