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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ANDREW ROSS EISENHART,                     :          No. 311 MDA 2019
                                           :
                          Appellant        :


       Appeal from the Judgment of Sentence Entered October 30, 2018,
                 in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0002924-2017


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED SEPTEMBER 06, 2019

        Andrew Ross Eisenhart1 appeals from the October 30, 2018 judgment

of sentence entered in the Court of Common Pleas of Berks County following

his conviction in a bench trial of false identification to law enforcement

authorities and driving while operating privileges suspended or revoked.2

Appellant received a sentence of 9 months’ probation for the false

identification conviction and was ordered to pay a $200 fine for the suspended

license conviction. After careful review, we affirm in part and reverse in part.

        The trial court set forth the following factual and procedural history:

              In March 2017, a Police Officer was on patrol when he
              noticed a car that had darkly tinted windows driving

1 We note that appellant’s surname is also identified in the record as
“Eisenhardt.”

2   18 Pa.C.S.A. § 4914(a) and 75 Pa.C.S.A. § 1543(a), respectively.
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            over the white fog line. The Officer ran the vehicle’s
            registration and the result showed that it was
            suspended. The Officer executed a traffic stop. When
            asked for his license and registration, [appellant] said
            that he didn’t have it on him and he gave the Officer
            the name Alec Eisenhardt and a date of birth. The
            Officer noticed that [appellant] looked nervous, so the
            Officer informed him that it was a misdemeanor crime
            to give false reports to law enforcement officers.
            [Appellant] continued to give the name Alec. The
            Officer returned to his vehicle and pulled up the
            photos for Andrew Eisenhardt and Alec Eisenhardt and
            the Officer was able to identify [appellant] as Andrew.
            He returned to [appellant’s] car and told him what he
            knew. [Appellant] apologized and stated that he did
            it because his license was suspended. [Appellant] was
            taken to a different location to be picked-up.

Trial court opinion, 4/1/19 at 2.

            Following a bench trial, on October 30, 2018,
            [appellant] was convicted of False Identification to
            Law Enforcement and Driving While Operating
            Privileges Suspended or Revoked. On the same day,
            [appellant] was sentenced to serve 9 months of
            probation.

            On November 14, 2018, [appellant] filed a
            Post-Sentence Motion which was denied on
            February 4, 2019. On February 19, 2019, [appellant]
            filed a notice of appeal. On March 1, 2019, [appellant]
            filed a timely Concise Statement of [Errors]
            Complained of on Appeal . . . .

Id. at 1 (footnotes omitted). The trial court subsequently filed its opinion

pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Whether the guilty verdict for False Identification to
            Law Enforcement was in error as the evidence
            presented at trial was insufficient to prove beyond a
            reasonable doubt an essential element of the offense;


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            specifically, the Officer failed to expressly inform
            [a]ppellant that he was the subject of an official
            investigation into a violation of the law prior to
            [a]ppellant providing a false name to the Officer.

Appellant’s brief at 4.

      Appellant challenges the sufficiency of the evidence related to his

conviction for false identification to law enforcement authorities. (Id. at 12.)

Our standard and scope of review for a sufficiency of the evidence claim is

well settled.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute
            our judgment for the fact-finder. In addition, we note
            that the facts and circumstances established by the
            Commonwealth need not preclude every possibility of
            innocence. Any doubts regarding a defendant’s guilt
            may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a matter
            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may
            sustain its burden of proof or proving every element
            of the crime beyond a reasonable doubt by means of
            wholly circumstantial evidence. Moreover, in applying
            the above test, the entire record must be evaluated
            and all the evidence actually received must be
            considered. Finally, the trier of fact while passing
            upon the credibility of witnesses and the weight of the
            evidence produced, is free to believe all, part or none
            of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).



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      False identification to law enforcement authorities is defined, in

pertinent part, as:

             § 4914. False identification to law enforcement
             authorities

             (a)     Offense defined.--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.A. § 4914(a).         Our supreme court has stated that the elements

necessary for a conviction of false identification to law enforcement authorities

are: (1) if not in uniform, the law enforcement officer must identify himself

as such; (2) the officer must inform the individual that he is the subject of an

official investigation of a violation of the law; and (3) the individual must give

false information after being so informed. In re D.S., 39 A.3d 968, 974 (Pa.

2012).

      In Kitchen, this court held that the accused is not required to infer from

the attendant circumstances that he is the subject of an investigation, but

rather, the officer must inform the accused that he is the subject of an official

investigation      prior   to    the   accused’s   giving   false   identification.

Commonwealth v. Kitchen, 181 A.3d 337, 342-343 (Pa.Super. 2018)

(en banc).      This court stated, “‘the official investigation element of

18 Pa.C.S.[A.] § 4914(a) cannot be satisfied solely by an investigation of the



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individual’s providing false information as to his identity.’” Id. at 343 (original

brackets omitted), citing Commonwealth v. Barnes, 14 A.3d 128, 131

(Pa.Super. 2011).

      In Barnes, this court was presented with factual circumstances akin to

those in the case sub judice. See Barnes, 14 A.3d at 129-130. In Barnes,

the officer, while conducting a traffic stop for windshield obstructions,

encountered Barnes who was a passenger in the vehicle. Id. After Barnes

twice gave false identification to the officer, the officer informed Barnes he

was under investigation for providing false identification to law enforcement.

Id. at 129-131. Barnes then gave false identification for a third time. Id. at

129. In concluding that the second element of the false identification statute

cannot be satisfied by informing the accused he is being investigated for

providing false identification to an officer, this court stated:

              the [false identification] 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. If one
              provides false information as to his identity prior to
              that point, he has not violated the statute. Thus, any
              investigation centered solely upon the providing of
              false information as to one’s identity would not be an
              investigation of a violation of law. It might be an
              “investigation” in the eyes of the law enforcement
              officer, perhaps even an “official” investigation in that
              it is being conducted by a police officer in the course
              of his duties. However, the investigation would not be
              an investigation of a violation of law as contemplated
              by the statute.

Id. at 131.


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      Here, appellant asserts the Commonwealth failed to present sufficient

evidence that appellant was informed by the officer that he was the subject of

an official investigation of a violation of law prior to appellant’s providing the

false identification. (Appellant’s brief at 11-17.)3 The record demonstrates

that when viewing all of the evidence in the light most favorable to the

Commonwealth, as verdict winner, the evidence was so weak and inconclusive

that as a matter of law no probability of fact could have been drawn from the

combined circumstances by the fact-finder to establish that the officer

informed appellant, prior to appellant’s giving false identification, that he was

being investigated for a violation the law.

      A review of the record reveals that the officer, when asked about the

circumstances of the traffic stop, testified as follows:

            [Officer] I observed a white Honda Civic SI drive by
            my location. It had heavily tinted windows. Also, as
            the vehicle was traveling east on State Route 562,
            also known as Reading Avenue, it went over the white
            fog line on the south side of the roadway. I ran the
            vehicle registration. Linked to that was the operator,
            or I should say the owner of the vehicle. It was
            marked suspended. I then conducted a traffic stop on
            that vehicle.

            ....

            [Officer] As I approached the vehicle, identified
            myself to the operator as an officer. I requested the

3 We note that appellant does not challenge the other two elements of false
identification to law enforcement authorities, stating, “[a]t trial, the
Commonwealth presented evidence that established that Officer Breitenstein
clearly identified himself as a police officer and that [a]ppellant provided a
false name.” (Appellant’s brief at 12, citing notes of testimony, 10/4/18 at 5.)


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          operator,     the    lone   operator’s      information,
          registration, insurance identification, to which he said
          he didn’t have it on him and provided me a name
          verbally.

          [Commonwealth] What was that name?

          [Officer] I believe Alec . . . .

          ....

          [Commonwealth] What did you do next?

          [Officer]    I had a feeling that this wasn’t the
          identify [sic] -- wasn’t the individual. So I advised
          him that I thought the information he provided was
          incorrect. I advised him if he did provide me with false
          information that he would be creating a misdemeanor,
          which he hesitated and provided me with the same
          name and said that was him.

          ....

          [Commonwealth] And what did you do next?

          [Officer] I then returned to my police vehicle. I pulled
          up both the registered owner and I pulled up the
          information that he provided me with, which was his
          brother. You were clearly able to tell and articulate to
          the operator of the vehicle the information was not
          the information he provided to me. It was the owner,
          [appellant] today.

          [Commonwealth]            Okay.    Did   you   re-engage
          [appellant]?

          [Officer]   Yes, I did.

          [Commonwealth] And what happened?

          [Officer] I advised him what I located. At which time
          he was hesitant and informed me he was sorry that
          he did provide the false information to this officer.



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Notes of testimony, 10/4/18 at 5-7.          The officer did not testify that he

informed appellant that he was the subject of an official investigation of a

violation of the law for driving over the white fog line, driving a vehicle with

darkly tinted windows, driving a vehicle with a suspended registration, or for

any other traffic law violation prior to appellant’s providing false identification.

(Id. at 4-9.)

      The trial court found the officer’s informing appellant that if he provided

false identification to the officer he could be charged with a misdemeanor was

sufficient to establish beyond a reasonable doubt that appellant had been

informed that he was the subject of an official investigation of a violation of

the law for purposes of 18 Pa.C.S.A. § 4914(a). (Trial court opinion, 4/1/19

at 3-4.)   In so holding, the trial court erred as a matter of law in its

interpretation and application of this court’s decisions in Kitchen and Barnes

when it concluded that the Commonwealth met its burden of proof as to the

second element of the false identification statute with the officer’s testimony

that he informed appellant that if he gave false identification he could be

charged with a misdemeanor. See Kitchen, 181 A.3d at 343; Barnes, 14

A.2d at 131.

      The record demonstrates appellant’s sufficiency claim is meritorious

because the Commonwealth failed to prove that the officer informed appellant

that he was the subject of an official investigation of a violation of the law.

Consequently, we reverse appellant’s conviction for false identification to a



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law enforcement authority and vacate the corresponding sentence.          Our

decision does not appear to upset the trial court’s sentencing scheme on the

remaining conviction of driving while operating privileges suspended or

revoked. Therefore, we decline to remand for resentencing.

      Judgment of sentence affirmed in part and reversed in part. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/2019




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