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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