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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellant        :
                                         :
                   v.                    :          No. 939 WDA 2019
                                         :
TREY BARNES                              :


                 Appeal from the Order Entered June 4, 2019,
               69in the Court of Common Pleas of Beaver County
               Criminal Division at No. CP-04-CR-0002459-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED JANUARY 6, 2020

      The Commonwealth appeals from the June 4, 2019 order entered in the

Court of Common Pleas of Beaver County that granted the omnibus pretrial

motion filed by appellee, Trey Barnes, that consisted of a petition for writ of

habeas corpus and a motion to suppress physical evidence. We affirm.

      The suppression court set forth the following findings of fact:

            1.     On November 26, 2018, Beaver Falls Police
                   Department was dispatched to the area of
                   1504 Sixth Avenue for an incident involving two
                   black males dressed in all black grabbing a
                   light-skinned female and dragging her into a
                   residence.

            2.     Officer   Higby,    Officer   Moreno,        and
                   Captain Kryder of the Beaver Falls         Police
                   Department all responded to the call.

            3.     Upon arrival to the scene officers observed a car
                   with its lights on directly in front of the
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                residence. This vehicle was attempting to back
                out of the parking spot.

          4.    The officers’ [sic] pulled their patrol car right up
                next to the car to prohibit it from fleeing the
                area.

          5.    Officer Higby approached the front passenger’s
                side of the vehicle and observed two black
                males in the back wearing all black and a
                light-skinned female between them. The two
                males were reaching towards their sides during
                the encounter.

          6.    The Officers advised the males multiple times to
                keep their hands visible; however, they did not
                comply and were asked to exit the vehicle for
                officer safety.

          7.    [Appellee] was patted down by Officer Higby
                after he exited the vehicle to check for any
                weapons.

          8.    Officer Higby overheard Officer Moreno advise
                the other individual that he saw a baggy sticking
                out of his pocket.

          9.    Officer Moreno recovered the bagg[y] from the
                other involved individual which contained a
                large amount of heroin and placed the other
                individual in the back seat of the patrol car.

          10.   Contemporaneously to Officer Moreno detaining
                the other individual, Officer Higby attempted to
                ascertain the identity of [appellee] by asking
                [appellee] his name.

          11.   Initially, [appellee] identified      himself    as
                “James Barnes” from New Castle.

          12.   Officer Higby told [appellee] “if you’re who you
                say you are, we’ll get this all worked out, but
                before I start running your information, don’t,



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                you know, drag me along if you’re giving me
                your correct information.”

          13.   County Dispatch advised Officer Higby that they
                could not locate a record for a “James Barnes”
                out of New Castle with the date of birth
                provided.

          14.   Officer Higby continued to question [appellee]
                regarding his identity and [appellee] advised
                Officer Higby that he was from Indiana and did
                not have a middle name, which turned out to be
                incorrect information.

          15.   Officer Higby detained [appellee] for providing
                false information and patted him down for a
                second time and checked his pockets before
                placing him into the patrol car.         When
                Officer Higby checked [appellee’s] pockets, he
                recovered [appellee’s] wallet, which identified
                [appellee] as Trey James Barnes out of Pontiac,
                Michigan.

          16.   Officer Higby then placed [appellee] under
                arrest for false ID to law enforcement and
                conducted a further search of [appellee’s]
                person, which resulted in the recovery of a large
                baggy containing multiple individual baggies of
                suspected crack cocaine and approximately
                $1,200.00 in U.S. Currency.

          17.   After [appellee] was handcuffed and arrest[ed]
                for False Identification, he attempted to run.

          18.   Officer Higby retrieved a backpack from the
                vehicle and searched it outside the vehicle
                before placing it into the patrol car.        The
                backpack contained a scale, box of Ziploc
                baggies, and two and a half (2½) to three (3)
                boxes of sleeping pills. [Appellee] and the other
                male passenger were both charged as a result
                of the search of the backpack.




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                19.   [Appellee] was searched a third time at the
                      police station and officers recovered a bag with
                      “lottery folds” containing suspected heroin.

Suppression court opinion, 8/12/19 at 5-10 (record citations omitted; ellipses

in original).

      The record reflects that appellee was charged with manufacture or

possession with intent to manufacture (heroin and crack cocaine), possession

of a controlled substance (heroin and crack cocaine), possession of drug

paraphernalia, resisting arrest, kidnapping, robbery, unlawful restraint, and

false identification.1    Following a preliminary hearing, the resisting arrest,

kidnapping, and unlawful restraint charges were dismissed.               Thereafter,

appellee filed an omnibus pretrial motion, followed by an amendment thereto.

The amended omnibus pretrial motion included a petition for writ of

habeas corpus for the false identification2 charge and a motion to suppress

physical evidence. The suppression court held a hearing on the motion on

June 4, 2019.          Officer Higby was the only witness to testify.           The

Commonwealth and appellee agreed to incorporate the transcript of appellee’s

preliminary hearing into the suppression hearing record. (Notes of testimony,

6/4/19 at 5, 45-46.) At the conclusion of the hearing, the suppression court


135 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32); 18 Pa.C.S.A. §§ 5104,
2901(a)(3), 3701(a)(5), 2902(1), and 4914(a), respectively.

2 We note that the amended omnibus pretrial motion also included a petition
for writ of habeas corpus for resisting arrest. The Commonwealth, however,
has conceded that “the resistance in this case does not rise to the level
required by the resisting arrest statute.” (Commonwealth’s brief at 4 n.1.)


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granted appellee’s omnibus pretrial motion because the search was incident

to an unlawful arrest for false identification.   (Notes of testimony, 6/4/19

at 61.)

      Following entry of the order granting appellee’s omnibus pretrial motion,

the Commonwealth filed a timely notice of appeal. Within its notice of appeal,

the Commonwealth certified that the suppression court’s order would

terminate   or   substantially   handicap    appellee’s   prosecution.      See

Pa.R.A.P. 311(d) (permitting Commonwealth appeal from an interlocutory

order if it certifies that the order will terminate or substantially handicap the

prosecution). Thereafter, the suppression court ordered the Commonwealth

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).   The Commonwealth timely complied.         The suppression

court then filed its Rule 1925(a) opinion.

      The Commonwealth raises the following issues for our review:

            1.    Did the [suppression] court err in dismissing the
                  charge    of   false   identification   to    law
                  enforcement, where the officer informed
                  [a]ppellee of the existence of an investigation
                  into a kidnapping and [a]ppellee’s suspected
                  involvement in drug activity?

            2.    Did the [suppression] court err in suppressing
                  the items seized from the motor vehicle after
                  responding     officers   saw      [a]ppellee’s
                  co-defendant with drugs and drug paraphernalia
                  on his person?

            3.    Did the [suppression] court err in suppressing
                  the items seized from [a]ppellee’s person
                  subsequent to [a]ppellee’s arrest?


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Commonwealth’s brief at 4-5.

            When the Commonwealth appeals from a suppression
            order, we follow a clearly defined standard of review
            and consider only the evidence from the defendant’s
            witnesses together with the evidence of the
            prosecution that, when read in the context of the
            entire record, remains uncontradicted.            The
            suppression court’s findings of fact bind an appellate
            court if the record supports those findings. The
            suppression court’s conclusions of law, however, are
            not binding on an appellate court, whose duty is to
            determine if the suppression court properly applied
            the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review over the suppression court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016) (internal

citations and quotation marks omitted).

      Here, the suppression court found that the evidence failed to

demonstrate that Officer Higby informed appellee that he was under official

investigation in violation of Commonwealth v. Kitchen, 181 A.3d 337

(Pa.Super. 2018) (en banc), which necessitated habeas relief on the false

identification charge.    Additionally, because appellee’s arrest for false

identification was illegal, the suppression court determined that all evidence

obtained in the subsequent searches was “fruit of the poisonous tree” and

must be suppressed. With certain exceptions not applicable here, “[t]he ‘fruit

of the poisonous tree’ doctrine prohibits the admission of evidence at trial that

was tainted by unconstitutional actions by law enforcement officials.”


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Commonwealth v. Santiago, 209 A.3d 912, 914 (Pa. 2019). Pennsylvania’s

decisional law has long held that “evidence seized as a result of an unlawful

arrest must be excluded.” Commonwealth v. Johnson, 83 A.3d 182, 187

(Pa. 2014).

      A person commits the offense of false identification “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 set forth the elements necessary for a conviction of false identification

to law enforcement authorities as follows:        (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 that the officer must inform the

accused that he is the subject of an official investigation prior to the accused’s

giving false identification. Kitchen, 181 A.3d at 342-343. This court restated

that “‘the official investigation element of 18 Pa.C.S.[A.] § 4914(a) cannot be

satisfied solely by an investigation of the individual’s providing false




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information as to his identity.’” Id. at 343 (original brackets omitted), quoting

Commonwealth v. Barnes, 14 A.3d 128, 131 (Pa.Super. 2011).

      Here, the record reflects that Officer Higby testified at the preliminary

hearing on direct examination as follows:

            Q.     All right. And did you detain somebody as well?

            A.     Yes, I was speaking to [appellee], and I asked
                   him what his name was, and he told me his
                   name was James Barnes and provided me a
                   date of birth and told me he was out of New
                   Castle.

            ....

            Q.     Did you run his information?

            A.     Before I even ran his information, I told him
                   straight up, if you’re who you say you are, we’ll
                   get this all worked out, but before I start
                   running your information, don’t, you know, drag
                   me along if you’re giving me your correct
                   information, and he continued to say that his
                   name was James Barnes, so I did run his
                   information at that time.

            Q.     Okay.   And when you ran his information,
                   anything come back.

            A.     No, County Dispatch advised that they could
                   find no record.

            Q.     All right. What happens then?

            A.     I continued to question [appellee] and asked
                   him where he was from, and at that point he, I
                   believe he told me he was from Indiana.

            Q.     Okay. When getting this information, did you
                   follow up on that at all?



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            A.      I did. I asked him, I said, I asked him, what his
                    middle name was, if he had a middle name, and
                    he said, I don’t. It’s just James Barnes, so at
                    that time I detained him believing that he was
                    providing me false information.

            Q.      When you detained him, what do you mean by
                    that?

            A.      I placed him in handcuffs.

            Q.      All right. And was that on suspicion of giving a
                    false --

            A.      Right.

            Q.      -- false ID?

            A.      Until I could confirm his identity.

            Q.      And upon placing him under arrest, was he
                    searched?

            A.      Yes[.]

Notes of testimony, 12/18/18 at 11-13.

      At the suppression hearing, Officer Higby stated on direct examination

that he “can’t remember if [he] officially said, ‘This is an investigation.’”

(Notes of testimony, 6/4/19 at 16.) When asked on cross-examination if he

said anything about any kind of investigation when he initially confronted

appellee, Officer Higby stated that “[c]onversation was very limited.” (Id. at

30-31.) When asked whether the officer informed appellee that he was under

investigation    after   appellee’s   cohort   had   been   placed   under   arrest,

Officer Higby stated, “I don’t know” and then added that “[a]ny reasonable




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person would, would believe that they’re under, they’re not free to leave.”

(Id. at 33-34.) The following then took place:

           Q.     So at that point, you had not indicated to
                  [appellee], however, expressly, which means in
                  words, “We’re investigating you as the official,
                  as the subject of an official investigation. Please
                  provide me with identification”? Did you say
                  anything like that?

           A.     Prior to that, no[.]

           ....

           Q.     At that point when [appellee] was out of the car
                  and away from the female, did you then tell him
                  that he is the subject of an official investigation
                  regarding kidnapping or drugs or anything like
                  that?

           A.     I don’t recall the exact words “You’re under
                  official investigation,” but I told him, yeah,
                  “Your buddy got drugs. There’s stuff in this car.
                  We don’t know what’s going on. We’re getting
                  called down here for somebody getting drug
                  [sic] into a house --

           Q.     You said that?

           A.     -- “Nobody’s, nobody’s going anywhere until we
                  find out who you are.”

           Q.     You said that to him, “We’re checking out
                  everything because your buddy got, you know,
                  has drugs on him and we got a call about this,
                  an abduction or a kidnapping,” whatever? You
                  said that to him?

           A.     Something of that nature. I can’t say exactly
                  the words that were said, but I know he was
                  made aware that you’re not free to go. We’re
                  conducting an investigation.



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            ....

            Q.     Did you indicate to [appellee] that if he did not
                   provide you with correct information that he
                   would be placed under arrest for false
                   identification?

            A.     I did.

Id. at 34-36, 38. Officer Higby then confirmed that he placed appellee in

handcuffs to detain him for false identification, confirmed appellee’s identity

by looking at identification contained in appellee’s wallet, arrested appellee for

false identification, and then searched appellee. (Id. at 39-41.)

      The record supports the suppression court’s factual finding that

Officer Higby failed to inform appellee that he was under official investigation

prior to appellee’s giving false identification. The suppression court properly

applied Kitchen to conclude that appellee was entitled to habeas relief on

the false identification charge because the Commonwealth failed to bear its

burden of proving the second element of false identification that required

Officer Higby to inform appellee that he was under official investigation prior

to appellee’s providing false identification.      The suppression court also

properly concluded that because appellee’s arrest for false identification was

unlawful, the evidence seized as a result of that unlawful arrest must be

excluded as “fruit of the poisonous tree.”

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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