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In the Interest of D.S.

February 21, 2012

IN THE INTEREST OF D.S., A MINOR APPEAL OF: D.S.


Appeal from the Order of the Superior Court entered May 28, 2010 at No. 1239 WDA 2009, affirming the Order of the Court of Common Pleas of Allegheny County, Juvenile Division, entered June 23, 2009 at No. JV-08-001106.

The opinion of the court was delivered by: Madame Justice Todd

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

ARGUED: October 19, 2011

OPINION

In this discretionary appeal, we consider whether 18 Pa.C.S.A. § 4914, which prohibits a person from furnishing false identification to law enforcement authorities, requires proof that those law enforcement authorities first identified themselves to the person and advised the person that he was the subject of an official investigation for a violation of law. Upon review, we answer this question in the affirmative. Accordingly, we reverse the Superior Court's decision, which affirmed the juvenile court's adjudication of delinquency.

The record in the instant case reveals that, on the afternoon of March 31, 2009, Pittsburgh City Police officers were investigating an armed robbery. According to the robbery victim, as he was standing at an intersection, a young boy pointed a gun at him, and robbed him of $10. The victim gave police a description of his assailant, and the police developed a list of individuals they knew matched the description; D.S. was one of those individuals. Detective John Rouse*fn1 and Officer Daniel Lang, both of whom were in plainclothes,*fn2 then "went out actively looking for [D.S.] in essence to field contact him." N.T. Hearing, 6/1/09, at 9. The officers, who were traveling in a gold car with tinted windows, observed D.S. and two other individuals, Jamale Terry and Damon Goodwin, at a park outside an elementary school. The officers exited their vehicle with their weapons in hand, and approached D.S., Terry, and Goodwin, instructing them to put their hands in the air and "get up against the gate" in front of the school. Id. at 42. A third officer, Officer Fleske, arrived on the scene in a separate vehicle. The officers conducted a pat-down of D.S., Terry, and Goodwin, and asked them for their information, including their names, ages, and addresses. The officers did not identify themselves as police officers, nor did they state their purpose for stopping D.S. Terry testified that he, D.S., and Goodwin began asking the officers what they had done and why they were being searched. Id. at 43. Terry further testified that, after D.S. stated that his name was "D.B.," Terry heard one of the officers telling D.S. that the officer knew D.B.'s real name was D.S. According to the officers, D.S. began to swear at them, and he subsequently was handcuffed. Terry testified that he saw Detective Rouse throw D.S. on the ground and kick him after D.S. had been handcuffed. Id. at 47. By this time, a crowd of approximately 15 people was watching the incident. The officers called for back-up, and D.S. was arrested and charged with disorderly conduct and providing false identification to law enforcement under 18 Pa.C.S.A. § 4914.

On June 1, 2009, at a delinquency hearing before the Honorable Kathleen Mulligan, counsel for D.S. argued that D.S. did not violate Section 4914 by furnishing a false name and birth date to police officers because, in fact, D.S. went by both the name D.B. and D.S. In support of this argument, counsel presented the testimony of D.S.'s mother ("Mother"), who offered a printout from the Social Security Administration purporting to show that D.S. also went by the name D.B. D.S. further argued that lying about one's birth date is not the same as providing false identification, in that a birth date is merely biographical information, not information about identity. The juvenile court found the authenticity of the document offered by Mother to be questionable, and adjudicated D.S. delinquent of the offense of providing false identification to law enforcement.*fn3 On June 23, 2009, the juvenile court directed that D.S. be placed in a juvenile treatment facility.

On July 22, 2009, D.S. filed a notice of appeal of his adjudication of delinquency to the Superior Court. In his court-ordered Pa.R.A.P. 1925(b) statement of matters complained of on appeal, he argued, inter alia, the evidence was insufficient to support his adjudication of delinquency under Section 4919 because the officers failed to identify themselves or advise D.S. that he was the subject of an official investigation prior to D.S. providing police with a false name. In her Rule 1925(a) opinion, Judge Mulligan noted "[t]he alleged absence of the elements of police identification and communication of investigation were not raised at the trial," and opined that the adjudication should be affirmed. Trial Court Opinion, 9/11/09, at 6.

The Superior Court upheld the adjudication of delinquency on appeal in an unpublished opinion. In the Interest of D.S., 1239 WDA 2009 (Pa. Super. filed May 28, 2010). Without addressing D.S.'s failure to raise the issue at his hearing, the court concluded, relevant to the issue before this Court, 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. Specifically, the court noted that D.S. directed profanity at the officers, and stated that he did not have to tell them anything. The court also cited the testimony of D.S.'s cousin, who testified that she recognized the officers' gold car.

Subsequently, D.S. filed a petition for allowance of appeal with this Court, and, on March 30, 2011, this Court granted review to determine whether the Superior Court abused its discretion in upholding his adjudication of delinquency for violating Section 4914 in the absence of proof that the plainclothes police officers identified themselves and advised D.S. that he was the subject of an official investigation.

As a preliminary matter, we address the issue, raised by the Commonwealth, that D.S. waived this argument by failing to raise it before the juvenile court. In its brief, the Commonwealth contends

Appellant's counsel never argued at the adjudication hearing that Appellant could not have violated Section 4914 because the officers neither identified themselves nor informed him that he was the subject of an official investigation. Instead, and in contradiction to his current argument that he lied, Appellant's attorney argued insufficient evidence existed to adjudicate Appellant delinquent because he never lied. . . . Hence, this is not a case where Appellant is challenging the sufficiency of the evidence for the first time on appeal. Rather, it appears to be one of presenting a different theory regarding the insufficiency of the evidence to an appellate court than a hearing court. While the Commonwealth is mindful that claims not raised before a lower court are waived, it defers to this Honorable Court regarding whether that holds true in this juvenile case where Appellant's current argument was raised for the first time on appeal (i.e., in his Pa.R.A.P. 1925(a) Statement and [brief to the Superior Court].

Commonwealth's Brief at 10-11 (record citations omitted).

The Commonwealth's position notwithstanding, we conclude D.S.'s argument before the juvenile court, the success of which was dependent on the juvenile's court's credibility findings, is more properly characterized as a challenge to the weight of the evidence, as opposed to a challenge to the sufficiency of the evidence. Thus, we disagree with the Commonwealth's contention that D.S. raises in the instant appeal a different theory of error to support the same claim he previously raised below. Rather, D.S.'s argument that the ...


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