J-S16031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AARON DURELL GRIFFIN,                      :
                                               :
                       Appellant               :      No. 1083 MDA 2018

         Appeal from the Judgment of Sentence Entered April 20, 2018
                 in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000152-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: APRIL 30, 2019

        Aaron Durell Griffin (“Griffin”) appeals from the judgment of sentence

imposed following his convictions of possession with intent to deliver a

controlled substance (“PWID”), possession of a controlled substance, and

possession of drug paraphernalia (collectively referred to as the “drug

offenses”),1 as well as criminal use of a communication facility2 (hereinafter

“criminal communication”). We affirm.

        The trial court set forth the facts underlying this appeal as follows:

        On December 14, 2016, members of the Pennsylvania State Police
        [(“PSP”)] received information from a reliable source
        [(hereinafter, the “CI”)] that [Griffin] was planning to transport
        one pound of methamphetamine from [Griffin’s] residence in
        Pottstown to Earl Township, Berks County[,] in a black Cadillac[,
        to sell the drugs to the CI in the parking lot of an auto mechanic’s
        garage (hereinafter, “the garage”)]. The police identified [and
____________________________________________


1   See 35 P.S. § 780-113(a)(30), (16), and (32).

2   See 18 Pa.C.S.A. § 7512(a).
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      drove to Griffin’s] residence[,] and waited outside until [Griffin]
      and a passenger[, David Hall (“Hall”),] left in the black Cadillac[,
      which was registered to Griffin]. The[] [police] followed [Griffin]
      to [the] garage[, where the CI and Griffin had previously arranged
      via phone to meet,] and they observed [Griffin] and [Hall] get out
      of the vehicle. Soon after, police cars stopped and detained
      [Griffin] and [Hall]. A [PSP] K-9 Unit … “indicated” on the inside
      of the vehicle, but a search of the car did not yield any results.
      During an interview of [Hall at the scene], he told the police that
      when [Griffin] had exited the car, he walked to the front of [the]
      garage. The police then searched near the front door of the
      garage[] and found a black backpack[, located approximately 25
      to 30 yards from Griffin’s vehicle, resting on a pile of debris and
      scrap].     Inside the backpack was a vacuum[-]sealed bag
      containing one pound of methamphetamine.

Trial Court Opinion, 9/7/18, at 2.

      Relevant to this appeal, shortly before Griffin drove to the garage, the

CI, while working with PSP Trooper Anthony Garipoli (“Trooper Garipoli”),

placed a recorded phone call to Griffin to set a meeting place for the drug

transaction to occur. During this call, which was played in court at Griffin’s

trial, the CI and Griffin arranged to meet at the garage, within fifteen minutes

of the phone call. After the police arrested Griffin at the garage, they searched

his vehicle and discovered a cell phone (hereinafter “Griffin’s cell phone”). The

police then placed a phone call, using the same cell phone that the CI had

used earlier to call Griffin (hereinafter “the CI cell phone”). The police called

the phone number that the CI had previously dialed to speak with Griffin, and




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Griffin’s cell phone rang.3, 4 Finally, Trooper Garipoli testified at trial that the

voice he had heard on the recorded call talking with the CI was consistent with

Griffin’s voice (i.e., when the Trooper heard Griffin speak later that day).

       Following his arrest, the Commonwealth charged Griffin with the drug

offenses and criminal communication.             On July 13, 2017, Griffin filed an

Omnibus Pretrial Motion (the “OPT Motion”). In relevant part, Griffin sought

suppression of the narcotics as being the fruit of an unlawful warrantless

search and seizure, which was unsupported by probable cause. Following a

hearing, the trial court denied the OPT Motion by an Order and Memorandum

entered on December 5, 2017.

       The matter proceeded to a non-jury trial on March 9, 2018, at the close

of which the trial court convicted Griffin on all counts. On April 20, 2018, the

trial court sentenced Griffin to 6 to 12 years in prison, followed by 7 years of

probation. Griffin timely filed Post-sentence Motions, challenging, inter alia,

the sufficiency of the evidence supporting his convictions. Following the trial

court’s denial of this Motion, Griffin filed a timely Notice of Appeal. The trial

court ordered Griffin to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and he timely complied. The trial court then issued

a Rule 1925(a) Opinion.


____________________________________________


3Also, the incoming call screen on Griffin’s cell phone displayed the phone
number of the CI cell phone.

4We will hereinafter refer to the evidence of this phone number verification
as the “phone call evidence.”
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      Griffin now presents the following questions for our review:

      1. Whether the trial court erred and committed an abuse of
         discretion by denying Griffin’s [M]otion to suppress?

      2. Whether there was sufficient evidence to prove beyond a
         reasonable doubt that Griffin was guilty of possession of a
         controlled substance, possession with intent to deliver and
         criminal use of a communication facility?

Brief for Appellant at 6 (issues renumbered).

      In his first issue, Griffin argues that the trial court erred in denying his

OPT Motion to suppress, where the CI’s tip failed to establish probable cause

or reasonable suspicion for the police to stop and detain Griffin. See id. at

21-31. Griffin contends that the Commonwealth failed to prove that the CI

was a reliable source, where (1) there was no evidence presented that the CI

had previously provided other reliable information to the police; (2) the CI

had reason to lie to the police for personal gain, since he had been arrested

earlier that day for drug and gun-related offenses; (3) “[t]he entire basis for

relying on the CI’s tip was premised upon something happening in the future”;

and (4) “[t]he police failed to conduct any other investigation that might have

yielded corroboration of information unavailable to the public at large, which

would have bolstered the reliability of the [CI].” Id. at 24-28. Additionally,

Griffin protests that “nothing prevented the officers from obtaining a search

warrant before searching the garage and its curtilage.” Id. at 30.

      In reviewing the denial of a suppression motion,

      [w]e may consider only the Commonwealth’s evidence and so
      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the

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      record supports the factual findings of the trial court, we are
      bound by those facts and may reverse only if the legal conclusions
      drawn therefrom are in error. An appellate court, of course, is not
      bound by the suppression court’s conclusions of law.

Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016) (citation omitted).

In reviewing questions of law, our standard of review is de novo and our scope

of review is plenary. Id.

      Here, the trial court offered the following analysis in support of its denial

of Griffin’s OPT Motion to suppress:

      [T]he information in possession of the police justified an
      investigatory detention of [Griffin]. The police had a tip from a
      reliable source[, the CI,] that [Griffin] would leave Pottstown and
      go to Earl Township in a black Cadillac. Everything played out that
      day just as the [CI] had said [it] would. The reliable [CI] also
      indicated that [Griffin] would be delivering a pound of
      methamphetamine. Therefore, since everything happened in the
      tip as the [CI had] indicated, the police had enough reasonable
      suspicion to detain [Griffin].

             The police additionally had the ability to search the black
      backpack for methamphetamine[] because the black backpack
      had been abandoned. It is well established that abandoned
      property may be searched by police. Commonwealth v. Shoatz,
      469 Pa. 545, 552[] ([] 1976). Abandonment is determined by
      whether an individual has the clear intent to relinquish control of
      the property. Id. However, “the Commonwealth has adopted the
      theory of abandonment of property only when it is shown that the
      seized evidence was not discarded as a result of unlawful police
      coercion.” Id. at 553. In Shoatz, the police were searching for
      suspected burglars. The police saw two men with suitcases and
      approached them. Both men dropped their bags and fled. The
      [C]ourt determined that these bags were abandoned and
      therefore[,] the search of them by the police was legal. Similarly,
      [Griffin’s] black backpack was abandoned voluntarily before the
      police arrived. Although it is likely that [Griffin] did this because
      he was aware that the police were on the way, it was not
      abandoned because of unlawful police activity. Therefore, the
      police’s warrantless search of the black backpack was legal and
      the evidence can be admitted.

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Findings of Fact and Conclusions of Law Re: the OPT Motion, 12/1/15, at 4-5

(emphasis added).

       We agree with the trial court’s foregoing analysis, which is supported by

the record and the law.        The CI’s tip, as well as the phone call evidence,

provided the police with ample reasonable suspicion to detain Griffin. We also

reject Griffin’s proffered reasons for challenging the CI’s reliability. It is well

established that the police may, in the absence of special circumstances,

assume that identified citizens who report their observations of criminal

activity are trustworthy. Commonwealth v. Washington, 63 A.3d 797, 803

(Pa. Super. 2013); see also Commonwealth v. Hayward, 756 A.2d 23, 34

(Pa. Super. 2000) (stating that “if an informer … identifies him or herself to

the police, then there is an indicia of reliability attached to the tip, because

the informant has placed himself or herself at risk for prosecution for giving

false information to the police if the tip is untrue.”). Additionally, the trial

court properly found that because Griffin had voluntarily abandoned the black

backpack,5 the warrantless search of it was legal. Accordingly, Griffin’s first

issue entitles him to no relief.




____________________________________________


5 We discuss below the matter of Griffin’s constructive possession of the
abandoned backpack.



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       In his second issue, Griffin challenges the sufficiency of the evidence

supporting his convictions of the drug offenses and criminal communication.

See Brief for Appellant at 12-20.6

       In reviewing a challenge to the sufficiency of the evidence, our standard

of review

       requires that we evaluate the record in the light most favorable to
       the verdict winner[,] giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence. 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.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. Any doubt about the defendant’s guilt is
       to be resolved by the fact finder unless the evidence is so weak
       and inconclusive that, as a matter of law, no probability of fact
       can be drawn from the combined circumstances.                    The
       Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. Accordingly, [t]he fact that the evidence
       establishing a defendant’s participation in a crime is circumstantial
       does not preclude a conviction where the evidence[,] coupled with
       the reasonable inferences drawn therefrom[,] overcomes the
       presumption of innocence. Significantly, we may not substitute
       our judgment for that of the fact finder; thus, so long as the
       evidence adduced, accepted in the light most favorable to the
       Commonwealth, demonstrates the respective elements of a
       defendant’s crimes beyond a reasonable doubt, the [] convictions
       will be upheld.

Commonwealth v. Sebolka, 2019 PA Super 58, at ** 12-13 (Pa. Super.

2019) (citation and paragraph break omitted).

       Concerning the drug offenses, Griffin argues that none of these

convictions can stand because the Commonwealth failed to prove, beyond a


____________________________________________


6 We will address Griffin’s challenges to these respective convictions
separately.
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reasonable doubt, that he actually or constructively possessed the black

backpack containing the methamphetamine.7 See Brief for Appellant at 12-

15. Griffin asserts that

       there was no proof that Griffin knew of the existence and location
       of the backpack. None of the officers saw Griffin at any time with
       a backpack. … It was pure speculation to infer [that] Griffin was
       aware of the contents and location of the backpack. The trial court
       could not have reasonably inferred that Griffin had knowledge of
       the contraband in the [] backpack located on the curtilage of the
       garage, let alone exercise[d] dominion and control over its
       contents.

Id. at 15 (paragraph break omitted). Griffin further contends that “[i]t was

equally reasonable to infer that [Hall], [] the CI, or another person was

responsible for placing the backpack along the garage.” Id. at 17.

       Where, as here, a defendant did not have actual possession of the

contraband item, the Commonwealth is required to establish that he or she

constructively possessed it. See Commonwealth v. Parrish, 191 A.3d 31,

36 (Pa. Super. 2018).

       Constructive possession is a legal fiction, a pragmatic construct to
       deal with the realities of criminal law enforcement. Constructive
       possession is an inference arising from a set of facts that
       possession of the contraband was more likely than not. We have
       defined constructive possession as conscious dominion. … We
       subsequently defined conscious dominion as the power to control
       the contraband and the intent to exercise that control. … To aid
       application, we have held that constructive possession may be
       established by the totality of the circumstances.



____________________________________________


7Possession of contraband is an element in each of the drug offenses, see 35
P.S. § 780-113(a)(30), (16), and (32), and this is the only element that Griffin
challenges.
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Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

and quotation marks omitted). Significantly, “circumstantial evidence may be

used    to   establish   constructive    possession   of   the   [contraband].”

Commonwealth v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011); see also

Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (noting

that circumstantial evidence is reviewed by the same standard as direct

evidence).   However, a defendant’s mere presence at the scene does not

establish constructive possession of contraband.           Commonwealth v.

Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en banc); see also Parrish,

191 A.3d at 37 (stating that the location and proximity of an actor to the

contraband alone is not conclusive of guilt).

       Here, although the police never saw Griffin handle the black backpack,

they knew, from the phone call evidence, that he was traveling to the garage

in a black Cadillac to deliver a pound of methamphetamine, which was the

amount of methamphetamine that the police found in the backpack. Upon

police questioning of Hall at the scene, they learned that Griffin had walked to

the front of the garage, where the backpack was discovered shortly thereafter.

N.T., 3/9/18, at 17-18, 23. Additionally, the police officer who had found the

backpack resting on top of the pile of rubble stated that it stood out to him

because it was not like the other, weathered debris (which consisted of scrap

metal, glass and wood), whereas the backpack was in “almost pristine

condition[.]” Id. at 37. Although this evidence is circumstantial, under the

totality of the circumstances, there was enough evidence presented for the

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trial court to properly find, beyond a reasonable doubt, that Griffin

constructively   possessed    the   abandoned      backpack.       See,    e.g.,

Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa. Super. 2016) (holding

that the totality of the evidence sufficiently established that the defendant

constructively possessed abandoned narcotics, where the police discovered

the narcotics in an area in which they had previously seen defendant running,

and noting that circumstantial evidence alone can establish constructive

possession); Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super.

2000) (en banc) (holding that there was sufficient circumstantial evidence that

the defendant had constructive possession of drugs that the police found in a

weeded lot and lawn area where police surveillance officers had earlier

observed defendant repeatedly walk into the weeded lot, return shortly

thereafter, and hand small items to passersby, whom the police stopped

thereafter and found crack cocaine on their persons).

      Griffin next argues that his conviction of criminal communication cannot

stand, even despite the phone call evidence. See Brief for Appellant at 17-

20. Griffin emphasizes Trooper Garipoli’s trial testimony that the voice he had

overheard on the recorded call placed by the CI to Griffin’s cell phone to

coordinate the meeting, was “consistent with” Griffin’s voice, which, Griffin

urges, is an “unremarkable conclusion.” Id. at 19; see also id. at 19-20

(asserting that “[e]ven if the lay opinion of [Trooper Garipoli] was believed by

the lower court, it was not proof beyond a reasonable doubt that Griffin used

a communication facility to commit a felony.”). Additionally, Griffin points out

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that (1) the CI was not called as a witness to testify concerning the

characteristics of Griffin’s voice; (2) the police did not attempt to dust Griffin’s

cell phone for fingerprints or extract data from the phone; (3) the police did

not subpoena phone records concerning Griffin’s cell phone; and (4) no expert

testified as to the voice identification. See id. at 18-19.

       The Crimes Code defines criminal communication as follows:

       A person commits a felony of the third degree if that person uses
       a communication facility to commit, cause or facilitate the
       commission[,] or the attempt thereof[,] of any crime which
       constitutes a felony under this title or under the … Controlled
       Substance, Drug, Device and Cosmetic Act. …

18 Pa.C.S.A. § 7512(a).8

       Contrary to Griffin’s claim, there was ample evidence for the trial court

to find Griffin guilty of criminal communication beyond a reasonable doubt.

Not only did Trooper Garipoli identify Griffin’s voice from the phone call with

the CI,9 the phone call evidence clearly linked Griffin to having used Griffin’s

cell phone to coordinate the drug transaction. Accordingly, there is no merit

to Griffin’s sufficiency challenge.

       Judgment of sentence affirmed.




____________________________________________


8Griffin’s convictions of PWID and possession of a controlled substance are
both felonies.

9 See Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super. 2008)
(stating that a witness may make an identification by voice alone; expert
testimony is not necessary for voice identification; and the weight to be
accorded voice identification testimony is a question for the trier of fact).
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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