Com. v. Griffin, A. ( 2019 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
    J-S16031-19
    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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