J-S16031-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AARON DURELL GRIFFIN,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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.

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3 Also, the incoming call screen on Griffin’s cell phone displayed the phone 

number of the CI cell phone. 

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

issue entitles him to no relief.

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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.

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7 Possession 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,9the 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.

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8 Griffin’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