J-A23018-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL A. GRIFFIN : : Appellant : No. 590 WDA 2024
Appeal from the Judgment of Sentence Entered April 16, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003853-2022
BEFORE: PANELLA, P.J.E., McLAUGHLIN, J., and BENDER, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED: December 22, 2025
Michael A. Griffin appeals from the judgment of sentence entered for his
convictions for firearms not to be carried without a license and knowing and
intentional possession of a controlled substance.1 Griffin challenges the court’s
denial of his motion to suppress. We affirm.
The Commonwealth charged Griffin with various drug offenses and
carrying a firearm without a license following his encounter with Officer Patrick
O’Brien in an AutoZone parking lot. Griffin filed a motion to suppress, arguing
in part that he was subjected to an investigative detention without reasonable
suspicion. Motion to Suppress, filed 9/20/22. The court held a hearing where
the Commonwealth presented testimony from Officer O’Brien.
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1 18 Pa.C.S.A. § 6106(a)(1) and 35 P.S. § 780-113(a)(16), respectively. J-A23018-25
Officer O’Brien testified that on April 30, 2022, he was patrolling the
parking lot. N.T., Suppression Motion, 12/12/22, at 4-5. He stated that over
the preceding week, there had been catalytic converter thefts in the area. Id.
at 6. He explained the specifics of the thefts, including the method used to
remove the converters, the time it takes for removal, and the typical time of
day that the thefts occurred in the AutoZone parking lot. Id. at 5-6.
[Commonwealth]: Real quick, like, at - - on this specific night was there something that you were concerned about, like, as to events that had been happening near the time of this specific night?
[Officer O’Brien]: Within the past week - - the business of AutoZone is at the intersection of Washington and McFarland, the address of 220 Washington Road. Right on McFarland Road within the past week, week-and-a-half we’ve had a lot of - - we’ve had some catalytic converter thefts within the area. Typically these are about 10, 15 minute thefts that happen with vehicles that are parked on a road or the parking lot as well. So it was pretty close within the vicinity of AutoZone.
[Commonwealth]: And about the time of night were these thefts occurring?
A: Overnight hours.
Q: Okay. And - - and catalytic converters, where are they located on the car, like, how would one come about getting that off of a car?
A: Underneath the vehicle. Usually they have to use an electronic saw to get them off.
Id.
Officer O’Brien testified that at approximately 3:27 a.m. on the morning
in question, he saw a vehicle in the AutoZone parking lot, backed in and near
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the front entrance door. Id. at 7. He testified that when he shined his spotlight
on the vehicle, he saw “a head of an individual kind of pop up” by the steering
wheel. Id. Officer O’Brien said that this was “uncommon” and “the first time
I’ve seen it there[.]” Id. He then drove out of the parking lot and radioed for
backup. Id. at 8. Once backup arrived, he returned to the parking lot. Id. at
9.
Officer O’Brien said that he then approached the vehicle and spoke with
the driver. Id. While speaking with her, he saw Griffin in the front passenger
seat. Id. at 9-10. Officer O’Brien testified that he immediately noticed a smell
of burnt marijuana coming from the vehicle. Id. at 10. Officers asked both
occupants of the vehicle for their identification cards. Griffin said that he did
not have his identification card, but he provided his name and date of birth.
Id. at 11. Another officer on the scene conducted a check of this information
and learned that Griffin had a warrant. Id. They returned to the car and asked
Griffin to exit the vehicle. Id. at 12. Before getting out, Griffin reached down
toward the front passenger seat, and officers directed him not to reach. Id.
Officers then removed Griffin from the vehicle and arrested him. Following a
search of the vehicle, officers recovered a plastic bag containing marijuana
from the passenger side door. Id.
Officer O’Brien testified that after Griffin had been taken into custody,
he then spoke with the driver. Id. at 13. He explained that at that point, there
were four or five officers at the scene and that they were not “surrounding her
all at once.” Id. at 13-14. Officers obtained a search warrant for the vehicle
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and recovered a firearm from underneath the passenger seat. They also found
four bags of marijuana and Griffin’s driver’s license. Id. at 18-19.
On cross-examination, Officer O’Brien agreed that three other officers
were at the scene, each arriving in their own patrol vehicle. Id. at 24. When
asked if the officers blocked the exits of the parking lot, Officer O’Brien replied,
“Would I say they were completely blocked in? No, but there was one in the
front of the vehicle as well.” Id. at 25. Counsel then questioned Officer O’Brien
about his body-worn camera video (“the video”). See Id. at 26-36, 39; see
MLPD_22005092-2redacted.MP4. Officer O’Brien agreed that based on where
officers parked their vehicles, it would have been “difficult” for the driver to
exit the parking lot. Id. at 28. Officer O’Brien also testified that he did not see
anyone exit the vehicle, did not see them with any tools or an electric saw,
and did not observe them engaged in criminal activity. Id. at 29.
Next, defense counsel attempted to play the portion of another officer’s
body-worn camera footage that showed Griffin’s arrest. Id. at 34. The
Commonwealth objected, stating that it was not Officer O’Brien’s body-worn
camera footage and could not be authenticated. Id. Defense counsel
responded that the footage was admissible because Officer O’Brien had
testified that it “was a fair and accurate description of the scene at that time.”
Id. at 35. The court overruled the objection. Id. The defense then played the
footage. Id. During redirect, the Commonwealth played a portion of Officer
O’Brien’s body-worn camera video. Id. at 46. Neither party moved the video
or any portion of it into evidence.
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The parties then presented their arguments to the court. During its
argument, the Commonwealth referenced the video. Id. at 53. The court
denied the motion to suppress, finding that the encounter was “an appropriate
investigatory detention[.]” Id. at 59.
Griffin filed a motion to reconsider the order denying suppression. He
also filed a Motion for Findings of Fact and Conclusions of Law in Accordance
with Pa.R.Crim.P. 581(1). The court denied both motions.
Griffin proceeded with a non-jury trial, and the court found him guilty of
firearms not to be carried without a license and knowing and intentional
possession of a controlled substance. See N.T., Stipulated Non-Jury Trial,
12/13/23, at 20. The court imposed a sentence of concurrent terms of three
years’ reporting probation for the firearms conviction and six months’
reporting probation for the drug conviction. This timely appeal followed. See
Notice of Appeal, filed 5/15/24.
More than one year after Griffin appealed, the Commonwealth filed a
motion in the trial court to supplement the record with the video. See Motion
to Supplement Certified Record on Appeal, filed 7/3/25. The trial court granted
the motion and issued an order stating that “the video was considered by the
trial court in making its determination during the suppression hearing.” Order
of Court, filed 7/8/25.
On appeal, Griffin raises the following question:
I. Whether the trial court erred in denying Mr. Griffin’s motion to suppress, where the police unlawfully
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detained him without sufficient reasonable suspicion of criminal activity?
Griffin’s Br. at 7.2
Our standard of review for the denial of a motion to suppress is settled:
[O]ur standard of review for the denial of a suppression motion is de novo and is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Our scope of review is to consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the suppression record as a whole. When the sole issue on appeal relates to a suppression ruling, our review includes only the suppression hearing record and excludes from consideration evidence elicited at trial.
Commonwealth v. Ochoa, 304 A.3d 390, 396 (Pa.Super. 2023) (citation
omitted).
Griffin maintains that this Court should not consider the video since it
was not admitted into evidence at suppression hearing. He states that this
Court’s decision in Commonwealth v. Snowden, 330 A.3d 422 (Pa.Super.
2025) (en banc), supports his claim that the video should not be considered
on appeal. For its part, the Commonwealth maintains that the video is within
our scope of review since the parties referenced and relied on it during the
motion.
2 Griffin also argues that the court erred in failing to place its findings and conclusions on the record. We find this claim waived for failure to raise it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii); Concise Statement of Errors Complained of on Appeal, filed 9/12/24, at 4 (unpaginated).
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We first address whether the video is within the scope of our review.
“[E]xhibits that are merely marked for identification and submitted by the
offering party do not constitute evidence on which a finder of fact can rely.”
Commonwealth v. Jones, 271 A.3d 452, 456 (Pa.Super. 2021). However,
when a party fails to object to the court’s “consideration of items not formally
admitted into evidence despite notice that the trial court viewed the items as
evidence on which it could make findings,” an objection to consideration of
the evidence is waived. Id. at 457.
Although Griffin argues that Snowden suggests that the video may not
be considered, we find it inapposite. There, at a suppression hearing, Snowden
questioned an officer on portions of body-worn camera footage. See
Snowden, 330 A.3d at 426. The Commonwealth then asked the officer one
question about the video. See Id. Notably, neither party moved for the
admission of the video. During argument, the Commonwealth argued that the
video was not evidence since it was not admitted. See Id. The trial court
denied the motion to suppress and following a non-jury trial, found Snowden
guilty of possession of a controlled substance. See id.
On appeal, Snowden argued that the court had erred in denying the
suppression motion. Before addressing the merits of his claim, this Court
considered whether the video was within our scope of review. In coming to
the determination that it was, we were guided by Jones. In that case, during
the trial, the Commonwealth played video surveillance footage and Jones
stipulated to the authenticity of the video. He did not object to the video being
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played and cross-examined the witness about the video. Neither party moved
for admission of the video. However, “the trial court, the Commonwealth, and
[Jones] all treated the video as admitted evidence after the Commonwealth
rested.” Jones, 271 A.3d at 455. The court found Jones guilty of third-degree
murder and firearms crimes.
Jones appealed, challenging the sufficiency of the evidence. He also
argued that this Court could not consider the surveillance video because it had
not been admitted into evidence. We rejected Jones’ claim and concluded that:
where the trial court, in fact, made a determination that the video was admissible before it was played, the video was in evidence and became part of the record once it was played without objection, even though no formal motion to admit it in evidence was made.
Id. at 456. We also concluded that there was ample support in the record that
Jones waived any claim that the video could not be considered, including his
failure to object to the court’s consideration of the video and failing to argue
that the video was not part of the evidence. See id. at 456-57.
Turning back to the facts of Snowden, we concluded that “unlike
Jones, the trial court did not determine that the video was admissible before
it was played, and there was no stipulation that the video was authentic or
admissible.” Snowden, 330 A.3d at 430. As such, we determined that the
video was not within our scope of review. We also observed that the trial court
explicitly noted that the video was not admitted into evidence. See id. at 431
(citing Commonwealth v. Wroten, 257 A.3d 734, 740-41 (Pa.Super. 2021)
(concluding that surveillance video and preliminary hearing notes of testimony
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were within this Court’s scope of review, where defense counsel “explicitly
relied upon” exhibits and the record showed that the court “accepted these
items into evidence and considered them to be part of the record for the
purpose of its analysis”)).
Here, although neither party offered the video into evidence, both
parties referenced the video either during the examination of Officer O’Brien
or in argument to the court. Additionally, Griffin did not object to the court’s
consideration of the video. Nor did he argue that the video was not properly
admitted into evidence. Furthermore, the record shows the trial court
considered the video as part of its findings. See Order of Court, filed 7/8/25.
As such, we conclude that the video is within the scope of our review, and
Griffin waived any claim that the video should not be considered. See Jones,
271 A.3d at 457; Wroten, 257 A.3d at 740-41; but cf. Commonwealth v.
Brown, No. 1752 EDA 2024, 2025 WL 2546616 at *4 (Pa.Super. filed
September 4, 2025) (unpublished mem.) (concluding that an affidavit of
service was outside of our scope of review where Commonwealth did not move
it into evidence and appellant objected to its admissibility at trial).
We now address the merits of Griffin’s appellate issue. Griffin argues
that the trial court erred in denying his motion to suppress. He notes that the
trial court agreed that the police interaction with Griffin amounted to an
investigative detention, but Griffin claims the court erred by finding that the
detention was supported by reasonable suspicion. He states that Officer
O’Brien testified that four officers arrived at the scene, in four separate
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vehicles, and two of those vehicles were used to block the exits of the parking
lot. Griffin claims, “no reasonable person in [his] shoes would have felt free
to ignore the four police officers surrounding the vehicle with a spotlight shined
on them[.]” Griffin’s Br. at 26. He argues that his freedom of movement was
restrained by the officers, and “there was no opportunity for a mere encounter
to occur” since the interaction began as an investigative detention. Id. Griffin
argues that the Commonwealth failed to establish reasonable suspicion
because Officer O’Brien’s testimony did not link his prior experience of thefts
in that area with anything related to Griffin, such as observing Griffin in
possession of tools used to steal catalytic converters. See id. at 29.
For its part, the Commonwealth claims the facts show that the encounter
between Griffin and the police began as a mere encounter and transitioned to
an investigatory detention. It argues that although the circumstances
surrounding Officer O’Brien’s reasons for initially approaching the vehicle could
give rise to reasonable suspicion, the interaction amounted to a mere
encounter. It further maintains that Officer O’Brien’s subsequent detection of
the smell of burnt marijuana gave rise to reasonable suspicion that criminal
activity was afoot.
Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution “guarantee the right of
the people to be secure in their persons, houses, papers, and possessions
from unreasonable searches and seizures.” Commonwealth v. Luczki, 212
A.3d 530, 542 (Pa.Super. 2019). To give effect to this right, the law requires
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“officers to demonstrate ascending level of suspicion to justify their
interactions with citizens to the extent those interactions compromise
individual liberty.” Id. (citation omitted).
“Because interactions between law enforcement and the general
citizenry are widely varied, search and seizure law looks at how the interaction
is classified and if a detention has occurred.” Id. When police encounter an
individual, the interaction may be classified as a mere encounter, an
investigative detention, or a custodial interrogation. See Commonwealth v.
Ward, 318 A.3d 410, 414 (Pa.Super. 2024). A mere encounter occurs when
there is “no official compulsion to stop or to respond,” and does not require a
particular level of suspicion. Commonwealth v. Thomas, 273 A.3d 1190,
1196 (Pa.Super. 2022) (citation omitted). “It generally involves a request for
information and requires no particular suspicion of criminality because it
carries ‘no official compulsion to stop or to respond.’” Commonwealth v.
Hicks, 208 A.3d 916, 927 (Pa. 2019) (citation omitted).
However, an investigative detention “must be supported by a
reasonable suspicion” that criminal activity is afoot. Thomas, 273 A.3d at
1196 (citation omitted). “The reasonable suspicion standard allows a police
officer to stop an individual based upon specific and articulable facts and
rational inferences from those facts that warrant a belief that the individual is
involved in criminal activity.” Commonwealth v. Brame, 239 A.3d 1119,
1128 (Pa.Super. 2020) (cleaned up). The sufficiency of the facts articulated
by the officer to support reasonable suspicion “must be evaluated under the
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totality of the circumstances.” Id. The court should consider the following non-
exhaustive list of circumstances when deciding whether a reasonable person
would feel free to leave:
[T]he number of officers present during the interaction; whether the officer informs the citizen they are suspected of criminal activity; the officer’s demeanor and tone of voice; the location and timing of the interaction; the visible presence of weapons on the officer; and the questions asked. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
Commonwealth v. Beasley, 761 A.2d 621, 624-25 (Pa.Super. 2000)
(citation omitted).
In the instant case, the trial court has suggested that both an
investigative detention and a mere encounter occurred. At the suppression
hearing, the court stated that Griffin’s encounter with police was “an
appropriate investigatory detention[.]” N.T., Suppression Hearing, at 59.
However, in its Pa.R.A.P. 1925(a) opinion, the court states “[a]rguably, the
initial interaction between Officer O’Brien and [Griffin] was a mere encounter.”
Rule 1925(a) Opinion (“1925(a) Op.), filed 12/22/24, at 6. It concludes that
once he smelled burnt marijuana, Officer O’Brien “determined that criminal
activity was afoot.” Id. The court found that “Officer O’Brien’s reliance on that
odor to conduct an investigatory detention in this case was proper.” Id. at 6-
7.
To determine what level of interaction occurred, we are guided by our
Supreme Court’s decision in Commonwealth v. Au, 42 A.3d 1002 (Pa.
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2012). There, police initially encountered Au in a vehicle parked in a lot. See
Au, 42 A.3d at 1003. The officer testified that it was early in the morning and
that it was unusual to see a vehicle in the lot at that time. See id. The officer
drove to the vehicle and parked his car at an angle “to illuminate the
passenger side.” Id. Upon approaching, he observed six people in the car,
with Au seated in the front passenger seat. Id. at 1003-04. He testified that
he “probably” used a flashlight and all the individuals in the car looked “very
young.” Id. at 1003. He asked if everyone was 18 years old, and some
individuals in the back of the car responded no. Id. At that point, he asked Au
for his identification. Id. Au opened the glove box, and the officer saw two
baggies of marijuana. Id. at 1004. The officer arrested Au for possession of a
small amount of marijuana. Id. at 1003. Au filed a motion to suppress, which
the trial court granted, finding that the encounter with Au amounted to an
investigative detention unsupported by reasonable suspicion. Id. at 1004.
The Commonwealth appealed and this Court affirmed. The Court
concluded that the officer’s encounter with the occupants of the vehicle
“ripened into an investigative detention” when the officer asked the
identification from the occupants. Id. at 1005 (quoting Commonwealth v.
Au, 986 A.2d 864, 867 (Pa.Super. 2009) (en banc)). Our Supreme Court
disagreed. It concluded the officer’s request for identification amounted to a
mere encounter rather than an investigative detention. See id. at 1009 (“the
arresting officer’s request for identification did not transform his encounter
with [Au] into an unconstitutional investigatory detention”).
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In coming to this conclusion, the Court noted testimony about the
officer’s use of lights and the position of his vehicle during the interaction and
found that these factors did not raise the interaction to an investigative
detention.
In the present case, the arresting officer’s unrebutted testimony indicates that he did not: activate the emergency lights on his vehicle, . . .; position his vehicle so as to block the car that [Au] was seated in from exiting the parking lot, . . . ; brandish his weapon; make an intimidating movement or overwhelming show of force, . . . make a threat or a command; or speak in an authoritative tone. In terms of the use of the arresting officer’s headlights and flashlight, this was in furtherance of the officer’s safety, and we conclude it was within the ambit of acceptable, non-escalatory factors.
Id. at 1008 (citations and footnote omitted).
In the present case, police encountered Griffin early in the morning in a
vehicle parked in a parking lot known for thefts. The video evidence shows
that there was only one other officer present when Officer O’Brien approached
the vehicle. Additionally, Officer O’Brien did not park his patrol car directly in
front of or next to the vehicle. Rather, he positioned his patrol car at an angle
to the right of the vehicle with the spotlight pointing in the vehicle’s direction.
The additional officer on the scene positioned his patrol car similarly at an
angle to the left of the vehicle. Both patrol cars were near the exits of the
parking lot, and both were at least one patrol car length away from the vehicle.
Almost two minutes after Officer O’Brien approached the vehicle, two
additional officers arrived on the scene, each in a separate vehicle. Ultimately,
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a total of five officers were present, standing at a distance from the vehicle at
various times and at no point did the officers activate their emergency lights.
Consistent with Au, we conclude that Griffin’s initial interaction with
police amounted to a mere encounter. Although Griffin maintains that the
interaction began as an investigative detention because he was surrounded
by four police officers, the video belies this claim. Griffin initially only
encountered two officers, who arrived in separate patrol vehicles at different
times. Neither officer’s emergency lights were activated, and there is no
evidence that any officer brandished a weapon or made an intimidating
movement or overwhelming show of force towards Griffin. Although the
officers during this initial encounter asked for identification, neither this fact
nor the position of the patrol cars or the use of a spotlight transformed the
initial encounter into an investigative detention. Au, 42 A.3d at 1009; but
see Commonwealth v. Livingstone, 174 A.3d 609, 619 (Pa. 2017)
(concluding appellant’s interaction with state trooper amounted to an
investigative detention when the trooper “pulled alongside her vehicle, with
his emergency lights activated”). The trial court therefore did not err in
denying the motion to suppress. See Commonwealth v. Lehman, 275 A.3d
513, 520 n. 5 (Pa.Super. 2022) (stating an appellate court may affirm a lower
court’s decision on any ground).
Judgment of sentence affirmed.
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DATE: 12/22/2025
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