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COMMONWEALTH PENNSYLVANIA v. OMAR CRUZ ORTEGA (02/08/88)

submitted: February 8, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
OMAR CRUZ ORTEGA, APPELLANT



Appeal from Judgment of Sentence September 14, 1987, in the Court of Common Pleas of Lancaster County, Criminal, No. 1351-86.

COUNSEL

Thomas G. Klingensmith, Assistant Public Defender, Lancaster, for appellant.

James J. Karl, Assistant District Attorney, Lancaster, for Com., appellee.

Olszewski, Montemuro and Watkins, JJ.

Author: Olszewski

[ 372 Pa. Super. Page 390]

This is an appeal from a judgment of sentence imposed after appellant was convicted by jury of possession with intent to deliver and criminal conspiracy. On appeal, appellant claims that: (1) the Commonwealth failed to prove beyond a reasonable doubt that appellant possessed contraband; (2) the evidence was insufficient to prove that appellant actively participated in a conspiracy; and (3) the eleven

[ 372 Pa. Super. Page 391]

    and one-half to twenty-three month sentence was excessive. We affirm the decision of the trial court.

The trial court put forth the facts as follows.

On May 16, 1986, Detectives Jan Walters and William J. Chalfant of the Lancaster City Police Department were conducting surveillance in the City of Lancaster based upon information that [Rolando U.] Martinez was driving a vehicle in which cocaine was located. The detectives sighted the vehicle and proceeded after it in their cruiser on South Prince Street in Lancaster City. The suspect vehicle thereupon picked up speed, moved into the right hand lane, and as it approached the intersection with Conestoga Street, the driver, who was Martinez, activated the right-turn directional signal. As the detectives' cruiser proceeded to do likewise, the suspect vehicle swerved back into the left-hand lane and made a left turn onto Conestoga Street. Shortly thereafter, another police unit arrived on the scene and blocked the path of the suspect vehicle. Martinez was the driver of the vehicle and [appellant] was seated in the front passenger's seat. Shortly before the suspect vehicle was forced to stop, [appellant] was observed leaning over in his seat. Martinez consented to a search of the vehicle, and, under the front passenger's seat, the detectives found a package containing a substance which they suspected to be cocaine.

The vehicle in which [appellant] and Martinez were riding was rented from an agency in North Bergen, New Jersey, whose records indicated that it was rented to a Victor Oliva, of 2514 Summit Avenue, Union City, New Jersey. [Appellant's] address is 71 26th Street, Union City, New Jersey. Martinez' address is 433 South Prince Street, in Lancaster City. At the time of the arrest, the detectives found two items in the glove compartment of the suspect vehicle. One was a parking ticket issued by the Lancaster City Police Department on May 15, 1986, the day prior to the arrest, citing the suspect vehicle for a parking violation at 435 South Prince Street. The second item

[ 372 Pa. Super. Page 392]

    recovered from the glove compartment was a receipt from a Western Union money order showing the sender's name as "Omar Cruz", of 433 South Prince Street, Lancaster, Pennsylvania. Counsel stipulated to the fact that the packet found under the front passenger's ...


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