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Commonwealth of Pennsylvania v. Waldemar Caban

December 18, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
WALDEMAR CABAN, APPELLANT COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
YASHERA RENEE VERAS, APPELLANT



Appeal from the Judgment of Sentence May 25, 2011, Court of Common Pleas, Clearfield County, Criminal Division at No. CP-17-CR-0000297-2010 Appeal from the Judgment of Sentence May 25, 2011, Court of Common Pleas, Clearfield County, Criminal Division at No. CP-17-CR-0000296-2010

The opinion of the court was delivered by: Donohue, J.

IN THE SUPERIOR COURT OF PENNSYLVANIA

BEFORE: BENDER, DONOHUE and STRASSBURGER*fn1 , JJ.

OPINION BY DONOHUE, J.:

Appellants, Waldemar Caban ("Caban") and Yashera Renee Veras ("Veras"), appeal from the judgments of sentence entered on May 25, 2011,*fn2 following their convictions by a jury of possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30); criminal conspiracy to commit possession with intent to deliver a controlled substance, 18 Pa.C.S.A. § 903(a)(2); and possession with the intent to use drug paraphernalia, 35 P.S. § 780-113(a)(32). For the reasons that follow, we affirm the judgments of sentence.

On March 11, 2010 at approximately 1:00 p.m., Trooper Justin Jones of the Pennsylvania State Police stopped a car being driven by Veras traveling west on Interstate 80 for speeding. N.T., 11/12/10, at 6-7. Upon approaching the vehicle, Trooper Jones asked Veras for her driver's license and the vehicle's registration and insurance cards. Id. at 7. While waiting for these items to be produced, he inquired about her destination, and when she could not answer, Caban, the passenger, interjected that they were going to a birthday party. Id. Veras then advised that the car belonged to Caban's father. Id. at 8. Trooper Jones observed a bottle of Fabreze in the back of the car, along with two canisters of what appeared to be perfume and several air fresheners.*fn3 Id. at 9.

Trooper Jones returned to his vehicle and prepared a citation for speeding. Id. at 8. He then pulled Veras from her car and asked her to step to its rear, at which time he gave her back her license and insurance card and told her that she was free to leave. Id. at 10. As Veras returned to her car, Trooper Jones asked if she would answer a few more questions. Id. Veras agreed, and Trooper Jones began to ask her more detailed questions about the birthday party (e.g., the name of the boy, his age, and the name of his father). Id. Showing definite signs of nervousness, Veras did not know the boy's name, but said that he was a "toddler, maybe ten." Id. at 9, 11. She could not provide any information about his father. Id.

At this time, Veras indicated that she "was ready to go." Id. As she walked back to her car, Trooper Jones then told her to "hold tight" while he questioned Caban. Id. He then proceeded to ask Caban the same basic questions he had just asked Veras. Id. Caban told him that they were going to Dubois for a birthday party for the child of a friend named Wes, who he had known for a couple of years (although he could not remember his last name). Id. at 12. Trooper Jones then requested that Caban consent to a search the vehicle, but Caban denied the request. Id. Trooper Jones "then advised Caban that I could get a dog and laid his options out for him, told him I could get a dog or he could give the consent ...."*fn4 Id. at 12.

Trooper Jones then returned to his vehicle to attempt to contact a K-9 unit in the area to do an air sniff of the vehicle. Id. at 13.

As he returned to advise Caban of the expected time of the dog's arrival, Trooper Jones testified that he experienced the "overwhelming smell of marijuana." Id. at 29-30. Trooper Adam Gibson, who had since arrived at the scene, likewise clearly smelled marijuana. Id. at 51. After receiving confirmation from Trooper Gibson, Trooper Jones testified that Caban gave him consent to a search of the car:

I then asked Mr. Caban what the deal was, I can smell something, at which point he told me to search the vehicle, you won't find anything anyways. I asked Mr. Caban at this point, [a]re you giving me consent to search your vehicle? He said, [y]es, you won't find anything anyways.

Id. at 14-15. Trooper Jones then took the key from the ignition of the car and opened the trunk, at which time he discovered a two-foot deep by two- foot wide gift-wrapped box containing a large ball of marijuana wrapped in cellophane. Id. at 34; N.T., 3/17/11, at 52-53.

The trial court denied a motion to suppress the fruits of the search of the vehicle on constitutional grounds. The case proceeded to trial, at which time a jury convicted both Caban and Veras of the above-referenced crimes. The trial court imposed identical sentences for Caban and Veras: for possession with intent to deliver, a term of incarceration of three to six years; for criminal conspiracy to commit possession with intent to deliver, a concurrent term of incarceration of six months to two years; and for possession of drug paraphernalia, a concurrent term of one year of probation. The trial court also found both Caban and Veras to be eligible for an alternative minimum sentence/Recidivism Risk Reduction Incentive program, with alternative minimum sentences of 27 months.

Caban and Veras filed timely notices of appeal. Caban raises the following three issues for our ...


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