Commonwealth v. Caban

60 A.3d 120

2012 PA Super 278

COMMONWEALTH of Pennsylvania, Appellee

v.Waldemar CABAN, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Yashera Renee Veras, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 1, 2012.

Filed Dec. 18, 2012.

Erv D. McLain, Bethlehem, for appellants.

Trudy G. Ladue, Assistant District Attorney, Clearfield, for Commonwealth, appellee.

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

OPINION BY DONOHUE, J.:

Appellants, Waldemar Caban (“Caban”) and Yashera Renee Veras (“Veras”), appeal from the judgments of sentence entered on May 25, 2011,¹ 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.²Id. 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....” ³Id. 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 consideration and determination:

1. Should the trial court have suppressed the evidence as a result of an illegal search and seizure by the police[.]

2. Was the consent to search the vehicle given by [Caban] legally operative[.]

3. Did the prosecution prove that [Caban and Veras] knowingly possessed the cellophane which is the basis of the drug paraphernalia charges[.]

Caban's Brief at 4. Veras raises these three issues as well as a fourth:

4. Did [Caban], a passenger, have legal power and authority to consent to a search of the automobile Veras was driving[.]

Veras' Brief at 5.

Except for the third issue, which raises a sufficiency of the evidence argument and thus will be addressed separately, the issues raised by Caban and Veras all depend upon the constitutionality of the search of the car resulting in the discovery of the marijuana. Accordingly, we will address these issues together. “Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.” Commonwealth v. Jones, 874 A.2d 108, 115 (Pa.Super.2005).

[W]e may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Id.

Before considering the constitutionality of the search, we must first determine whether Caban and Veras have standing to suppress the search and a reasonable expectation of privacy. “The concept of standing in a criminal search and seizure context empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government's evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Powell, 994 A.2d 1096, 1103 (Pa.Super.2010) (quoting Commonwealth v. Hawkins, 553 Pa. 76, 80, 718 A.2d 265, 266 (1998)). “[U]nder Pennsylvania law, a defendant charged with a possessory offense has standing to challenge a search.” Commonwealth v. Perea, 791 A.2d 427, 429 (Pa.Super.2002), appeal denied,568 Pa. 736, 798 A.2d 1288 (2002).

To prevail in a challenge to the search and seizure, however, a defendant accused of a possessory crime must also establish, as a threshold matter, a legally cognizable expectation of privacy in the area searched. Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super.1998), appeal denied,556 Pa. 675, 727 A.2d 130 (1998) (quoting Commonwealth v. Carlton, 549 Pa. 174, 179–80, 701 A.2d 143, 145–46 (1997)); see also Commonwealth v. Millner, 585 Pa. 237, 257, 888 A.2d 680, 692 (2005) (“[I]t is clear that ... a defendant cannot prevail upon a suppression motion unless he demonstrates that the challenged police conduct violated his own, personal privacy interests.”). The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all of the surrounding circumstances. Commonwealth v. Viall, 890 A.2d 419, 422 (Pa.Super.2005).

In Commonwealth v. Burton, 973 A.2d 428 (Pa.Super.2009) ( en banc ), the defendant was stopped for a routine traffic violation. This Court concluded that he could not succeed in suppressing evidence seized from the vehicle he was driving since he “failed to demonstrate that he had a reasonably cognizable expectation of privacy in a vehicle that he did not own, that was not registered to him, and for which he has not shown authority to operate.” Id. at 436. More recently, in Commonwealth v. Maldonado, 14 A.3d 907 (Pa.Super.2011), this Court reversed a trial court's grant of a motion to suppress when the defendant failed to offer any evidence to demonstrate that he was authorized to use the vehicle. Although the vehicle belonged to his girlfriend, no evidence established that she had given him permission to use it on the day in question. Id. at 911.

In the present case, Caban and Veras were charged with possessory offenses, and thus both have automatic standing to move to suppress the evidence seized by police. With respect to a reasonable expectation of privacy, at the suppression hearing Veras and Caban did not offer any evidence to establish that they had permission to use the vehicle belonging to Caban's father. Because our standard of review requires that we consider the entire record on appeal, however, we also look to the evidence introduced at trial. There Caban...