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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                    v.                      :
                                            :
DARRYL DANTE RODGERS,                       :        No. 2016 WDA 2015
                                            :
                         Appellant          :


          Appeal from the Judgment of Sentence, November 20, 2015,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0011477-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 22, 2016

        Darryl Dante Rodgers appeals the November 20, 2015 judgment of

sentence in which the Court of Common Pleas of Allegheny County

sentenced him to serve a term of five to ten years’ imprisonment in a state

correctional institution for carrying a firearm when he was a person not

permitted to carry a firearm.        18 Pa.C.S.A. § 6105.1   The trial court also

found appellant guilty of terroristic threats with intent to terrorize another 2

but imposed no further penalty.




* Retired Senior Judge assigned to the Superior Court.
1
    Appellant was previously convicted of robbery.
2
    18 Pa.C.S.A. § 2706(a)(1).
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      The relevant facts and testimony, as recounted by the trial court, are

as follows:

                     The Victim, Bernard Taylor, testified that he
              lives at 2339 Atmore Street. On June 18, 2014,
              Taylor came home from work to find [a]ppellant
              sitting on his porch. Taylor related that he has been
              having issues with [a]ppellant sitting on his porch
              without permission for over two years.           Taylor
              testified that he told [a]ppellant, “I know you’re not
              settling on my porch again” and [a]ppellant
              responded with “a few choice words.”             Taylor
              testified that [a]ppellant “called him a bitch and said
              he would slap the shit out of him.” Taylor testified
              that he responded to [a]ppellant by saying “you’re
              dumb,” “this is dumb,” “I’m walking away” and then
              [a]ppellant followed Taylor and threatened to shoot
              him. Taylor then pulled out his firearm, which he
              has a license to carry, and told [a]ppellant to walk
              away.      Appellant responded by saying, “I have
              something for you.” Taylor testified that [a]ppellant
              then took off running down the opposite side of the
              street and then cut through an alleyway or pathway
              between two houses.         After [a]ppellant ran off,
              Taylor went into his house, called 911 and then
              came back outside. He was on his porch talking with
              Lonnie Vernon. Minutes later, Vernon pointed behind
              Taylor warning him that [a]ppellant had returned
              with a gun. Taylor turned and observed [a]ppellant
              on the corner, at 2344 Atmore Street, but did not
              see a gun. Taylor testified that the police responded
              to his 911 call “pretty quickly” and it was around this
              time that they arrived and arrested [a]ppellant.

                     Lonnie Vernon testified that he was visiting a
              friend who lives next door to Taylor on June 18,
              2014. Vernon testified that he observed [a]ppellant
              sitting on Taylor’s porch. When Taylor got home, an
              altercation occurred between Taylor and [a]ppellant
              regarding [a]ppellant’s unwelcomed presence on
              Taylor’s porch. Vernon stated that Taylor “t[old]
              [appellant] every day [to] get off his porch.” Vernon
              testified that after the altercation, [a]ppellant ran


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            down Atmore Street, about two or three houses
            down, went between two houses and then about
            two minutes later came back up into an empty lot
            right beside the empty house at 2344 Atmore Street
            with a rifle. Vernon testified that the rifle had duct
            tape on the end and [a]ppellant was standing on the
            corner, beside the house, “ready to shoot.”

                   Vernon stated that at the time [a]ppellant
            reappeared, Taylor was outside talking to him.
            Vernon told Taylor, “watch out, there he go [sic]
            right there.” About a minute or two after Taylor
            turned    to    look   at    [a]ppellant,   [a]ppellant
            disappeared. Vernon estimated that [a]ppellant was
            standing roughly 30-40 feet away, about three
            houses up, when he observed [a]ppellant holding the
            rifle. Vernon stated that “he was trying to get in the
            house because he thought that if [appellant] would
            have shot Taylor, [the bullet] would have [gone]
            through Taylor and hit him.”         Vernon observed
            [a]ppellant run back down behind the houses, then
            reappear a short time later between the same two
            houses without the rifle, “like he ain’t [sic] did
            nothing.” Vernon stated that the incident happened
            “so quick[ly]. [Appellant] went and got the gun and
            got rid of it so quick[ly].” Vernon testified that the
            police showed up just as [a]ppellant re-emerged and
            he pointed [a]ppellant out to police.           Vernon
            estimated that the entire episode took approximately
            10 minutes.

Trial court opinion, 7/11/16 at 5-7 (footnote and citations omitted).

      The trial court also noted the following additional key facts:

                  Officer Gary Messer, a City of Pittsburgh Police
            Officer, testified that he recovered a rifle in an open,
            unattached       garage    located   directly     behind
            2344 Atmore Street. Officer Messer testified that the
            garage appeared dirty and abandoned. The rifle,
            matching the description a witness provided to him
            of the weapon involved, was on the shelf near the
            entrance to the garage. He also recovered a box of
            .243 caliber ammunition and multiple loose


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            .243 caliber rounds on the shelf and the rifle was
            loaded with one live .243 caliber round. . . .

                  Officer Messer testified that the rifle was
            submitted to the Allegheny County Crime Lab for
            testing and it was found to be in good operating
            condition. He stated that the barrel length of the
            firearm was 22 inches and there was duct tape on
            the rear of the stock which was partially cut off and
            manipulated to be shorter.

Id. at 3-4 (citations omitted).

      In addition, Floretta Moore (“Moore”), appellant’s girlfriend and with

whom he lived, testified that appellant ran into their residence between 4:30

and 5:00 p.m. on June 18, 2014, and left a minute or two later to “clear his

name.”   (Notes of testimony, 8/25/15 at 151-152, 157.)         Moore did not

observe appellant with a firearm, even after she ran after him when he left

the residence. (Id. at 161.)

      The jury found appellant guilty of possession of a firearm by a

prohibited person. The trial court sentenced appellant to a term of five to

ten years’ imprisonment.

      On November 23, 2015, appellant filed a post-sentence motion which

the trial court denied on November 24, 2015.

      Appellant timely appealed to this court and raises the following issue

for this court’s review:   “Did the trial court abuse its discretion by finding

that a guilty verdict was not against the weight of the evidence when the

unreliable testimony of the main witness was so untrustworthy that to base




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a verdict on this evidence was manifestly unreasonable?” (Appellant’s brief

at 4 (capitalization omitted).)

      Appellant contends that he is entitled to a new trial because the trial

court abused its discretion when it failed to find that the verdict was against

the weight of the evidence when Lonnie Vernon (“Vernon”), the only witness

to testify that he saw appellant with a gun, presented confusing testimony

that lacked coherence regarding the events that occurred.

                  [T]he weight of the evidence is
                  exclusively for the finder of fact who is
                  free to believe all, part, or none of the
                  evidence and to determine the credibility
                  of the witnesses.       An appellate court
                  cannot substitute its judgment for that of
                  the finder of fact . . . thus, we may only
                  reverse the lower court’s verdict if it is so
                  contrary to the evidence as to shock
                  one’s sense of justice. Moreover, where
                  the trial court has ruled on the weight
                  claim below, an appellate court’s role is
                  not to consider the underlying question
                  of whether the verdict is against the
                  weight of the evidence . . . rather,
                  appellate review is limited to whether the
                  trial court palpably abused its discretion
                  in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).




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      Specifically, appellant asserts that Vernon’s testimony regarding

appellant’s actions was difficult to piece together.     For instance, Vernon

testified that Bernard Taylor watched appellant stand with a gun for two

minutes. (Notes of testimony, 8/25/15 at 64-65.) Taylor himself testified

that he did not see appellant with a gun. (Id. at 45.) Similarly, appellant

argues that Vernon’s testimony as to where he saw appellant go after the

argument with Taylor makes no sense as the time frames related by Vernon

were unrealistic.   Also, appellant argues that Vernon’s testimony changed

from the initial testimony presented at a motion prior to trial to his

testimony at trial and from the police report to his testimony at trial.

Because no other witness claimed to see appellant with a gun, appellant

argues that reliance on this inconsistent testimony to convict appellant

meant that the verdict shocked the conscience and the trial court abused its

discretion when it denied appellant’s post-sentence motion for a new trial.

Without credible evidence tying appellant to the firearm that was recovered

by Officer Messer, appellant believes that he should not have been

convicted.

      With respect to this issue, the trial court concluded:

             Vernon’s testimony . . . remained consistent with
             respect to his account of the critical facts.      In
             particular, Vernon gave police a description of the
             weapon, a rifle with duct tape around the butt,
             before police retraced [a]ppellant’s steps and
             recovered the rifle matching that description from an
             open, abandoned garage.



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                   Due to confusion regarding maps and time
            frames, both the defense and the Commonwealth
            repeatedly asked Vernon to reiterate what he had
            observed on June 18, 2014.           Each time Vernon
            testified consistently. Vernon testified, consistent
            with Taylor’s testimony, that [a]ppellant and Taylor
            quarreled over [a]ppellant’s presence on Taylor’s
            porch and then [a]ppellant ran down the street
            between two houses. Vernon consistently testified
            that [a]ppellant returned to the empty lot holding a
            rifle.   Although Vernon was the only witness to
            observe [a]ppellant with the firearm, he and Taylor
            testified consistently that roughly two to three
            minutes passed from when [a]ppellant ran down the
            street between the two houses to when he
            reappeared the first time in the empty lot. Vernon
            repeatedly stated that [a]ppellant disappeared with
            the rifle, ran back down behind the two houses and
            then reappeared between the same two houses
            without the rifle, “like he ain’t [sic] did nothing”
            before he was apprehended by police. Each time
            Vernon recited his testimony, he added more or less
            detail, but the critical facts remained unchanged.

Trial court opinion, 7/11/16 at 8-9 (citation omitted).

      A review of the record supports the trial court’s conclusion.       Vernon

testified that on June 18, 2014, he observed appellant and Taylor arguing

and then observed appellant running down between two houses only to

re-emerge with a rifle.   (Notes of testimony, 8/25/15 at 52-53.)         Vernon

described the rifle appellant was holding: “It had duct tape on the handles,

and he was standing on the corner . . . besides [sic] the house, ready to

shoot.” (Id. at 60.) Vernon also testified that appellant then left, and when

Vernon next saw him, he no longer had the rifle.          (Id. at 62.)   Vernon’s

testimony corroborated that of the arresting officer who noted that appellant



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was   unarmed    when    he   was   apprehended.       It   also   corroborated

Officer Messer’s testimony that he recovered a rifle with the end covered in

duct tape near where Vernon saw appellant leave his sight.         Appellant is

correct that there are some inconsistencies in Vernon’s testimony regarding

the time it took for the events in question to take place and whether Taylor

brandished his weapon in front of appellant. Based on Vernon’s testimony

along with that of Taylor and Officer Messer, the jury, as fact-finder, could

conclude that appellant was in possession of a gun. A jury is free to believe

all, part, or none of the evidence and to determine the credibility of the

witnesses; and a new trial based on a weight of the evidence claim is only

warranted where the jury’s verdict is so contrary to the evidence that it

shocks one’s sense of justice. Commonwealth v. Houser, 18 A.3d 1128

(Pa. 2011).

      Here, the jury evidently accepted Vernon’s testimony that he saw

appellant with a firearm. The verdict was not so contrary to the evidence as

to shock one’s sense of justice. Accordingly, the trial court did not abuse its

discretion when it denied appellant’s motion for a new trial.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2016




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