J-S19036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
              v.                             :
                                             :
NORMAN KEVIN RODGERS,                        :
                                             :
                    Appellant                :            No. 1899 EDA 2014

            Appeal from the Judgment of Sentence February 5, 2014
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0012493-2012

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED APRIL 20, 2016

        Norman Kevin Rodgers (“Rodgers”) appeals from the judgment of

sentence imposed following his convictions of persons not to possess, use,

manufacture, control, sell or transfer firearms, firearms not to be carried

without a license, carrying firearms on public streets or public property in

Philadelphia, and criminal conspiracy.1          We reverse the judgment of

sentence and discharge Rodgers.

        The trial court stated the relevant facts as follows:

        [At a bench trial,] Officer [Scott] McLane [“Officer McLane”]
        testified credibly that around 9:10 p.m. on October 3, 2012,
        Officer McLane and his partner, Officer Eric Girill, pulled over a
        white Mercury that made a left hand turn at 52nd and Spruce
        Streets in Philadelphia[,] because the driver failed to yield to
        traffic when turning down Spruce Street.           Officer McLane
        identified [] Rodgers as the driver of the white Mercury. As the
        officer prepared to exit his vehicle, [he] observed both [Rodgers]
        and [c]o-[d]efendant[, Vaughn Dixon (“Dixon”),] making furtive



1
    18 Pa.C.S.A. §§ 6105, 6106, 6108, 903.
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      movements as their head and shoulders moved below the front
      seats on multiple occasions.

             Upon arriving at [Rodgers’s] automobile, [] Rodgers had
      his hands on the steering wheel and [Dixon] had his hands on
      the dashboard; neither of wh[om] were asked to do so by the
      officers.   Officer McLane observed [Rodgers] as extremely
      nervous based on the fact that he was fumbling around with his
      license, registration, and insurance by dropping the items to the
      ground or in his lap prior to handing them over to Officer
      McLane.

             [] Rodgers did not have a valid driver’s license according
      to Officer McLane’s computer. Thereafter, Officer McLane asked
      [Rodgers] and [Dixon to get] out of the vehicle[,] because when
      a driver does not have a valid driver’s license, it is Philadelphia
      Police Procedure to “live stop” the vehicle, which means that it is
      towed by the police department. Prior to towing the car, police
      procedure requires the officers to take [an] inventory of the
      vehicle. When taking inventory of the vehicle, Officer McLane
      observed a black gun under the passenger’s seat. The gun was
      inside an open white bag that was half under the seat and half
      sticking out from under the seat. The seat itself was very low to
      the ground, leaving little space for anything to be placed
      underneath. Because the bag was open, Officer McLane was
      able to observe the gun sticking out from the white bag. Upon
      discovering the gun, the officers placed [Rodgers] and [Dixon] in
      handcuffs.

Trial Court Opinion, 8/24/15, at 2-3 (citations omitted).

      Following a bench trial, Rodgers was convicted of the above-mentioned

crimes. On February 5, 2014, the trial court imposed an aggregate sentence

of four to eight years in prison, followed by ten years of probation.

Thereafter, Rodgers filed a timely Notice of Appeal and a timely court-

ordered   Pennsylvania   Rule   of   Appellate   Procedure   1925(b)   Concise

Statement of Matters Complained of on Appeal.




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      On appeal, Rodgers raises the following question for our review: “Was

the evidence presented at trial sufficient as a matter of law to support the

convictions in this matter?” Brief for Appellant at 4.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether[,] viewing all the evidence admitted at trial
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.         Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced[,] is free to believe all,
      part or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Rodgers argues that the evidence was insufficient to establish that he

constructively possessed the gun recovered from the bag beneath the

passenger’s seat of the car. See Brief for Appellant at 12-13, 23. Rodgers

claims that his passenger, Dixon, was the individual who had knowledge of,

and control over, the gun. Id. at 15-16. Rodgers also contends that Dixon


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was seated directly above the gun and was very nervous and sweating

profusely, whereas Rodgers’s behavior was not suspicious.       Id. at 17, 22.

Rodgers argues that he did not constructively possess the gun, where the

gun was recovered under the passenger’s seat inside an opaque bag, and

the officer speaking to Rodgers could not see the gun until he searched the

vehicle. Id. at 15, 17. According to Rodgers, the Commonwealth presented

no evidence that he knew of the gun in the bag underneath Dixon’s seat

until police found the gun, or until Dixon bent forward to hide it when the

police stopped the car. Id. at 16, 18-19. Further, Rodgers argues that the

Commonwealth     proved   only   that   he   was   driving   another   person’s

automobile, which had a weapon in it, and that a passenger, Dixon, was

attempting to hide that weapon. Id. at 19, 20. Lastly, Rodgers contends

that no forensic or documentary evidence linked Rodgers to the gun, as

Officer McLane could not tell which part of the car Rodgers was reaching

towards, and Officer McLane could not see Rodgers’s arm or hand. Id. at

14, 22.2




2
  Rodgers also argues that because the gun at issue was inoperable, the
evidence is insufficient to establish the convictions under 18
Pa.C.S.A. §§ 6106 and 6108. Brief for Appellant at 23-26. However,
Rodgers did not specify this allegation in his Rule 1925(b) Concise
Statement, so the claim is deemed waived. See Commonwealth v. Lane,
81 A.3d 974, 979 (Pa. Super. 2013) (noting that any issues not raised in a
Rule 1925(b) concise statement are waived on appeal); see also Pa.R.A.P.
1925(b)(3)(iv).


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        In gun possession cases, the Commonwealth may meet its burden by

showing      actual,   constructive,   or   joint     constructive    possession.

Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999).

        Constructive possession is a legal fiction, a pragmatic construct
        to deal with the realities of criminal law enforcement.
        Constructive possession is an inference arising from a set of
        facts that possession of the contraband was more likely than not.
        We have defined constructive possession as conscious dominion.
        … We subsequently defined conscious dominion as the power to
        control the contraband and the intent to exercise that control. …
        To aid application, we have held that constructive possession
        may be established by the totality of the circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citation

and quotation marks omitted). “[C]ircumstantial evidence may be used to

establish constructive possession of the illegal substance.” Commonwealth

v. Johnson, 26 A.3d 1078, 1094 (Pa. 2011).              “However, Pennsylvania

courts have held that where another person has equal access to the area

where illegal contraband or [a] weapon is found, the defendant cannot be

said to have either the power to control or the intent to control such

contraband or a weapon per se.”        Commonwealth v. Heidler, 741 A.2d

213, 216 (Pa. Super. 1999). Further, a defendant’s mere presence at the

scene     does   not   establish   constructive     possession   of   contraband.

Commonwealth v. Vargas, 108 A.3d 858, 869 (Pa. Super. 2014) (en

banc).

        Here, Officer McLane pulled over a white Mercury on October 3, 2012.

N.T., 10/23/13, at 9-11. Officer McLane identified Rodgers as the driver of



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the vehicle and Dixon as the passenger.     Id. at 11.   When asked whose

vehicle Rodgers was driving, Officer McLane testified that he did not “recall

whose vehicle it was” but that he knew “it wasn’t [Rodgers’s].” Id. at 21.

     Following the stop, Officer McLane testified that he noticed Rodgers

and Dixon “were both bending down towards the floor board” of the car.

N.T., 10/23/13, at 13; see also id. at 36 (where Officer McLane testified

that he saw Rodgers “[j]ust lean forward” multiple times). Officer McLane

stated that Rodgers’s head and shoulders “were going below the seats so

you couldn’t really see them.” Id. at 13-14. He clarified that he could not

tell to which part of the car Rodgers was reaching. Id. at 23, 36.

     Upon approaching the vehicle, Officer McLane observed Rodgers with

his hands on the steering wheel. Id. at 27. Officer McLane indicated that

Rodgers was nervous based on the fact he dropped his driver’s license,

registration, and insurance card on the ground and in his lap prior to

handing them to the officer.     Id. at 15-16.     However, Officer McLane

testified that “some people” are nervous when pulled over for a traffic

violation, and that there was nothing suspicious about Rodgers having his

hands on the steering wheel.     See id. at 17, 27; see also id. at 35-36

(where testimony indicates that Rodgers’s nervousness was not mentioned

in the PARS report).    Officer McLane testified that Dixon, sitting in the

passenger’s seat, “had his hands on the dashboard.”      Id. at 15.   He said




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Dixon was “sweating profusely” despite it being a “pretty cool that night.”

Id. at 29.

        After determining that Rodgers did not have a valid driver’s license,

Officer McLane asked Rodgers and Dixon to step out of the vehicle to take an

inventory of the car prior to towing.       Id. at 17-18.    While taking the

inventory, Officer McLane testified that he saw a “black gun underneath the

passenger’s side seat.” Id. at 5. He testified that the gun was in a bag that

“wasn’t transparent” and “was half jammed underneath [the seat] and half

of it was still sticking out.”   Id. at 18, 29.   He stated that the “bag was

open” so he “observed the gun inside the bag.” Id. at 18-19. Additionally,

Officer McLane described the front of the car as “roomy” and he thought

“there was a little bit of a hump” between the driver’s side and passenger’s

side.   Id. at 40.   The trial court concluded that, based on this evidence,

Rodgers constructively possessed the gun.           See Trial Court Opinion,

8/24/15, at 7-8. We disagree.

        Here, our review of the record discloses no evidence establishing

Rodgers’s constructive possession of the gun. Keeping in mind our standard

of review, the record reflects that when Officer McLane approached the

vehicle, Rodgers was sitting in the driver’s seat and Dixon was sitting in the

passenger’s seat. N.T., 10/23/13, at 11. While Officer McLane testified that

he observed Rodgers’s head and shoulders go below the seat, he could not

identify where or if Rodgers was reaching with his arms or hands. Id. at 23,



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36.   Officer McLane stated that he later found the gun in an opaque bag

halfway sticking out from under the passenger’s seat.               Id. at 5, 18, 29.

Officer McLane’s testimony that the front seat was “roomy,” and that there

was a hump between the driver’s seat and the passenger seat, does not

support a finding that Rodgers had access to the gun. Id. at 40. Further,

Dixon had equal access, if not exclusive access, to the gun.                    Thus, the

evidence   in   this   case,   viewed    in   a    light   most    favorable      to   the

Commonwealth,      was    insufficient   to   support      a   finding   that    Rodgers

constructively possessed the firearm.             See Heidler, 741 A.2d at 216

(concluding that the appellant did not have constructive possession on the

firearm found in the purse of a passenger of the vehicle where the evidence

indicated that the passenger was the only person who could have accessed

the purse and the record was devoid of any evidence to demonstrate that

the appellant intended to exercise control over the gun); see also

Commonwealth v. Juliano, 490 A.2d 891, 895-96 (Pa. Super. 1985)

(concluding that the evidence was insufficient to conclude that appellant

constructively possessed contraband found in a vehicle where appellant was

merely present in the vehicle and three other people had equal access to the




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area in which the contraband was found).3

     However, this does not end our inquiry, as the trial court also found

that Rodgers had joint constructive possession of the gun with Dixon. “In

order to prove joint constructive possession, the Commonwealth again must

prove that [a]ppellant had both the power to control and the intent to

control the firearm.”   Heidler, 741 A.2d at 216.        A defendant’s mere

presence at the scene does not establish joint constructive possession of the

gun. Vargas, 108 A.3d at 869; see also Commonwealth v. Townsend,

237 A. 2d 192, 195 (Pa. 1968) (holding that mere presence in an automobile

in which a weapon is found is not sufficient to prove that an occupant is in

joint possession of the weapon).

     When viewing the totality of the evidence in a light most favorable to

the Commonwealth, the facts and circumstances do not support the finding

that Rodgers, with Dixon, was in joint constructive possession of the gun.

The Commonwealth presented evidence that the car did not belong to

Rodgers.   N.T., 10/23/13, at 21.        Additionally, after stopping Rodgers,

Officer McLane stated that while Rodgers’s moved his head or shoulders

3
  We additionally conclude that the trial court’s reliance on Cruz, supra, is
misplaced. See Trial Court Opinion, 8/24/15, at 7. In Cruz, this Court
concluded that the appellant had constructive possession of a gun where he
was the only person in the vehicle; the police officer observed him moving
toward where the gun was found (in a compartment on the passenger side
of the vehicle); and the appellant exhibited a marked consciousness of guilt.
Cruz, 21 A.3d at 1253. Unlike Cruz, Rodgers was not the only person in the
vehicle; there was no evidence that Rodgers moving toward the passenger’s
seat where the gun was found; and Officer McLane had testified that not all
of Rodgers’s actions evidenced a consciousness of guilt.


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forward, he could not identify the direction in which Rodgers was reaching.

Id. at 23, 36. Officer McLane additionally observed that Dixon’s hands were

on the dashboard, and he was sweating profusely.      Id. at 15, 29. Officer

McLane did not see the gun until he was taking inventory, after Rodgers and

Dixon had exited the vehicle. Id. at 5. Though Officer McLane testified that

the gun was halfway sticking out in an opaque bag from under the

passenger’s seat, he also stated that the front area of the car was roomy,

with a hump between the passenger’s seat and the driver’s seat. Id. at 5,

18, 29, 40. Based on the location of the gun in relation to Rodgers, Officer

McLane’s testimony that he did not observe Rodgers reach for the gun,

Rodgers’s lack of ownership of the car, and Dixon’s behavior, the evidence

fails to demonstrate that Rodgers knew of the presence of the gun, let alone

had the power or intent to control it.

       Thus, the facts in the case are insufficient to establish joint

constructive possession between Rodgers and Dixon. See Commonwealth

v. Armstead, 305 A.2d 1, 2 (Pa. 1973) (rejecting the Commonwealth’s

argument that the appellant knew of the presence of a gun found on the

front seat of a vehicle, after the appellant and another person were removed

from the vehicle, where there was no direct proof that appellant knew of the

presence of the gun, and thus, concluding that the Commonwealth failed to

demonstrate appellant’s intent to exercise control over the gun, necessary to

establish joint constructive possession); Commonwealth v. Boatwright,



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453 A.2d 1058 (Pa. Super. 1982) (holding that the evidence did not

establish joint constructive possession of a gun where the gun was on the

rear-driver’s-side floor, the defendant was in the front passenger seat, and

testimony only indicated the defendant made a movement toward the left

rear of the vehicle); Commonwealth v. Duffy, 340 A.2d 869, 870 (Pa.

Super. 1975) (concluding that the Commonwealth failed to establish joint

constructive possession where the driver of the car was not the registered

owner, and a search of the vehicle revealed a pistol far underneath the

passenger’s side of the front seat, a mask and gloves in the glove

compartment,    and   burglary   tools    in   the   rear   seat);   see   also

Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa. Super. 1982) (stating

that “we may not infer that appellant knew of the weapon’s existence simply

from the fact that it was hidden in the automobile.”).        Accordingly, the

evidence does not support Rodgers’s firearms convictions.

     With regard to Rodgers’s criminal conspiracy conviction, we note that

“[t]o sustain a conviction for criminal conspiracy, the Commonwealth must

establish that the defendant (1) entered into an agreement to commit or aid

in an unlawful act with another person or persons, (2) with a shared criminal

intent and (3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006).

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished.    Therefore, a
     conviction for conspiracy requires proof of the existence of a


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     shared criminal intent. An explicit or formal agreement to
     commit crimes can seldom, if ever, be proved and it need not
     be, for proof of a criminal partnership is almost invariably
     extracted from the circumstances that attend its activities.
     Thus, a conspiracy may be inferred where it is demonstrated
     that the relation, conduct, or circumstances of the parties, and
     the overt acts of the co-conspirators sufficiently prove the
     formation of a criminal confederation. The conduct of the parties
     and the circumstances surrounding their conduct may create a
     web of evidence linking the accused to the alleged conspiracy
     beyond a reasonable doubt. Even if the conspirator did not act
     as a principal in committing the underlying crime, he is still
     criminally liable for the actions of his co-conspirators in
     furtherance of the conspiracy.

Id. at 996-97 (citation omitted); see also Commonwealth v. Perez, 931

A.2d 703, 708 (Pa. Super. 2007) (noting that circumstantial evidence may

prove a conspiracy).

     Here, the trial court concluded that because Rodgers and Dixon both

occupied the vehicle and had joint constructive possession of the firearm,

Rodgers engaged in criminal conspiracy. See Trial Court Opinion, 8/24/15,

at 11 (noting that Rodgers “acted in concert with [Dixon] because they both

occupied the vehicle and had joint constructive possession of the firearm.”),

11-12 (stating that the totality of the circumstances, including that Dixon

controlled the gun because he hid it under his seat, Officer McLane’s

testimony that Dixon was sweating profusely and had his hands on the

dashboard, and Rodgers’s presence in the vehicle, demonstrated a criminal

conspiracy). We disagree.

       As noted above, the evidence did not establish that Rodgers and

Dixon had joint constructive possession of the gun. Moreover, even if Dixon


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had constructive possession of the gun under his seat, Rodgers’s mere

presence in the car is insufficient evidence that he was part of a conspiracy.

See Hamm, 447 A.2d at 962-63 (determining that no conspiracy existed

where the Commonwealth proved only that appellant was driving an

automobile, not his own, that had a weapon hidden in it, and that one of the

passengers was carrying a weapon); see also Commonwealth v. Carter,

450 A.2d 142, 145 (Pa. Super. 1982) (stating that “[m]ere presence at or

near the scene of an offense, it has been held repeatedly, is insufficient to

establish that one is part of a conspiracy”).   Although conspiracy may be

established through circumstantial evidence, the evidence viewed in a light

most favorable to the Commonwealth, is insufficient to demonstrate that

Rodgers and Dixon entered into an agreement to possess the gun, or that he

or Dixon committed an overt act in furtherance of any other conspiracy.

See Hamm, 447 A.2d at 962-63.

      Based on the foregoing, we conclude the trial court erroneously

determined that Rodgers had constructive possession of the gun, joint

constructive possession of the gun, and engaged in criminal conspiracy.

Thus, we reverse the judgment of sentence and discharge Rodgers.

      Judgment of sentence reversed.      Rodgers discharged.     Jurisdiction

relinquished.

      Judge Bender joins the memorandum.

      Judge Stabile files a dissenting memorandum.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/20/2016




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