J-S19036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

NORMAN KEVIN RODGERS

                        Appellant                  No. 1899 EDA 2014


     Appeal from the Judgment of Sentence entered February 5, 2014
          In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0012493-2012


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

DISSENTING MEMORANDUM BY STABILE, J.:               FILED APRIL 20, 2016

     I respectfully must dissent.

     I do not believe the Majority gives the Commonwealth the evidentiary

deference it is due as the verdict winner in this case. Although the Majority

states that it viewed the evidence in a light most favorable to the

Commonwealth, I do not believe its application of that standard actually

grants that deference to the Commonwealth.

     The evidence as recited by the Majority was that after the vehicle was

stopped, both Rodgers and his passenger Dixon were bending forward in the

car, Rodgers multiple times. Rodgers’ head and shoulders were going below

the seats so they could not be seen.      Officer McLane stated that, upon

approaching, and without being asked, Rodgers already had placed his

hands on the steering wheel and his passenger had his hands on the
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dashboard.    Rodgers was acting nervous and in fact dropped his driver’s

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

handing them to Officer McLane.        After Rodgers and his passenger Dixon

were asked to step out of the car, Officer McLane observed a gun protruding

halfway out of a bag that was partially jammed under the front passenger

seat. The front of the car was roomy with a little bit of a hump between the

driver and passenger seats. Dixon was sweating profusely despite it being a

relatively cool night.   I believe that while other factfinders may view the

evidence differently, the evidence—when viewed in its totality with all

inferences   favorably   drawn   in    the   Commonwealth’s   favor—supports

conviction of the firearm violations and conspiracy with which Rodgers was

charged.

      Rodgers’ and Dixon’s movements upon being stopped may be

described as furtive. The bending forward multiple times by both Rodgers

and Dixon may be consistent with an attempt by Rodgers and/or a joint

attempt between Rodgers and Dixon to hide the gun, albeit unsuccessfully,

under the front passenger seat.       The fact that the bending was such that

Rodgers’ head and shoulders could not be seen at times is consistent with

Rodgers attempting, or assisting Dixon to attempt, to hide the gun on the

floor of the car under Dixon’s seat. The fact that the front of the vehicle was

“roomy” may have facilitated Rodgers’ attempt to hide the gun with Dixon.

Both Rodgers’ and Dixon’s preemptive placing of their hands on the steering

wheel and dashboard may be viewed as evidence of guilty consciences.

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Certainly, while other explanations could be offered, the most favorable

inferences that must be drawn from Rodgers’ nervousness and Dixon’s

profuse sweating on a cool night is evidence of guilt.      I therefore would

conclude that the totality of the evidence, viewed in a light most favorable to

the Commonwealth, supports Rodgers’ convictions. The evidence supports a

finding that Rodgers had both the power to control and the intent to exercise

control over the gun either individually or in concert with Dixon.

      I do not find the cases of Commonwealth v. Heidler, 741 A.2d 213

(Pa. Super. 1999) and Commonwealth v. Juliano, 490 A.2d 891 (Pa.

Super. 1985), cited by the Majority, to be supportive of the Majority’s

conclusions. In Heidler, this Court did not find constructive possession of a

firearm where the defendant had surrendered his gun to his girlfriend, who

took possession of the gun and concealed it in her purse. Unlike here, the

defendant in Heidler did not have access to the gun concealed in his

girlfriend’s purse. Here, Rodgers could have gained access, and may in fact

have accessed the gun, as evidenced by his attempt to hide the weapon

near the passenger seat in what was described as a roomy front seat of the

car, the favorable inference being that the extra room permitted access. In

Juliano, there was no evidence the defendant knew a gun was in the car, as

it was concealed completely within a green bag the driver placed near where

the defendant was sitting in the car. Further, there was no evidence of any

furtive movements in that case.        The half exposure of the gun here,




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combined with what can be viewed as Rodgers’ attempt to conceal or help

conceal the gun, easily distinguishes this case from Juliano.

     I would affirm the judgment of sentence in this case.




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