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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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