Com. v. Rodgers, D. ( 2016 )

J. S83009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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