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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
SALIK NASIR AL-KAABAH, :
: No. 1654 EDA 2016
Appellant :
Appeal from the Judgment of Sentence May 12, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0001041-2015
BEFORE: OLSON, STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 10, 2017
Salik Nasir Al-Kaabah (“Al-Kaabah”) appeals from the judgment of
sentence imposed following his conviction of carrying a firearm without a
license. See 18 Pa.C.S.A. § 6106. We affirm.
The trial court set forth the relevant factual history as follows:
On February 22, 2014[], at 1:00 a.m.[,] [Al-Kaabah] and three
friends were pulled over in Tinicum Township on the Industrial
Highway by Officer Andrew O’Neill [(“Officer O’Neill”)] of the
Tinicum Township Police Department. Officer O’Neill pulled the
vehicle over because the window tint was so dark that he could
not see in. When he approached the vehicle[,] he asked the
driver, [Al-Kaabah,] to roll down all the windows so he could see
inside the vehicle. Officer O’Neill immediately observed [that] all
subjects in the vehicle had their hands out in front of them and
all appeared nervous and were looking at him through the side
of their eyes. Officer O’Neill then asked for more information.
[Al-Kaabah] produced his driver’s license. The other passengers
denied having identification and instead gave the officer their
names and dates of birth. Officer O’Neill went to run these
names. The two passengers in the back came up no record
found. In the meantime[,] Officer Kevin Wiley [(“Officer
Wiley”),] also of Tinicum Township[,] came to assist in the stop.
Officer Wiley approached the vehicle and immediately smelled
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the overwhelming stench of fresh marijuana. He asked the
subjects to exit the vehicle and patted them down for officer
safety. Officer Wiley observed[,] in plain view around the
driver’s seat[,] what he termed as marijuana shake or debris.
Officer Wiley then asked [Al-Kaabah] for permission to search
the vehicle. [Al-Kaabah] gave his consent to search the vehicle.
During the search[,] Officer Wiley noticed the glovebox was
locked. Officer Wiley asked [Al-Kaabah] for access to the
glovebox. [Al-Kaabah] gave Officer Wiley the keys to the locked
glovebox. When the locked glovebox was opened[,] Officer
Wiley found two loaded guns inside. All occupants of the vehicle
were transported to the police station. At the police station[, Al-
Kaabah] gave a statement to Officer Wiley. [Al-Kaabah] stated
that he was with his three friends at a party that night. His
friends asked to put something in his car. [Al-Kaabah] watched
as one occupant handed a gun to another and then watched
them put the guns in the glovebox. After the guns were placed
in the glovebox[,] the car key was returned to [Al-Kaabah].
None of the occupants of the vehicle[,] including [Al-Kaabah,]
were licensed to carry a handgun.
Trial Court Opinion, 8/31/16, at 4-5.
Following a jury trial, Al-Kaabah was convicted of carrying a firearm
without a license. On May 12, 2016, the trial court sentenced Al-Kaabah to
four days (representing his time served between February 22, 2014, and
February 25, 2014), to 23 months in prison, followed by three years of
probation. Al-Kaabah filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
On appeal, Al-Kaabah raises the following question for our review:
Whether [Al-Kaabah] should be afforded a new trial on the
charge of carrying a firearm without a license[,] when a firearm
was inside a car containing four people[,] and the court failed to
instruct the jury that an element of the offense is possession or
constructive possession of the firearm[?]
Brief for Appellant at 3 (capitalization omitted).
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Al-Kaabah argues that the trial court failed to instruct the jury that
possession (or constructive possession) of a firearm is a necessary element
of carrying a firearm without a license.1 Brief for Appellant at 5-6. Al-
Kaabah claims that the trial court instead used the term “carrying,” and that
without further explanation, the jury improperly applied the common
meaning. Id. at 6. Al-Kaabah asserts that the jury’s misunderstanding of
the law is evidenced by their request for a copy of the instruction regarding
“firearms in a vehicle.” Id. at 7. Al-Kaabah further contends that his
conviction of carrying a firearm without a license is inconsistent with his
acquittals of possession of a firearm with an altered or obliterated serial
number and conspiracy. Id. at 8.
When reviewing a challenge to jury instructions, the
reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or
prejudicial. The trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for
its consideration. A new trial is required on account of an
1
The trial court instructed the jury as follows regarding the carrying a
firearm without a license charge:
[Al-Kaabah] has been charged with carrying a firearm without a
license. To find [Al-Kaabah] guilty of this offense, you must find
that each of the following three elements has been proven
beyond a reasonable doubt[: F]irst, that [Al-Kaabah] carried a
firearm in a vehicle[;] second, that [Al-Kaabah] was not in his
place of abode, that is his home or his fixed place of business[;]
and third, that [Al-Kaabah] did not have a valid and lawfully
issued license for carrying a firearm.
N.T., 3/3/16, at 44.
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erroneous jury instruction only if the instruction under review
contained fundamental error, misled, or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009).
Initially, in his Concise Statement, Al-Kaabah concedes (and our
review of the record confirms) that his trial counsel did not object to the jury
instruction prior to deliberations. Thus, any challenges to the content of or
omissions from the trial court’s jury instructions are waived.2 See
Pa.R.Crim.P. 647(C) (providing that “[n]o portions of the charge nor
omissions from the charge may be assigned as error, unless specific
objections are made thereto before the jury retires to deliberate. All such
objections shall be made beyond the hearing of the jury.”) (emphasis
added); see also Commonwealth v. Moury, 992 A.2d 162, 178 (Pa.
Super. 2010) (stating that “[a] specific and timely objection must be made
to preserve a challenge to a particular jury instruction. Failure to do so
results in waiver.” (citations omitted)).
2
Moreover, after deliberations began, the jury submitted the following
question to the trial court: “Does being in control of a car make you
responsible of [sic] a firearm?” N.T., 3/3/16, at 53. The trial court
discussed the jury’s question with counsel, outside of the presence of the
jury, and proposed that it reread the instruction regarding possession of a
firearm with altered or obliterated manufacturer’s number, “because that’s
where the information about [p]ossession is[.]” Id. Al-Kaabah’s trial
counsel asked the trial court to instruct the jury that being in control of a car
does not make one responsible for a firearm inside the car. See id. at 53-
56. The trial court ultimately addressed the jury’s question by rereading the
following instruction regarding possession: “For a person to possess an
item, they must have the power to control the item and the intent to control
the item.” Id. at 56.
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To the extent that Al-Kaabah argues that his conviction of carrying a
firearm without a license is inconsistent with his acquittal of possession of a
firearm with altered or obliterated serial number, he is not entitled to relief
on this claim, as it is well-settled that “inconsistent verdicts are permissible
in Pennsylvania.” Commonwealth v. States, 938 A.2d 1016, 1025 (Pa.
2007); see also Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.
Super. 2015) (stating that “[i]nconsistent verdicts, while often perplexing,
are not considered mistakes and do not constitute a basis for reversal. …
[T]his Court will not disturb guilty verdicts on the basis of apparent
inconsistencies as long as there is sufficient evidence to support the verdict.”
(citation omitted)). Further, “an acquittal cannot be interpreted as a specific
finding in relation to some of the evidence[.]” Commonwealth v. Miller,
35 A.3d 1206, 1213 (Pa. 2012). Accordingly, this claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2017
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