Com. v. Muhammad, R.

J-A26031-22

2023 PA Super 6

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASHEED MUHAMMAD :
:
Appellant : No. 84 EDA 2022

Appeal from the Judgment of Sentence Entered November 30, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001435-2019

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED JANUARY 9, 2023

Rasheed Muhammad (Muhammad) appeals from the judgment of

sentence imposed following his jury conviction in the Court of Common Pleas

of Delaware County (trial court) of resisting arrest and firearms not to be

carried without a license.1 Muhammad challenges the trial court’s denial of

his motion to suppress evidence and the sufficiency of the evidence supporting

his conviction. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 5104 and 6106. Muhammad was found not guilty of person
not to possess a firearm and two counts each of conspiracy to commit forgery
and forgery.
J-A26031-22

I.

A.

This case arises from a December 2018 incident during which police

confiscated a firearm from the center console of the rental vehicle that

Muhammad had been driving. When Muhammad was approached by police,

Muhammad’s co-defendants, Henry Clark (Muhammad’s since-deceased

uncle) and Geraldine Briggs were attempting to cash bad checks at a PNC

Bank while he was parked outside the bank. Following his arrest, Muhammad

filed a motion seeking suppression of the firearm seized as unlawfully

obtained.

Patrol Sergeant Matthew Egan of Media Borough Police Department was

the only witness at Muhammad’s August 28, 2019 suppression hearing.

Sergeant Egan testified that he has been a police officer for 30 years and has

received extensive training in recognizing warning signs signaling that an

individual is potentially armed and dangerous. He also has had firsthand

experience in dealing with such suspects. Sergeant Egan recounted that on

the day of the incident, at 2:45 p.m., he responded to a report of a check

fraud in progress at the PNC Bank located on the corner of State Street and

Veterans Square. The Sergeant explained that he was driving an unmarked

SUV and was wearing plain clothes at the time because he was filling in for

the Police Chief, who was on sick leave that day. In the 911 call, the PNC

Bank manager indicated that two people were attempting to cash bad checks

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at the bank and that the female involved had walked back and forth to a gray

Kia Soul parked outside.

Upon arriving at the scene, Sergeant Egan observed Muhammad’s blue

Kia Soul parked directly across the street from the bank on Veterans Square.

The Sergeant parked his vehicle behind the Kia, effectively blocking it in. As

he was exiting his vehicle, the brakes and reverse lights of the Kia briefly

activated. Sergeant Egan effectuated the stop based on the 911 description

of the vehicle and his observation that there was only one Kia Soul in the area

adjacent to the bank. (See N.T. Suppression, 8/28/19, at 21).

Muhammad was the sole occupant of the Kia and he was sitting in the

driver’s seat. As Sergeant Egan approached the car, Muhammad began to

open the door and asked if he was allowed to park there. The Sergeant

observed a strong odor of marijuana coming from the vehicle and asked

Muhammad for his driver’s license, registration and insurance card.

Muhammad produced a Pennsylvania driver’s license and indicated that,

although he did not have the other documents, he did have the rental

agreement for the Kia, which had Tennessee plates.

Sergeant Egan recounted that Muhammad began looking in an

extremely awkward manner for the rental agreement in the center console,

glove compartment and under the seats. The Sergeant became “very

nervous” because Muhammad was “leaning his body down and doing

something I couldn’t see . . . either reaching for or doing something to hide

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what he was worried about me seeing in the center console.” (Id. at 25).

Because Muhammad was twisting his body in an uncomfortable and unnatural

way, it made the Sergeant “feel as if there was something that could be

dangerous” to him, especially because he was not wearing a bullet proof vest

or carrying a taser gun. (Id. at 26). When Muhammad found and gave the

rental agreement to the Sergeant, he walked to the back of his police vehicle

to create distance because the situation “absolutely” fell within the warning

signs he had been trained to look for. (Id. at 27). As he waited for backup,

two Upper Providence officers offered assistance.

Sergeant Egan re-approached the Kia and Muhammad complied with his

request to exit the car. Sergeant Egan patted him down for weapons, found

none, and asked what was going on. Muhammad explained that he was a

“Monster Hack” driver functioning similarly to an Uber driver and that he is

paid in cash. He then contradicted himself by stating that it was not a cash

business. Sergeant Egan became increasingly suspicious at the details of

Muhammad’s explanation and directed him to stand with the other officers.

He conducted a limited search of the Kia “to make sure there were no weapons

or anything right around the driver’s compartment” and looked under the seat

and in the center console where he recovered a handgun and checks. (Id. at

31).

Sergeant Egan exited the Kia and informed Muhammad that he was

being detained because of the gun and the ongoing situation at the bank.

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When Sergeant Egan asked Muhammed to place his hands behind him,

Muhammed shoved him in the chest and attempted to flee. A struggle ensued

between Muhammad and four officers who assisted Sergeant Egan in

detaining him. Muhammad was tased and placed under arrest. Muhammad’s

co-defendants were also arrested and the Kia Soul was searched after police

obtained a warrant. Muhammad admitted to driving the two other individuals

to the bank, and Sergeant Egan testified that in his experience, it is “extremely

common” in investigating fraudulent checks for a group of people to work in

concert to defraud the bank. (Id. at 36).

On cross-examination, Sergeant Egan clarified that he had his police

badge displayed as he approached the Kia, and that there was no mention of

the Tennessee license plate as a descriptive indicator of the car in the 911

call. The Sergeant reiterated that during the 911 call, the bank manager had

indicated that the female suspect in the bank was going back and forth to a

gray Kia Soul. (See id. at 39). Sergeant Egan also noted that as he initially

approached the bank, he looked for a Kia Soul, and that he pulled in behind

the only make and model of that vehicle in the vicinity. The Sergeant

acknowledged that once he parked in back of the Kia, Muhammad was not

free to leave. (See id. at 45). The trial court deferred ruling on the motion

pending the submission of briefs. It denied the motion on October 17, 2019.

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B.

Muhammad filed a motion to reconsider the suppression ruling on

February 11, 2021, in light of our Supreme Court’s decision in

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). The Alexander

Court addressed the requirements under the Pennsylvania Constitution of the

automobile exception to the warrant requirement.2 The trial court denied the

motion after considering the parties’ briefs.

At Muhammad’s October 13-14, 2021 jury trial, the Commonwealth

presented evidence showing that Muhammad did not have a license to carry

a firearm and that Muhammad’s struggle during his arrest caused a bleeding

laceration to Sergeant Egan’s nose. (See N.T Trial, 10/13/21, at 119, 141).

Muhammad’s father, Gerald Clark, testified for the defense. He indicated that

his brother, co-defendant Henry Clark, carried a firearm for protection when

he was alive. (See N.T Trial, 10/14/21, at 42-43).

____________________________________________

2 The Alexander Court held that Article I, Section 8 of the Pennsylvania
Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile. See
Alexander, supra at 181, overruling Commonwealth v. Gary, 91 A.3d 102
(Pa. 2014) (requiring only probable cause). However, as discussed infra, the
instant case does not involve a full interior vehicle search pursuant to the
automobile exception and instead concerns a limited protective search for
officer safety.

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J-A26031-22

As previously noted, Muhammad was also charged with person not to

possess a firearm under 18 Pa.C.S. § 61053 at Count 4. To avoid informing

the jury of his prior convictions, the parties and the trial court agreed to submit

the following question to the jury on the verdict sheet for that offense (instead

of a guilty/not guilty option):

IV. Possession of Firearm

Did the Defendant Rasheed Muhammad on December 18, 2018
possess and have under his control a firearm, to wit a Smith &
Wesson 38 Caliber Special?

(Verdict Sheet, 10/14/21). The jury answered “No” to this question, but

nonetheless found Muhammad guilty of firearms not to be carried without a

license. It also found him guilty of resisting arrest. On November 30, 2021,

the trial court sentenced Muhammad to an aggregate term of 42 to 84 months’

incarceration followed by two years of probation. The trial court denied

Muhammad’s post-sentence motion on December 6, 2021, and he timely

appealed. Muhammad and the trial court complied with Rule 1925. See

Pa.R.A.P. 1925(a)-(b).

____________________________________________

3 The Crimes Code defines this offense as follows: “A person who has been
convicted of an offense enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or whose conduct meets
the criteria in subsection (c) shall not possess, use, control, sell, transfer or
manufacture or obtain a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.” 18 Pa.C.S. § 6105.

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II.

Muhammad first challenges the trial court’s denial of his suppression

motion and raises a two-fold argument contesting both the initial stop of the

Kia and the warrantless search of its center console. (See Muhammad’s Brief,

at 1-12).4 Muhammad contends Sergeant Egan lacked reasonable suspicion

to stop his vehicle where the 911 caller provided only a vague description of

the make, model and color of the car, and the color of his Kia did not match

that description (i.e., it was blue instead of gray). According to Muhammad,

Sergeant Egan stopped him “based on a mere hunch” because there was no

evidence linking his vehicle to the individuals who had been detained inside of

the bank. (Id. at 5, 7). Regarding the search of the center console,

Muhammad disputes its validity by arguing there was no evidence that he was

____________________________________________

4 When reviewing an order denying a motion to suppress evidence,

[w]e may consider only the Commonwealth’s evidence and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error. An appellate court, of course, is not
bound by the suppression court’s conclusions of law. It is within
the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their testimony.

Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citations
omitted).

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armed or dangerous and that there were no exigent circumstances to justify

a warrantless search. (See id. at 1, 10-12).

A.

We begin by addressing the legality of Sergeant Egan’s stop of the Kia

and observe:

The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution guarantee
the right of the people to be secure in their persons, houses,
papers, and possessions from unreasonable searches and
seizures. To secure the right of citizens to be free from
unreasonable search and seizure, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent
those interactions compromise individual liberty. Because
interactions between law enforcement and the general citizenry
are widely varied, search and seizure law looks at how the
interaction is classified and if a detention has occurred.

Luczki, supra at 542 (case citations omitted).

The law recognizes three distinct levels of interaction
between police officers and citizens: (1) a mere encounter; (2)
an investigative detention, often described as a Terry stop, see
Terry v. Ohio, 392 U.S. 1, (1968); and (3) a custodial detention.

A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond and therefore
need not be justified by any level of police suspicion.

In contrast, an investigative detention carries an official
compulsion to stop and respond. Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.

Finally, a custodial detention occurs when the nature,
duration and conditions of an investigative detention become so
coercive as to be, practically speaking, the functional equivalent

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of an arrest. This level of interaction requires that the police have
probable cause to believe that the person so detained has
committed or is committing a crime.

Commonwealth v. Jefferson, 256 A.3d 1242, 1247-48 (Pa. Super. 2021),

appeal denied, 268 A.3d 1071 (Pa. 2021) (most citations omitted).

In this case, Muhammad was subjected to an investigative detention

when Sergeant Egan pulled his police vehicle directly behind the Kia,

effectively blocking it in. In determining whether the Sergeant had reasonable

suspicion to initiate an investigative detention:

. . . the fundamental inquiry is an objective one, namely, whether
the facts available to police at the moment of the intrusion warrant
a man of reasonable caution in the belief that the action taken was
appropriate. Reasonable suspicion is dependent on both the
quantity and quality of the information police possess prior to
detaining an individual. In order to assess the facts available to
police, we must consider the totality of the circumstances. While
reasonable suspicion is a less stringent standard than probable
cause, the detaining officer must be able to articulate something
more than an inchoate and unparticularized suspicion or hunch.

Id. at 1248 (citations and quotation marks omitted).

A consideration the totality of the circumstances includes such factors

as tips, the reliability of any tips, location and suspicious activity. See

Commonwealth v. Mackey, 177 A.3d 221, 229 (Pa. Super. 2017).

Importantly, identified citizens who report their observations of criminal

activity to police, as was the case here with the PNC Bank manager, are

assumed to be trustworthy, since a known informant places himself at risk of

prosecution for filing a false claim if the tip is untrue, whereas an unknown

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informant faces no such risk. See Commonwealth v. Walls, 206 A.3d 537,

542 (Pa. Super. 2019).

The trial court concluded that the stop was lawful and explained:

The record is clear this is a case of police in the initial stages
of a felony criminal investigation who were looking for a Kia Soul
in the vicinity of the PNC Bank and upon arrival, they observed a
Kia Soul parked in a parking spot across from the PNC Bank. While
the description of a gray Kia Soul may be incorrect as to the
precise color, the factual discrepancy does not mean it did not
accurately describe the make and model of the vehicle subject to
the call, and its location . . . and this court’s acknowledgment that
grays and blues can appear similar, especially from a distance.
Additionally, the record shows as Egan approached the area of the
PNC Bank he was looking for the presence of a Kia Soul, and the
only one in the area was located exactly in the place the caller
indicated, i.e., across from the PNC Bank. Recognizing that this
description was provided by a witness who was observing and
reporting from inside the PNC Bank and across the street from the
Kia Soul . . . the color discrepancy is of de minimus import[.]

Concerning the allegation there was no reasonable suspicion
to stop even the correct Kia Soul because the information in the
radio call did not indicate that any criminal activity was ongoing
that involved the Kia Soul, the record is clear one of the persons
involved in the criminal activity in the PNC Bank walked out to the
Kia Soul and returned to the PNC Bank. Additionally, Egan’s
testimony during the suppression motion revealed that in these
types of crimes “it is common practice for there to be a group of
people that do these scams.” Based on the report, an
investigation by the police of the only Kia Soul in the area was
legal, and contrary to Appellant’s allegation, police had reasonable
suspicion to investigate a report of felonies in progress especially
when Egan observed a Kia Soul located in the same place
identified by the caller who indicated one of the persons involved
in the ongoing criminal episode walked out to the Kia Soul and
came back into the bank and Egan testified there were no other
Kia Soul vehicles in the area.

(Trial Court Opinion, 3/28/22, at 9-10) (record citations omitted).

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Considering the totality of the circumstances, including Sergeant Egan’s

decades-long training and experience, along with the fact that the 911 call

was placed by an identified eyewitness to a suspected felony in progress, we

conclude that he had reasonable suspicion to initiate the stop of the Kia.

Muhammad’s claim to the contrary warrants no relief.

B.

We next address the warrantless limited search of the Kia, which

Muhammad claims was illegal. As a general rule, a warrantless search of a

vehicle requires both probable cause and exigent circumstances. See

Alexander, supra at 181. However, in Michigan v. Long, 463 U.S. 1032

(1983), the United States Supreme Court applied the principles set forth in

Terry to a search of the passenger compartment of a vehicle for weapons.

Long was convicted of possession of marijuana found by police in the

passenger compartment. The Long Court held that the “search of the

passenger compartment of an automobile, limited to those areas in which a

weapon may be placed or hidden, is permissible if the police officer possesses

a reasonable belief based on specific and articulable facts which, taken

together with the rational inferences from those facts, reasonably warrant the

officers in believing that the suspect is dangerous and the suspect may gain

immediate control of weapons.” Id. at 1049. “The issue is whether a

reasonably prudent man in the circumstances would be warranted in the belief

that his safety or that of others was in danger.” Id. at 1050.

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“If a suspect is ‘dangerous,’ he is no less dangerous simply because

he is not arrested.” Id. (emphasis added). “In evaluating the validity of an

officer’s investigative or protective conduct under Terry, the touchstone of

our analysis is always the reasonableness in all circumstances of the particular

governmental intrusion of a citizen’s personal security.” Id. at 1051.

“Therefore, the balancing required by Terry clearly weighs in favor of allowing

the police to conduct an area search of the passenger compartment to uncover

weapons, as long as they possess an articulable and objectively reasonable

belief that the suspect is potentially dangerous.” Id. The Long court also

emphasized that a Terry investigation is “at close range, when the officer

remains particularly vulnerable in part because a full custodial arrest has not

been effected, and the officer must make a quick decision as to how to protect

himself and others from possible danger.” Id. at 1052 (citation omitted;

emphasis original).

Here, the trial court concluded that the warrantless limited search of the

Kia was reasonable and stated:

Appellant’s version is a clean, laundered version of the
actual events from December 18, 2018 as evidenced by the record
from the suppression hearing. . . . With police already on notice
to the criminal activity, Appellant conducted himself in a manner
which in itself was suspicious. As soon as the police pulled behind
the only Kia Soul in the location reported on the call, Appellant put
the car into reverse as if to leave, and then Appellant asked Egan
whether he was parked legally. Then, in front of Egan he furtively
moved about the inside of the vehicle blocking Egan’s view of the
console area. Egan has been a police officer for many years and
knowing he was investigating a report of a felony in progress, his
suspicions became heightened as a result of all of Appellant’s

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behaviors. . . . Egan’s testimony at the suppression hearing is
clear he was in plainclothes without a bulletproof vest and his
suspicion was aroused since he already was investigating the
active commission of felony crimes, he detected the overwhelming
odor of marijuana from Appellant and the vehicle, and he
observed Appellant who was the driver of the vehicle reported in
the call engaging in a course of conduct, including initially pulling
his vehicle in reverse as if to leave and then blocking from view
certain areas of the inside of the vehicle with his surreptitious
movements.

(Trial Ct. Op., at 11-12) (record citations omitted).

Based on the foregoing, we conclude the record contains ample evidence

supporting Sergeant Egan’s belief that Muhammad posed a danger if he were

permitted to reenter the vehicle. The officers here, as in Long, did not act

unreasonably in taking preventative measures to ensure their safety.

Sergeant Egan specifically testified that Muhammad’s behavior made him “feel

as if there was something that could be dangerous” to him, especially because

he was not wearing a bullet proof vest or carrying a taser, and that his

interaction with Muhammad “absolutely” signaled to him based on his training

and experience that Muhammad was potentially armed and dangerous. (See

N.T. Suppression, at 26-27). The search of the car was restricted to those

areas that Muhammad would have immediate control of and could contain a

weapon. Thus, the intrusion was “strictly circumscribed by the exigencies

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which justified its initiation.” Long, supra at 1051 (citation omitted).

Muhammad’s suppression issue merits no relief.5

III.

Muhammad next challenges the sufficiency of the evidence supporting

his firearms not to be carried without a license and resisting arrest convictions.

(See Muhammad’s Brief, at 12-25).6 Regarding the firearms not to be carried

____________________________________________

5 Muhammad’s reliance on Commonwealth v. Cartagena, 63 A.3d 294 (Pa.
Super. 2013) (en banc), which involved a Commonwealth appeal from an
order granting suppression of a firearm seized from the center console during
a traffic stop, is misplaced. (See Muhammad’s Brief, at 9-11). In that case,
police stopped Cartagena late at night for a tinted windows violation and he
exhibited nervousness while complying with the officers’ orders to lower the
windows and produce license, insurance and registration information. This
Court considered the legality of the warrantless protective sweep of his vehicle
under Long, and determined that the sparse record lacked articulable facts
that would warrant reversal of the suppression ruling. See Cartagena, supra
at 303, 307. The Court observed that the “suppression hearing transcript
contains no information about Officer Johncola’s level of training or
experience in conducting traffic stops (or even years of service) and is devoid
of any testimony that Officer Johncola believed, based on his training and
experience, that Cartagena possessed a weapon or had access to a weapon in
his vehicle, . . . or that he made any movements that caused Officer Johncola
to believe that Cartagena was in possession of a weapon or that Cartagena
posed a safety threat.” Id. at 302-303 (citing, e.g., Terry and Long)
(emphasis added). In contrast, in the instant case, the record contains
significant information detailing Sergeant Egan’s training and firsthand
experience in identifying persons potentially armed and dangerous and his
testimony that Muhammad’s furtive and awkward movements indicated that
he was a safety threat.

6

When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
(Footnote Continued Next Page)

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without a license conviction (Count 5), he contends that it must be vacated

because “the jury specifically found that [he] did not constructively possess

the weapon” on the question submitted to it for Count 4. (Id. at 15).

Muhammad also disputes the element of constructive possession where the

evidence showed that the two people involved in the check cashing scheme

had also been in the Kia. (See id. at 24). Concerning the resisting arrest

offense, Muhammad maintains that because everything leading up to the

“brief struggle” with police was unconstitutional, there was no lawful arrest to

support the conviction. (See id. at 12, 21).

A.

We first address the sufficiency of the evidence supporting Muhammad’s

firearms conviction. “In order to convict a defendant for carrying a firearm

without a license, the Commonwealth must prove that the weapon was a

firearm; that the firearm was unlicensed; and that where the firearm was

concealed on or about the person, it was outside his home or place of

____________________________________________

to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to accord to
each witness’s testimony and to believe all, part or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. As an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Steele, 234 A.3d 840, 845 (Pa. Super. 2020) (citations
omitted).

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business.” Commonwealth v. Hewlett, 189 A.3d 1004, 1009 (Pa. Super.

2018). A defendant’s possession of the firearm must also be established by

the Commonwealth. See Commonwealth v. Boatwright, 453 A.2d 1058,

1059 (Pa. Super. 1982). Because the gun in the instant case was found in

the center console of the vehicle and not on Muhammad’s person, the concept

of constructive possession applies.

Where a defendant is not in actual possession of the
prohibited items, the Commonwealth must establish that the
defendant had constructive possession to support the conviction.
Constructive possession is a legal fiction, a pragmatic construct to
deal with the realities of criminal law enforcement. We have
defined constructive possession as conscious dominion, meaning
that the defendant has 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.

It is well established that, as with any other element of a
crime, constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish
facts from which the trier of fact can reasonably infer that the
defendant exercised dominion and control over the contraband at
issue.

To find constructive possession, the power and intent to
control the contraband does not need to be exclusive to the
appellant . . . and may be found in one or more actors where the
item in issue is in an area of joint control and equal access.

Commonwealth v. Rojas-Rolon, 256 A.3d 432, 437–38 (Pa. Super. 2021),

appeal denied, 2022 WL 4590477 (Pa. filed Sept. 30, 2022) (citations

omitted).

Here, Sergeant Egan recovered the gun from the center console of the

Kia, right next to where Muhammad had been sitting. Muhammad was the

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only occupant in the car at the time of the stop, and his furtive movements

and awkward positioning of his body indicated that he was aware of the gun

and was attempting to conceal it. The jury could reasonably infer from

Muhammad’s proximity to the gun and his efforts to conceal it that the gun

belonged to him. Given that Muhammad had no license to carry a firearm,

and viewing the evidence presented at trial in the light most favorable to the

Commonwealth, the evidence was sufficient to support his conviction.

With regard to Muhammad’s claim the jury’s answer of “No” to the

interrogatory regarding possession of the firearm at Count 4 invalidated its

verdict on Count 5, we disagree. It is well-settled that consistency in a verdict

is not required and that inconsistencies are generally not reviewable because

they would involve speculation or require investigation into the jury’s

deliberations. See Commonwealth v. Widger, 237 A.3d 1151, 1160 (Pa.

Super. 2020), appeal denied, 249 A.3d 505 (Pa. 2021). Additionally, criminal

defendants are already afforded protection against jury irrationality or error

by independent review by our Courts of the sufficiency of the evidence. See

id. at 1161.

Our decision in Commonwealth v. Banks, 253 A.3d 768 (Pa. Super.

2021), appeal denied, 267 A.3d 1213 (Pa. 2021), is instructive. The

defendant in that case was convicted of DUI─general impairment and fleeing

or attempting to elude a police officer. Although the latter crime is generally

graded as a second-degree misdemeanor, it constitutes a third-degree felony

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if, while fleeing, the defendant is DUI. See id. at 775. On the verdict slip,

the jury was asked for the fleeing/eluding charge to first indicate whether

Banks was guilty or not guilty. It was then queried, if the finding was guilty,

whether the Commonwealth had proved beyond a reasonable doubt that

Banks, while fleeing, had committed a violation of the DUI statute. The jury

answered “No” to this question. On appeal, Banks contended that this “No”

finding on the fleeing/eluding charge impacted the sufficiency analysis for the

DUI offense. We disagreed and held that “the fact that the jury simultaneously

convicted Appellant of DUI and found that Appellant was not DUI in connection

with the fleeing/eluding charge is of no moment.” Id. We explained:

[I]nconsistent verdicts, while often perplexing, are not
considered mistakes and do not constitute a basis for
reversal. Consistency in verdicts in criminal cases is not
necessary. When an acquittal on one count in an indictment is
inconsistent with a conviction on a second count, the court looks
upon the acquittal as no more than the jury’s assumption of a
power which they had no right to exercise, but to which they were
disposed through lenity. Thus, this Court will not disturb guilty
verdicts on the basis of apparent inconsistencies as long as there
is evidence to support the verdict. The rule that inconsistent
verdicts do not constitute reversible error applies even where the
acquitted offense is a lesser included offense of the charge for
which a defendant is found guilty.

Id. (citation omitted; emphasis added).

Instantly, as discussed above, there was sufficient evidence of record to

convict Muhammad of carrying a firearm without a license. Further, the

verdict sheet providing the interrogatory concerning Count 4 did not connect

in any manner that charge to the separate offense at Count 5. The record

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reflects that the trial court and the parties agreed to submit the question at

Count 4 to the jury as a means of protecting Muhammad from potential

prejudice, because listing all of the elements of the person not to possess in

that count would have required informing the jury of his prior offenses. The

apparent inconsistency in the verdict here, as in Banks, is not considered a

mistake and does not constitute a basis for reversal. See Banks, supra at

775. For all of the foregoing reasons, Muhammad’s sufficiency challenge to

the firearms conviction merits no relief.

B.

Last, we address Muhammad’s claim that the evidence was insufficient

to support his conviction for resisting arrest. A person is guilty of resisting

arrest if he “with the intent of preventing a public servant from effecting a

lawful arrest or discharging any other duty . . . creates a substantial risk of

bodily injury to the public servant or anyone else, or employs means justifying

or requiring substantial force to overcome the resistance.” 18 Pa.C.S. § 5104.

“A valid charge of resisting arrest requires an underlying lawful arrest, which,

in turn, requires that the arresting officer possess probable cause” to make

the arrest. Commonwealth v. Clemens, 242 A.3d 659, 666 (Pa. Super.

2020) (citation omitted).

Muhammad does not dispute that he resisted the officers or that they

used substantial force to overcome him. Instead, he challenges the lawfulness

of his arrest based on the invalidity of the stop and search of the Kia. (See

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J-A26031-22

Muhammad’s Brief, at 12, 21). This argument is meritless because, as

discussed above, Sergeant Egan had reasonable suspicion to stop the Kia as

part of the ongoing felony investigation and the limited protective sweep of

the vehicle was reasonable. The discovery of the firearm in the center console

of the car gave police probable cause to arrest Muhammad. Muhammad’s

efforts to prevent the police from restraining him by shoving Sergeant Egan

and struggling with multiple officers to the point where use of a taser was

necessary to subdue him provides sufficient evidence to sustain his conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2023

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