J-S17042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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