Com. v. Al-Kaabah, S.
Com. v. Al-Kaabah, S. No. 1654 EDA 2016
| Pa. Super. Ct. | May 10, 2017Background
- In February 2014, Tinicum Township police stopped a car for dark window tint; officer smelled marijuana and had occupants exit and be patted down.
- Al‑Kaabah (driver) consented to a vehicle search; officers used keys he provided to open a locked glovebox and found two loaded firearms.
- Al‑Kaabah was charged and tried; jury convicted him of carrying a firearm without a license but acquitted him of possession with an altered/obliterated serial number and conspiracy.
- At trial the court instructed the jury on the elements of carrying a firearm without a license (carried in a vehicle, not at abode, no license) but did not expressly use the term "constructive possession" in that instruction.
- During deliberations the jury asked whether control of a car makes one responsible for a firearm; the court re‑read a possession instruction: possession requires power to control the item and intent to control it.
- Al‑Kaabah appealed, arguing the court failed to instruct that possession (or constructive possession) is an element of the carrying‑without‑a‑license offense, and noting apparent inconsistency between convictions and acquittals.
Issues
| Issue | Plaintiff's Argument (Al‑Kaabah) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether jury should have been instructed that possession/constructive possession is an element of carrying a firearm without a license | Trial court omitted explicit possession/constructive possession element and used the common word "carrying," risking jury confusion | No timely objection to charge; instructions as a whole adequately presented law; court later read possession definition in response to jury question | Appellate court affirmed; claim waived for lack of timely objection and no fundamental error shown |
| Whether conviction is inconsistent with acquittals on related counts | Inconsistent verdicts suggest jury misunderstood elements | Inconsistent verdicts are permissible and do not require reversal if evidence supports conviction | Court held inconsistent verdicts are permissible and not a basis for reversal |
Key Cases Cited
- Commonwealth v. Fletcher, 986 A.2d 759 (Pa. 2009) (standard for reviewing jury instructions and when a new trial is required)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (preservation rule requiring specific, timely objection to jury charge)
- Commonwealth v. States, 938 A.2d 1016 (Pa. 2007) (inconsistent jury verdicts are permissible)
- Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015) (reaffirming that inconsistent verdicts do not require reversal if supported by evidence)
- Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012) (an acquittal cannot be read as a specific finding on particular evidence)