Inconsistent Verdict; Validity of Conviction for Carrying Firearm without a License where Jury found no Firearm Possession
Commonwealth v. Muhammad, 289 A.3d 1078 (Pa. Super. 2023), allocatur granted Nov. 28, 2023, appeal docket 109 MAP 2023
This case arises from the arrest of Rasheed Muhammad for his involvement in an alleged bank fraud scheme during which time police located a firearm from the center console of the rental vehicle that Muhammad had been driving. Muhammad was charged with a number of offenses, including separate counts of person not to possess a firearm under 18 Pa.C.S. § 6105 (Count 4) and carrying a firearm without a license (Count 5). At trial, the Commonwealth presented evidence showing that Muhammad did not have a license to carry a firearm. Muhammad’s father, Gerald Clark, testified for the defense that his brother, co-defendant Henry Clark, carried a firearm for protection when he was alive. Superior Court summarized the subsequent background as follows:
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):
1. 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).
Slip op. at 7. On appeal, Muhammad argued, among other issues, that the jury’s answer of “No” to the interrogatory regarding possession of the firearm at Count 4 invalidated the jury’s verdict on Count 5 regarding carrying a firearm without a license.
Superior Court held that there was sufficient evidence of record to convict Muhammad of carrying a firearm without a license. As to the inconsistent verdict, Superior Court explained that its prior decision in Commonwealth v. Banks, 253 A.3d 768 (Pa. Super. 2021), appeal denied, 267 A.3d 1213 (Pa. 2021) was 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 if, while fleeing, the defendant is DUI. See [Banks] 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).
Slip. op. at 18-19. Superior Court concluded:
… 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 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.
Slip op. at 19-20.
The Pennsylvania Supreme Court will consider the following issue:
Was the evidence insufficient to support Petitioner’s conviction for firearms not to be carried without a license, 18 Pa.C.S. § 6106, where the jury made a specific factual finding that Petitioner did not possess a firearm in response to a special interrogatory to which all parties and the trial court had agreed?
For more information, contact Kevin McKeon or Dennis Whitaker.