J-S65020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYON DAMION SCARLETT

                            Appellant                 No. 3556 EDA 2013


             Appeal from the Judgment of Sentence June 25, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000339-2012


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 25, 2014

       Appellant, Rayon Damion Scarlett, appeals from the judgment of

sentence entered on June 25, 2013, as made final by the denial of

Appellant’s post-sentence motion on November 19, 2013.          On this direct

appeal, Appellant’s court-appointed counsel has filed both a petition to

withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).1        We conclude that Appellant’s counsel has complied

with the procedural requirements necessary to affect withdrawal. Moreover,

after independently reviewing the record, we conclude that the instant



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1
    See also Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).



*Retired Senior Judge assigned to the Superior Court.
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appeal is wholly frivolous.     We, therefore, grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.

      The trial court ably summarized the facts underlying Appellant’s

convictions for kidnapping and related offenses. As the trial court explained:

        In October 2007, the Montgomery County Detectives
        Narcotics Enforcement Team conducted a search of 806
        Smith    Street   in  Norristown,  Montgomery     County,
        Pennsylvania.    This search resulted in the seizure of
        approximately [15] pounds of marijuana, firearms,
        ammunition, and drug packaging material. [Appellant] and
        his friends[,] Ronald Wilson and Khanniel Headley[
        (hereinafter “Wilson” and “Headley”),] were arrested and
        charged with possession with intent to deliver and related
        offenses.

        On October 30, 2007, following his arrest, [] Headley gave
        a statement to Detective Michael Fedak. In this statement,
        Headley told [Detective Fedak] . . . that he was not a
        resident of 806 Smith Street. Headley further told the
        detective that, although the marijuana seized was not his,
        he knew there was “about a pound of marijuana” there and
        that he went to the house “[b]ecause I get marijuana there
        to smoke.” Although Headley declined to tell Detective
        [Fedak] specifically who had provided him with marijuana at
        the residence, Headley did tell the detective that [Appellant]
        – a resident of 806 Smith Street – was the only person
        upstairs at the home when an individual named “Tune”
        came to the home and went upstairs for marijuana.

        At [Appellant’s] trial, Headley testified that, in March 2008,
        he was living in a third floor bedroom in a house owned by
        [Appellant’s own] grandmother at 400 East Marshall Street
        in Norristown. At approximately midnight on March 28,
        2008, Headley was alone in his bedroom getting ready for
        bed. Headley had taken off his clothes and shoes and was
        wearing only a tee shirt and boxer shorts when there was a
        knock at his bedroom door. Headley opened the door and
        saw [Appellant’s] brothers[,] Ricardo “Ricky” Scarlett and
        [A.S. (hereinafter “Ricardo” and “A.S.”),] standing in the


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       hallway. Ricardo was pointing an SKS-type assault rifle at
       Headley. [A.S.] – who was approximately [12] years old at
       the time – was carrying a knife.

       Ricardo and [A.S.] came into the bedroom and Ricardo
       ordered Headley to sit down on the floor, telling him that
       “The Boss want [sic] to talk to you.” Headley testified that
       he knew Ricardo meant that [Appellant] wanted to talk to
       him, since [Appellant] was referred to as “The Boss.”

       With Headley sitting on the floor, Ricardo took out his cell
       phone and – continuing to point the gun at Headley – made
       a call during which he said: “The fish is ready” or “The fish
       is fried.” Headley testified that he and the Scarlett brothers
       are from Jamaica and that, in Jamaican slang, “fish” is a
       slang term for a snitch or [an] informant.

       [Appellant] and [] Wilson . . . then arrived at Headley’s
       bedroom. Headley testified that [Appellant] ordered Wilson
       to tie [Headley] up, and that Wilson did so, binding
       Headley’s arms behind his back with an electrical extension
       cord.

       Headley testified that [Appellant], Wilson, and Ricardo []
       then began rummaging through his belongings. Headley
       testified that he did not see [Appellant] actually steal
       anything, but someone – he thought Ricardo – took his
       earring out of his ear, and that his watch, his chain, and
       [the] money from his wallet were stolen.

       Headley testified that [Appellant] then sat beside him on the
       floor with a Bible and “started talking to me about betrayal
       and stuff like that,” accusing Headley of being a snitch and
       of telling the police that [Appellant] was “selling marijuana
       out of Smith Street.” Headley testified that [Appellant] was
       “flashing around” what [Appellant] said was a copy of the
       statement Headley had given to Detective Fedak and that
       [Appellant] said he had obtained the statement from his
       lawyer.

       Headley testified that [Appellant, Wilson, and Ricardo] spent
       the remainder of the night threatening [Headley] and
       discussing what they should do with him. Headley testified
       that they discussed shooting him, putting a pillow over his

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       head so no one would hear the shot.          Headley told
       [Appellant] that his grandmother was on the floor below
       and that she would hear what was happening and call the
       police. Headley testified that [Appellant] then suggested
       they take [Headley] to New York “and get rid of [Headley]
       somewhere,” and Ricardo said that they should go to Home
       Depot to “get some stuff and cut him up.”

       Headley testified that, during his ordeal: [Appellant] “told
       his brother to pee on [Headley]”; that the men stepped on
       him; and that Ricardo put the barrel of the SKS in
       [Headley’s] mouth and told him to suck on it. Headley
       testified that [Appellant] ordered him to drink liquid from a
       Gatorade bottle. When Headley refused, Ricardo put the
       barrel of the SKS to his head and ordered him to drink.
       Headley complied and soon was “throwing up all over”
       himself.

       Headley testified that [Appellant] ultimately left at
       approximately [4:00] a.m., saying he wanted to get some
       sleep and telling the others that he would call them to “tell
       them what to do with [Headley].” After [Appellant] left,
       Ricardo said to Headley:        “You’re a good guy, but
       [Appellant] is my brother so we got to do what he said.”

       [Wilson and A.S.] eventually left to go to a store for
       cigarettes, taking Headley’s car keys with them. Ricardo
       remained sitting on the bed with the SKS pointed at
       Headley. Ricardo eventually fell asleep and Headley used
       the opportunity to escape[; Headley then ran] two blocks to
       the nearest police station.

       Headley arrived at the Norristown Police Department at
       approximately 5:30 a.m. Corporal David Brook testified
       that, when he arrived, Headley was barefoot and dressed
       only in this underwear, with his hands still bound behind his
       back with electrical cord.       After listening to Headley’s
       account of what happened, all available police units
       proceeded to 400 East Marshall Street, where they
       encountered Ricardo and [A.S.; the police were able to
       take] . . . Ricardo into custody [that night]. In the backyard
       of the residence, the police discovered an SKS assault rifle
       partly hidden under a doormat. The weapon was clean and
       dry, despite it having rained earlier that evening, and [the

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         weapon] contained ten live rounds of ammunition in its
         magazine. The SKS was entered into evidence without
         defense objection as Commonwealth Exhibit 2.               At
         [Appellant’s] trial, Headley identified the SKS as the weapon
         that was employed by Ricardo [] during his ordeal.

         During a search of the interior of 400 East Marshall Street,
         the police discovered that Headley’s bedroom was in
         disarray, and that there was a Gatorade bottle and what
         appeared to be vomit on the floor. During a subsequent
         search of 806 Smith Street, the police discovered a copy of
         Headley’s October 2007 statement to Detective Fedak. The
         statement was found in a bedroom where the police also
         discovered items indicating that the bedroom was occupied
         by [Appellant].

         An arrest warrant was issued for [Appellant], but he was
         nowhere to be found. Ultimately, [Appellant] was arrested
         in Florida in December 2011, following a routine traffic stop,
         and was returned to Montgomery County[, Pennsylvania]
         for trial on charges of kidnapping and related offenses.

         On January 14, 2013, the jury returned its verdict, finding
         [Appellant guilty of]: [] kidnapping [Headley] with the
         intent to facilitate the commission of robbery (Count I); []
         kidnapping [Headley] with the intent to terrorize (Count II);
         [] conspiracy to commit robbery with the intent to terrorize
         (Count III); and [] terroristic threats (Count IX). [2]
         [Appellant] was found not guilty of robbing [Headley]
         (Count V).

         [Appellant] appeared for sentencing on June 25, 2013.
         Following [the] hearing, the [trial] court sentenced
         [Appellant] on Count I (kidnapping with intent to facilitate
         the commission of robbery), to not less than four [] nor
         more than eight [] years [in prison].       On Count II
         (kidnapping with intent to terrorize), [the trial court]
         imposed no further penalty beyond entry of the verdict of
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2
   18 Pa.C.S.A. §§ 2901(a)(2),                 2901(a)(3),   903(a)(1),   2706,   and
3701(a)(1)(i), respectively.




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         guilty, given [the trial court’s determination] that the two
         kidnapping offenses merged for sentencing purposes. On
         Count III (conspiracy to commit the crime of kidnapping
         with intent to terrorize), [Appellant] was sentenced to not
         less than two [] nor more than four [] years [in prison], to
         be served consecutively to the sentence imposed on Count
         I. On Count XI (terroristic threats), [Appellant] received a
         sentence of three [] years [of] probation to be served
         consecutively to [Count III].

         The [trial] court thus imposed an aggregate sentence of not
         less than six [] nor more than [12 years’] imprisonment,
         followed by [three years’] probation.

         On July 5, 2013, [Appellant] filed, pro se, a timely post-
         sentence motion.     On July 24, 2013, Assistant Public
         Defender Timothy Peter Wile, Esquire, filed on [Appellant’s]
         behalf – with leave of court – an amended post-sentence
         motion. [The trial court] denied [Appellant’s] post-sentence
         motion and amended post-sentence motion by order
         [entered] November [19], 2013.

Trial Court Opinion, 5/27/14, at 1-6 (internal citations, footnotes, and

emphasis omitted).

       Appellant filed a timely notice of appeal. On appeal, Appellant’s court-

appointed counsel filed a petition for leave to withdraw and accompanied

this petition with an Anders brief. Within the Anders brief, Appellant raises

the following claims:3

         [1.] [The trial court] abused [its] discretion when [it]
         admitted into evidence an SKS carbine [rifle], Headley’s
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3
  The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).       Appellant complied with the order and, within
Appellant’s Rule 1925(b) statement, Appellant listed all of the claims that he
raises on appeal.



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        statement, a computer printout from an internet search
        engine, [] evidence of [Appellant’s] alleged prior bad acts[,
        and the] . . . habeas corpus testimony of Detective
        [Michael] Crescitelli.

        [2.] [The trial court] committed reversible error when [it]
        denied [Appellant’s] motion for judgment of acquittal on the
        robbery and kidnapping counts at the close of the
        Commonwealth’s evidence.

        [3.] [The trial court] abused [its] discretion when [it] denied
        [Appellant’s] motion for a new trial on the basis that the
        guilty verdicts were against the weight of the evidence.

        [4.] [The trial court] abused [its] discretion by sentencing
        [Appellant] to an aggregate term of six [] to [12] years of
        total confinement to be followed by three [] years of special
        probation.

Appellant’s Brief at i-ii (internal capitalization and bolding omitted).

      Before reviewing the merits of this appeal, this Court must first

determine    whether    counsel    has   fulfilled   the   necessary   procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.     First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207.      Second, counsel must file an Anders brief, in

which counsel:

        (1) provide[s] a summary of the procedural history and
        facts, with citations to the record; (2) refer[s] to anything in
        the record that counsel believes arguably supports the


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        appeal; (3) set[s] forth counsel’s conclusion that the appeal
        is frivolous; and (4) state[s] counsel’s reasons for
        concluding that the appeal is frivolous. Counsel should
        articulate the relevant facts of record, controlling case law,
        and/or statutes on point that have led to the conclusion that
        the appeal is frivolous.

Santiago, 978 A.2d at 361.

      Finally, counsel must furnish a copy of the Anders brief to his client

and advise the client “of [the client’s] right to retain new counsel, proceed

pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.         It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

      In the case at bar, counsel has met all of the above procedural

obligations.   We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous.

      We have reviewed Appellant’s brief, the relevant law, the certified

record, and the well-written opinion of the able trial judge, the Honorable

William J. Furber, Jr., President Judge. We conclude that the claims raised

in Appellant’s Anders brief are either waived or frivolous and that the trial

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court’s opinion, filed on May 27, 2014, meticulously and accurately explains

why Appellant’s claims on appeal are either waived or frivolous. Therefore,

we adopt the trial court’s opinion as our own. In any future filings with this

or any other court addressing this ruling, the filing party shall attach a copy

of the trial court’s opinion with the name of A.S. redacted and replaced with

initials so as to protect the juvenile’s identity.

       Further, after an independent review of the entire record, we see

nothing that might arguably support this appeal.        The appeal is therefore

wholly frivolous.     Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition to withdraw appearance.4

       Petition to withdraw appearance granted.         Judgment of sentence

affirmed. Jurisdiction relinquished.



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4
   We note that Appellant responded to counsel’s petition to withdraw and
raised a number of additional claims on appeal. However, the additional
claims Appellant seeks to raise are ineffective assistance of counsel claims,
which are not reviewable on direct appeal. Commonwealth v. Grant, 813
A.2d 726, 738 (Pa. 2002) (“as a general rule, a [defendant] should wait to
raise claims of ineffective assistance of trial counsel until collateral review”);
Commonwealth v. Holmes, 79 A.3d 562, 620 (Pa. 2013) (“absent
[certain, specified] circumstances [(that are inapplicable to the case at bar)]
claims of ineffective assistance of counsel are to be deferred to PCRA review;
trial courts should not entertain claims of ineffectiveness upon post-verdict
motions; and such claims should not be reviewed upon direct appeal”). We
further note that, within Appellant’s response, Appellant has also restated all
of the claims that counsel raised in the Anders brief and that the trial court
analyzed in its Rule 1925(a) opinion. See Appellant’s Response, 9/5/14, at
6-12.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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