J. S93015/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                    V.                       :
                                             :
RAYON DAMION SCARLETT,                       :
                                             :
                          Appellant          :     No. 2182 EDA 2016
                                             :

                   Appeal from the PCRA Order June 22, 2016
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0000339-2012

BEFORE: DUBOW, SOLANO AND PLATT,* JJ.

MEMORANDUM BY DUBOW, J.:                           FILED FEBRUARY 17, 2017

        Appellant, Rayon Damion Scarlett, appeals pro se from the June 22,

2016 Order denying his first Petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46, challenging the

effectiveness of all prior counsel. After careful review, we affirm.

        On direct appeal, we summarized the facts underlying Appellant’s

convictions as follows:

        At Appellant's trial, [Victim] 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, [Victim] was alone
        in his bedroom getting ready for bed. [Victim] 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. [Victim]


*
    Retired Senior Judge Assigned to the Superior Court.
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     opened the door and saw Appellant's brothers, [“Adult Brother”
     and “Minor Brother”], standing in the hallway. [Adult Brother]
     was pointing an SKS-type assault rifle at [Victim].     [Minor
     Brother]—who was approximately 12 years old at the time—was
     carrying a knife.

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

     With [Victim] sitting on the floor, [Adult Brother] took out his
     cell phone and—continuing to point the gun at [Victim]—made a
     call during which he said: “The fish is ready” or “The fish is
     fried.” [Victim] testified that he and the [] 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 [Victim’s] bedroom.
     [Victim] testified that Appellant ordered Wilson to tie [Victim]
     up, and that Wilson did so, binding [Victim’s] arms behind his
     back with an electrical extension cord.

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

     [Victim] 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 [Victim] of being a snitch and of telling the
     police that Appellant was “selling marijuana out of Smith Street.”
     [Victim] testified that Appellant was “flashing around” what
     Appellant said was a copy of [a prior statement Victim had given
     investigators][.] Appellant said he had obtained the statement
     from his lawyer.

     [Victim] testified that Appellant, Wilson, and [Adult Brother]
     spent the remainder of the night threatening [Victim] and
     discussing what they should do with him. [Victim] testified that
     they discussed shooting him, putting a pillow over his head so no
     one would hear the shot.       [Victim] told Appellant that his


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     grandmother was on the floor below and that she would hear
     what was happening and call the police. [Victim] testified that
     Appellant then suggested they take [Victim] to New York “and
     get rid of [him] somewhere,” and [Adult Brother] said that they
     should go to Home Depot to “get some stuff and cut him up.”

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

     [Victim] 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
     [Victim].” After Appellant left, [Adult Brother] said to [Victim]:
     “You're a good guy, but [Appellant] is my brother so we got to
     do what he said.”

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

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

                                   ***

     During a search of the interior of 400 East Marshall Street, the
     police discovered that [Victim’s] bedroom was in disarray, and
     that there was a Gatorade bottle and what appeared to be vomit


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     on the floor. During a subsequent search of 806 Smith Street,
     the police discovered a copy of [Victim’s prior statement to
     investigators]. 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.

Commonwealth         v.   Scarlett,   No.    3556    EDA    2013,   unpublished

memorandum at 1-3 (Pa. Super. filed November 25, 2014).

     Appellant elected to proceed by way of a jury trial.       On January 14,

2013, a jury found Appellant guilty of the following offenses: Kidnapping

with the Intent to Facilitate the Commission of a Robbery; Kidnapping with

the Intent to Terrorize; Conspiracy to Commit Kidnapping; and Terroristic

Threats.1    On June 25, 2013, the trial court sentenced Appellant to an

aggregate term of 6 to 12 years of imprisonment, followed by three years of

probation.

     Following sentencing, the trial court granted trial counsel’s Motion to

withdraw as counsel for Appellant. The trial court simultaneously appointed

appellate counsel.   Appellate counsel filed a timely Post-Sentence Motion,

and subsequent appeal to this Court.        On November 25, 2014, this Court

affirmed Appellant’s Judgment of Sentence.          Scarlett, supra.   Appellant

1
 18 Pa.C.S. § 2901(a)(2); 18 Pa.C.S. § 2901(a)(3); 18 Pa.C.S. § 903(a)(1);
and 18 Pa.C.S. § 2706, respectively. The jury acquitted Appellant of one
count of Robbery.



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filed a pro se petition for allowance of appeal in the Supreme Court of

Pennsylvania, which that court denied on May 4, 2015. Our Supreme Court

denied Appellant’s pro se application for reconsideration on June 15, 2015.

      On August 24, 2015, Appellant filed a timely pro se PCRA Petition. The

PCRA court appointed PCRA counsel, who filed a Petition to Withdraw as

counsel and an accompanying no-merit letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). Following an independent review of

the record, the trial court granted PCRA counsel’s Petition and filed a Notice

of Intention to Dismiss PCRA Petition Without a Hearing. Appellant filed a

pro se response.

      The PCRA court dismissed Appellant’s Petition, and Appellant timely

appealed. On appeal, Appellant raises three issues:

      1. Whether the PCRA court erred by dismissing without a
      hearing the Appellant’s PCRA petition which claims all counsel
      are ineffective by failing to raise the claim that the evidence is
      legally insufficient to prove every element of the kidnapping
      related offenses.

      2. Whether the PCRA court erred by dismissing the PCRA
      petition which claims all counsel are ineffective by failing to
      object to and appeal the trial court’s use of Appellant’s 5th
      Amendment rights to both remain silent and to not incriminate
      himself as a factor warranting consecutive sentences in the
      aggravated ranges.

      3. Whether the PCRA court erred by dismissing the PCRA
      petition which claims all counsel are ineffective by failing to raise
      the claims that trial counsel was ineffective in failing to
      adequately discuss and explain both the terms and availability of
      a plea offer for 2 – 4 years on one count of kidnapping.


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Appellant’s Brief at 4.

      When reviewing the denial of PCRA Petition, “we examine whether the

PCRA court’s determination is supported by the record and free of legal

error.”   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal

quotation marks and citation omitted). “The scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level.” Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). When the PCRA

court denies a petition without an evidentiary hearing, we “examine each

issue raised in the PCRA petition in light of the record certified before it in

order to determine if the PCRA court erred in its determination that there

were no genuine issues of material fact in controversy and in denying relief

without conducting an evidentiary hearing.” Commonwealth v. Khalifah,

852 A.2d 1238, 1240 (Pa. Super. 2004) (citation omitted).

      All three of Appellant’s issues contend that trial and appellate counsel

provided ineffective assistance to Appellant.        In analyzing claims of

ineffective assistance of counsel, we presume that counsel was effective

unless the PCRA petitioner proves otherwise. Commonwealth v. Williams,

732 A.2d 1167, 1177 (Pa. 1999).         In order to succeed on a claim of

ineffective assistance of counsel, Appellant must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel’s performance lacked

a reasonable basis; and (3) that the ineffectiveness of counsel caused the



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appellant prejudice.   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “[Where] the underlying claim lacks arguable merit, counsel cannot

be deemed ineffective for failing to raise it.”    Commonwealth v. Koehler,

36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of

these elements, and his “failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009).            With this standard in mind, we

address each of Appellant’s claims.

                         Sufficiency of the Evidence

      In his first issue, Appellant avers that all prior counsel were ineffective

for failing to raise and litigate the claim that the evidence was insufficient to

sustain his kidnapping conviction because the victim was not held in a place

of isolation. Appellate counsel did not raise this claim on direct appeal. This

argument is without merit, however, as the underlying sufficiency claim is

without merit.

      Appellant was convicted of two counts of kidnapping, as defined by the

following provision:

      (a) Offense defined.-- Except as provided in subsection (a.1),
      a person is guilty of kidnapping if he unlawfully removes another
      a substantial distance under the circumstances from the place
      where he is found, or if he unlawfully confines another for a
      substantial period in a place of isolation, with any of the
      following intentions:

      (1) To hold for ransom or reward, or as a shield or hostage.

      (2) To facilitate commission of any felony or flight thereafter.


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      (3) To inflict bodily injury on or to terrorize the victim or
      another.

      (4) To interfere with the performance by public officials of any
      governmental or political function.

18 Pa.C.S. § 2901(a).

      Appellant avers that prior counsel should have challenged the

sufficiency of the evidence supporting the determination that he confined the

victim for a substantial period of time, and in a place of isolation.       While

Appellant mentions the ‘substantial period of time’ element, his argument

focuses only on the ‘place of isolation’ requirement.

      As this Court recently reiterated,

      The concept [of a place of isolation] is “not geographic isolation,
      but rather effective isolation from the usual protections of
      society.” Commonwealth v. Mease, 357 Pa.Super. 366, 516
      A.2d 24, 26 (1986) (citation omitted). “[O]ne's own apartment
      in the city can be a place of isolation, ‘if detention is under the
      circumstances which make discovery or rescue unlikely.’”
      Commonwealth v. Jenkins, 455 Pa.Super. 152, 687 A.2d 836,
      838 (1996) (quotation omitted) (emphasis in original) (holding
      that the appellant isolated the victims where he entered the
      victims' home and held the child victim at knifepoint when police
      arrived). The requirement that the victim be confined in a place
      of isolation does not require that the victim be left alone; the
      fact that other people are present does not necessarily negate
      the victim's isolation from the usual protections of society. See
      Mease, supra (holding that where the appellant confined the
      victim in the appellant's basement, and appellant's friends were
      present, the evidence was sufficient to demonstrate isolation for
      kidnapping purposes).

Commonwealth v. Green, 149 A.3d 43, 49 (Pa. Super. 2016) (quoting In

re T.G., 836 A.2d 1003, 1008 (Pa. Super. 2003)).




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      As is apparent from the record, Appellant did all that was in his power

to isolate Victim. Although the kidnapping took place in an urban setting,

Appellant used a gun, a knife, restraints, and physical violence to control the

movement of Victim.

      Moreover, although Victim was able to escape in this case, he did so

only after the offense of kidnapping was complete, and despite Appellant’s

best efforts.   Victim was bound, held at gunpoint, and terrorized for more

than five hours before he managed to escape. He was only able to do so

because the man charged with holding him at gunpoint fell asleep.

      Finally, Appellant avers that Victim’s bedroom cannot be considered a

place of isolation because Appellant’s grandmother was also present in the

home.      Although Appellant’s own grandmother was asleep in the same

residence where Appellant held Victim, this Court has previously held that a

victim may be held in a place of isolation even if others are present. Mease,

supra at 26. Moreover, Appellant’s grandmother was asleep, and Appellant

and his co-conspirators took care not to wake her up and alert her to their

crimes.2

      In light of those facts and based upon the record before us, we

conclude that the trial court correctly determined that there are no genuine


2
  In fact, it would seem reasonable to infer from the testimony presented at
trial that Victim is alive at least in part because Appellant was afraid that
shooting Victim in the head would wake his grandmother up and alert her to
the kidnapping in progress.



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issues of material fact regarding this claim.   It is clear from the evidence

presented at trial that the Commonwealth sustained its burden of proving

kidnapping, and prior counsel cannot be found ineffective for failing to raise

a meritless claim to the contrary.

            Right to Remain Silent at Sentencing Allocution

      Appellant next avers that trial counsel was ineffective for failing to

object at sentencing when “the court abused its discretion and committed

reversible error by considering Appellant’s assertion of innocence as a factor

to sentence him to consecutive sentences in the aggravated range.”

Appellant’s Brief at 16.   Specifically, Appellant objects to the sentencing

court’s comments to Appellant that “[m]ention has been made that even as

we speak[,] notwithstanding the evidence upon which a jury unanimously,

unanimously [sic] concluded that you were guilty beyond a reasonable doubt

of these charges, you continue to maintain your innocence.”        Appellant’s

Brief at 16 (citing N.T., 6/25/13, at 48-49). Appellant avers that this brief

reference to his innocence claim indicated that the trial court impermissibly

used his Fifth Amendment right against self-incrimination to impose a

harsher sentence in the aggravated range.         Appellant argues, without

citation to case law from this Commonwealth, that the Fifth Amendment bars

a court from considering a defendant’s silence as to remorse at sentencing

as evidence of a lack of remorse. Appellant’s Brief at 17.




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        In Commonwealth v. Bowen, this Court held that “a court may not

consider a defendant's silence at sentencing as indicative of his failure to

take    responsibility   for   the   crimes     of   which    he   was     convicted.”

Commonwealth v. Bowen, 975 A.2d 1120, 1121 (Pa. Super. 2009).

Therein, Bowen chose to remain silent at trial and during sentencing. Id. at

1121. In justifying its aggravated-range sentence, the trial court cited, inter

alia, Bowen's failure to show remorse for his crimes or to take responsibility

for them, even after the jury's verdict.        Id. at 1121-22. On appeal, this

Court observed that “it is undoubtedly appropriate for a trial court to

consider a defendant's lack of remorse as a factor at sentencing, provided

that it is specifically considered in relation to protection of the public, the

gravity of the offense, and the defendant's rehabilitative needs.”             Id. at

1125.    Nevertheless, it held that “a court may not consider a defendant's

silence at sentencing as indicative of his failure to take responsibility for the

crimes of which he was convicted” and “silence at sentencing may not be the

sole factor in determining a defendant's lack of remorse.”               Id. at 1121,

1127.

        Here,   unlike   the   defendant   in   Bowen,       Appellant   allocuted   at

sentencing, as follows:

        Your Honor, first off I would like to apologize for my abusive
        behavior in your Courtroom during the trial in January. For a
        long time I have not been able to give my side of the story and
        was only able to sit back and listen to what was being said about
        me. I maintain my innocence.



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                                   ***

     Finally, I don’t think that [the Commonwealth’s] prosecution was
     intentionally misdirected, but I don’t think that [the prosecutor]
     understood the nature and depth of my situation. Things did
     have happen [sic] in the community that I would never approve
     of and I’m sorry that it occurred, but please believe me I was
     not aware of the situation.

     I did not witness this incident personally but when I did go to the
     residence that night I was not armed and had no intention to
     harm anyone in my grandmother’s house or anywhere else.

N.T., 6/25/13, at 26-27, 29.

     Additionally, Appellant testified at trial, over which the sentencing

court also presided, and repeatedly denied the allegations against him,

claiming that the victim’s testimony was “all a made-up story.”            N.T.,

1/11/13, at 86.

     Thus, the court could not have relied on Appellant's silence to

determine that he lacked remorse and failed to take responsibility for his

crimes, because Appellant did not remain silent.

     Moreover, it is unclear from the record what impact, if any, the

Appellant’s innocence claims had on the sentencing court’s ultimate decision.

It is clear, however, that the court considered numerous other factors in

imposing sentence, such as the “very disturbing” nature and circumstances

of the offense, the terror and torture that Appellant put his victim through,

the weapon used in the commission of the kidnapping, Appellant’s nearly-

four-year flight from authorities in Florida despite knowing he was wanted in

Pennsylvania in the instant case, and the fact that Appellant used his



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juvenile brother “to assist [him] in perpetrating this horrendous crime[.]”

N.T. 1/11/13, at 45-50. The court's comments at sentencing indicate that,

after observing Appellant at trial and sentencing, to the extent it considered

his lack of remorse and failure to accept responsibility, it did so “in relation

to protection of the public, the gravity of the offense, and [his] rehabilitative

needs.” Bowen, supra at 1125.

      Thus, even if trial counsel had raised a timely objection to the trial

court’s comments about Appellant’s statements at sentencing, we would

discern no abuse of discretion on this basis. See Bowen, supra at 1127-28

(concluding that, because the trial court relied upon several other legitimate

aggravating factors in imposing sentencing, Bowen was not entitled to relief

on his discretionary-aspects-of-sentence claim). As trial counsel cannot be

found ineffective for failing to raise a meritless claim, the trial court did not

err in concluding that Appellant is not entitled to relief on this claim.

             Erroneous Legal Advice During Plea Bargaining

      In his final claim, Appellant avers that trial counsel rendered

ineffective assistance when he advised Appellant not to accept a plea

agreement because “the [Commonwealth] cannot prove kidnapping, since a

bedroom is not a place of isolation.” Appellant’s Brief at 24. This final issue

is waived because, as the Commonwealth notes, Appellant raised it for the

first time in his Brief to this Court.




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      It is beyond dispute that “issues not raised in a PCRA petition cannot

be considered on appeal.” Commonwealth v. Ousley, 21 A.3d 1238, 1242

(Pa. Super. 2011).    Moreover, “[w]here the [PCRA] court denied relief on

one theory, a defendant may not obtain appellate relief on a new theory for

that same relief.” Commonwealth v. Rosser, 135 A.3d 1077, 1086 (Pa.

Super. 2016) (citation omitted).

      Although Appellant did present a claim to the PCRA court averring that

trial counsel was ineffective during the plea bargaining process, the claim

raised below was factually and legally distinct from the claim he now raises.

      In his initial pro se PRCA Petition, Appellant averred that trial counsel

notified him of the plea offer, but “did not explain the details, discuss it with

[him], or advise [him] in any manner.” Motion for Post Conviction Collateral

Relief, filed 8/24/15, at 4.   In PCRA counsel’s Turner/Finley letter, she

stated that Appellant wished to raise a claim that counsel failed to notify

Appellant of the offer altogether. Petition to Withdraw, filed 3/31/16, Exhibit

A, at 3 (unpaginated). In Appellant’s pro se response to the PCRA court’s

Notice of Intention to Dismiss PCRA Petition Without a Hearing, not only did

Appellant not correct PCRA counsel’s characterization of his plea bargain

claim, he seemingly abandoned it:

      While [Appellant] does acknowledge that he expressed
      understanding the terms of the plea deals offered to him on
      record at trial, he still contends that [trial counsel] did not
      adequately explain the details of those deals. Despite this,
      [Appellant] respectfully concedes in favor of [the PCRA court] on
      the following paragraphs/claims:


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               Paragraph one (1) Plea Offer

Response to Proposed Dismissal of Petition for Post Conviction Collateral

Relief, filed 6/24/16, at 1-2.

      In response, the PCRA court noted that the certified record shows that

Appellant was told about the 2½ - 5 year plea deal in open court, and

acknowledged on the record that he had had a sufficient opportunity to

discuss it with his attorney. Trial Court Opinion, at 6-8.

      In the face of evidence belying his prior claim, Appellant has now

adopted a new theory of relief on appeal. Appellant no longer alleges that

trial counsel failed to notify him of the offer, or failed to discuss it with him.

Instead, Appellant now avers the opposite: that trial counsel discussed the

offer with him and advised him not to accept it.          Specifically, Appellant

states:

      Appellant rejected a 2 – 4 year or 2½ - 5 year plea deal as a
      result of counsel’s misadvice.         Trial counsel misadvised
      [Appellant] that the prosecutor cannot prove the elements of the
      kidnapping offense because the victim was not held in a place of
      isolation.   This caused [Appellant], following counsel’s bad
      advice, to reject two favorable plea deals.

Appellant’s Brief at 20.

      Appellant had three opportunities to articulate to the PCRA court below

his theory of relief in his plea offer claim.     At no point in any of these

instances did Appellant advance the theory he now raises: that trial counsel

did advise him of the plea offer and advised him not to accept it based on




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constitutionally inadequate advice.     That claim is, therefore, waived.3

Ousley, supra at 1242.

      Having determined that Appellant is not entitled to relief on any of his

claims, we affirm the PCRA court’s June 22, 2016 Order dismissing his

Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2017




3
  Appellant’s Brief also raises a heretofore unmentioned claim pursuant to
Padilla v. Kentucky, 599 U.S. 356 (2010), averring that if trial counsel had
informed him about the deportation consequences of a conviction, he would
have “accept[ed] 2½ - 5 year and be[en] deported, instead of going to trial
and receiving a 6 – 12 year sentence and still be deported[.]” Appellant’s
Brief at 22. This claim is also waived, as Appellant failed to raise it below.
Ousley, supra at 1242.



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