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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
DAYON DECHE MCCRACKEN,                      :
                                            :
                            Appellant       :     No. 588 WDA 2015

            Appeal from the Judgment of Sentence February 5, 2015
                  In the Court of Common Pleas of Elk County
               Criminal Division No(s).: CP-24-CR-0000203-2014

BEFORE: BOWES, DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 29, 2015

        Appellant, Dayon Deche McCracken, appeals from the judgment of

sentence entered in the Elk County Court of Common Pleas following a jury

trial and his convictions for kidnapping,1 terroristic threats,2 unlawful

restraint,3 false imprisonment,4 and simple assault.5 This case returns to us

after we remanded to have counsel comply with Pa.R.A.P. 1925(b), and for



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2901(a)(3).
2
    18 Pa.C.S. § 2706(a)(1).
3
    18 Pa.C.S. § 2902(a)(1).
4
    18 Pa.C.S. § 2903(a).
5
    18 Pa.C.S. § 2701(a)(3).
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the trial court to prepare a Pa.R.A.P. 1925(a) decision. Appellant challenges

the sufficiency of evidence for his kidnapping conviction. We affirm.

      We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 11/17/15, at 1-3. The jury convicted Appellant

of the above crimes, and the trial court sentenced Appellant to an aggregate

sentence of six to twelve years’ imprisonment. Appellant did not file a post-

sentence motion and filed a timely notice of appeal on February 25, 2015.

On March 6, 2015, the court ordered Appellant’s counsel to comply with Rule

1925(b). Counsel did not file a Rule 1925(b) statement.

      On September 30, 2015, this Court ordered Appellant’s counsel to file

a Rule 1925(b) nunc pro tunc with the trial court and the trial court to

prepare a responsive opinion.    On October 29, 2015, Appellant’s counsel

filed a Rule 1925(b) statement and the trial court filed its Rule 1925(a)

decision on November 17, 2015.

      Appellant raises the following issue on appeal: “Whether there was a

sufficiency of evidence for kidnapping where the victim was permitted to

make phone calls, access her Facebook account on a computer, and was

allegedly held with a BB Gun.”    Appellant’s Brief at vi.   In support of this

issue, Appellant contends the victim was able to call her mother and access

Facebook.     In conjunction with the facts that the victim was allegedly

threatened by a BB gun and the short period of confinement, Appellant




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asserts the evidence was insufficient to convict him of kidnapping. We hold

Appellant is due no relief.

      The standard of review for a challenge to the sufficiency of evidence is

de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d

1233, 1235 (Pa. 2007).

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.

Id. at 1235-36 (citations and quotation marks omitted). “When reviewing

the sufficiency of the evidence, an appellate court must determine whether

the evidence, and all reasonable inferences deducible from that, viewed in

the light most favorable to the Commonwealth as verdict winner, are

sufficient to establish all of the elements of the offense beyond a reasonable

doubt.” Id. at 1237 (citation and quotation marks omitted).

      The Pennsylvania Crimes Code defines kidnapping as follows:

         (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:

                                   *    *    *

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



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18 Pa.C.S. § 2901(a)(3). “A ‘place of isolation’ is not geographic in nature,

but contemplates the confinement of a victim where he or she is separated

from the normal protections of society in a fashion that makes discovery or

rescue unlikely.”     Commonwealth v. Rushing, 99 A.3d 416, 425 (Pa.

2014).   Confinement for “several hours” qualifies as a substantial period.

Id. (citing cases).   A victim’s inability or ability to communicate is not an

element of the offense.     A victim’s knowledge of whether a weapon is a

firearm is also not an element of the offense.

      Instantly, the record viewed in the light most favorable to the

Commonwealth reveals that the victim denied using her phone and was

threatened with what appeared to be a firearm. See Trial Ct. Op. at 2-3.

The victim admittedly did not know that Appellant was wielding a BB gun

and was not wielding a firearm. See id. at 3. The victim also admitted to

using Facebook, but that alone does not negate any element of the

kidnapping offense.       See   18   Pa.C.S.   §   2901(a)(3).   After   careful

consideration of the entire record, we hold the evidence believed by the jury

was sufficient to sustain a kidnapping conviction. See Ratsamy, 934 A.2d

at 1235-36. Accordingly, having discerned no error of law, we affirm. See

id. at 1235.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2015




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