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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 nearlyfour-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 21⁄2 - 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 21⁄2 - 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] 21⁄2 - 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.