Com. v. Scarlett, R., Com. v. Scarlett, R. No. 2182 EDA 2016

In March 2008, victim was bound, held at gunpoint, threatened, and terrorized in his bedroom for several hours; he escaped and reported to police. An SKS rifle and other indicia were recovered; a copy of a prior statement was found in a room occupied by Scarlett.
Scarlett was arrested in Florida in 2011 and, after a jury trial in 2013, was convicted of two counts of kidnapping (with different mens rea), conspiracy to commit kidnapping, and terroristic threats; acquitted of one robbery count.
Scarlett was sentenced to an aggregate 6–12 years’ imprisonment plus probation. Direct appeal and discretionary review were denied; his convictions and sentence were affirmed on direct appeal.
Scarlett filed a timely pro se PCRA petition alleging ineffective assistance of all prior counsel on three grounds: (1) failure to challenge sufficiency of evidence for kidnapping (place of isolation); (2) failure to object to sentencing court’s reference to his assertion of innocence (silence/remorse) as aggravating; and (3) misadvice during plea bargaining leading him to reject plea offers.
PCRA counsel filed a Turner/Finley no-merit letter; the PCRA court issued notice of intent to dismiss without a hearing, dismissed the petition, and this appeal followed.

Issue	Plaintiff's Argument (Scarlett)	Defendant's Argument (Commonwealth / PCRA court)	Held
Sufficiency of evidence for kidnapping (place of isolation)	Victim was not held in a “place of isolation” (bedroom in home; grandmother present); counsel ineffective for not raising sufficiency claim	Record shows effective isolation using force, weapons, restraints and threats; precedent allows isolation even when others are present or in an apartment	Court: claim meritless; evidence sufficient; counsel not ineffective
Sentencing: court considered silence/assertion of innocence as aggravating	Court impermissibly relied on Scarlett’s assertion of innocence/silence to impose aggravated consecutive sentences; counsel ineffective for not objecting	Scarlett allocuted and testified repeatedly denying guilt; court cited multiple legitimate aggravating factors; any reference to innocence was not sole basis for sentence	Court: no Fifth Amendment violation; no prejudice; claim fails
Plea-bargain advice (misadvice that kidnapping elements could not be proved)	Trial counsel advised Scarlett to reject 2–4 or 2½–5 year pleas because kidnapping couldn’t be proved; ineffective assistance causing rejection of favorable offers	PCRA record reflects different plea-claim theories below; Scarlett either conceded prior assertions or did not present this specific allegation to PCRA court	Court: claim waived for failure to raise below; appellate assertion of new theory not permitted

Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super. 2009) (trial court may not consider defendant's silence at sentencing as sole evidence of lack of remorse)
Commonwealth v. Mease, 516 A.2d 24 (Pa. Super. 1986) (place of isolation focuses on effective isolation from societal protections)
Commonwealth v. Jenkins, 687 A.2d 836 (Pa. Super. 1996) (victim held at knifepoint in home can be place of isolation)
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (standards for counsel withdrawing via no‑merit letter)
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedures for counsel seeking to withdraw in collateral appeals)
Commonwealth v. Koehler, 36 A.3d 121 (Pa. 2012) (counsel cannot be ineffective for failing to raise meritless claims)
Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011) (issues not raised in PCRA petition are waived on appeal)