Com. v. McCracken, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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