J-S65024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID CLAPPER,
Appellant No. 161 WDA 2016
Appeal from the PCRA Order of October 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013172-2009
BEFORE: LAZARUS, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 12, 2016
Appellant, David Clapper, appeals from the order entered on October
30, 2015, which dismissed his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the facts underlying this appeal. As
this Court explained:
On August 9, 2009, Appellant was arrested in connection
with a sexual assault that occurred the previous evening.
The victim reported that, at approximately [9:00 p.m.] on
the evening of August 8, 2009, Appellant approached her in
an alleyway, engaged her in conversation, and then
grabbed her. Appellant [grabbed the victim’s breasts,]
placed his hands down her pants[,] and penetrated her
vagina with his fingers before she was able to break his
embrace and run away.
...
On November 4, 2011, Appellant waived his right to a jury
trial and proceeded to a bench trial. . . . Prior to the
*Retired Senior Judge assigned to the Superior Court.
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presentation of witnesses, Appellant stipulated that he was
guilty of indecent assault[1] and simple assault.[2]
Thereafter, Appellant proceeded to trial on the remaining
charges of aggravated indecent assault[3] and unlawful
restraint.[4] . . .
[During trial, the victim testified that Appellant walked up to
her in an alley and asked to borrow a lighter. The victim
testified that, after giving Appellant the lighter:
My sunglasses fell off my head, so I went down to pick
them up, and that’s whenever I was put in a bear hug,
and my defense was to try to fall to the ground and try
to wrestle my way out of it, except at that point,
whenever I did that, [Appellant] ended up choking me
on my neck, and at that time, he was also fondling my
breasts, and had already unzipped and unbuttoned my
pants and had his hands down inside of my pants and
inside of me. . . . He was penetrating my vagina.
N.T. Trial, 11/4/11, at 15].
...
At the close of trial, on November 4, 2011, the trial court
found Appellant guilty of aggravated indecent assault, but
not guilty of unlawful restraint.
On January 12, 2012, the trial court sentenced Appellant to
[serve a term of two to four years in prison, followed by five
years of probation, for his aggravated indecent assault
conviction and to serve a consecutive term of two years of
probation for his indecent assault conviction].
____________________________________________
1
18 Pa.C.S.A. § 3126(a)(1).
2
18 Pa.C.S.A. § 2701(a)(1).
3
18 Pa.C.S.A. § 3125(a)(1).
4
18 Pa.C.S.A. § 2902(a)(1).
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...
On direct appeal, Appellant challenged [] the weight of the
evidence. [The Superior] Court affirmed [Appellant’s
judgment of sentence] and our Supreme Court denied
Appellant’s petition for allowance of appeal on May 29,
2013.
Appellant timely filed [his] PCRA petition[, pro se,] on
August 9, 2013, which raised five issues. He first [claimed]
that the [trial] court gave an erroneous jury waiver
colloquy. Second, Appellant claimed counsel was ineffective
for not calling an author of a nurse’s report, which would
have purportedly established the victim’s perjury. Third, he
[claimed] the [trial] court erred by not conducting a pre-
sentence investigation. Fourth, Appellant maintained the
[trial] judge was racially biased against him. Lastly, he
[claimed] trial counsel was ineffective [for] not introducing
an exculpatory videotape.
The PCRA court appointed counsel, who filed a petition to
withdraw pursuant to [Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc)]. . . .
The PCRA court issued a [Pennsylvania Rule of Criminal
Procedure] 907 notice of intent to dismiss. Appellant filed a
timely response in opposition, which withdrew the nursing
report issue and raised two new issues: the victim willfully
perjured herself and the [trial] court failed to colloquy
Appellant regarding his guilty pleas. . . . On March 27,
2014, the PCRA court dismissed Appellant’s PCRA petition
and granted permission for Appellant’s PCRA counsel to
withdraw.
Appellant filed a pro se timely appeal on April 22, 2014 . . .
[and raised] the following issues in his appellate brief:
[1.] Whether trial counsel was constitutionally ineffective
for failing to present exculpatory video evidence.
[2.] Whether Appellant’s constitutional rights were
violated by the perjured testimony of the victim.
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[3.] Whether the trial court erred in that it failed to
conduct a plea colloquy which would have revealed that
Appellant’s guilty plea[s] were the product of unlawful
inducement by trial counsel’s promises.
[4.] Whether PCRA counsel’s “no merit letter” was
legally insufficien[t] for failing to research and properly
address Appellant’s claim[s] of error[].
[5.] Whether the PCRA court erred in failing to
independently address Appellant’s claims by wholesale
adoption of counsel’s “no merit letter.”
Commonwealth v. Clapper, 116 A.3d 693 (Pa. Super. 2014) (unpublished
memorandum) at 2-5 (internal citations, quotations, corrections, and
footnotes omitted).
On appeal, this Court held that Appellant’s first, second, fourth, and
fifth claims were meritless. Id. at 1-14. However, this Court held that
Appellant’s third claim – regarding the “failure” of the trial court to conduct a
plea colloquy – required an evidentiary hearing to resolve. Therefore, this
Court vacated the order of the PCRA court and remanded the case for the
limited purpose of holding “an evidentiary hearing on whether PCRA counsel
was ineffective for failing to investigate the absence of a guilty plea
colloquy.” Id. at 14. Within this Court’s memorandum, we did not authorize
any further amendment of Appellant’s PCRA petition. See id. at 1-14.
On remand, the PCRA court appointed new counsel to represent
Appellant and counsel promptly filed a motion for leave to amend the PCRA
petition. Specifically, counsel wished to raise the following two new claims
for relief: 1) “that trial counsel rendered ineffective assistance by using
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improper explanations and justifications in advising [Appellant] to waive his
right to a jury trial” and 2) “that trial counsel rendered ineffective assistance
by failing to . . . argue that [Appellant’s] convictions for aggravated indecent
assault and indecent assault should have merged for sentencing purposes.”
Appellant’s Motion to Amend PCRA Petition, 6/18/15, at 2-3 (some internal
capitalization omitted).
On July 28, 2015, the PCRA court denied Appellant’s leave to amend
his PCRA petition, as the new claims Appellant wished to raise were outside
of the scope of this Court’s limited remand order. PCRA Court Order,
7/28/15, at 1.
On October 21, 2015, the PCRA court held a hearing “on whether
PCRA counsel was ineffective for failing to investigate the absence of a guilty
plea colloquy.” See Clapper, 116 A.3d at 693; N.T. PCRA Hearing,
10/21/15, at 1-32. On October 30, 2015, the PCRA court issued an order
denying Appellant relief. PCRA Court Order, 10/30/15, at 1.
Appellant filed a timely notice of appeal5 and now raises the following
claims:
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5
The PCRA court apparently failed to serve the October 30, 2015 order upon
Appellant. Therefore, on December 29, 2015, Appellant filed a second PCRA
petition, claiming that, as a result of governmental interference, he was
denied his right to appeal the dismissal of his first PCRA petition. Appellant’s
Second PCRA Petition, 12/29/15, at 5. Specifically, Appellant claimed that
the PCRA court failed to properly serve the October 30, 2015 order upon
Appellant’s counsel, that neither Appellant nor his counsel received a copy of
the October 30, 2015 order, and that Appellant first learned of the dismissal
(Footnote Continued Next Page)
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1. Did the [PCRA] court err by denying [Appellant’s] motion
for leave to amend his PCRA petition?
2. Did the [PCRA] court err by concluding that trial counsel
did not render ineffective assistance?
Appellant’s Brief at 6 (some internal capitalization omitted).
We review an order granting or denying PCRA relief “to determine
whether the PCRA court’s decision is supported by evidence of record and
whether its decision is free from legal error.” Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003), citing Commonwealth v. Carpenter, 725
A.2d 154, 159 (Pa. 1999).
On appeal, Appellant acknowledges that the issue upon which this
Court granted limited remand is “wholly frivolous.” Appellant’s Brief at 18.
Nevertheless, Appellant claims that the PCRA court erred in denying his
motion for leave to amend his PCRA petition, so that Appellant could raise
his two new, additional claims. Appellant’s claim fails because, in
Commonwealth v. Sepulveda, 144 A.3d 1270 (Pa. 2016), the
Pennsylvania Supreme Court specifically held: “[t]he PCRA court does not
_______________________
(Footnote Continued)
order on December 10, 2015. Id. at 1-5. Appellant claimed that he filed his
second PCRA petition within 60 days of the date he learned (or could have
learned) of the dismissal. Id. at 5-6. As such, Appellant requested that the
PCRA court reinstate his right to appeal the October 30, 2015 dismissal
order. Id. at 7. On January 13, 2016, the PCRA court granted Appellant’s
request and reinstated Appellant’s right to appeal from the October 30, 2015
dismissal order. PCRA Court Order, 1/13/16, at 1. Appellant then filed a
timely notice of appeal.
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have the authority or the discretion to permit a petitioner to raise new
claims outside the scope of the remand order and to treat those new claims
as an amendment to an adjudicated PCRA petition.” Sepulveda, 144 A.3d
at 1280. We thus paraphrase the Sepulveda Court and hold, in the case at
bar, the following:
In the case at bar, the PCRA [court] fully addressed the
issues raised in [Appellant’s] first, timely PCRA petition . . .
and rendered a final decision on that petition [on March 27,
2014. Appellant] appealed from the final order disposing of
his first PCRA petition to [the Superior Court]. After
thoroughly considering all of the issues presented on
appeal, this Court issued an order remanding the case to
the PCRA court for its consideration of [one] specific and
discrete issue[, namely “whether PCRA counsel was
ineffective for failing to investigate the absence of a guilty
plea colloquy.” Clapper, 116 A.3d at 693. The PCRA court
thus did not have discretion to permit Appellant] to amend
his otherwise finally decided PCRA petition with new,
previously unraised claims.
Sepulveda, 144 A.3d at 1280-1281.
As such, the PCRA court did not err, on remand, in denying Appellant’s
motion for leave to amend his PCRA petition.6, 7
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6
We note that Appellant sought leave to amend his PCRA petition to,
essentially, raise an illegality of sentencing claim. Specifically, Appellant
sought leave to amend his petition to claim “that trial counsel rendered
ineffective assistance by failing to . . . argue that [Appellant’s] convictions
for aggravated indecent assault and indecent assault should have merged for
sentencing purposes.” Appellant’s Motion to Amend PCRA Petition, 6/18/15,
at 2-3. As this Court has held, “although illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). In this
case, Appellant failed to present his illegal sentencing claim in a timely PCRA
(Footnote Continued Next Page)
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Order affirmed.
_______________________
(Footnote Continued)
petition. Therefore, we cannot consider Appellant’s claim on appeal. Id.
Moreover, even if we could consider the claim, the claim is frivolous since
the victim testified that Appellant penetrated her vagina without her consent
(thus satisfying the requirements of aggravated indecent assault) and
touched her breasts without her consent (thus satisfying the requirements of
indecent assault but not the requirements of aggravated indecent assault).
N.T. Trial, 11/4/11, at 15; see also 18 Pa.C.S.A. § 3125(a)(1) (“. . . a
person who engages in penetration, however slight, of the genitals or
anus of a complainant with a part of the person's body for any purpose
other than good faith medical, hygienic or law enforcement procedures
commits aggravated indecent assault if . . . the person does so without the
complainant's consent”) (emphasis added); 18 Pa.C.S.A. § 3126(a)(1) (“A
person is guilty of indecent assault if the person has indecent contact
with the complainant, causes the complainant to have indecent contact
with the person or intentionally causes the complainant to come into contact
with seminal fluid, urine or feces for the purpose of arousing sexual desire in
the person or the complainant and . . . the person does so without the
complainant's consent”) (emphasis added).
7
With respect to Appellant’s second numbered claim on appeal, the
argument section of Appellant’s brief simply: 1) acknowledges the frivolity
of the issue upon which this Court granted limited remand and 2) declares
that the claims in Appellant’s motion for leave to amend the PCRA petition
have merit. Given our disposition in this matter, wherein we find that the
PCRA court did not err in denying Appellant’s motion for leave to amend, we
will not consider Appellant’s second numbered claim on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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