J-S63030-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1246 WDA 2016
Appeal from the Judgment of Sentence Dated July 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013172-2009
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 30, 2017
Appellant, David Clapper, appeals from the judgment of sentence
entered after the revocation of his probation imposed for aggravated
indecent assault without consent, indecent assault without consent of
another, and simple assault.1 We affirm.
The facts of this case were set forth in our prior decisions in this
matter — Commonwealth v. Clapper, No. 849 WDA 2012 (Pa. Super.,
Nov. 27, 2012) (“Clapper I”), appeal denied, 527 WAL 2012 (Pa., May 29,
2013); Commonwealth v. Clapper, No. 716 WDA 2014 (Pa. Super.,
Dec. 18, 2014) (“Clapper II”); and Commonwealth v. Clapper, No. 161
WDA 2016 (Pa. Super., Dec. 12, 2016) (“Clapper III”), appeal denied,
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1
18 Pa.C.S. §§ 3125(a)(1), 3126(a)(1), and 2701(a)(1), respectively.
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No. 22 WAL 2017 (Pa., Aug. 1, 2017) — and in the decision below following
the hearing on Appellant’s violation of probation (“VOP”):
On August 9, 2009, Appellant was arrested in connection with a
sexual assault that occurred the previous evening. The victim
reported that, . . . on the evening of August 8, 2009, Appellant
approached her in an alleyway, engaged her in conversation,
and then grabbed her. Appellant placed his hands down her
pants and penetrated her vagina with his fingers before she was
able to break his embrace and run away.
Clapper I, at 1-2 (footnote and citation to the record omitted).
During the assault, the victim pressed the “redial” button on her
phone at 9:07 p.m., 9:08 p.m., 9:09 p.m., 9:10 p.m., 9:11
p.m., and 9:12 p.m. Meanwhile, the victim noticed a black
sports car drive up to the alley and a male driver exit the vehicle
and enter a nearby store while the female passenger stayed in
the vehicle. After the male driver returned, the female
passenger observed the assault and exited the vehicle, at which
time the victim escaped.4 The victim then found a police officer
at 9:15 p.m. Appellant was eventually apprehended and
charged.
4
The driver and passenger were never identified.
Clapper II, at 1-2 (citations to the record omitted).
On October 28, 2009, Appellant was charged with one count
each of unlawful restraint, aggravated indecent assault, indecent
assault, and simple assault. On November 4, 2011, Appellant
waived his right to a jury trial and proceeded to a bench trial
before the Honorable Joseph K. Williams, III. Prior to the
presentation of witnesses, Appellant stipulated that he was guilty
of indecent assault and simple assault. Thereafter, Appellant
proceeded to trial on the remaining charges of aggravated
indecent assault and unlawful restraint.
Clapper I, at 2 (footnote omitted).
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 [her] lighter:
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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.
Clapper III, at 2.
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 an
aggregate sentence of two to four years’ imprisonment, to be
followed by seven years’ probation. Thereafter, on January 18,
2012, Appellant filed a timely post-sentence motion. On
January 24, 2012, the trial court granted Appellant leave to file
an amended post-sentence motion, which Appellant filed on
March 13, 2012. Thereafter, on May 21, 2012, Appellant's post-
sentence motions were denied by operation of law pursuant to
Rule 720 of the Pennsylvania Rules of Criminal Procedure.
Clapper I, at 2-3 (footnote omitted).
Appellant filed a timely direct appeal, and this Court affirmed the
judgment of sentence on November 27, 2012. Appellant’s petition for
allowance of an appeal was denied by the Supreme Court on May 29, 2013.
Thereafter —
Appellant timely filed [a] PCRA petition on August 9, 2013[.] . . .
The PCRA court appointed counsel, who filed a petition to
withdraw pursuant to Turner/Finley9 on February 4, 2014. . . .
9
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc).
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The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to
dismiss. Appellant filed a timely response in opposition[.] . . .
Appellant did not seek leave of court to file an amended PCRA
petition. 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 . . . .
Clapper II, at 5-6. On December 18, 2014, this Court vacated the PCRA
court’s decision and “remanded for an evidentiary hearing on whether PCRA
counsel was ineffective for failing to investigate the absence of a guilty plea
colloquy.” Id. at 14; see also id. at 13. That evidentiary hearing was held
on October 21, 2015, and, on October 30, 2015, the PCRA court dismissed
the PCRA petition. This Court affirmed that dismissal on December 12,
2016, Clapper III, at 1, and the Supreme Court of Pennsylvania denied
Appellant’s petition for allowance of an appeal on August 1, 2017.
Meanwhile, on March 18, 2015, while Appellant was awaiting his new
evidentiary hearing, his probation began. VOP Ct. Op., 1/26/17, at 2. A
year later, he violated it:
Because of the crimes of conviction, aggravated indecent
assault, in particular, [Appellant] was deemed a sex offender
and subject to specific written guidelines. The Special Field
Report of August 24, 2015 attached various acknowledgments
from [Appellant] about the sex offender guidelines. On May 25,
2016 a notice hearing was scheduled. A few days later, the
[c]ourt received “Arrest Report #2”. It identified five (5)
technical violations and requested [Appellant] be detained.
Attached to that document was a “Summary of Adjustments” It
did not paint a positive picture of Mr. Clapper.
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In anticipation of the July, 2016 violation hearing, the [c]ourt
ordered a mental health evaluation be done. It was received on
June 8th and reviewed shortly thereafter.
On July 20, 2016, the parties gathered for [Appellant]’s hearing.
[Appellant] spoke as did his state probation officer, Thomas
Bowman. Mr. Bowman provided sufficient facts to justify the
accusations to be deemed accurate.
Id. Bowman testified as follows:
[Appellant] has been given every opportunity since he got out to
attend sex offender treatment. He was discharged for non-
compliance. He failed a polygraph and then he failed to return
to treatment. I got him back into treatment. He was discharged
but failed to show up. Shortly thereafter in November of last
year he had gotten pulled over in his truck, another story that
somebody must have done something to his vehicle that’s why
there was a wrong plate on there, okay. Those charges were
pled out. We tried to get him back into sex offender treatment
at another organization, Mercy Behavioral Health, he never
called there. I noticed that he was being depressed. He had
individuals over his house that were either high or drunk or both
and he was basically slumped on his couch. . . . We tried to get
him to Mon Yough Community Center for an evaluation for
mental health, he never called. . . . It’s already been proven he’s
admitted to alcohol usage. He’s admitted to marijuana usage.
Last time two months ago he admitted to doing crack cocaine.
N.T., 7/20/16, at 12-13.
During the VOP hearing, Judge Williams, who had presided at
Appellant’s trial in 2011 and therefore was familiar with the case, observed:
“Part of the problem of this case is that it’s been going on for nearly seven
years and [Appellant] has been resistant to any of a number of overtures
that I have proposed in sentencing or that the state tried to engage him in
with respect to intervention.” N.T., 7/20/16, at 4. At the hearing —
Defense counsel . . . acknowledged the contents of “Arrest
Report #2” and offered “no additions or corrections.” [N.T.,
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7/20/16, at] 5[.2] . . . Ultimately, the [VOP c]ourt imposed
punishment of 2-4 years in jail. Significantly, there was no
probationary tail to follow.3
3
[Appellant]’s original sentence would have terminated
community supervision on March 18, 2022. The current
[VOP] sentence will expire in March, 2020. This assumes, of
course, [Appellant] serves his maximum just like he did the
first time.
VOP Ct. Op., 1/26/17, at 2 (footnote No. 2 omitted). While incarcerated,
Appellant was ordered to participate in and to complete sex offender
treatment and to participate in a therapeutic community. Sentencing Order,
7/20/16.
On July 21, 2016, Appellant filed a motion to reconsider the VOP
sentence, stating:
The report [of the mental health evaluation] submitted to the
[VOP] court by the Behavior Clinic clearly showed [Appellant]
has a diagnosis of severe depression and a severe problem with
alcohol. [Appellant] respectfully avers that this [VOP c]ourt
improperly ignored the recommendations contained in the report
and did not consider the required sentence factors, including but
not limited to, the rehabilitative needs of the defendant, prior to
imposing sentence. [Appellant] also avers that the penalty
imposed is not commensurate to the violations.
Mot. to Recons. Sentence, 7/21/16, at ¶ 4. Appellant’s motion was denied,
and Appellant then filed this timely appeal, in which he raises the following
issue, as stated in his brief:
Is the imposition of the aggregate sentence of two (2) to four
(4) years of incarceration following a probation violation
manifestly excessive, unreasonable, and an abuse of the [VOP]
court’s discretion? Specifically, does the sentence result in a
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2
The report is not in the certified record.
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manifestly excessive sentence that is wholly unreasonable and
not in conformity to the Sentencing Code (42 Pa.C.S.
§ 9721(b)), as the [VOP] court failed to consider, as it must, the
Appellant’s rehabilitative needs and character, and mistakenly
found that the Appellant’s confinement was necessary to protect
the public?
Appellant’s Brief at 7.
Appellant “challenges only the discretionary aspects of [his] sentence,”
arguing that his sentence is “an abuse of the [VOP] court’s discretion.”
Appellant’s Brief at 10-11. Appellant contends that, “while the sentence
imposed on [him] is a standard-range sentence . . . the punishment here
does not fit the crime.” Id. at 23. Appellant maintains that, “[b]ecause his
probation violations have been non-violent, incarceration is not necessary to
protect the public.” Id. at 28. Appellant continues that, “[c]onsidering the
remarks from the sentencing hearing in this case, and the lack of reflection
on [Appellant]’s rehabilitative needs, it appears that [the VOP] court
imposed a manifestly excessive and unreasonable sentence by sending
[Appellant] to the state penitentiary for 2 to 4 additional years.” Id. at 29.
Appellant asks this Court to vacate his judgment of sentence and to remand
for resentencing. Id.
The Commonwealth responds that the VOP court “did not abuse its
discretion where it considered appropriate factors and imposed a reasonable
sentence of 2 to 4 years’ incarceration for Appellant’s probation violations.”
Commonwealth’s Brief at 10. The Commonwealth notes that “Appellant
dose not dispute that he violated the terms and conditions of his probation.”
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Id. The Commonwealth continues that, “A sentence of total confinement of
Appellant’s various probation violations was essential to vindicate the
authority of the court,” further noting that the VOP court “was free to impose
any sentence permitted under the Sentencing Code when Appellant violated
his probation.” Id. at 14-15.
In Commonwealth v. Cartrette, 83 A.3d 1030, 1034 (Pa. Super.
2013) (en banc), we held that our scope of review in an appeal from a
revocation sentencing includes discretionary sentencing challenges. Such a
challenge is not appealable as of right. Commonwealth v. Luketic, 162
A.3d 1149, 1159 (Pa. Super. 2017). We will exercise our discretion to
consider the issue only if (1) the appellant has filed a timely notice of
appeal; (2) he has preserved the sentencing issue at the time of sentencing
or in a motion to reconsider and modify his sentence; (3) he presents the
issue in a properly framed statement in his brief under Rule 2119(f) of the
Rules of Appellate Procedure, pursuant to Commonwealth v. Tuladziecki,
522 A.2d 17 (Pa. 1987); and (4) in the words of Section 9781(b) of the
Sentencing Code, 42 Pa.C.S. § 9781(b), “it appears that there is a
substantial question that the sentence imposed is not appropriate under this
chapter.” See, e.g., Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa.
Super. 2015), appeal denied, 140 A.3d 12 (Pa. 2016); Commonwealth v.
Zelinski, 573 A.2d 569, 574-75 (Pa. Super.), appeal denied, 593 A.2d 419
(Pa. 1990). “A defendant presents a substantial question when he sets forth
a plausible argument that the sentence violates a provision of the
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Sentencing Code or is contrary to the fundamental norms of the sentencing
process.” Luketic, 162 A.3d at 1160 (citation omitted).
Here, Appellant filed a timely notice of appeal and a motion to
reconsider his sentence and included a statement in his brief pursuant to
Pa.R.A.P. 2119(f). See Mot. to Recons. Sentence, 7/21/16; Appellant’s Brief
at 12-16; see also Tuladziecki, 522 A.2d at 17; Haynes, 125 A.3d at 807;
Zelinski, 573 A.2d at 574-75. However, Appellant’s motion to reconsider
his sentence asserted only that the sentence violated Section 9721(b) of the
Sentencing Code3 by failing to consider his rehabilitative needs. Mot. to
Recons. Sentence, 7/21/16, at ¶ 4. The motion did not aver that his
confinement was unnecessary for protection of the public. Compare
generally id. to Appellant’s Brief at 7, 28. He also failed to raise this claim
at sentencing. See generally N.T., 7/20/16. Where an appellant fails to
preserve arguments raised in support of his discretionary sentencing claims
at sentencing or in a post-sentence motion, they are not subject to appellate
review. See Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super.
2015), appeal denied, 119 A.3d 351 (Pa. 2015). Consequently, Appellant
failed to preserve his claim that his sentence is unnecessary to protect the
public. We therefore shall exercise our discretion to consider only that
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3
Section 9721(b) provides that the sentencing court must impose a
sentence that is “consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b); see also Commonwealth v. Walls, 926 A.2d 957, 962 (Pa
2007).
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portion of Appellant’s appeal that contends that the VOP court failed to
consider Appellant’s rehabilitative needs. That contention raises a
substantial question for appellate review. See Commonwealth v. Baker,
72 A.3d 652, 662 (Pa. Super. 2013), appeal denied, 86 A.3d 231 (Pa.
2014)).4
Our standard of review follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In order to establish that
the sentencing court abused its discretion, the defendant must
establish, by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision. The rationale behind such
broad discretion and the concomitantly deferential standard of
appellate review is that the sentencing court is in the best
position to determine the proper penalty for a particular offense
based upon an evaluation of the individual circumstances before
it. To determine whether the trial court made the proper
considerations during sentencing, an appellate court must, of
necessity, review all of the judge’s comments. As this Court has
stated, the judge’s statement must clearly show that he has
given individualized consideration to the character of the
defendant. . . . [I]t is an abuse of discretion when the nature of
the criminal act is used as the sole basis for the determination of
the length of sentence.
Luketic, 162 A.3d at 1162-63, 1165 (internal brackets, citations, and
quotation marks omitted). In the revocation context, as in sentencing
generally, sentencing is vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
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The Commonwealth agrees that Appellant’s allegation that the VOP court
failed to consider his rehabilitative needs raises a substantial question.
Commonwealth’s Brief at 12-13.
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abuse of discretion. Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.
Super. 2014), appeal denied, 117 A.3d 297 (Pa. 2015).
When probation is violated, the sentencing court possesses the same
sentencing alternatives in the revocation context that it had at the time of
initial sentencing. See 42 Pa.C.S. § 9771(b); Commonwealth v. Fish, 752
A.2d 921, 923 (Pa. Super. 2002). Where probation is ineffective as a
rehabilitative tool, a more severe sentence, up to and including total
incarceration, will often be warranted and appropriate. Commonwealth v.
Sierra, 752 A.2d 910, 913 (Pa. Super. 2000); Commonwealth v. Smith,
669 A.2d 1008, 1011 (Pa. Super. 1996). Total confinement may be imposed
if (1) the defendant has been convicted of another crime; (2) the conduct of
the defendant indicates that it is likely that he will commit another crime if
he is not imprisoned; or (3) such a sentence is essential to vindicate the
authority of the court. Fish, 752 A.2d at 923 (citing 42 Pa.C.S. § 9771(c)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph K.
Williams III, we conclude that Appellant’s claim merits no relief. The VOP
court explained its sentence as follows:
The length of time Clapper’s case has been in chambers allows
the Court an enhanced level of understanding of Mr. Clapper.
That includes the good and the bad. He has some construction
skills that if channeled with the right motivators could allow for a
better life. However, his addiction issues are a major impediment
to that goal. His efforts in the real world were not successful. He
returned to his favorite friend — alcohol — and was joined by its
cousins — marijuana and crack cocaine. On top of those curses,
he has struck out on sex offender treatment. Three times he
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started only to fail for various reasons. Clapper's supervision was
terrible. No job, despite skills and a car equipped with a device
to allow this alcoholic to drive, no payments toward fines and
costs and a new summary conviction. When the Court looked at
the big picture here, Clapper showed that community supervision
was not working. For those reasons, the Court's sentence was
imposed.
VOP Ct. Op. , 1/26/17, at 2-3. The court’s explanation makes clear that the
court understood that Appellant had addictions to alcohol, marijuana, and
crack cocaine. Id. The court stated it had “ordered a mental health
evaluation to be done” and reviewed it “shortly” after receiving it on June 8,
2016, so that it understood Appellant’s psychological situation. See id. The
court noted that Appellant had failed to complete sex offender treatment
three times. Appellant’s “efforts in the real world were not successful” and
“community supervision was not working,” and the court concluded that
Appellant’s “addiction issues are a major impediment to [achieving his] goal”
of a better life. Id. In the end, the VOP court demonstrated its
understanding of Appellant’s need for rehabilitation by ordering Appellant to
participate in and to complete sex offender treatment and to participate in a
therapeutic community while he is incarcerated. Sentencing Order, 7/20/16.
Thus, the VOP court did consider Appellant’s rehabilitative needs, and
Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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