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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________
4
  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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