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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S65024-16


          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).




                                           -2-
J-S65024-16



                                    ...

       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.

                                   -3-
J-S65024-16



              [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


                                       -4-
J-S65024-16



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:
____________________________________________


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)


                                           -5-
J-S65024-16



         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.




                                            -6-
J-S65024-16



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


____________________________________________


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)


                                           -7-
J-S65024-16



      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.




                                            -8-
J-S65024-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




                          -9-
