J-S53004-14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
              v.                           :
                                           :
RYAN SCOTT CLAPPER,                        :
                                           :
                   Appellant               : No. 1414 WDA 2013

             Appeal from the Judgment of Sentence July 29, 2013,
                   Court of Common Pleas, Bedford County,
               Criminal Division at No. CP-05-SA-0000013-2013

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 26, 2014

                                        ppeals from the judgment of sentence

entered on July 29, 2013 by the Court of Common Pleas of Bedford County,

Criminal Division, following his conviction for summary harassment. 1 After

careful review, we affirm.

       The facts and procedural history of this case are summarized as

follows.   On August 19, 2012, Clapper was a correctional officer at the

Bedford County Correctional Facility.    See N.T., 7/11/13, at 6-8.     On that



in the proc

disciplinary segregation cellblock to the indoor recreation facility. Id. at 7-8.

When Officer Calhoun placed Ringler in handcuffs and shackles for the



1
    18 Pa.C.S.A. § 2709(a)(3).


*Retired Senior Judge assigned to the Superior Court.
J-S53004-14


transfer, Ringler complained that they were cold. Id. at 10. Ringler testified

that after she complained about the handcuffs and shackles being cold,



                                  Id.

      After transferring Ringler to the indoor recreation facility, Officer

Calhoun removed the handcuffs and shackles from Ringler and gave them to

Clapper. Id. at 35. Clapper proceeded to take the handcuffs and shackles

and place them in a freezer for approximately one hour while Ringler was at

the indoor recreation facility.    See id. at 41, 54-

recreation time was complete, Clapper placed the now frozen handcuffs and

shackles back on Ringler for her transfer back to the disciplinary segregation

cellblock.   Id. at 13-14.   Ringler testified that Clapper told her that the

reason he froze the handcuffs and shackles was because she had been



the indoor recreation facility. Id. at 14-15.

      Clapper, along wit

Ringler back to her cell.    Id. at 43-44.      Once Clapper and Officer King

returned Ringler to her cell, Clapper removed the handcuffs and shackles

and gave them to Officer King, who noticed that they were cold to the touch

and wet with condensation.      Id. at 44.2     Ringler claimed that the frozen



2
   Officer King also testified that Clapper had told him that he froze the
handcuffs and shackles. N.T., 7/11/13, at 41.


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handcuffs and shackles left red marks and blisters on her wrists and ankles.

Id. at 12, 15.     Ringler testified that after she asked to file a grievance

against Clapper, he came back to her cellblock asking why she requested a

grievance. Id. at 11. When Ringler told Clapper that was in regards to the

                                                          Id.

     The following day, Ringler informed Officer Murphy of what had

transpired with the frozen handcuffs and shackles and Officer Murphy



Id. at 12. Lieutenant Gunther reviewed video of Clapper going into a room

in which there was a freezer and coming out with handcuffs and shackles.

Id. at 54-55. Lieutenant Gunther interviewed Clapper and asked him if he

put frozen handcuffs and shackles on Ringler, to which Clapper answered

that he did not.   Id. at 57.   As a result of the investigation, the Bedford

                                                                Id.

     The Bedford County Correctional Facility notified the State Police and

the Commonwealth charged Clapper with one count of harassment as a

summary offense.     On September 21, 2013, the Magisterial District Judge

found Clapper guilty of one count of summary harassment.        On March 1,

2013, Clapper filed a summary appeal to the Bedford County Court of

Common Pleas. On July 11, 2013, following a trial de novo, the trial court

likewise found Clapper guilty of one count of summary harassment and

sentenced him to 45 to 90 days of incarceration.



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      On July 24, 2013, the trial court appointed appellate counsel to

represent Clapper.      On August 8, 2013, Clapper filed a motion for

reconsideration of sentence nunc pro tunc.         The trial court accepted



August 12, 2013, the trial court denied it. That same day, Clapper filed a

notice of appeal. On September 10, 2013, the trial court ordered Clapper to

file a concise statement of errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure.      On September

26, 2013, Clapper timely filed his Rule 1925(b) statement.

      On appeal, Clapper raises the following issues for our review:

            I.    WHETHER THE EVIDENCE PRESENTED AT
                  TRIAL WAS INSUFFICIENT TO SUSTAIN THE
                  CONVICTION FOR SUMMARY HARASSMENT?

            II.   WHETHER THE TRIAL COURT COMMITTED AN
                  ABUSE OF DISCRETION IN SENTENCING THE
                  APPELLANT TO 45 to 90 DAYS [OF]
                  INCARCERATION FOR A SUMMARY OFFENSE?



      For his first issue on appeal Clapper challenges the sufficiency of the

                                                                 Brief at 8-9.

In reviewing a challenge to the sufficiency of the evidence, our standard of

review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict
            winner giving the prosecution the benefit of all



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            reasonable inferences to be drawn from the
            evidence. Evidence will be deemed sufficient to
            support the verdict when it establishes each material
            element of the crime charged and the commission
            thereof by the accused, beyond a reasonable doubt.
            Nevertheless, the Commonwealth need not establish
            guilt to a mathematical certainty. Any doubt about

            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.

            The Commonwealth may sustain its burden by
            means     of    wholly     circumstantial    evidence.
            Accordingly, [t]he fact that the evidence establishing
                                           n   in   a   crime    is
            circumstantial does not preclude a conviction where
            the evidence coupled with the reasonable inferences
            drawn therefrom overcomes the presumption of
            innocence. Significantly, we may not substitute our
            judgment for that of the fact finder; thus, so long as
            the evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the


            be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).



of the Crimes Code. Section 2709(a)(3) states the following:

            (a) Offense defined.--A person commits the crime
            of harassment when, with intent to harass, annoy or
            alarm another, the person:

                                *     *        *




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                    (3) engages in a course of conduct or
                    repeatedly commits acts which serve no
                    legitimate purpose[.]

18 Pa.C.S.A. § 2709(a)(3).      The sole argument Clapper makes is that the

evidence was insufficient to prove that by placing frozen handcuffs and




frozen handcuffs and shackles on Ringler only constituted a single, isolated



section 2709(a)(3). Id. at 9.



composed of more than one act over a period of time, however short,




                             Commonwealth v. Lutes, 793 A.2d 949, 961

(Pa. Super. 2002) (citing Commonwealth v. Battaglia, 725 A.2d 192, 194

(Pa. Super. 1999)).     Moreover, our Court has held that in order for a



be evidence of a repetition of the offen                Commonwealth v.

Tedesco, 550 A.2d 796, 799 (Pa. Super. 1988) (citation omitted).



                                                   Lutes, for example, our

Court found the f



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           courthouse. Appellant Lutes approached the victim,
           poked him in the chest with his finger and called him
                                                           at he
           would take the victim around the corner and beat
           him. Appellant Lutes than reiterated his previous
           sentiment and threatened to punch the victim in the
           mouth. The victim testified that he felt Appellants
           were forcing a confrontation, and that he repeatedly
           requested that Appellants not touch him. The victim
           had to back away from Appellants. These acts, taken

           intended to harass, annoy or alarm the victim.

Lutes, 793 A.2d at 961.     Thus, our Court held that the combination of




                                            See id.

      In contrast to the Lutes decision is Commonwealth v. Schnabel,

344 A.2d 896 (Pa. Super. 1975). In Schnabel, the Appellant owned a large

tract of land that he divided into lots to rent as week-end or summer

cottages. Schnabel, 344 A.2d at 897. Many of the cottages did not have

modern plumbing and those cottages got their water from a well on the



Id.

his cottage constantly, which caused the septic tan

to overflow. Id. As a result, the Appellant committed a single act, namely

                                                            Id. Our Court




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Id. at 898.

      Based on Lutes and Schnabel

                               a)(3) and (f) cannot be a single, isolated act.

See Schnabel

consist of the repetition of a particular act, but rather may include a series of

related acts, including threats, taunts, confrontations, and other conduct,

done with the intent to harass, annoy, or alarm the victim. See Lutes, 793

A.2d at 961.

      Applying these principles to the present case, we conclude that the

trial court did not err in finding Clapper guilty of summary harassment. In

viewing the evidence in the light most favorable to the Commonwealth as

the prevailing party in the court below, the certified record reveals the

following.     Clapper threatened Ringler with freezing the handcuffs and

shackles after she complained about them being cold prior to her transfer to

the indoor recreation facility. N.T., 7/11/13, at 10. Clapper then proceeded

to freeze the handcuffs and shackles. See id. at 41, 54-55. After Ringler

completed her indoor recreation time, Clapper placed the frozen handcuffs

and shackles on Ringler and forced her to walk back to her cell in them. Id.

at 13-14. Clapper told Ringler that the reason he froze the handcuffs and

                                                                      Id. at 14-



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requested a grievance against him to tell her that she could not prove what

he had done. Id. at 11.

                                                               Lutes than in

Schnabel. Clapper did not merely place frozen handcuffs and shackles on

Ringler as his appellate brief suggests.   Similar to Lutes, in addition to

placing her in frozen handcuffs and shackles, Clapper also threatened Ringler

with freezing the handcuffs and shackles, taunted her with his explanation

for why he froze the handcuffs and shackles, and confronted her when she

requested a grievance.




See                                                     s sufficiency of the

evidence claim fails.

      For his second issue on appeal, Clapper raises a discretionary aspects

                                      -

aspects of a sentence must be considered a petition for permission to



Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), appeal

denied

                                              Id.

set forth in his brief a concise statement of the reasons relied upon for



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Id.                                                                                    ion



Id.

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).



2119(f) concise statement. See

his sentence was manifestly excessive.            Id. at 7, 9-11.      A claim that a

sentence is manifestly excessive such that it constitutes too severe a

punishment     raises     a   substantial   question     for   our    review.       See

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011).                      Clapper

further contends that the trial court did not take into account his

                                                                                -11.    A

claim that a sentencing court failed to consider the rehabilitative needs of

the   defendant      likewise    presents     a    substantial      question.       See

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).

Because    Clapper      has   complied   with     the   technical    requirements      for

consideration of a challenge to the discretionary aspects of a sentence, we

will consider his claim on its merits.




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      Our standard of review when considering discretionary aspects of

sentencing claims is as follows:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge. The standard employed
            when reviewing the discretionary aspects of
            sentencing is very narrow. We may reverse only if
            the sentencing court abused its discretion or
            committed an error of law. A sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant 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. We

            weight because it was in the best position to review

            and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      Clapper contends that his sentence is manifestly excessive because it

constitutes the same sentence he would have received had the trial court

found him guilty of a second-degree misdemeanor, such as simple assault,

                                                                       -11.

The sentencing guidelines, however, do not apply to sentencing for summary

offenses, see 204 Pa.Code § 303.1(a)3, and thus provide no basis here for




3

consider the sentencing guidelines in determining the appropriate sentence


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concluding that the trial court committed an error of law, exercised its

judgment for reasons of partiality, prejudice, bias, or ill-will, or otherwise

arrived at a manifestly unreasonable decision. To the contrary, the certified

record reflects that the trial court sentenced Clapper to a statutorily

permitted sentence4 and clearly set forth its reasons for doing so. The trial

court found that Clapper was not a risk to the public and that he did not

have any great rehabilitative needs.     N.T., 7/11/13, at 111-12.     The trial



the impact on the community. See id. at 112. The trial court stated that




           Id. Absent a manifest abuse of discretion, no relief is due.

       Clapper also contends that the trial court abused its discretion in

sentencing Clapper because it failed to consider his rehabilitative needs in

                                         -11. A claim that the trial court failed

to consider the rehabilitative needs of a defendant in sentencing implicates

section 9721(b) of the Sentencing Code. Section 9721(b) provides:

             [T]he court shall follow the general principle that the
             sentence imposed should call for confinement that is


for offenders convicted of, or pleading guilty or nolo contendere to, felonies


4
    Section 106(c)(2) of the Crimes Code provides that a person convicted of
                                           to a term of imprisonment, the



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            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.A. § 9721(b).       Here, the record reflects, from the above

referenced statements, that the trial court considered each of the factors of

section 9721(b). See supra, p. 12; see also N.T., 7/11/13, at 111-112.

Therefore, because the trial court took into consideration each of the factors



take into consideration his rehabilitative needs fails.      Accordingly, we

conclude that the trial court did not abuse its discretion in sentencing

Clapper.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2014




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