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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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 postsentence 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/Finley9on 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 noncompliance. 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