J-S65024-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 presentence 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.
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[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 
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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 appeal5and 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)
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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.
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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)
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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. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2016