Com. v. Clapper, R. ( 2014 )

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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