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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
ROBERT UNDERCUFFLAR COPELAND,           :        No. 1262 MDA 2017
                                        :
                       Appellant        :


           Appeal from the Judgment of Sentence, June 29 2017,
             in the Court of Common Pleas of Lancaster County
              Criminal Division at No. CP-36-CR-0001419-2017


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 20, 2018

     Robert Undercufflar Copeland appeals the judgment of sentence in

which the Court of Common Pleas of Lancaster County sentenced him to an

aggregate term of imprisonment of 2½ to 6 years for simple assault,

criminal trespass – break into structure, indecent assault without consent of

the other, and indecent exposure.1 After careful review, we affirm.

     The record reflects that appellant and Melissa England (“England”)

were involved in a romantic relationship for approximately 8 months. For a

short period, they shared an apartment at 325-G Eden Road, Manheim

Township, Lancaster County, Pennsylvania. On January 9 and 11, 2017, the

Manheim Township Police Department was called to 325-G Eden Road


1 18 Pa.C.S.A. § 2701(a)(3), 18 Pa.C.S.A. § 3503(a)(1)(ii), 18 Pa.C.S.A.
§ 3126(a)(1), and 18 Pa.C.S.A. § 3127(a), respectively.
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because appellant was breaking England’s computers. (Notes of testimony,

6/27/17 at 75.) Officer Evan Eshleman (“Officer Eshleman”) was dispatched

to 325-G Eden Road. When he arrived, he found appellant standing on the

porch with a few suitcases. (Id. at 78.) England was inside the apartment.

England informed the police officer that her name was on the lease and that

she wanted appellant removed from the premises.          Officer Eshleman and

another officer told appellant of England’s wishes, and he left the property.

(Id. at 79-80.)

      On January 11, 2017, the Manheim Police Department received a call

that there was a domestic situation at England’s residence where a

gentleman was trying to break in.       (Id. at 85.)    A police officer found

appellant about a block away.

      England testified at trial that she had allowed appellant to live with her

because, at the time, appellant did not have a job and was homeless. (Id.

at 92.) On January 12, 2017, England was awakened from sleep on the sofa

to the sound of appellant calling her name. Appellant broke in through the

kitchen window. England reported that appellant was intoxicated and that

he said, “I’m going to see if you got some n[------] or some guys here so he

runs up the steps.” (Id. at 97.) According to England, when appellant came

downstairs, he wanted to have sex with her, started kissing her, removed

her clothing, and exposed himself to her. Appellant also took a screwdriver

to England’s neck and told her, “I could kill you if I wanted to.” (Id. at 99.)



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When appellant accused England of having sex with his friend and spit in her

face, she called the police. (Id. at 99.)

      On cross-examination, England admitted that she gave appellant

permission to write letters to her. (Id. at 110.) On redirect examination,

England was asked about her decision to allow appellant to write letters to

her and her son:

            Q.     Can you tell the jury why you were okay with
                   the letters at that point?

            A.     He was sending letters to my mom. He was
                   sending letters to my son and me. And my
                   mom, I didn’t want her to be harassed with the
                   letters. But the letters to me and my son, they
                   weren’t threatening in any way and actually,
                   he was drawing -- he’s an artist, too, so he
                   was drawing pictures to my son who has Down
                   [S]yndrome and my son did kind of like that so
                   I thought it would be okay if it wasn’t
                   threatening for him to send them to my son
                   and me.

            Q.     Did you in any way feel safe about where he
                   was at that point?

            A.     Yeah, I knew he was in prison so he couldn’t
                   do anything to harm me anyway.

Id. at 113-114.

      At that point, appellant’s counsel objected. The trial court stated:

            Ladies and gentlemen of the jury, you just heard the
            witness reference the fact that [appellant] may have
            been incarcerated at the time this occurred. I’m
            directing you to disregard that evidence, other than
            to answer the question that was asked as to whether
            she felt safe about where [appellant] was.



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              You should not read anything into that information
              one way or the other. The fact that he may have
              been incarcerated is really neither here nor there in
              terms of your decisions in this case.

Id. at 114.

        At the lunch break in the trial after the Commonwealth rested,

appellant’s attorney moved for a mistrial for England’s notifying the jury that

appellant was incarcerated. The trial court denied the motion. (Id. at 140.)

        The jury convicted appellant of the aforementioned crimes. Appellant

waived a pre-sentence investigation report.             The trial court sentenced

appellant to an aggregate term of 2½ to 6 years. On July 7, 2017, appellant

filed a post-sentence motion and sought a reduced sentence because the

sentence he received was manifestly excessive and clearly unreasonable

under the circumstances.         The trial court denied the motion on July 11,

2017.

        On August 10, 2017, appellant filed a notice of appeal. On August 11,

2017, the trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied

with    the   order    on   September    1,   2017.     The   trial   court   filed   its

Pa.R.A.P. 1925(a) opinion on October 12, 2017.

        Appellant raises the following issues for this court’s review:

              1.      Did the trial court abuse its discretion in failing
                      to declare a mistrial after [England] referenced
                      [appellant’s] incarceration which was in no way
                      related to the subject matter and the
                      testimony was prejudicial?


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            2.     Was the trial court’s aggregate sentence of two
                   and one[-]half (2½) to six (6) years of
                   incarceration manifestly excessive under the
                   circumstances and an abuse of the [trial
                   c]ourt’s discretion?

Appellant’s brief at 8.

      Initially, appellant contends that the trial court abused its discretion

when it failed to declare a mistrial after England testified that appellant was

incarcerated which was in no way related to the subject matter of the

current prosecution and the testimony was prejudicial.

            The standard governing our review of a trial court’s
            refusal to grant a request for a mistrial has been
            previously well summarized by this Court:

                   The decision to declare a mistrial is
                   within the sound discretion of the court
                   and will not be reversed absent a
                   “flagrant    abuse      of     discretion.”
                   Commonwealth         v.    Cottam,     420
                   Pa.Super. 311, 616 A.2d 988, 997
                   (1992); Commonwealth v. Gonzales,
                   415 Pa.Super. 564, 570, 609 A.2d 1368,
                   1370-71 (1992).        A mistrial is an
                   “extreme remedy . . . [that] . . . must
                   be granted only when an incident is of
                   such a nature that its unavoidable effect
                   is to deprive defendant of a fair trial.”
                   Commonwealth v. Vazquez, 421
                   Pa.Super. 184, 617 A.2d 786, 787-88
                   (1992) (citing Commonwealth v.
                   Chestnut, 511 Pa. 169, 512 A.2d 603
                   (1986),    and     Commonwealth          v.
                   Brinkley, 505 Pa. 442, 480 A.2d 980
                   (1984)). A trial court may remove taint
                   caused by improper testimony through
                   curative instructions. Commonwealth
                   v. Savage, 529 Pa. 108, 602 A.2d 309,
                   312-13;        Commonwealth              v.


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                  Richardson, 496 Pa. 521, 437 A.2d
                  1162 (1981). Courts must consider all
                  surrounding      circumstances    before
                  finding that curative instructions were
                  insufficient and the extreme remedy of a
                  mistrial is required. Richardson, 496
                  Pa. at 526-527, 437 A.2d at 1165. The
                  circumstances which the court must
                  consider include whether the improper
                  remark was intentionally elicited by the
                  Commonwealth, whether the answer
                  was responsive to the question posed,
                  whether the Commonwealth exploited
                  the reference, and whether the curative
                  instruction was appropriate. Id.

            Commonwealth v. Stilley, 455 Pa.Super. 543, 689
            A.2d 242, 250 (1997).

Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa.Super. 2003),

appeal denied, 844 A.2d 551 (Pa. 2004).

      Further, Rule 605(B) of the Pennsylvania Rules of Criminal Procedure

provides:   “When an event prejudicial to the defendant occurs during trial

only the defendant may move for a mistrial; the motion shall be made when

the event is disclosed. Otherwise, the trial judge may declare a mistrial only

for reasons of manifest necessity.” Pa.R.Crim.P. 605(B).

      In the present case, England testified on cross-examination that after

the incidents with appellant, she still permitted appellant to write letters to

her and her son.    On redirect, England was asked whether she felt safe

accepting letters from appellant. England replied, “Yeah, I knew he was in

prison so he couldn’t do anything to harm me anyway.”               (Notes of

testimony, 6/27/17 at 114.)       Appellant’s counsel objected.      However,


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appellant’s counsel did not move for a mistrial until after the jury left for

lunch.   Appellant’s counsel moved for a mistrial on the basis that England

informed the jury that appellant was incarcerated. The trial court denied the

motion and remarked, “well, it’s a little late for that, isn’t it?” (Id. at 140.)

      Appellant failed to comply with Pa.R.Crim.P. 605 because he failed to

move for a mistrial at the time England mentioned that appellant was

incarcerated.    Appellant’s motion was untimely under the rule.            He is

precluded from raising the issue here.        In any event, the court’s curative

instruction given at the time of appellant’s initial objection was sufficient to

cure any prejudice.

      Appellant next contends that the trial court’s aggregate sentence of

2½ to 6 years of incarceration was so manifestly excessive as to constitute

too severe a punishment and an abuse of the court’s discretion, as it was not

consistent with the protection of the public, the gravity of the offense, and

the rehabilitative needs of appellant and the trial court did not impose an

individualized   sentence     which    took    into   consideration    appellant’s

circumstances and needs.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether    to    affirm   the    sentencing    court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the    judgment       exercised    was      manifestly
            unreasonable, or the result of partiality, prejudice,


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            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            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.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was   properly   preserved    at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has
                  a fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed
                  from is not appropriate under the
                  Sentencing     Code,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).




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      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of her sentence.   First, appellant timely filed his notice of appeal.

Second, appellant raised the issue that the trial court imposed a sentence

that was excessive and did not take into account his rehabilitative needs in

his post-sentence motion.       Third, appellant included a Rule 2119(f)

statement in his brief in which he avers that he raises a substantial question

in that his sentence did not focus on his rehabilitative needs and, instead,

focused on the seriousness of the offenses.     Fourth, the court must next

determine whether appellant raised a substantial question for this court’s

review.

      We determine whether an appellant raises a substantial question on a

case-by-case basis. Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.

2015).    “A substantial question exists only when an appellant advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Id. at 338 (citation omitted).

      Appellant argues that he raises a substantial question for essentially

two reasons. First, he argues that the sentence was excessive because the

trial court failed to consider his rehabilitative needs.   Second, appellant

argues that the sentence was excessive due to the consecutive nature of the



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sentences.     This court has held that a challenge to the imposition of

consecutive2 sentences as unduly excessive, together with a claim that the

trial court failed to consider a defendant’s rehabilitative needs when

fashioning its sentence, presents a substantial question.     Commonwealth

v. Bonner, 135 A.3d 592 (Pa.Super. 2016). As appellant has presented a

substantial question, we will address this claim on the merits.

      With respect to the trial court’s alleged failure to consider the

rehabilitative needs of appellant, we first note that appellant waived the

production of a pre-sentence investigation report that would have contained

information regarding appellant’s rehabilitative needs. (Notes of testimony,

6/29/17 at 2.) Second, the trial court imposed a standard range sentence

upon appellant that was much less than what the Commonwealth sought. In

fact, the Commonwealth sought an aggravated sentence on the criminal

trespass conviction and consecutive guideline sentences on the simple

assault, indecent assault, and indecent exposure convictions.        (Id. at 4.)

This court is only permitted to vacate a sentence within the guidelines if it is

unreasonable or the trial court misapplied the guidelines.         42 Pa.C.S.A.

§ 9781(c)(1-2). There is no indication here that the trial court misapplied

the guidelines, that the sentence was unreasonable.               Third, at the


2 Appellant was concurrently sentenced to a term of imprisonment of 1 to
3 years for simple assault and criminal trespass. He was consecutively
sentenced to a term of imprisonment of 1 to 3 years for indecent assault.
Appellant was consecutively sentenced to a term of 6 to 12 months for
indecent exposure.


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sentencing hearing, the trial court heard appellant and appellant’s attorney

address appellant’s difficult childhood, educational progress, drug and

alcohol treatment, relationship with his children, and his participation in

religious activities. As the trial court was present and commented at times

during these statements, it would appear that the trial court did consider the

rehabilitative needs in fashioning the sentence. Fourth, the trial court stated

that it would make appellant eligible for any programs in the state prison

system that would be beneficial to him.         (Id. at 11.)   Appellant has not

satisfied his burden of proving that the trial court abused its discretion by

imposing a manifestly unreasonable sentence.

      Appellant   also   challenges    the     aggregate   sentence   as   clearly

unreasonable because the trial court imposed consecutive rather than

concurrent sentences.

      Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A. § 9721,

permits the sentencing court to use its discretion to impose a sentence

consecutively or concurrently to other sentences that the sentencing court is

imposing. “In imposing a sentence, the trial judge may determine whether,

given the facts of a particular case, a sentence should run consecutive to or

concurrent with another sentence being imposed.”            Commonwealth v.

Perry, 883 A.2d 599, 603 (Pa.Super. 2005). The trial court did not abuse

its discretion.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/20/18




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