J. S04043/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 21⁄2 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 21⁄2 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 (21⁄2) 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 

21⁄2 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