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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RICHARD FRANKLIN KEIPER, : No. 3261 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, October 1, 2015,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0002596-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 21, 2016
Richard Franklin Keiper appeals the judgment of sentence in which the
Court of Common Pleas of Monroe County sentenced him to serve a term of
life in prison for first-degree murder.1
The trial court recounted the following factual background:
On October 18, 1968, Alfred L. Barnes
(Barnes) was shot three times in the head and killed
in Effort, Monroe County, Pennsylvania. His body
was dumped in a desolate farm pasture and found
the next day. His car, subsequently determined to
be the location in which he was shot, was later found
in New Jersey.
The Pennsylvania State Police (PSP) mounted a
substantial investigation. However, they were
unable to uncover any meaningful leads until 1971
* Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 2502(a).
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when detectives interviewed Quaquo Kelly (Kelly).
Kelly related that [appellant] told him he had shot a
man who worked at Bethlehem Steel in the hand and
that he had the guy’s car. Kelly also stated that
[appellant] tried to sell him the gun.
It is the prosecutor’s brief references in his
opening statement to what Kelly told PSP that
formed the basis of [appellant]’s request for a
mistrial and now forms the foundation of his appeal.
After interviewing Kelly, PSP confirmed that
Barnes had worked at Bethlehem Steel. They also
looked for [appellant]. However, they could not find
him because, shortly after the shooting, [appellant]
left the area and travelled around the southern or
southeastern United States with a carnival before
ultimately settling in Texas. As a result, the case
went cold. At the time, there were no cold case
units or procedures.
In 2012, the case was assigned to Trooper
Donald Marsh. After reviewing the file and becoming
familiar with the case, Trooper Marsh re-interviewed
Kelly who confirmed the statements he made in
1971. Using modern means, PSP was able to locate
[appellant] in Texas.
PSP relayed the case information to the Texas
Rangers and asked them to interview [appellant].
Texas Ranger James Holland was assigned to the
case. [Appellant] agreed to be interviewed. Ranger
Holland interviewed him twice.
During the first interview, which was
surreptitiously audio-recorded, [appellant] admitted
to shooting Barnes, but said it was self-defense.
Specifically, [appellant] claimed Barnes pulled a gun
on him, a struggle ensued, and the gun accidentally
fired.
The second interview was video-recorded with
[appellant]’s consent. During the second interview,
[appellant] again admitted to shooting Barnes. He
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added the detail that he had shot Barnes three
times.
. . . . On October 17, 2013, [appellant] was arrested
in Texas. The PSP investigators conducted their own
interview which, like the interview conducted by
Ranger Holland, was recorded.
During this interview, [appellant]’s story
changed. He stated that he met a man named Steve
who convinced him to accept a ride with Barnes.
While [appellant] and Steve were travelling with
Barnes, Steve came up with the idea of stealing
Barnes’s car. When they stopped in Effort, Barnes
pulled a gun. [Appellant] wrestled with Barnes over
the gun. A shot was fired. However, [appellant]
claimed that it did not hit Barnes. [Appellant] said
that he took the gun, ran off, and threw the weapon.
While away from the car, [appellant] heard shots
fired. [Appellant] returned to the car to help remove
Barnes, who had been shot in the head and was
bleeding, but was purportedly still alive. In this
version, as in others, Barnes was pleading with
[appellant] not to steal his car, a new Ford
Thunderbird. [Appellant] took the car and later
abandoned it in New Jersey.
In some of the interviews, Kelly was mentioned
briefly. For the most part, [appellant] was asked if
he knew Kelly and was also asked if he had tried to
sell him a gun. [Appellant] acknowledged knowing
Kelly but denied trying to sell him a gun.
[Appellant]’s changing versions of events,
most notably the descriptions of how Barnes was
shot, were all inconsistent with the physical evidence
and the opinion of the Commonwealth’s expert.
Among other things, while [appellant] mentioned
shots during a struggle for the gun while in Barnes’s
car, Barnes was shot at least once form [sic] above.
....
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[Appellant]’s trial began on June 29, 2016. It
spanned five trial days, exclusive of jury selection
and the extended July 4th holiday weekend. Over
the first four days, the Commonwealth presented
twelve witnesses, including three experts and several
state troopers who were involved in the original
investigation, and submitted eighty-three exhibits,
including the audio and video recordings of the
interviews with [appellant]. As to the interviews, all
three were played or presented and were
accompanied by testimony from the officers who
conducted them. On the last day of trial, [appellant]
called two expert witnesses and submitted an
exhibit.
In his opening statement, the assistant district
attorney walked the jury through the history of the
PSP investigation and this case from the death of
Barnes in 1968 through [appellant]’s arrest in Texas
in 2013. In doing so, the prosecutor made some
references to Kelly. The references, with sufficient
surrounding information to provide context, were as
follows:
There’s information from a
confidential source that [appellant] may
have been involved so they start looking
into him.
Now we’re in the early 70’s, 1970
and [‘71] and they find out about him.
Looking at the criminal arrest record
larceny of a motor vehicle, assaults;
what do we know about this guy?
They develop an association he
may have had with someone with the
outlandish name of Quaquo Kelly [].
Kelly is a felon. They interview him. He
gives him information. He talks about an
incident where he was at a bar at Sixth
and Linden in Allentown and he stayed in
a room above the bar and [appellant]
who he knows came over so he let
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[appellant] stay overnight and
[appellant] gave him information that he
shot a guy in the hand from Bethlehem
Steel and he had his car. And then he
talks about trying to sell him a handgun
but he tells him yeah, the gun was a
revolver.
So they take that information.
They try to corroborate it and then they
try to locate [appellant]. And they heard
through word-of-mouth he might be in
Florida so they ran inquiries down there
and they got a .22 caliber handgun
registration from 1971 someplace down
in Florida.
But they can’t find him. They don’t
know where in Florida now he is. So ‘71,
‘81, nothing is happening. Nothing is
happening . . . .
(N.T., 6/29/15, pp.45-46).
. . . . In 2010, a letter from Barnes’s nephew
prompted PSP to review the file, including Kelly’s
statement, and to make an effort to determine if
Kelly was still around. (Id. at 46-47). He then
moved to the point where Trooper Marsh became
involved:
+He reviews the file. He reviews
the case notes. He reviews the
photographs that were taken. He
reviews the remaining evidence and he
sees this thing about [appellant] and this
Quaquo Kelly statement.
So now he’s using the databases
that are available to a modern
investigator and he locates Mr. Kelly and
he talks to him. He lives in Allentown.
He gives the basic information,
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corroborated what he gave in ‘71. So
where is [appellant]?
....
(Id. at 48).
. . . . [The assistant district attorney] later described
Ranger Holland’s interview technique and what
[appellant] disclosed:
....
Sometimes he’ll go into a story
about things but the Ranger directs him
back. How about a Mr. Kelly, a Quaquo
Kelly, did you ever hear of him?
Oh yeah, he lived above Sixth and
Linden above a bar. Did you ever try to
sell any guns to him? No, no.
(Id. at 51). The assistant district attorney did not
mention Kelly again in his opening. In fact, he did
not from this point on substantively mention Kelly
again in front of the jury or intentionally elicit
information about him through any witness.
In his opening statement, counsel for
[appellant] mentioned Kelly. Specifically, he stated:
....
Beyond that, 1971 they got a lead,
a guy by the name of Quaquo Kelly was
interviewed. l’m going to ask you to
think about what his motivations might
have been at that time when he gave the
statement in 1971. What his statement
was when he gave it again later more
recently in 2013. How his statement
might change today.
....
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(Id. at 73-74).
At the time the openings were given, the
Commonwealth intended to call Kelly as a witness.
In fact, the assistant district attorney had previously
spoken with Kelly for that purpose, at which time he
observed that Kelly was in failing health and was
generally not steady on his feet. It was the Court’s
understanding that Kelly had been subpoenaed and
that the defense wanted to call him as well, or at
least wanted to cross examine him.
However, sometime after opening arguments
the Commonwealth became aware that Kelly had
been hospitalized. Apparently, Kelly contacted one
of the affiants to advise him of the hospitalization.
In addition, [appellant]’s attorneys indicated that
their investigator had confirmed that Kelly had been
hospitalized. The investigator reported that Kelly
had been released from the hospital and had
confirmed that he had been subpoenaed for the first
day of trial. However, as all counsel observed, Kelly
did not appear for the first day of trial. Based on the
new information, the assistant district attorney
decided not to call Kelly as a witness, primarily
because of Kelly’s health and hospitalization. That
decision was communicated to counsel for
[appellant] and the matter was discussed between
the attorneys for all parties. On the second day of
trial, after we became aware of the development, the
Court convened an in-chambers conference with
[appellant]’s attorneys and the assistant district
attorney to discuss the matter. (N.T., 6/30/2015,
pp. 89-92; N.T., 7/2/2015, pp. 51-66; N.T.,
7/6/2015, pp. 5-12).
On the second day of trial, the Commonwealth
called former PSP trooper George Oressie as its third
witness. During direct examination, the assistant
district attorney did not elicit any information about
Kelly or the statement that Kelly had given in 1971.
However, [appellant]’s attorney asked questions
about Kelly and the statement on cross examination.
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After several questions were asked about this
subject, the Commonwealth objected. (N.T.,
6/30/2015, pp. 85-89). During the ensuing side bar
conversation, the Commonwealth reiterated that it
no longer planned to call Kelly as a witness, the
issues or potential issues with not calling him were
generally flagged, the topic of Kelly’s health, release
from the hospital, and availability or unavailability
were generally discussed, and [appellant]’s lead
attorney indicated that he did not as of the time of
the sidebar conversation know whether Kelly was
healthy enough to attend trial. At the suggestion of
both the Commonwealth and the defense, we did not
release the witness and told former trooper Oressie
that he was subject to recall. (Id. at 89-93).
Over the next two days, there was no mention
of Kelly. However, the Court did briefly discuss the
matter with counsel. In addition, we handed out two
cases that addressed the potential issues, asked
counsel to read them, and indicated a willingness to
receive additional legal authority and argument.
(See N.T., 7/2/2015, pp. 53-58 and 61; N.T.,
7/6/2015, pp. 8-9).
On July 2nd, the fourth day of trial, the
Commonwealth rested. Following a brief recess and
with the jury out of the courtroom, counsel for
[appellant] moved for a mistrial “based on
statements made by the district attorney in his
opening statement, he’s obligated to fulfill those
evidentiary promises he’s made. Statements were
made about Quaquo Kelly and things that he said
and that evidence was not brought out.” (N.T.,
7/2/2015, p. 52). . . .
Trial court opinion, 2/2/16 at 2-10.
The trial court denied the motion for mistrial. The trial court
determined:
[At] the time the assistant district attorney gave his
opening statement he had a good faith belief that
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Kelly would be called as a witness, that he
articulated an objectively reasonable reason for not
calling Kelly, that [appellant] did not present
evidence regarding or dispute the validity of the
assistant district attorney’s statements on which our
findings were based, and that under the facts and
circumstances of this case we did not believe that
[appellant] suffered prejudice. . . .
Id. at 11-12.
Appellant did not ask the trial court for a special jury instruction
regarding Kelly or his statements. On July 6, 2015, the jury convicted
appellant of first-degree murder. On October 1, 2015, the trial court
sentenced appellant to a term of life imprisonment without possibility of
parole.
Appellant raises the following issue for this court’s review:
Did the trial court abuse its discretion by not
granting [a]ppellant’s Motion for Mistrial where
evidentiary promises were made during the
Commonwealth’s Opening Statement and
those promises were not brought out during
the trial when the prosecutor’s opening
statement clearly created the impression that
the Commonwealth intended to call Mr. Kelly
as a witness given the level of detail contained
in his alleged statement and influenced the
defense in order to respond to the witness
which was unduly prejudicial to the
[a]ppellant’s right to a fair trial?
Appellant’s brief at 4.
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:
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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.
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.
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).
The opening statement of the prosecution should be
limited to a statement of the facts which he intends
to prove, and the legitimate inferences deduced
therefrom. Commonwealth v. Martin, 461 Pa.
289, 336 A.2d 290 (1975). However, even if
remarks made during an opening statement in a
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criminal proceeding are improper, relief will only be
granted where the unavoidable effect is to prejudice
the finders of fact as to render them incapable of
objective judgment. Commonwealth v.
Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).
Commonwealth v. Duffey, 348 A.2d 1178, 1184 (Pa. 1988).
Further, a prosecutor’s opening statement must be based on facts plus
inferences that can be drawn from those facts, which he intends to prove, or
evidence which he intends to introduce and not designed to inflame the
passions of the jury. Commonwealth v. Jones, 610 A.2d 931 (Pa. 1992).
Appellant argues that the prosecution’s opening statement clearly
created the impression that the Commonwealth intended to call Kelly as a
witness given the level of detail revealed concerning his alleged statement in
the Commonwealth’s opening. Appellant further contends that this opening
statement influenced his counsel to respond to the witness in a way that was
unduly prejudicial to appellant’s right to a fair trial. Appellant asserts that
because his counsel believed that the Commonwealth would call Kelly as a
witness and be subject to cross-examination, his counsel did not object to
references to Kelly in other witnesses’ statements. Appellant argues that
the Commonwealth’s true intent with regard to Kelly was that it hoped to get
damaging information concerning appellant into evidence without calling
Kelly as a witness because the Commonwealth was aware of Kelly’s health
and credibility issues. Consequently, Appellant believes that the mention of
Kelly in the Commonwealth’s opening statement had a great impact on the
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jury because it is the only evidence other than appellant’s own words that tie
him to the homicide.
Here, as the trial court stated, the Commonwealth unquestionably
referred to Kelly in the opening statement though it did not expressly state
that it would call him as a witness. The trial court determined that there
was an evidentiary basis for mentioning Kelly’s statement because appellant
admitted in recorded interviews that were placed into evidence that he shot
Barnes, took his car, and denied offering to sell Kelly a gun. The trial court
also determined that, at the time of the opening statement, the
Commonwealth intended to call Kelly and did not learn until later that he
had been hospitalized and then released two days before trial. The trial
court further determined that the Commonwealth informed appellant’s
counsel that it would not be calling Kelly soon after it made the decision not
to call him and did not refer to him again. As a result, the trial court
concluded that the Commonwealth acted in good faith and intended to call
Kelly as a witness at the time of the opening statement.
Additionally, the trial court determined that references to Kelly made
in the opening statement were not prejudicial to appellant because they
were made in the context of explaining to the jury the history of the case
and the investigation which led to appellant’s arrest. The trial court
concluded that the combination of mentioning Kelly in the opening statement
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and then not calling him as a witness did not render the jury incapable of
returning a true and just verdict.
This court does not find that the trial court acted with a flagrant abuse
of discretion when it denied the motion for mistrial. The trial court
determined that the Commonwealth acted in good faith when it referred to
Kelly’s statement. The record reflects that there was other evidence to point
to appellant shooting Barnes and taking his car, such as appellant’s own
statements. The record further reflects that the trial court offered appellant
a specific curative instruction on the statement, but his counsel declined this
opportunity so that he could raise it in his closing argument. (Notes of
testimony, 7/6/15 at 25.) Appellant’s counsel did mention Kelly in his
closing:
In the DA’s opening he had mentioned a
Quaquo Kelly and I believed he promised you things
by mentioning him and what Mr. Kelly could bring to
this case. He failed to fulfill that promise by not
bringing him forward. Now he may say we could
have called him; but again, it’s not our burden. If
he’s a Commonwealth witness[,] it’s not our burden
to call these people.
Id. at 36.
Appellant has failed to prove with any specificity that the jury was
prejudiced by the Commonwealth’s reference to Kelly in its opening
statement. This court agrees with the trial court that the mention of Kelly
did not deprive him of a fair trial such that a mistrial was warranted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2016
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