J. S63012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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