J-S37028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH ROBERT ELSE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 914 EDA 2022

Appeal from the Judgment of Sentence Entered March 1, 2022

In the Court of Common Pleas of Carbon County Criminal Division at 

No(s): CP-13-CR-0001075-2020

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 08, 2022

Keith Robert Else appeals from the judgment of sentence, imposed in 

the Court of Common Pleas of Carbon County, after he entered an open guilty 

plea to one count of third-degree murder.1 On appeal, Else challenges the 

discretionary aspects of his sentence. We affirm.

On October 5, 2020, Pennsylvania State Troopers Nicolas De La Iglesia 

and Brian Stillman responded to a report that someone had sustained a 

gunshot wound at the home of Else and his wife, the victim, Laura Jean Else, 

in Palmerton, Carbon County. NT. Guilty Plea, 12/23/21, at 4-5. The victim 

was transported via helicopter to St. Luke’s Hospital at Fountain Hill, where 

she later died. Id. at 5, 7. Else agreed to be transported to the state police 

barracks in Lehighton, where Trooper De La Iglesia read Else Miranda

____________________________________________

1 18 Pa.C.S.A. § 2502(c).
J-S37028-22

- 2 -

warnings and Else agreed to speak to Trooper De La Iglesia. Id. at 5. Else 

told Trooper De La Iglesia that he and the victim had been married for seven 

or eight years. Id. The couple had two children of their own and Else was 

helping to raise the victim’s child from a prior relationship. Id. Else related 

that the family had recently been undergoing financial hardship and were 

about to be displaced from their current residence. Id. As a result of these 

difficulties, Else stated that there had been an “increased amount of fighting 

and arguments between him and his wife.” Id. at 5-6. Else stated that the 

two had engaged in a physical dispute in which they each had struck the other. 

Id. at 6.

At some point, Else retrieved a black handgun and its storage container 

from a desk in the living room, because he “wanted to have the victim sell 

the[] items due to their financial issues.” Id. at 6. Else stated that, upon 

retrieving the gun, he observed that the magazine was not fully inserted. Id. 

He removed the magazine and threw it towards a laundry basket in the living 

room. Id. Else then “racked the slide to the rear, causing a cartridge to eject 

into his hand.” Id. As he tried to hand the gun to the victim, it “accidentally 

discharged, striking the victim.”2 Id. Else dropped the gun into a toybox.

Id. He insisted that he believed the gun was unloaded. Id.

____________________________________________

2 Although Trooper De La Iglesia stated in his recitation of the factual basis 

for the plea that the couple’s children were upstairs at the time the gun was 

discharged, id. at 6-7, a victim impact letter from the couple’s 8-year-old 

daughter stated that all three children witnessed their mother being shot. See

(Footnote Continued Next Page)
J-S37028-22

- 3 -

Else was later re-interviewed by Trooper De La Iglesia and Corporal Alan 

Pietkiewicz and admitted that “he could not have rendered the firearm safe in 

the manner he initially described.” Id. at 7. However, he continued to 

maintain his belief that the gun was unloaded. Id. Trooper De La Iglesia then 

advised Else that his wife had died and that he would interview him again after 

executing a search warrant at the scene of the shooting. Id. In searching 

the Else residence, troopers discovered a black semi-automatic pistol in the 

toy box near the stairway; there was no magazine inserted and it had no 

cartridge or casing in the chamber. Id. at 7. Troopers also discovered a 

projectile, a spent casing, and a cartridge on the floor in the middle of the 

room near the stairway. Id. Finally, troopers found an empty Taurus 

magazine in a laundry basket in the front room, buried under several layers 

of clothing, as well as another Taurus magazine containing several rounds in 

a kitchen drawer. Id. at 7-8. Trooper De La Iglesia indicated that 

[t]he location of the cartridge on the floor near the stairwell was 

not consistent with [Else] having removed the magazine and 

immediately ejecting the chambered cartridge as he had 

previously stated. The empty magazine was buried in the living 

room and, again, did not appear consistent with [] having landed 

on top of the laundry basket.

Id. at 8. 

____________________________________________

N.T. Sentencing, 3/1/22, at 13-14 (“I wanted to tell you that my dad lied 

about [us] being upstairs when the kill happened. I was downstairs. Evelyn 

and Robert were on the stairs in the middle.”).
J-S37028-22

- 4 -

Following his return to the barracks, Trooper De La Iglesia reinterviewed Else regarding the inconsistencies uncovered at the scene. Id. 

After receiving his Miranda warnings again, Else gave a slightly revised 

version of his original story, but maintained his belief that the gun was 

unloaded. Id. at 8-10. Finally, after being confronted with the physical 

evidence, Else admitted that he had lied about his initial actions with the 

firearm. Else stated that he “had not removed the magazine as initially 

stated.” Id. at 10. He indicated that the magazine was not fully seated when 

he had picked it up, and that he had struck the bottom of the firearm, fully 

seating the magazine, and then racked the firearm. Id. Else claimed that he 

had then “placed the firearm to his own head and verbally threatened to shoot 

himself.” Id. Thereafter, Else stated that he removed the magazine, believing

the firearm was unloaded, id., and approached the victim, who was standing 

with her back to the wall; Else stated that he was between the victim and the 

toy chest. Id. at 10-11. Else related that his left hand was on the victim’s 

right shoulder and the gun was in his left hand, along his right side, with his 

finger on the trigger. Id. at 11. When asked if he was attempting to menace 

his wife with the gun, Else claimed he was trying to hug her, though “he could 

not explain why he would have the gun pointed at the victim while trying to 

give the victim a hug.” Id.

Else was charged with criminal homicide and recklessly endangering 

another person. On December 23, 2021, he entered a guilty plea to thirddegree murder. The trial court ordered a pre-sentencing investigation (“PSI”)
J-S37028-22

- 5 -

report and deferred sentencing until March 1, 2022, at which time the court 

sentenced Else to 18 to 40 years’ incarceration, followed by one year of reentry supervision. Else did not file post-sentence motions. He filed this timely 

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Else raises the following claim for our review:

Did the trial court abuse its discretion when it imposed a 

manifestly excessive sentence of total confinement of eighteen to 

forty years followed by one year of consecutive re-entry 

supervision, where the court: (1) failed to consider the mitigating 

factors enumerated in 42 Pa.C.S.A. § 9721, such as Else’s limited 

criminal history and rehabilitative needs; and (2) placed undue 

weight on the impact of the offense on the victims and failed to 

give weight other factors enumerated in section 9721?

Brief of Appellant, at 9 (reworded for clarity). 

Else’s claim raises a challenge to the discretionary aspects of his 

sentence. Such a claim does not entitle an appellant to review as a matter of 

right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). 

Rather, before this Court can address such a challenge, an appellant must 

invoke this Court’s jurisdiction by: (1) filing a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) properly preserving the issue at sentencing or in 

a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) 

including in his brief a concise statement of reasons relied upon for allowance 

of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a substantial question 

that the sentence appealed from is not appropriate under the Sentencing 

Code. Id. 
J-S37028-22

- 6 -

Here, Else filed a timely notice of appeal and included a Rule 2119(f) 

statement in his brief. However, he did not make an oral motion for 

reconsideration at sentencing or file a written post-sentence motion seeking 

reconsideration of his sentence. See Pa.R.A.P. 720. Accordingly, both the 

trial court and the Commonwealth ask that we find his claim waived. Else 

argues that he preserved his challenge by “address[ing] the circumstances 

constituting mitigation during the sentencing hearing, before a sentence had 

been imposed.” Brief of Appellant, at 20. In support of his assertion that he 

preserved his sentencing claim, Else cites Commonwealth v. Kittrell, 19 

A.3d 532 (Pa. Super. 2011). There, the appellant raised a challenge to the 

discretionary aspects of his sentence. Although he had not filed a postsentence motion for reconsideration, the Court did not find waiver because he 

“made an oral motion challenging the sentence on the ground raised” on 

appeal. Id. at 538. 

Kittrell is readily distinguishable. Here, prior to the imposition of 

sentence, defense counsel argued for mitigation. However, unlike in Kittrell, 

counsel made no oral motion for reconsideration on the basis of the court’s 

purported failures to consider mitigating factors or properly weigh the section 

9721 factors. Because there is a distinction between arguing for the 

imposition of a mitigated sentence and moving for reconsideration on that 

basis—thus, allowing the trial court to promptly correct its alleged error—we 

are constrained to find Else’s claim waived. See Commonwealth v. Mann, 

820 A.2d 788, 794 (Pa. Super. 2003) (noting purpose of requirement that 
J-S37028-22

- 7 -

defendant raise sentencing issue either at sentencing or in timely postsentence motion is to give judge opportunity to reconsider or modify sentence 

on that basis).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2022