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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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