Com. v. Else, K.

J-S37028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ROBERT ELSE :
:
Appellant : 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
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1 18 Pa.C.S.A. § 2502(c).
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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.
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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)
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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.
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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.”).
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Following his return to the barracks, Trooper De La Iglesia re-
interviewed 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 third-
degree murder. The trial court ordered a pre-sentencing investigation (“PSI”)
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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 re-
entry 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.-5-
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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 post-
sentence 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
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defendant raise sentencing issue either at sentencing or in timely post-
sentence 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
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