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[U] Commonwealth v. Kelly

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD KELLY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence, September 2, 2011, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0005987-2010

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER, [*] JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Richard Kelly appeals from the judgment of sentence entered on September 2, 2011 in the Court of Common Pleas of Allegheny County following his conviction of third degree murder. Following careful review, we vacate and remand for a new trial.

The facts, as summarized by the trial court, are as follows.

At trial, Paul Fouty testified that on the South Side of Pittsburgh, in a small wooded area, there were makeshift camps that were occupied by homeless people. Fouty said he had such a camp and on April 2, 2010, he was there with [appellant], the victim Dennis Farley, and other homeless people who were all drinking alcohol. As Fouty was leaving to purchase more alcohol, he heard shouting. When Fouty turned around to see what was going on, he saw [appellant] 'going after' Dennis Farley. Later in the evening, Fouty returned to the camp, saw the victim lying dead on the ground, and called 911. Dennis Farley died from blunt force trauma to the head and torso.
Robert Lehrman was another occupant of the campsite. He testified that he and others, including the victim and [appellant], had been sitting around drinking alcohol when [appellant] made sexual advances toward the victim. Farley declined the advances and [appellant] became upset. A verbal argument ensued, and a physical confrontation followed. [Appellant] picked up a stick and hit Farley in the head several times. Lehrman then grabbed his bag and ran away. Lehrman drank more alcohol and several hours later went back to the campsite where [he] saw the victim dead on the ground.
The April 30, 2010 preliminary hearing testimony, given by Lawrence Flavin, was read into evidence at trial.[1] Flavin had testified that he had been drinking at the campsite when he heard [appellant] and Farley begin to argue. When Farley began to walk out of the camp, Flavin saw [appellant] hit Farley 2 or 3 times in the head with a metal pipe. [Appellant] then wrestled with Farley and kicked him a few times.
[Appellant] was interviewed by detectives and gave a statement after waiving his rights under Miranda v. Arizona. [Appellant] admitted that he had been staying at the campsite. Initially, however, he told detectives that he had not seen Farley since March of 2010, and that he could not have killed Farley because he was at a bar at the time of the killing. When [appellant] was told that persons reported to the police that [appellant] had an argument with the victim on the date he was killed, [appellant] said that he did have an argument with the victim over the selling of the victim's car, and because the victim would not have sex with [appellant].
Another witness at trial was a cellmate with [appellant] when they were lodged at the Allegheny County Jail. [Appellant's] cellmate testified that [appellant] admitted to getting into an argument over sex with the victim. According to the cellmate, [appellant] admitted striking the victim several times in the head during the argument.

Trial court opinion, 11/2/12 at 1-3.

Following a jury trial, appellant was convicted of third degree murder. A sentencing hearing was scheduled for September 20, 2011. On July 21, 2011, the defense filed a notice of intention to present an oral motion for extraordinary relief seeking a new trial on the grounds of after-discovered evidence of innocence. Following an evidentiary hearing, the motion was denied. Thereafter, appellant was sentenced to serve 20 to 40 years' imprisonment.

On September 28, 2011, appellant filed a post-sentence motion requesting a new trial based on after-discovered evidence. The motion was denied by operation of law on February 3, 2012. A timely notice of appeal was filed, appellant complied with the trial court's order to file a concise statement of errors complained of on appeal, and the trial court filed an opinion.

The following issues have been presented for our review:

1. Did the Trial Court abuse its discretion when it denied Appellant's post-verdict and post-sentence requests for a new trial, given the discovery of newly-available evidence of his innocence (that being the admissions of Robert "Red" Lehrman, the key prosecution witness, that he and not ...

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