Ex-Gilberton Police chief loses Superior Court appeal
By Kaylee Lindenmuth | [email protected]
HARRISBURG, Dauphin County – Gilberton’s last police chief who gained national attention for YouTube videos and commentary lost his appeal yesterday against a conviction for lying on a form to purchase a gun at the former Schuylkill Mall in 2016.
Mark Kessler was charged in June of 2017 with a felony charge of making a materially false written statement during a firearm purchase. The charge stemmed from a May 5, 2016 attempt to purchase a handgun at Dunham’s Sporting Goods at the former Schuylkill Mall in New Castle Township, according to court papers.
At the time, Kessler was facing a terroristic threats charge from the Frackville Police Department from December 8, 2015. A first-degree misdemeanor, Kessler was facing up to five years imprisonment at the time.
While that charge was pending, Kessler visited Dunham’s on May 5. Court papers said Kessler had purchased between forty and fifty firearms in his life. At Dunham’s, he found a firearm he wanted, and began filling out the paperwork required.
On one form, for the question “Are you under indictment or information in any court for a felony or any other crime for which the judge could imprison you for more than one year,” he answered no, and for another, “Are you now charged with or have you ever been convicted of a crime punishable by imprisonment for a term exceeding one year,” he also answered no, according to court papers. Each form contained warnings that “anyone falsifying information on the forms is subject to criminal penalties.”
The Dunham’s clerk ran Kessler’s information through the Pennsylvania Instant Check System, which returned a denial of his application. Kessler did not ask why and left.
About a year later, on July 31, 2017, the Commonwealth filed charges for knowingly and intentionally making materially false written statements when completing his application to purchase a firearm. The charges went to trial in April 2018 at the Schuylkill County Courthouse, which resulted in a conviction, and, on May 17, 2018, he was sentenced to two years’ probation.
Kessler’s appeal to the Pennsylvania Superior Court, filed in June of 2018, argued that a line of questioning regarding his criminal record was “unduly prejudicial because the questions implied he had lied to the jury about his lack of a prior conviction.”
The Superior Court’s decision recounted the line of questioning, noting the defense counsel asked if Kessler had any convictions. Kessler said no. During cross-examination, the Deputy Attorney General, prosecuting the case because of a conflict of interest, questioned that.
“You indicated on direct-examination that you’ve never been convicted of a crime, right?” the deputy asked.
“No criminal offenses,” Kessler answered.
“You did plead guilty to a retail theft back in 1989?” the deputy asked.
“I don’t recall that. ’89, I was 17 years old,” Kessler answered.
“Yes, as a juvenile out of New Castle [Township],” the deputy said.
“I don’t recall,” Kessler answered.
The defense objected, and requested a mistrial based on the questioning, which was denied, though the jury was instructed to disregard the questioning regarding the juvenile case.
The appeal argued that such questioning implied Kessler lied about his lack of a criminal conviction, and the instruction to disregard wasn’t enough to “overcome this prejudice,” and a new trial was warranted.
The appeal also asserted the questioning was a form of prosecutorial misconduct, saying it “had no other purpose than to prejudice [Kessler] improperly.” It also claimed the deputy failed to provide “sufficient advance written notice of his intent to utilize the juvenile record at trial.”
The appeal asked for the sentence to be vacated and a new trial given, or the declaration that the deputy committed prosecutorial misconduct, resulting in the dismissal of the charges.
The Superior Court’s decision did not agree, saying “nothing in the record suggests the jury reached its decision on an improper basis or failed to weight the evidence impartially.”
“We are confident the jury verdict was sound,” the opinion reads. “Therefore, the court properly denied appellant’s motion for a mistrial.”
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