J-S88010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

QUIR RANDALL

                            Appellant               No. 2961 EDA 2014


           Appeal from the Judgment of Sentence September 25, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003557-2012


BEFORE: OLSON, RANSOM and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 13, 2016

        Appellant, Quir Randall, appeals from the judgment of sentence

entered on September 25, 2014, following his jury trial convictions for

attempted murder1 and possessing an instrument of crime (PIC).2       During

the pendency of this appeal, Appellant presented an after-discovered

evidence claim and requested a remand for an evidentiary hearing.       Upon

careful consideration, we remand for further proceedings consistent with this

memorandum.

        We briefly summarize the facts and procedural history of this case as

follows.     On April 24, 2014, a jury found Appellant guilty of the

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1
    18 Pa.C.S.A. §§ 2502 and 901.
2
    18 Pa.C.S.A. § 907.



*Retired Senior Judge assigned to the Superior Court.
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aforementioned charges in a shooting in Philadelphia, Pennsylvania.        On

September 25, 2014, the trial court sentenced Appellant to 10 to 20 years of

incarceration for attempted murder and a consecutive term of 5 years’

probation for PIC. On October 23, 2014, Appellant filed a notice of appeal to

this Court.   After a series of proceedings to determine Appellant’s legal

representation, appointed counsel filed a timely concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) in February 2016.

On March 15, 2016, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a). In his brief on appeal to this Court, Appellant argues that there was

insufficient evidence to support his convictions.

      On September 15, 2016, Appellant filed a motion to remand the case

to the trial court for a hearing on after-discovered evidence. By per curiam

order entered on October 17, 2016, we denied relief for lack of specificity as

to the alleged after-discovered evidence.    On October 28, 2016, Appellant

filed a motion to reconsider his request for a remand for an evidentiary

hearing on after-discovered evidence. Attached to the motion to reconsider,

Appellant affixed an affidavit from Mark Henderson. Henderson purports to

be an alibi witness for Appellant and his co-defendant, claiming all three

men were a block away from the crime and that Appellant was wearing a

red-hooded sweatshirt whereas Commonwealth witnesses described the

assailant as wearing black clothing. Henderson further claims he could not

come forward sooner because he was a prison escapee.         Thus, Appellant




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asks us to remand the case to the trial court for an evidentiary hearing on

the alleged after-discovered evidence.

      On November 9, 2016, the Commonwealth filed an answer in

opposition to Appellant’s motion to reconsider his request for a remand for

an evidentiary hearing on after-discovered evidence.            The Commonwealth

argues that a new trial is not warranted because Appellant did not use

reasonable diligence to discover the proffered evidence until after trial “given

that [Appellant] was purportedly with the putative witness at the time of the

shooting.”       Commonwealth’s        Answer,    11/19/2016,      at   ¶   6.     The

Commonwealth further contends that even if the proffered evidence could be

deemed new, “the fact that the witness could supposedly contradict

testimony regarding [Appellant’s] clothing is inconsequential” because

“[f]our eyewitnesses [] stood a short distance away from the mid-afternoon

shooting and all knew [Appellant] and his brother [and] co-defendant.” Id.

at ¶ 6.      Finally, the Commonwealth posits that Henderson characterized

himself as an escapee and, “therefore, he was not unavailable but rather

unwilling to act as a witness for [Appellant].” Id. at ¶ 7.

      Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a]

post-sentence motion for a new trial on the ground of after-discovered

evidence     must   be   filed   in   writing   promptly   after   such     discovery.”

Pa.R.Crim.P. 720(C).        The comment to Rule 720 states that “after-

discovered evidence discovered during the direct appeal process must be

raised promptly during the direct appeal process, and should include a

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request for a remand to the trial judge[.]”          Pa.R.Crim.P. 720, Comment.

“[A] motion [for remand] must, at the very least, describe the evidence that

will be presented at the hearing. Simply relying on conclusory accusations

made by another, without more, is insufficient to warrant a hearing.”

Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014). Moreover,

because Appellant raises alleged after-discovered evidence for the first time

on direct appeal, we may not evaluate whether his claim actually meets the

four-part test for after-discovered evidence.3 Instead, “procedure demands

that the [trial] court develop the record and [determine whether a new trial

is warranted] in the first instance.”            Rivera, 939 A.2d at 359, citing

Pa.R.A.P. 302(a). “At an evidentiary hearing, an appellant must show by a

preponderance of the evidence that each of [the four] factors has been met

in order for a new trial to be warranted.” Id.

       Here, Appellant followed the proper procedure for asserting his

after-discovered evidence claim during the pendency of his direct appeal.

Appellant explained the substance of the proffered testimony and included

an affidavit from Henderson to support his claim. In doing so, Appellant met

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3
  To warrant relief, after-discovered evidence must meet a four-prong test:
(1) the evidence could not have been obtained before the conclusion of the
trial by reasonable diligence; (2) the evidence is not merely corroborative or
cumulative; (3) the evidence will not be used solely for purposes of
impeachment; and (4) the evidence is of such a nature and character that a
different outcome is likely. Commonwealth v. Rivera, 939 A.2d 355, 359,
(Pa. Super. 2007).



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the prima facie pleading requirements for an evidentiary hearing under Rule

720. Thus, we remand this case to the trial court for an evidentiary hearing

to determine whether Appellant has proven, by a preponderance of the

evidence, that he is entitled to a new trial. Because our remand requires the

trial court to conduct further proceedings, thus giving it an opportunity to

render a new decision, the trial court’s ultimate determination will result in a

new, appealable order.4

       Motion to reconsider Appellant’s request for remand for an evidentiary

hearing on after-discovered evidence granted.      Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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4
   If Appellant does not receive a new trial based upon newly-obtained
evidence, he is entitled to file another direct appeal from the judgment of
sentence and may also challenge the remand proceedings in that subsequent
appeal.



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