J-S77020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS PRESTON SMITH

                            Appellant                  No. 1977 MDA 2015


          Appeal from the Judgment of Sentence December 17, 2013
            In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0002675-2010


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED DECEMBER 16, 2016

        Appellant, Douglas Preston Smith, appeals from the judgment of

sentence entered on December 17, 2013, following his jury trial conviction

for third degree murder.1         During the pendency of this appeal, Appellant

presented an after-discovered evidence claim and requested a remand for an

evidentiary hearing. The Commonwealth has not responded to Appellant’s

remand request.        By order of August 22, 2016, Appellant’s request was

deferred to this panel.       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 October 31, 2013, a jury found Appellant guilty of third degree
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1
    18 Pa.C.S.A. §§ 2502(c).




*Retired Senior Judge assigned to the Superior Court.
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murder in the 2001 killing of Tina Myers. The evidence at trial showed that

a hiker discovered Myers’ body on December 4, 2001 near Holly Springs,

Pennsylvania. A subsequent autopsy revealed that Myers had been beaten

and strangled. Expert testimony identified Appellant as the source of DNA

recovered from semen found in the victim’s throat and retrieved from her

fingernails.   In addition, Arthur Hebert, a former inmate who served time

with Appellant at SCI Camp Hill, testified that Appellant described how he

choked and beat Myers. On December 17, 2013, the trial court sentenced

Appellant to 20 to 40 years’ incarceration.

      Following the denial of post-sentence motions, Appellant filed a timely

notice of appeal to this Court.      A timely concise statement of errors

complained of on appeal followed. See Pa.R.A.P. 1925(b). On January 14,

2016, the trial court issued its opinion pursuant to Pa.R.A.P. 1925(a). In his

brief on appeal to this Court, Appellant argues there was insufficient

evidence to support his conviction and that the trial court abused its

discretion in fixing his sentence.

      On August 2, 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 August 22, 2016, this Court deferred disposition of Appellant’s

remand motion to a merits panel. We now turn our attention to Appellant’s

request.

      Appellant’s motion alleged the following.    Although the victim was

killed in December 2001, Appellant was not questioned until June 2005 and,

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thereafter, he was not arrested and charged until 2010.       At the time of

Myers’ death, Appellant resided in a community corrections center known as

Capitol Pavilion in Harrisburg, Pennsylvania.   Paper records for the Capitol

Pavilion from December 2001 are no longer available, as the facility has

transitioned to digital recordkeeping.   Although no records were available,

the Commonwealth at trial called former employees from Capitol Pavilion

who recalled that Appellant was unaccountable sometime in December 2001.

Appellant alleges that, when he was questioned in 2005 and later arrested in

2010, he could not recall the identity of an individual who could corroborate

his whereabouts in December 2001.

     Appellant has now identified a potential alibi witness. Attached to his

motion for remand, Appellant affixed an affidavit from Rajee Dancy. Dancy

is an inmate who is presently serving time at SCI Huntingdon along with

Appellant.    Dancy also claims that he resided at Capitol Pavilion with

Appellant in November and December 2001. According to Dancy’s affidavit,

Appellant was always present at Capitol Pavilion in November and December

2001. Appellant asserts that this evidence was previously unavailable, that

it is not cumulative of other evidence introduced at trial, and that it would

have changed the jury’s verdict. Thus, Appellant asks us to remand the case

to the trial court for an evidentiary hearing on the alleged after-discovered

evidence. The Commonwealth has not responded.

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

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

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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

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.2 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.

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2
  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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       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 Dancy to support his claim. In so doing, Appellant met 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.3

       Application 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: 12/16/2016
____________________________________________


3
   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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