J-S30013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CHRISTOPHER RAYMOND DAVIS,

                        Appellant                  No. 1677 MDA 2016


        Appeal from the Judgment of Sentence September 7, 2016
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000270-2013


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 08, 2017

      Appellant, Christopher Raymond Davis, appeals from the judgment of

sentence entered on September 7, 2016. We vacate and remand.

      The trial court summarized the factual and procedural history of this

case as follows:

            [Appellant] was charged with one count of criminal
      attempt/criminal homicide and two counts of aggravated
      assault.1 A jury trial was held in November of 2013 whereby the
      jury convicted [Appellant] of all three counts. However, prior to
      the verdict being rendered by the Jury, [Appellant] fled the
      courthouse and a bench warrant was issued for [Appellant’s]
      arrest.
            1
              18 Pa. C.S. § 901(a); 18 Pa. C.S. § 2501(a); 18 Pa. C.S.
            §§ 2702(a)(1) and 2702(a)(4).

            Subsequently, [Appellant] was incarcerated at Riker’s
      Island, New York.    Thereafter, [Appellant] was brought to
      Lebanon County for sentencing, which took place on
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      September 7, 2016. [Appellant] received a sentence of 20-40
      years to be run consecutive to all other sentences.

            Counsel was appointed on September 8, 2016 to represent
      [Appellant] for purposes of perfecting an appeal. Appointed
      counsel filed Post-Sentence Motions, which [the trial court]
      denied as they were filed outside the 10 day time bar.
      Thereafter, a notice of appeal was filed on October 5, 2016 and
      [the trial court’s Pa.R.A.P. 1925(b)] order was filed on October
      19, 2016. [Appellant] filed his Concise Statement of Errors
      Complained of on Appeal [on November 1, 2016].

Trial Court Opinion, 11/29/16, at 1–2 (some footnotes omitted).

      Before we reach Appellant’s issues on appeal, we note that on July 3,

2017, Appellant’s counsel filed with our Court a motion for remand. In the

motion, Appellant’s counsel informed this Court that on June 13, 2017, he

received a letter from Michael McGrath (“McGrath”). In the letter, McGrath

alleged that he had witnessed the events leading to Appellant’s incarceration

and was willing and able to provide exculpatory evidence. Attached to the

motion was a copy of McGrath’s letter to Appellant’s counsel, in which he

explained that while he was familiar with Appellant, he did not previously

know him. McGrath also addressed the conflict between Appellant and the

victim from his perspective as a bystander, and the presence of an unknown

individual who committed the stabbing. Finally, McGrath pointed to his own

incarceration at the time of the trial and the fact that he did not know

Appellant in explaining why he had not come forward with his testimony

earlier.




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      We note that a post-sentence motion for a new trial on the grounds of

newly discovered evidence must be filed promptly after the evidence has

been discovered.    Commonwealth v. Rivera, 939 A.2d 355, 358 (Pa.

Super. 2007); Pa.R.Crim.P. 720(C). Additionally, this Court has held that an

appellant may assert claims of newly-discovered evidence for the first time

on direct appeal. Rivera, 939 A.2d at 358; Pa.R.Crim.P. 720(C).

      When seeking remand on direct appeal, the appellant must show by a

preponderance of the evidence that the following factors have been

satisfied:

      (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.

Rivera, 939 A.2d at 359 (citing Commonwealth v. Dennis, 552 Pa. 331

(1998)).

      Instantly, Appellant’s counsel received the letter from McGrath while

this matter was pending on direct appeal. Appellant’s counsel then promptly

drafted and filed the motion for remand on July 3, 2017, within thirty days of

receiving the letter; thus, the motion was promptly filed.

      Moreover, it appears that Appellant could not have discovered

McGrath’s testimony prior to trial. Not only was McGrath incarcerated, but it

was not until the two met in the Lebanon County Correctional Facility that

Appellant knew that McGrath witnessed the stabbing.          This evidence does

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not appear to be merely corroborative or cumulative.             Rather, if the trial

court were to accept McGrath’s testimony as true, it would exculpate

Appellant.    Furthermore, McGrath’s testimony explains in detail the events

that led up to Appellant’s incarceration. In sum, we conclude that Appellant

has satisfied the aforementioned requirements.               Accordingly, we grant

Appellant’s motion for remand, vacate Appellant’s judgment of sentence,

and remand this matter to the trial court for an evidentiary hearing to

determine if a new trial is warranted on the grounds of newly discovered

evidence and, if not, for the re-imposition of sentence. Rivera, 939 A.2d at

359.

       Motion for remand granted.              Judgment of sentence vacated.   Case

remanded for further proceedings consistent with this Memorandum.

Jurisdiction relinquished.1


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2017

____________________________________________


1
   On June 27, 2017, Appellant filed a pro se motion for substitution of
counsel. In light of our decision, we deny Appellant’s pro se motion without
prejudice to his ability to raise this issue on remand before the trial court.



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