J-S58018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 CHRISTINA LAREA LORENZ                     :
                                            :
                     Appellant              :   No. 363 WDA 2019

      Appeal from the Judgment of Sentence Entered January 23, 2019
    In the Court of Common Pleas of Greene County Criminal Division at
                      No(s): CP-30-CR-0000108-2017


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 13, 2020

      Appellant, Christina Larea Lorenz, appeals from the judgment of

sentence of 20 to 60 months’ incarceration, imposed after she was convicted

by a jury of aggravated assault, simple assault, and recklessly endangering

another person (REAP).      After review, we vacate Appellant’s judgment of

sentence   and     remand   for   further   proceedings   consistent   with   this

memorandum.

      Briefly, Appellant was convicted of the above-stated crimes based on

evidence that on March 12, 2017, she stabbed her fiancé, Tyler Spacht, in his

torso. At her jury trial, Appellant presented a self-defense claim, alleging that

she stabbed Spacht because he was sexually assaulting her at gunpoint. In

rebutting Appellant’s claim of self-defense, the Commonwealth presented

evidence that, inter alia, no gun had been found in or around the home shared

by Appellant and Spacht, where the stabbing had occurred.
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       On September 27, 2018, the jury convicted Appellant of the crimes set

forth supra. On January 18, 2019, she was sentenced to an aggregate term

of 20 to 60 months’ incarceration. She filed a timely post-sentence motion,

which was denied. Appellant then filed a timely notice of appeal, and she also

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.       Therein, she preserved the

following five claims that she raises on appeal:

       I. Was the verdict, as it pertains to the conviction of aggravated
       assault, simple assault, and [REAP], against the weight of the
       evidence?

       II. Was the verdict, as it pertains to the conviction of aggravated
       assault, simple assault, and [REAP], against the sufficiency of the
       evidence?

       III. Was the denial of Appellant’s counsel’s motion to continue
       appropriate given the circumstances?

       IV. Was the instruction given to the jury by the trial court judge
       improper, unfair, or pressing upon the jury to reach a decision
       through the undue use of time constraints?

       V. Was the sentence, as it pertains to the conviction of aggravated
       assault, simple assault, and [REAP], against the weight of the
       evidence presented?

Appellant’s Brief at 5.

       Before the trial court could issue a Rule 1925(a) opinion addressing

these issues, Appellant filed with the court a “Petition for Remand and New

Trial,” alleging that she has discovered new evidence.1 On May 9, 2019, the
____________________________________________


1 We observe that Appellant first raised this newly-discovered evidence claim
in a “Petition for Mistrial” filed on March 19, 2019. On May 3, 2019, the court



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trial court issued an order forwarding Appellant’s petition for remand to this

Court, and stating that it will wait to file a Rule 1925(a) opinion on Appellant’s

other issues until we reach a decision on that petition. See Order, 5/9/19, at

2-3.

       Thus, we begin by addressing Appellant’s petition for remand. Therein,

she explains the new evidence that she has discovered, as follows:

       5. On or about Wednesday[,] February 27, 2019, [Appellant’s]
       mother attended a motion[s] [hearing] pro se to ask the [court]
       for assistance in reclaiming pieces of [Appellant’s] personal
       property that were still at the residence of the victim. At [the
       hearing], the Commonwealth disclosed that the victim has since
       moved, and while the victim was packing up and moving items
       from his prior residence, a firearm was discovered hidden in the
       bathroom.

       6. This information significantly changes the Commonwealth’s
       case against [Appellant] and would raise significant questions
       about the nature of the events that gave rise to [Appellant’s]
       charges. This information was never disclosed to [Appellant’s]
       counsel.


____________________________________________


issued an order denying that petition, indicating that a mistrial was not the
appropriate remedy for Appellant’s claim, but, instead, that she must seek
relief “consistent with the Pennsylvania Rules of Criminal Procedure Rule 720.”
Order, 5/3/19 at 1 (unnumbered); see also Comment to Pa.R.Crim.P. 720(C)
(“[A]fter-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[.]”). The same day the court denied
her motion for a mistrial, Appellant filed her “Petition for Remand and New
Trial.”




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Petition for Remand, 5/3/19, at 1-2 (unnumbered). Attached to her petition,

Appellant included a transcript of the February 27, 2019 hearing, which

confirms that the Commonwealth stated that Spacht discovered a gun in the

residence where the stabbing occurred. See N.T. Hearing, 2/27/19, at 8.2

       Based on this record, we conclude that remand for an evidentiary

hearing is warranted. We recognize that in Appellant’s petition for remand,

she failed to explicitly “describe the evidence that will be presented at the

hearing.” Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014) (holding

that “a motion [for a hearing on after-discovered evidence] must, at the very

least, describe the evidence that will be presented at the hearing”).             In

Castro, our Supreme Court found Castro’s offer of proof insufficient to warrant

a hearing because Castro’s after-discovered evidence claim was premised only

on a newspaper article detailing misconduct by a police officer, and Castro did

not state any other evidence that he would present at a hearing to prove those

allegations of wrongdoing. Id. Here, unlike in Castro, Appellant is alleging

the discovery of actual physical evidence, i.e., a gun. Furthermore, she has

attached to her petition for remand the transcript of the motions hearing at

which the Commonwealth admitted that Spacht discovered the gun inside the

home where the stabbing occurred.              Thus, a hearing in this case will not

function as a mere “fishing expedition[,]” as in Castro, id. at 828, but will



____________________________________________


2 At the request of Appellant, the February 27, 2019 motions hearing was
transcribed and filed in the certified record on April 9, 2019.

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instead provide an opportunity for Appellant to present this evidence to the

trial court for its consideration in whether a new trial is warranted.

      Consequently, we grant Appellant’s petition for remand, and vacate her

judgment of sentence. On remand, the trial court shall conduct an evidentiary

hearing and determine, in the first instance, whether Appellant has

demonstrated that her after-discovered evidence claim meets the four-prong

test for obtaining a new trial. See Commonwealth v. Rivera, 939 A.2d 355,

359 (Pa. Super. 2007) (“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.    At an evidentiary hearing, an

appellant must show by a preponderance of the evidence that each of these

factors has been met in order for a new trial to be warranted.”); see also id.

(concluding that “procedure demands that the lower court develop the record

and make [a] call in the first instance” on whether after-discovered evidence

warrants a new trial) (citing Pa.R.A.P. 302(a)). After the hearing, the trial

court shall either order a new trial, or re-impose Appellant’s judgment of

sentence. In light of this disposition, we do not address the remaining issues

Appellant presents herein, without prejudice to her right to reassert those

claims in any subsequent appeal following remand.




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      Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2020




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