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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
1
18 Pa.C.S.A. §§ 2502 and 901.
2
18 Pa.C.S.A. § 907.
*Retired Senior Judge assigned to the Superior Court.
J-S88010-16
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
-2-
J-S88010-16
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
-3-
J-S88010-16
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
____________________________________________
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).
-4-
J-S88010-16
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
____________________________________________
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.
-5-