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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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