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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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