J-S01019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WAYNE ALLEN GRAY, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1274 MDA 2023

Appeal from the Order Entered September 6, 2023

In the Court of Common Pleas of Franklin County Criminal Division at 

No(s): CP-28-CR-0001620-2018

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 2, 2024

Wayne Allen Gray, Jr. appeals following a hearing on remand from this 

Court to determine whether one of the witnesses in his criminal trial had an 

undisclosed deal with the prosecution. See Commonwealth v. Gray, 787 

MDA 2022, 2023 WL 2581859 (Pa. Super. 2023) (nonprecedential)

(remanding for evidentiary hearing). The trial court found that no evidence 

of a deal existed, denied Gray’s request for a new trial, and reinstated his 

sentence of 21 to 60 years’ incarceration. Because the issue Gray appeals 

was resolved at the remand hearing, we dismiss his claim of error as moot.

During the first week of April in 2021, Gray stood trial for rape, sexual 

assault, and aggravated assault with a deadly weapon.1 The Victim testified 

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2702(a)(4), 2718(a)(1), 3121(a)(1), and 3123(a)(1). 

Because our decision rests on procedural grounds, the facts of those crimes 

(Footnote Continued Next Page)
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to the abuse that Gray inflicted upon her. The Commonwealth told the jury

that the Victim had pending, unrelated criminal charges. It then asked her, 

“Have you been . . . promised anything or paid at all for your testimony here?’” 

Id. at *4.

She replied, “No.” Id.

The jury convicted Gray, and the trial court sentenced him. 

Then, on May 27, 2021, the Victim entered a guilty plea to her crimes. 

The attorney who prosecuted Gray also prosecuted the Victim. Gray obtained 

a transcript of the Victim’s plea colloquy, which showed that the 

Commonwealth “amended Victim’s felony criminal trespass charge to a 

misdemeanor theft, and amended a felony escape charge to a misdemeanor 

disorderly conduct.” Id. Based on that transcript, Gray believed the 

Commonwealth agreed to reduce the Victim’s charges in exchange for her 

testimony against him.

He filed a post-sentence motion seeking a new trial based on afterdiscovered evidence of the Victim’s supposed, improper motive to testify 

against him. Gray “cited the prosecutor’s statement at the plea that [the] 

Victim was cooperative and provided testimony against Appellant. The 

Commonwealth filed a response to the motion, arguing that her testimony was 

only a factor in the plea bargain.” Id. The trial court denied Gray’s motion

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are irrelevant to this appeal. We detailed them in Commonwealth v. Gray, 

787 MDA 2022, 2023 WL 2581859 at *1-2 (Pa. Super. 2023)

(nonprecedential) (quoting Trial Court Opinion, 2/3/22, at 2-6).
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without holding an evidentiary hearing to determine whether the 

Commonwealth and the Victim had actually entered a plea agreement prior to 

Gray’s jury trial. He filed his first, direct appeal to this Court and raised ten 

issues.

A panel of this Court dismissed nine issues as meritless. Concerning 

one issue – i.e., “Whether the trial court erred in denying Gray’s request for a 

new trial based upon the Commonwealth’s failure to disclose that Victim would 

receive a plea bargain in consideration of her testimony against [him]” – the 

panel granted Gray partial relief. Id. at *3. (some punctuation omitted). This 

Court resolved that issue as follows:

Exculpatory evidence favorable to the accused 

is not confined to evidence that reflects upon the 

culpability of the defendant. Exculpatory evidence 

also includes evidence of an impeachment nature that 

is material to the case against the accused. [T]he 

jury’s estimate of the truthfulness and reliability of a 

given witness may well be determinative of guilt or 

innocence, and it is upon such subtle factors as the 

possible interest of the witness in testifying that a 

defendant’s life or liberty may depend . . . When the 

failure of the prosecution to produce material 

evidence raises a reasonable probability that the 

result of the trial would have been different if the 

evidence had been produced, due process has been 

violated and a new trial is warranted. 

Commonwealth v. Strong, 761 A.2d 1167, 1171 (Pa. 2000).

The trial court did not hold a hearing . . . Instead, the court 

concluded that [Gray] failed to establish that a plea agreement 

existed, as the Commonwealth’s response cited several 

explanations for the plea which the trial court credited. The trial 

court declined to determine whether [Gray] would be entitled to a 

new trial if a plea deal existed, but expressed skepticism based on 

the overwhelming evidence of guilt . . . the Commonwealth 
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concedes that a remand for the limited purposes of holding an 

evidentiary hearing to establish a record may be necessary.

We accept the Commonwealth’s willingness to place these 

matters on the record. While we agree that the evidence of guilt 

appears to be overwhelming, we recognize that prosecutors “have 

a unique role in our criminal justice system.” See 

Commonwealth v. Chmiel, 173 A.3d 617, 631 (Pa. 2017) 

(Donohue, J., concurring). The Commonwealth is required to seek 

justice, not win cases. We are not inclined to simply conclude that 

any such deal, if it existed, was ultimately irrelevant. Indeed, the 

Commonwealth concedes that a limited remand is warranted. We 

therefore find that the trial court abused its discretion in 

concluding that no plea agreement existed without sufficient 

record support.

Accordingly, we shall vacate the judgment of sentence and 

remand for the limited purpose of an evidentiary hearing on this 

issue. If the court concludes after this hearing that [Gray] has 

failed to establish that an agreement was in place at the time of 

trial for a plea bargain in exchange for Victim’s testimony, or it 

concludes that [Gray] cannot establish a reasonable probability 

that the outcome of trial would have been different if any such 

agreement existed, then the court shall reimpose the judgment of 

sentence.

Id. at *5 (some punctuation and some citations omitted).

On remand, the trial court conducted an evidentiary hearing on Gray’s 

claim of after-discovered evidence. The Victim’s defense attorney, his

paralegal, and the assistant district attorney who prosecuted Gray and the 

Victim testified that there was no plea negotiation or deal based on the 

Victim’s testimony at Gray’s trial. See Trial Court Opinion, 9/6/23, at 2-5. 

Thus, the trial court found there was no “evidence at all that a plea agreement 

existed between the Commonwealth and [the Victim] in exchange for her 

testimony” and a retrial was not warranted. Id. at 5.
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The trial court reinstated its prior judgment of sentence, as this Court 

had directed. See Gray, supra, at *5. This timely appeal followed.

Gray raises one claim of error. He asks, “Whether the trial court erred 

in denying [Gray’s] request for a new trial based upon the Commonwealth’s 

failure to disclose that [the Victim] would receive a plea bargain in 

consideration of her testimony against [him]?” Gray’s Brief at 4. Critically, 

this is a verbatim reproduction of the issue that Gray raised and that this Court

granted a remand to resolve in his prior appeal. See Gray, supra, at *3.

We conditionally resolved this issue in the prior appeal and determined 

that only a factual question remained. As such, this issue is now moot, 

because the trial court resolved the outstanding factual question on remand. 

Courts in this Commonwealth “generally will not decide a moot case 

because the law requires the existence of an actual controversy . . . .” Ass'n 

of Pennsylvania State Coll. & Univ. Facs. v. Pennsylvania Lab. Rels. 

Bd., 8 A.3d 300, 305 (Pa. 2010). A “legal question can become moot on 

appeal as a result of an intervening change in the facts of the case.” In re 

Gross, 382 A.2d 116, 119 (Pa. 1978).

Here, the trial court made a factual finding that the Commonwealth did 

not fail to disclose that the Victim would receive a plea bargain in 

consideration of her testimony against Gray, because it found that no such 

agreement existed. Thus, Gray’s single appellate issue is premised upon a

factual presumption that the trial court rejected on remand. As such, the legal 

issue that Gray raises on appeal is moot. 
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In this appeal, Gray attempts to relitigate de novo the factual question

of whether the Commonwealth and Victim reached a plea agreement prior to 

Gray’s trial. In fact, his appellate brief is a verbatim reproduction of his posthearing brief to the trial court. Compare Gray’s Brief in Support of 

Defendant’s Motion for Post-Sentence Relief at 1-4 and Gray’s Brief at 8-12. 

In both briefs, Gray argues that the witnesses who testified at the hearing for 

the Commonwealth were “incredible.” Gray’s Brief at 11.

“A determination of credibility lies solely within the province of the 

factfinder.” Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa. Super.

2013). The fact finder “is free to believe all, part, or none of the evidence, 

and to assess the credibility of the witnesses . . . .” Commonwealth v. 

Blackham, 909 A.2d 315, 320 (Pa. Super. 2006).

The trial court followed our directions upon remand and made the factual 

finding that we requested. This Court previously held that Gray would only 

be entitled to a new trial if “an agreement was in place at the time of trial for 

a plea bargain in exchange for [the] Victim’s testimony . . . .” Gray, supra, 

at *5. Because Gray failed to establish that factual precondition for a new 

trial, we dismiss his sole claim of error as moot.

Judgment of sentence affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/02/2024