J

- A01019

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY LEWIS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3405 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0001059

- 2018

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY LEWIS JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3407 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0001520

- 2017

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY LEWIS JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3408 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0003777

- 2017

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

- A01019

- 21

- 2

- v.

GREGORY LEWIS JR.

Appellant :

:

:

:

:

:

: No. 3409 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0003172

- 2017

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY LEWIS JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3410 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0001529

- 2018

COMMONWEALTH OF PENNSYLVANIA

v.

GREGORY LEWIS JR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3411 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0001795

- 2017

COMMONWEALTH OF PENNSYLVANIA

v. :

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

- A01019

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- 3

-

GREGORY LEWIS JR.

Appellant :

:

: No. 3414 EDA 2019

Appeal from the Judgment of Sentence Entered June 20, 2019 In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP

- 48

- CR

- 0001528

- 2018

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J. *

MEMORANDUM BY OLSON, J.: FILED DECEMBER 18, 2020

Appellant, Gregory Lewis, Jr., appeals from the judgment of sentence

entered on June 20, 2019 , as made final by the denial of Appellant’ s

post

- sentence motion on October 23, 2019

. During the pendency of this direct

appeal, Appellant filed an “Application for Remand,” where Appellant

requested that we remand this case to the trial court, so that the trial court

may conduct an evidentiary hearing on Appellant’s after

- discovered eviden ce

claim. We grant Appellant’s Application for Remand and thus remand this

case for further proceedings.

The trial court summarized the underlying facts of this case:

On November 21, 2016, [Appellant and Appellant’ s

co

- defendant , Vaughn Felix (“Felix”) a ttempted to kidnap] Michael Davis, for the purpose of facilitating a robbery of the Verizon store in Forks Township, Northampton County, Pennsylvania. That kidnapping attempt resulted in the death of Mr. Davis[.]

On November 22, 2016, [Appellant and Feli x kidnapped] Michael Derose, again for the purpose of facilitating a robbery of the Verizon store in Forks Township. Mr. Derose escaped his captors and that robbery was not completed[.]

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- Both [of the above two] incidents followed a planning period in which [Appellant and Felix] staked out the Forks Township Verizon store, made a plan to kidnap store managers to let them into the store after hours, and followed Mr. Davis and

Mr. Derose home after work to learn where they lived in order to facilitate the kidnappings. When [this] method failed after two attempts, [Appellant] and Felix moved on to another method of robbery, arriving at their chosen locations at or near closing time in order to ensure that they would remain undetected. To that end, [Appellant] and Felix arrived at J.C. Jewelers in Easton, Northampton County, Pennsylvania on December 23, 2016, entered the store, restrained the store employee, and stole items and cash valued at $ 70,000.00[.]

On January 5, 2017, utilizing the same method of late arrival and employee restraint, [Appellant] and Felix robbed the AT&T store in Bethlehem Township, Northampton County, Pennsylvania, stealing approximately $49,000.00 of electronic items[. ]

On January 16, 2017, [Appellant and Felix] used this same

method to rob the Verizon store in South Whitehall Township

, Lehigh County, Pennsylvania, stealing $27,000.00 worth of merchandise[.]

Finally, on February 16, 2017, [Appellant and Felix] robbed the Verizon store in Wind Gap, Northampton County, Pennsylvania during inclement weather when no customers were present or likely to arrive, stealing items and cash totaling approximately $40,000.00 [

. ]

After an investigation, [ Appellant ] was arrested on March 6, 2017, and found to be in possession of a cell phone and a

tablet that had been stolen from one of the Verizon stores.

Trial Court Opinion, 10/23/19, at 2

- 3.

The jury found Appellant guilty of: one count of second degree murder;

five counts of r obbery; six counts of conspiracy to commit robbery; two counts

of attempted robbery; one count of robbery of a motor vehicle; one count of

conspiracy to commit robbery of a motor vehicle; seven counts of kidnapping;J

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-

seven counts of conspiracy to commit kid napping; one count of attempted

kidnapping; three counts of simple assault; three counts of conspiracy to

commit simple assault; four counts of false imprisonment; one count of

unlawful restraint; four counts of theft by unlawful taking; two counts of

atte mpted theft by unlawful taking; four counts of receiving stolen property;

three counts of possession of a firearm with intent to employ it criminally; and

one count of possession of an instrument of crime. 1

On June 20, 2019, the trial court sentenced Appe llant to serve an

aggregate term of life in prison, followed by a consecutive term of 113 years

and 11 months to 227 years and 10 months in prison , for his convictions

.

Following the denial of Appellant’s post

- sentence motion, Appellant filed a

timely notice of appeal.

On December 2, 2020, while Appellant’s direct appeal was pending in

this Court, Appellant filed an application for remand, based upon a claim of

after

- discovered evidence. Wi thin Appellant’s application, Appellant averred

that his co

- defendant, Vaughn Felix, “will now testify that any and all

statements [Felix] made implicating [Appellant] in the Northampton County

criminal homicide, attempted abduction, and commercial armed r obberies

were coerced or otherwise involuntary and false statements

. . . and that

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(ii), 903(a)(1) , 901(a), 3702(a), 903(a)(1), 2901(a)(2), 903(a)(1), 901(a), 2701(a)(3), 903(a)(1), 2903(a)

, 2902(a)(1), 3921(a), 901( a), 3925(a), 907(b), and 907(a), respectively.J

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[Appellant] is factually innocent of the [crimes]. ” Appellant’s Application for

Remand, 12/2/20, at 2.

Appellant attached a signed, handwritten statement from Felix to hi s

application , where Felix declared that Appellant “was never at any of th[e]

scenes, nor did he participate or conspire in any of these crimes .” Appellant’s

Application for Remand, 12/2/20, at Exhibit A. Further, Appellant attached

sworn trial testimony fr om Felix, where Felix testified: “ They scared me. They

tricked me into believing I may be losing my life. I was unlawfully coerced

into making a statement. Therefore, everything said on December 4, 2017,

made by [me] was a lie, and I’m here today to say that that black man sitting

at the [defense] table known as [Appellant] is innocent. ” Id. at Exhibit B.

Appellant requested that we remand this case to the trial court , so that

the trial court may conduct an evidentiary hearing on his after

- discovered

evidence claim , in accordance with Pennsylvania Rule of Criminal Procedure

720

. Id. at 6.

Within the Commonwealth’s brief to this Court, t he Commonwealth

agrees that a remand is appropriate in this case, to allow the trial court to

conduct an evidentiary hearing on Appellant’s after

- discovered evidence

claim. Commonwealth’s Brief at 13. We agree.

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 evidenceJ

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discovered during the direct appeal pr ocess 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 th e 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 fi rst 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 th e 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 pr ocedure for asserting his

after

- discovered evidence claim during the pendency of his direct appeal.

Appellant explained the substance of the prof fered testimony and included a

written statement and testimony from Felix to s upport his claim. In doing so,

_________________ __________ ______ ____ _______

2 T o 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 me rely 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)

.J

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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 proc eedings, thus giving it

an opportunity to render a new decision, the trial court's ultimate

determination will result in a new , appealable order.

Appellant’s Application for Remand granted. Case remanded for further

proceedings consistent with this memo randum. Appellant’s Application for

Oral Argument is denied as moot. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/20