J-A01019-21
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`COMMONWEALTH OF PENNSYLVANIA
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`GREGORY LEWIS
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`
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`v.
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`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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`
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` 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
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`GREGORY LEWIS JR.
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`v.
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`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` 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
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`COMMONWEALTH OF PENNSYLVANIA
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`GREGORY LEWIS JR.
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`
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`v.
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`
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`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` 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
` PENNSYLVANIA
`
`
`
`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
`
`
`COMMONWEALTH OF PENNSYLVANIA
`
`
`
`
`
`GREGORY LEWIS
`
`
`
`v.
`
`
`
`Appellant
`
`
`
`
`
`:
`:
`:
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`:
`:
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`:
`
` 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
`
`
`
`
`
`GREGORY LEWIS JR.
`
`
`
`v.
`
`
`
`Appellant
`
`
`
`
`
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`:
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`:
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` 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
`
`
`
`
`
`
`
`
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`COMMONWEALTH OF PENNSYLVANIA
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`
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`GREGORY LEWIS JR.
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`
`
`v.
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`
`
`Appellant
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` 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
` PENNSYLVANIA
`
`
`
`
`
`
`
`GREGORY LEWIS JR.
`
`
`
`v.
`
`
`
`Appellant
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` No. 3409 EDA 2019
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`J-A01019-21
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`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
`
`
`
`
`
`GREGORY LEWIS JR.
`
`
`
`v.
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`
`
`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` 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
`
`
`
`
`
`GREGORY LEWIS JR.
`
`
`
`v.
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`
`
`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` No. 3411 EDA 2019
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`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
`
`
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`v.
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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`- 2 -
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`J-A01019-21
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`GREGORY LEWIS JR.
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`Appellant
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` No. 3414 EDA 2019
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`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
`
`
`
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`
`
`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
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`entered on June 20, 2019, as made final by the denial of Appellant’s
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`post-sentence motion on October 23, 2019. During the pendency of this direct
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`appeal, Appellant filed an “Application for Remand,” where Appellant
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`requested that we remand this case to the trial court, so that the trial court
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`may conduct an evidentiary hearing on Appellant’s after-discovered evidence
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`claim. We grant Appellant’s Application for Remand and thus remand this
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`case for further proceedings.
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`The trial court summarized the underlying facts of this case:
`
`
`On November 21, 2016, [Appellant and Appellant’s
`co-defendant, Vaughn Felix (“Felix”) attempted 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 Felix 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.
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`- 3 -
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`J-A01019-21
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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;
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`five counts of robbery; six counts of conspiracy to commit robbery; two counts
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`of attempted robbery; one count of robbery of a motor vehicle; one count of
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`conspiracy to commit robbery of a motor vehicle; seven counts of kidnapping;
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`- 4 -
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`J-A01019-21
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`seven counts of conspiracy to commit kidnapping; one count of attempted
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`kidnapping; three counts of simple assault; three counts of conspiracy to
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`commit simple assault; four counts of false imprisonment; one count of
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`unlawful restraint; four counts of theft by unlawful taking; two counts of
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`attempted theft by unlawful taking; four counts of receiving stolen property;
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`three counts of possession of a firearm with intent to employ it criminally; and
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`one count of possession of an instrument of crime.1
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`On June 20, 2019, the trial court sentenced Appellant to serve an
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`aggregate term of life in prison, followed by a consecutive term of 113 years
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`and 11 months to 227 years and 10 months in prison, for his convictions.
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`Following the denial of Appellant’s post-sentence motion, Appellant filed a
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`timely notice of appeal.
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`On December 2, 2020, while Appellant’s direct appeal was pending in
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`this Court, Appellant filed an application for remand, based upon a claim of
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`after-discovered evidence. Within Appellant’s application, Appellant averred
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`that his co-defendant, Vaughn Felix, “will now testify that any and all
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`statements [Felix] made implicating [Appellant] in the Northampton County
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`criminal homicide, attempted abduction, and commercial armed robberies
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`were coerced or otherwise involuntary and false statements . . . and that
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`____________________________________________
`
`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.
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`- 5 -
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`J-A01019-21
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`[Appellant] is factually innocent of the [crimes].” Appellant’s Application for
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`Remand, 12/2/20, at 2.
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`Appellant attached a signed, handwritten statement from Felix to his
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`application, where Felix declared that Appellant “was never at any of th[e]
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`scenes, nor did he participate or conspire in any of these crimes.” Appellant’s
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`Application for Remand, 12/2/20, at Exhibit A. Further, Appellant attached
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`sworn trial testimony from Felix, where Felix testified: “They scared me. They
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`tricked me into believing I may be losing my life. I was unlawfully coerced
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`into making a statement. Therefore, everything said on December 4, 2017,
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`made by [me] was a lie, and I’m here today to say that that black man sitting
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`at the [defense] table known as [Appellant] is innocent.” Id. at Exhibit B.
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`Appellant requested that we remand this case to the trial court, so that
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`the trial court may conduct an evidentiary hearing on his after-discovered
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`evidence claim, in accordance with Pennsylvania Rule of Criminal Procedure
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`720. Id. at 6.
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`Within the Commonwealth’s brief to this Court, the Commonwealth
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`agrees that a remand is appropriate in this case, to allow the trial court to
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`conduct an evidentiary hearing on Appellant’s after-discovered evidence
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`claim. Commonwealth’s Brief at 13. We agree.
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`Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a]
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`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.
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`720(C). The comment to Rule 720 states that “after-discovered evidence
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`J-A01019-21
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`discovered during the direct appeal process must be raised promptly during
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`the direct appeal process, and should include a request for a remand to the
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`trial judge.” Pa.R.Crim.P. 720, Comment. “[A] motion [for remand] must, at
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`the very least, describe the evidence that will be presented at the hearing.
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`Simply relying on conclusory accusations made by another, without more, is
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`insufficient to warrant a hearing.” Commonwealth v. Castro, 93 A.3d 818,
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`827 (Pa. 2014). Moreover, because Appellant raises alleged after-discovered
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`evidence for the first time on direct appeal, we may not evaluate whether his
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`claim actually meets the four-part test for after-discovered evidence.2
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`Instead, “procedure demands that the [trial] court develop the record and
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`[determine whether a new trial is warranted] in the first instance.” Rivera,
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`939 A.2d at 359, citing Pa.R.A.P. 302(a). “At an evidentiary hearing, an
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`appellant must show by a preponderance of the evidence that each of [the
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`four] factors has been met in order for a new trial to be warranted.” Id.
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`Here, Appellant followed the proper procedure for asserting his
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`after-discovered evidence claim during the pendency of his direct appeal.
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`Appellant explained the substance of the proffered testimony and included a
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`written statement and testimony from Felix to support his claim. In doing so,
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`____________________________________________
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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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`- 7 -
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`J-A01019-21
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`Appellant met the prima facie pleading requirements for an evidentiary
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`hearing under Rule 720. Thus, we remand this case to the trial court for an
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`evidentiary hearing to determine whether Appellant has proven, by a
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`preponderance of the evidence, that he is entitled to a new trial. Because our
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`remand requires the trial court to conduct further proceedings, thus giving it
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`an opportunity to render a new decision, the trial court's ultimate
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`determination will result in a new, appealable order.
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`Appellant’s Application for Remand granted. Case remanded for further
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`proceedings consistent with this memorandum. Appellant’s Application for
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`Oral Argument is denied as moot. Jurisdiction relinquished.
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`Judgment Entered.
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`
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`Joseph D. Seletyn, Esq.
`Prothonotary
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`
`
`Date: 12/18/20
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`- 8 -
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