J-S29018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUCAS NICHOLAS                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROLAND KITTRELL

                            Appellant               No. 1617 MDA 2013


               Appeal from the Order Entered on August 13, 2013
                In the Court of Common Pleas of Centre County
                         Civil Division at No.: 2010-1532


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 22, 2014

       Roland Kittrell, pro se, appeals the August 13, 2013 order of the Court

                                                                          -trial

motions.1 For the reason set forth below, we affirm.
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
                                                                         -trial
motions when the underlying verdict has not been reduced to judgment.
See Johnston the Florist, Inc., v. TEDCO Constr. Corp., 657 A.2d 511,
515 (Pa. Super. 1995) (en banc). Our review indicates that judgment had
not been entered as of the transmission of the certified record to this Court.
However, our Supreme Court and this Court, on occasion, have overlooked
the omission to seek the entry of judgment and taken cognizance of appeals


served.                                        , 561 A.2d 328, 330 n.1
(Pa. 1989); see Hawkey v. Peirsel, 869 A.2d 983, 985-86
(Pa. Super.
entered judgment where the order from which a party appeals was clearly
(Footnote Continued Next Page)
J-S29018-14



      This case arises from an altercation at the State Correctional

Institution at Rockville between Kittrell, a prisoner, and Lucas Nicholas, a



3/12/2013, at 3-7.        While the identity of the antagonist in the underlying

events was contested at trial, the evidence demonstrated that, after a verbal

altercation, Kittrell punched Nicholas twice in the head immediately after

Nicholas locked a door separating the housing units and a common area of

the prison. Id. at 10-11. Two other correctional officers, Rodney Kaufman

and Timothy Watson, subdued Kittrell by tackling him to the ground as

                                             Id. at 43-45. Nicholas suffered several

broken bones in his face and a broken nose, as well as a laceration in his ear

and internal bleeding behind his nose that was stanched only after hours of

medical care. Id. at 13. The other officers also sustained various injuries.




                       _______________________
(Footnote Continued)

intended to be a final pronou                                         accord
Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d
625, 628-29 (Pa. Super. 1997) (quoting Johnston the Florist, 657 A.2d at
                                                                         ry of
judgment, is otherwise final, we would expend judicial resources in the
decision to quash, one of the parties would inevitably praecipe the
prothonotary to enter judgment, and a subsequent appeal would be
                         Randt v. Abex Corp., 671 A.2d 228, 228 n.2
(Pa. Super. 1996). We believe that this case warrants similar treatment.
Accordingly, notwithstanding this procedural infirmity in the trial court, we




                                            -2-
J-S29018-14



Kittrell sustained a broken nose and required stiches in and around his

mouth. Id. at 27.2

       Nicholas filed an amended complaint on July 19, 2010, alleging one

count of assault, one count of battery, and seeking $50,000 in compensatory

and punitive damages on each count.              Complaint, 7/19/2010, at 4-7.   On

September 15, 2010, Kittrell filed his answer and counterclaims, which

alleged assault, battery, and excessive force by law enforcement, among



requests for counsel, and a dispute over whether Nicholas was served with

K

one-day bench trial, the court awarded Nicholas $25,000 in damages:

       The [c]ourt has heard testimony and evidence and has to resolve
       a dispute as to whether the fight was initiated by Mr. Kittrell or
       by Mr. Nicholas. The [c]ourt determines that he who essentially
       would have started that fight would be in a position not to
       recover, because they would have put into place the conflict that
       resulted in the injuries.     The [c]ourt finds that both the
       defendant and the plaintiff were both [sic] injured. The question
       becomes, how did this commence?             There is eyewitness

                              account is not substantiated, and it is also
                                                          -in details to
       assist the [c]ourt. As such, the [c]ourt is going to find for
       [p]laintiff Lucas Nicholas in his claim against [Kittrell] in the
____________________________________________


2
       A more detailed account of the factual background was furnished by

judgment of sentence entered upon his conviction of crimes charged in
connection with the events underlying the instant civil suit.    See
Commonwealth v. Kittrell, 765 MDA 2011, slip op. at 1-2
(Pa. Super. 2011) (unpublished memorandum).



                                           -3-
J-S29018-14


      amount of $25,000, and the [c]ourt will dismiss                 the
      counterclaim[s] of Roland Kittrell against [Nicholas].

N.T., 3/12/2013, at 72-73.

      The verdict ultimately was entered in the docket on March 20, 2013,

and Kittrell filed a notice of appeal on March 27, 2013. Following procedural

steps in accord with Pa.R.A.P. 1925, on May 31, 2013, this court dismissed

                                                                 -trial motions.

Therein, this Court noted that Kittrell was free on remand to seek leave from

the trial court to file post-trial motions nunc pro tunc. Superior Court Order,

5/14/2013.

      On July 10, 2013, Kittrell filed a motion for post-trial relief nunc pro

tunc, in which he raised issues too numerous and disorganized to review in

detail.   Kittrell argued, inter alia, that the trial court should have entered

default judgment against Nicholas, that the verdict was contrary to the

weight of the evidence, and that Kittrell was not competent to stand trial.

Motion for Post-Trial Relief Nunc pro Tunc, 7/10/2013, at 1-5.

      On August 13, 2013, the trial court issued an opinion and order



issued on January 12, 2012, in which it explained its decision to grant




the evidence by citing the above-quoted language from the March 12, 2013



                                      -4-
J-S29018-14




version of events. Id. at 2-

trial court explained as follows:

      [Kittrell] now would like to argue:        he was not mentally
      competent to stand trial; the psychiatrist treating [Kittrell] is
      employed by the Department of Correction[s] and thus has a
      conflict of interest [relative] to the case at hand; the
      Commonwealth withheld and destroyed evidence relevant to the
      c
      Richardson Eagen, did not file an Entry of Appearance, he should
      not have been allowed to represent [Nicholas] at the non-jury
      trial; and that the testimony of Correctional Officer Rodney
                   hould have been impeached . .
      These claims made by [Kittrell] are either not supported by any
      law that the [c]ourt is aware of, or were not raised in pre-trial
      proceedings or by motion, objection, point for charge, request
      for findings of fact or conclusions of law, offer of proof or other

      [m]otion how the grounds were asserted in pre-trial proceedings
      or at trial. See Pa.R.C.P. 227.1(b).

Id. at 3-4 (citation modified; ellipsis in original).

      On August 30, 2013, Kittrell filed a second notice of appeal,

imperfectly invoking our jurisdiction.     See supra at 1 n.1.    On September

10, 2013, the trial court ordered Kittrell to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and, on October 2,

2013, Kittrell filed his second Rule 1925(b) statement.          On October 29,

2013, the trial court issued its responsive Rule 1925(a) opinion.

      Kittrell raises the following issues for our review, which we reproduce

with minor grammatical corrections and clarifications for ease of reference:

      I.    Did the trial court err by forcing Kittrell to proceed without
            counsel despite his mental impairment, which substantially

                                       -5-
J-S29018-14


               limited his comprehensive and social skills, and which was
               recorded before the court?

       II.     Did the trial court commit constitutional error by depriving
               Kittrell of an oral or written notification to file a post-trial
               motion within 10 days pursuant to Pa.R.C.P. 227.1(b) and
               article 539 Pa. Const?[3]

       III.                                                      -trial motion
               nunc pro tunc
               explanation why he failed to file a timely post-trial
               motions?

       IV.
               in which Kittrell asserted that he was sexually assaulted by
               the plaintiff and assaulted for reporting staff abuse?

       V.      Did the trial court err by not granting defendant a new trial
               when the verdict was contrary to the evidence?

       VI.     Did the trial court err in permitting testimony of
               correctional officer Kauffman even after having knowledge

               captioned Com. v. Kittrell at. No. Cp-14-CR-1435-2010?

       VII.    Did the trial court err by not awarding Kittrell a new trial
               because the verdict was contrary to the weight of the
               evidence?

       VIII.
               heard without a jury despite his explicit demand in writing
               for a jury trial?

       IX.     Did the trial court abuse its discretion when a court order
               was issued on July 16, 2012, relating to an assessment


               proceed to trial, where a conflict of interest existed and
               qualifications were requested to determine the value of
               their diagnosis?

____________________________________________


3
     The Pennsylvania Constitution contains no article 539.            It is unclear
what authority Kittrell sought to invoke with this reference.



                                           -6-
J-S29018-14


       X.     Did the trial court err by not granting a new trial based on
              newly discovered evidence that was not available at the
              time of trial?

       XI.
              Richardson Todd Eagen to represent plaintiff when Eagen

              praecipe of appearance?

                     -5.4

       In his first issue, Kittrell claims that he was entitled to, and hence

improperly denied, appointed counsel.              Throughout this litigation, Kittrell

repeatedly has asked the trial court for appointed counsel.              He has cited

several potentially valid ways in which he suffered prejudice as a

consequence of his pro se status.              See, e.g., Motions for Appointment of

Trial Counsel, 11/12/2010, 3/31/2011, 11/17/2011, 1/21/2013; Petitions for

Appointment of Appellate Counsel, 3/27/2013, 4/16/2013, 4/19/2013.

Kittrell avers that he cannot afford counsel; that, as a prisoner, he does not

have the legal resources available to argue his case; that he has been
____________________________________________


4
      Kittrell has filed a petition for relief in the form of a letter to our
Prothonotary asking this Court to transfer this case to the Commonwealth
Court for disposition, based upon the questionable assertion that this is a
                                                              24/2014, at 1.
Setting aside the question of whether this appeal more properly lies in the
                                                          762, we long have
held that 42 Pa.C.S. § 704 furnishes an exception, entitling this Court to
decide appeals in

jurisdiction serves judicial economy. See Lara, Inc., v. Dorney Park
Coaster Co., Inc., 534 A.2d 1062, 1065-66 (Pa. Super. 1987). We find
that it will serve judicial economy to retain and decide this case.




                                           -7-
J-S29018-14



diagnosed with bipolar/schizophrenia disorder; that the legal issues are

complex and require significant research and investigation; and that the

issues at trial were likely to turn on credibility determinations, among

numerous other concerns that prevented him from adequately defending the

case.

        In support of his argument, Kittrell cites only a Third Circuit case

describing the situations in which that court will appoint counsel for

defendants in federal civil cases. See Parham v. Johnson, 126 F.3d 454

(3d Cir. 1997). Kittrell properly describes the factors employed by that court

in deciding whether to appoint counsel,5 and makes a compelling argument

as to why he would qualify under those factors.      See

The various procedural errors detailed below illustrate precisely why the

representation of counsel can be so important to a litigant.         However,

Parham relied upon a federal statute that provides federal courts the

discretion to appoint counsel in federal cases. See 28 U.S.C. §1915(e).
____________________________________________


5
       These factors are (1)
case; (2) the complexity of the legal issues; (3) the degree to which factual
investigation will be necessary and the ability of the plaintiff to pursue such
an investigation; (4) the amount a case is likely to turn on credibility
determinations; (5) whether the case will require the testimony of expert
witnesses; and (6) whether the plaintiff can attain and afford counsel on his
own behalf. Parham, 126 F.3d at 457-58 (quoting Tabron v. Grace,
6 F.3d 147, 155-56 (3d Cir. 1993)). Notably, these factors and Parham,
itself, appear directed solely to a                 entitlement to appointed
counsel. Other factors might come into play when a defendant seeks
appointed counsel, especially when that defendant is an indigent inmate with
very limited legal and investigative resources.



                                           -8-
J-S29018-14



     Pennsylvania    has   no   equivalent   statute   vesting   discretion   in

Pennsylvania courts to appoint counsel for indigent civil litigants. However,

our Supreme Court has indicated that counsel may be appointed at least

under extreme circumstances that implicate the Fourteenth Amendment to

the United States Constitution.   See Commonwealth v. $9847.00 U.S.

Currency, 704 A.2d 612, 615 (Pa. 1997). Therein, the Court explained the

narrow circumstances under which appointment of counsel might be

appropriate, and articulated the standard that courts should employ in

making such a determination:

     [I]n certain limited situations, the Due Process Clause of the
     Fourteenth Amendment to the United States Constitution may
     require court[-]appointed counsel in civil matters. In Mathews
     v. Eldridge, 424 U.S. 319 (1976), the United States Supreme
     Court set forth three factors which must be weighed to
     determine whether there is a right to court-appointed counsel in
     a civil matter:     (1) the private interest at stake; (2) the
     government interest at stake; and (3) the likelihood of an
     erroneous decision.     Id. at 335.    There is a presumption,

     counsel only when, if he loses, he may be deprived of his
                                                            , 452 U.S.
     18, 26 (1981) (no per se right to court-appointed counsel in
     proceeding to terminate parental rights). Taken together, these
     cases require that the outcome of the examination of the three
     facts enunciated in Mathews, be weighed against the Lassiter
     presumption that an indigent is only entitled to appointed
     counsel when his physical liberty is at stake. Lassiter, 452 U.S.
     at 27.

$9,847, 704 A.2d at 615 (citations modified).

     It seems likely




                                    -9-
J-S29018-14




determination echoed by the fact-                           criminal proceedings,

see supra at 3 n.2) suggest that the representation of counsel was unlikely

to reduce the likelihood of an erroneous decision in this relatively



substantial debt is not insignificant, it is ameliorated in the practical sense by

his indigence and the lengthy sentence that he presently is serving, which

includes the twenty-five to fifty-year sentence imposed following his criminal

conviction for assaulting Nicholas.     Moreover, the government interest is

negligible: Ensuring that corrections officers behave legally and responsibly

might be implicated in this matter, but that government interest is best

protected through the administrative process provided to inmates for

purposes of alleging official misconduct, a process that has been invoked by

Kittrell in a separate proceeding.    See Kittrell v. Watson, 88 A.3d 1091

(Pa. Cmwlth. 2014).

      In any event, this issue, like several others, has been waived on

procedural grounds.     In light of the challenges they face conforming to

procedure with which attorneys are far more familiar, we endeavor to be fair

to pro se litigants, overlooking minor errors of procedure and other

insubstantial   missteps.     Nonetheless,     pro   se   litigants   must   comply

substantially with our rules of procedure. Thus, while we typically construe

pro se filings liberally, we cannot overlook procedural errors that strike at




                                      - 10 -
J-S29018-14



procedure. See generally Laird v. Bernard, 528 A.2d 1379 (Pa. Super.




issues were not raised in his nunc pro tunc post-trial motion.       Pa.R.C.P.

227.1 governs post-trial motions and states in relevant part:

      (b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
      relief may not be granted unless the grounds therefor,

         (1)      if then available, were raised in pre-trial
         proceedings or by motion, objection, point for charge,
         request for findings of fact or conclusions of law, offer of
         proof or other appropriate method at trial; and

                   Note: If no objection is made, error which could
            have been corrected in pre-trial proceedings or during trial
            by timely objection may not constitute a ground for post-
            trial relief.

                  Pa.R.E. 103(a) provides that the specific ground for
            an overruled objection, or the substance of excluded
            evidence, need not be stated at or prior to trial, or without
            having made an offer of proof, if the ground of the
            objection, or the substance of the evidence sought to be
            introduced, was apparent from the context.

         (2)      are specified in the motion. The motion shall
         state how the grounds were asserted in pre-trial
         proceedings or at trial. Grounds not specified are deemed
         waived unless leave is granted upon cause shown to
         specify additional grounds.

We may grant relief only for issues that Kittrell raised both at trial and in a

motion for post-trial relief.   See Phillips v. Lock, 86 A.3d 906, 918-19

(Pa. Super. 2014).




                                    - 11 -
J-S29018-14



      Kittrell did not raise issues I (failure to appoint counsel) or VIII

(hearing    counterclaim   without   jury     trial)   in   his   post-trial   motion.

Accordingly, they are waived.

      Issue X (newly-

post-trial motion.    It is unclear from his conclusory argument when he

became aware of the alleged newly-discovered evidence, which allegedly

involved sexual assault accusations leveled against Nicholas.                   Kittrell

contends that he was unaware of this information at the time of trial, and

alludes to a purported article in an unspecified Centre County newspaper in

                                                                                  clear

whether this information became available in the lengthy interim between



           nunc pro tunc post-trial motion, which spanned approximately five

months, or after Kittrell filed a notice of appeal in this matter, divesting the

trial court of jurisdiction to consider newly-discovered evidence.             Because

Kittrell has not pleaded in clear terms that he discovered the evidence in

question during the pendency of this appeal, rather than during the period

                                                            nunc pro tunc post-trial

motion, we have no basis to except this issue from the requirement that it

be raised first in a post-trial motion in order to preserve it for appellate

review. Hence, this issue, like issues I and VIII, is waived.



preserved below because         Kittrell has not adequately developed the

                                     - 12 -
J-S29018-14



corresponding arguments in his brief.         Rule 2119(a) requires that an




When an appellant fails to do so, we will not review the merits of the issue in

question. See Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942-



When issues are not properly raised and developed in briefs, when the briefs

are wholly inadequate to present specific issues for review, a [c]ourt will not



      Kittrell alleges in issue II that the trial court erred when it did not tell

Kittrell that he had ten days to file post-sentence motions. Kittrell has cited

no authority for this proposition other than Pa.R.C.P. 227.1, which states

that one has ten days to file post-sentence motions but does not require the

court to explain such rights to defendants.      Similarly, in issue III, Kittrell

                                                              -trial motion nunc

pro tunc.   Specifically, he contends that the trial court denied his motion

solely upon the basis that Kittrell had failed to provide adequate explanation

for not filing a post-trial motion within ten days of the entry of the original

verdict.

      This court is unaware of any authority that requires trial courts to

describe post-trial rights in detail to civil litigants. Moreover, while the trial

court alluded to the untimeliness and the absence of an explanation for

same, it proceeded to address the merits of the allegations of trial court

                                     - 13 -
J-S29018-14



                             nunc pro tunc post-trial motion. In short, Kittrell

was afforded review of those issues, and we have not deemed any issues

                                                       riginal post-trial motion.

Thus, issues II and III are moot to the extent that they are not waived.

       In issue VI, Kittrell contends that the trial court erred by admitting the

allegedly perjured testimony of corrections officer Kaufmann.          Although

Kittrell cites Mooney v. Holohan, 294 U.S. 103 (1935), in which relief was

denied on procedural grounds for claims related to the alleged perjury of

one or more prosecution witnesses, his allegations of perjury in this case

are unsubstantiated. He refers to his alleged acquittal in the criminal case

                                   -14-CR-1435-

and implies, but does not clearly state, that the alleged acquittal arose from

some sort of

judgment of sentence indicates that he was, in fact, convicted of all

charges at that docket.       Moreover, he offers no allegations as to the

allegedly perjured testimony, nor any direction or exhibits to substantiate

same. Finally, it is not at all clear to this Court that Kittrell challenged this

testimony at the time it was offered, which would be necessary to preserve

the issue for appeal. See Samuel-Bassett v. Kia Motors Amer., Inc., 34

A.3d 1, 45-46 (Pa. 2011); cf. Commonwealth v. Reaves, 923 A.2d 1119,

1131    (Pa.

preserve issues for appellate review, they serve an equally important

function in obviating appeals by affording the trial court a timely

                                     - 14 -
J-S29018-14




failure to establish due preservation of the issue and his failure to provide

any substantiation of his claims.

       Turning towards the issues that Kittrell has briefed properly and

adequately, in issue IV Kittrell alleges that the trial court erred by declining



on this point is tantamount to a challenge to the fact-




also reflect challenges to the weight of the evidence.6      Consequently, we

consider them together.

       When reviewing a claim regarding the weight of the evidence, this

court applies the following standard:

       A new trial based on weight of the evidence issues will not be
       granted unless the verdict is so contrary to the evidence as to

       suffice as grounds for a new trial. Upon review, the test is   not
       whether this Court would have reached the same result on       the
       evidence presented, but, rather, after due consideration of    the
       evidence found credible by the [fact-finder], and viewing      the
____________________________________________


6
       In this variation on his weight of the evidence argument, Kittrell
alludes to the above-mentioned allegations against Nicholas of sexual
misconduct and also suggests without any substantiation that video evidence
of relevance to this case was spoliated. See Brief for Kittrell at 13. These
conclusory assertions, which occupy one sentence each, are too insubstantial
to warrant consideration.



                                          - 15 -
J-S29018-14


      evidence in the light most favorable to the verdict winner,
      whether the court could reasonably have reached its conclusion.
      Our standard of review in denying a motion for a new trial is to
      decide whether the trial court committed an error of law which
      controlled the outcome of the case or committed an abuse of
      discretion.

      We stress that if there is any support in the record for the trial

      based on weight of the evidence, then we must affirm.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 274 (Pa. Super. 2014)

(quoting Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007)).

      Here, there certainly was enough evidence for the trial court to deny




                                        ed no evidence of this alleged assault

other than bald allegations in his counterclaims; he asked Nicholas whether

he had sexually assaulted Kittrell at trial and Nicholas denied that he had, a

denial the trial court was free to find credible. N.T. at 23-24. The trial court

was tasked with a similar credibility determination when it determined which

party had started the altercation, and, once again, the trial court favored



presentation at trial and the conflicting, more detailed and substantially

consistent testimony of Officers Watson and Nicholas, we have little difficulty

concluding that the trial court did not abuse its discretion in holding that the

verdict was not against the weight of the evidence.




                                     - 16 -
J-S29018-14



        In issue IX, Kittrell alleges that the trial court abused its discretion

when     it   allowed    him     to     proceed    to    trial   without   first   ordering   a



entered on J




2013,     Kittrell   evidently        inquired    of    his   Department     of    Corrections




employee this evaluation is beyond my job duties and would constitute a

conflict of in

        First, it is not clear that this document ever was made part of the

certified record        Kittrell appends it as an exhibit to his brief before this

Court. If it is not contained in the certified record, we may not consider it.

See Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006). Just



well over a year after the trial court directed the preparation of an

assessment.      Thus, it provides no support for the proposition that Kittrell

was improperly denied anything during the only time period that matters,

the months and years leading up to the trial in question. Our review of the

certified record indicates that Kittrell took no formal action regarding his

evaluation between July 24, 2012 and his trial to seek the evaluation that




                                             - 17 -
J-S29018-14



the trial court not only allowed but indeed directed Kittrell to furnish.

Accordingly, Kittrell waived any claim based upon this issue.

      Finally, in issue XI, Kittrell contends that the trial court erred by



appearance. This claim is unavailing. Pennsylvania Rule of Civil Procedure

1012 provides as follows:

      A party may enter a written appearance which shall state an
      address at which pleadings and other legal papers may be
      served in the manner provided by Rule 440(a)(1) and a
      telephone number.      The appearance may also include a
      telephone facsimile number as provided in Rule 440(d). Such
      appearance shall not constitute a waiver of the right to raise any
      defense including questions of jurisdiction or venue. Written
      notice of entry of an appearance shall be given forthwith to all
      parties.

      Note: Entry of a written appearance is not mandatory.




argument is entirely conclusory, and therefore subject to waiver for failure to

conform to Pa.R.A.P. 2119(a).

      Judgment affirmed. Petition for Relief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014

                                    - 18 -
