J-S41027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROLAND KITTRELL

                            Appellant                 No. 1768 MDA 2014


              Appeal from the Order Entered September 18, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001435-2010


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 24, 2015

        Roland Kittrell appeals from the order entered in the Court of Common

Pleas of Centre County, dismissing his petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.          Upon careful

review, we affirm.

        The PCRA court has set forth the facts and procedural history of this

case as follows:

        In August 2010, Kittrell was charged with four counts of
        aggravated assault and three counts of simple assault after
        engaging in a physical altercation with three prison guards. On
        the morning of January 24, 2011, the day of Kittrell’s jury trial
        for these charges, Kittrell elected to proceed pro se, without his
        court-appointed counsel.      The [c]ourt conducted a colloquy
        inquiring into all relevant facts, and determined Kittrell was
        competent to represent himself. The jury trial concluded that
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*
    Retired Senior Judge assigned to the Superior Court.
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      same day, and Kittrell was convicted of three counts of
      aggravated assault and two counts of simple assault. On March
      15, 2011, Kittrell was sentenced to not less than twenty-five
      years and not more than fifty years of incarceration in state
      prison, which is the mandatory minimum sentence for a third or
      subsequent crime of violence under 42 Pa.C.S.A. § 9714(a).
      Kittrell was represented before trial by Attorney Parviz Ansari
      prior to requesting to proceed pro se.         Kittrell was later
      appointed Attorney Ronald McGlaughlin who represented him
      through direct appeal. The Superior Court affirmed Kittrell’s
      conviction on November 18, 2011, and thereafter the
      Pennsylvania Supreme Court denied Kittrell’s Petition for
      Allowance of Appeal on March 28, 2012. After Kittrell timely
      filed his initial PCRA Petition on December 11, 2012, the [c]ourt
      appointed Attorney Charles Kroboth to represent him, who filed
      the Fifth [Amended] PCRA Petition presently at issue.

PCRA Court Opinion, 9/18/14, at 1-2.

      Kittrell challenges the order by the lower court denying his PCRA

petition without an evidentiary hearing. The court found Kittrell’s claim had

no genuine issues of material fact. We agree.

      The standard and scope of this Court’s review of the PCRA petition

denial is as follows:

      [I]n reviewing the propriety of an order granting or denying
      PCRA relief, we are limited to determining whether the evidence
      of record supports the determination of the PCRA court, and
      whether the ruling is free of legal error. Great deference is
      granted to the findings of the post-conviction court, and these
      findings will not be disturbed unless they have no support in the
      certified record.

Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002).

      Kittrell claims the lower court erred by denying his PCRA petition

without an evidentiary hearing.    This Court has held that “[t]here is no

absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA



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court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary.”     Commonwealth v. Jones, 942

A.2d 903, 906 (Pa. Super. 2008).

      Kittrell argues that he has obtained after-discovered evidence,

specifically four inmate witnesses that could provide testimony that Kittrell

acted in self-defense in his altercation with the three prison guards.       Our

standard for after-discovered evidence is as follows:

      To obtain relief based on after-discovered evidence, [an]
      appellant must demonstrate that the evidence: (1) could not
      have been obtained prior to the conclusion of the trial by the
      exercise of reasonable diligence; (2) is not merely corroborative
      or cumulative; (3) will not be used solely to impeach the
      credibility of a witness; and (4) would likely result in a different
      verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008).

      Kittrell fails to meet the four-prong test for establishing and raising an

after-discovered evidence claim, and therefore, is not entitled to relief.

      Here, Kittrell cannot demonstrate that he exercised reasonable

diligence in finding these witnesses prior to or during trial.      Reasonable

diligence “demands that the petitioner take reasonable steps to protect his

own interests.”   Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.

Super. 2010). The PCRA court aptly explained Kittrell’s failure to exercise

reasonable diligence:

      Kittrell has failed to satisfy the requirements of either [section]
      9545(b)(1)(ii) or [section] 9543(a)(2)(vi). He fails to allege,
      and is unable to prove, that he exercised reasonable diligence in

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       discovering these witnesses.      Logic dictates that a person
       involved in an altercation and likely facing criminal charges will
       do everything in their power to discover and interview
       exculpatory witnesses. Kittrell could have attempted to locate
       those inmates who were in the cell block on the night of the
       incident and could have requested such information from the
       prison officials.   Furthermore, Kittrell has not shown why
       reasonable diligence would have not revealed these witnesses[.]

PCRA Court Opinion, 9/18/14, at 6-7.

       Kittrell did not attempt to contact inmate eyewitnesses prior to trial,

and therefore we agree with the PCRA court that without exercising

reasonable diligence, Kittrell cannot prevail on a claim of after-discovered

evidence and is not entitled to relief.

       The testimony of the four inmate witnesses would also have been

cumulative or corroborative to Kittrell’s testimony at trial.1 “Before a court

grants a new trial on the basis of after-discovered evidence, the defendant

must    also   show     the   alleged    after-discovered   evidence   is   not   just

corroborative or cumulative of the evidence already presented at trial.”

Commonwealth v. Padillas, 997 A.2d 356, 364 (Pa. Super. 2010). Here,

Kittrell admits that any testimony given by the four “after-discovered”

inmate witnesses will corroborate his previously litigated claim that he acted

in self-defense.      This Court found on appeal that there was sufficient
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1
  Here, Kittrell was the sole defense witness to testify as to his claim that he
acted in self-defense. We leave for another day the question of whether the
testimony of a disinterested third-party witness should be considered
“cumulative” for purposes of the after-discovered evidence analysis where
the only other testimony available at the time of trial was that of the
defendant himself.



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evidence presented at trial to sustain Kittrell’s conviction and that the

conviction was not against the weight of the evidence. Therefore, Kittrell is

not entitled to relief.

      Kittrell failed to meet any of the four requirements for after-discovered

evidence and did not establish a claim of arguable merit.        After careful

review of the certified record, as well as the briefs of the parties and the

applicable law, we agree with the PCRA court that Kittrell is not entitled to

an evidentiary hearing or any other relief on his claim.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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