Com. v. Kittrell, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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