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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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 

____________________________________________

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