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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                   v.                       :
                                            :
                                            :
THOMAS ALONZO RICHARDSON,                   :
                                            :
                         Appellant          :     No. 870 MDA 2016

                   Appeal from the PCRA Order July 7, 2015
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-CR-0001964-1977

BEFORE: GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                          FILED FEBRUARY 08, 2017

      Appellant, Thomas Alonzo Richardson, appeals pro se from the July 7,

2015 Order entered in the Court of Common Pleas of Dauphin County

dismissing as untimely his seventh Petition filed pursuant to the Post

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

review, we affirm on the basis that Appellant’s PCRA Petition is untimely and

this Court, thus, lacks jurisdiction to review the Petition.

      The underlying facts, as summarized in this Court’s memorandum

decision disposing of Appellant’s direct appeal from the denial of his sixth

PCRA Petition, are as follows:

      On November 9, 1977, Appellant and an accomplice entered a
      bar in Harrisburg, shot and killed the bartender, and pistol-
      whipped four people. A jury convicted Appellant of third degree
      murder and five counts of aggravated assault on February 15,
      1978. Appellant also pled guilty to robbery and simple assault
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      on March 14, 1978. On May 10, 1978, the court sentenced
      Appellant to an aggregate term of thirty-five (35) to seventy
      (70) years’ imprisonment. This Court affirmed the judgment of
      sentence on June 28, 1979.

      Appellant filed his first PCRA petition in January 1988. The PCRA
      court denied the petition on November 15, 1990, and this Court
      affirmed the decision on July 15, 1991. Between 1995 and
      2011, Appellant filed numerous PCRA petitions, all of which were
      unsuccessful.

Commonwealth v. Richardson,           No.   1117   MDA    2013,    unpublished

memorandum at 1-2 (Pa. Super. filed April 2, 2014).1

      On January 14, 2015, Appellant filed the instant pro se PCRA Petition,

his seventh, claiming his sentence is illegal.   On June 9, 2015, the PCRA

court issued notice of its intent to dismiss without a hearing pursuant to

Pa.R.Crim.P. 907. Appellant responded pro se on June 25, 2015, and June

30, 2015.   On July 7, 2015, the PCRA court dismissed Appellant’s PCRA

Petition.

      On July 17, 2015, Appellant timely filed a pro se Notice of Appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents two issues for our review:

      1. Whether the [PCRA] court erred when it dismissed
      [Appellant’s] successive PCRA [P]etition seeking review and a full
      evidentiary hearing upon an outstanding on the record legal
      error of an imposed illegal sentence with evidence proffered?


1
 This Court noted that, “The chief complaint raised in Appellant’s [sixth]
petition is the legality of his sentence.” Commonwealth v. Richardson,
No. 1117 MDA 2013, unpublished memorandum at 2 n.1 (Pa. Super. filed
April 2, 2014).



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      2. Whether the Superior Court was [misled] by Judge Hoover on
      7/12/2013, when he told Judge D.E. Curcillo, that her order to
      show cause why [A]ppellant shouldn’t be furnished a certified
      copy of his co-defendant[’]s sentencing transcripts which he
      desire[d] to furnish to the Superior Court in a pending appeal
      No.-1117-MDA-2013, that “…no matters were pending which
      require the sentence transcripts and that Judge Curcillo should
      not entertain any evidence appellant offers upon same.[”] That
      entire situation should be deemed government interference
      because this Superior Court was pending disposition of No-
      1117[-]MDA-2013 which Judge Hoover was the lower court
      opinion judge. Therefore he [] caused appellant enability [sic] to
      furnish the Superior Ct. with that appellant could obtain relief via
      a PCRA/Writ and with the sentence for comparison of an illegal
      sentence matter.

Appellant’s Brief at 3.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).




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        Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final

“at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”          42 Pa.C.S. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

        Here, Appellant’s Judgment of Sentence became final on July 30,

1979, upon expiration of the time to file a Petition for Allowance of Appeal

with our Supreme Court.2 See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a).

In order to be timely, Appellant needed to submit his PCRA Petition by July

30, 1980. Id. Appellant filed this PCRA Petition on January 14, 2015, more

than thirty-five years after his Judgment of Sentence became final.       The

PCRA court properly concluded that Appellant’s Petition is facially untimely.

PCRA Court Opinion, dated 9/12/16, at 2-3.

        Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), which provides the following:

2
    July 28, 1979, was a Saturday. See 1 Pa.C.S. § 1908.



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      (b) Time for filing petition.

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).      See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

      Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(i) to challenge the legality of his sentence, averring that

the trial court interfered with his attempts to obtain the sentencing transcript

of his accomplice and codefendant. Appellant’s Brief at 16-18.

      “[A] court is not required to comply with a defendant’s request for

transcripts in order to pursue relief in a PCRA proceeding where no such


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action is pending.”   Commonwealth v. Crider, 735 A.2d 730, 733 (Pa.

Super. 1999).     “[I]t is well settled that a defendant need not possess

transcripts and other court documents before pursuing post-conviction

relief.” Id.

      In support of his claim of a timeliness exception, Appellant baldly

avers that his family members prepaid the Clerk of Courts for these

transcripts. Appellant’s Brief at 18. When the Clerk of Courts stated that

they could not release the transcript in question without a court order,

Appellant “petitioned the lower court for an order to have the pre-paid

transcripts of his co-defendant released.” Id. On July 12, 2013, the PCRA

court entered an Order refusing to entertain Appellant’s petition, effectively

denying Appellant’s request and stating, “No matters are pending before this

court, and no issues exist in the pending appeal, which require the

production of transcripts.” Order, filed 7/12/13, at 1.

      We agree with the PCRA court’s assessment.            At the time of

Appellant’s request, Appellant did not have a PCRA petition pending.

Consequently, we disagree with Appellant’s contention that the trial court

committed governmental interference with his ability to pursue PCRA relief

by denying his request for transcripts from his codefendant’s case.      See

Crider, supra. We note that a lack of transcripts did not prevent Appellant

from filing the instant PCRA Petition.




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     Accordingly, the PCRA court properly concluded that Appellant failed to

plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. §

9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See

PCRA Court Opinion at 2-3. We, thus, affirm the denial of PCRA relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/8/2017




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