J-A29044-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

    COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                   Appellee                  :
                                             :
                      v.                     :
                                             :
    DAVID RICHARDSON,                        :
                                             :
                   Appellant                 :     No. 904 EDA 2017

                Appeal from the PCRA Order February 22, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0848941-1993

BEFORE:      LAZARUS, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:             FILED DECEMBER 04, 2017

       David Richardson (Appellant) appeals from the February 22, 2017 order

that dismissed his petition for writ of habeas corpus, which the court properly

deemed to have been filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546.1 We affirm.

       In June 1993, Appellant and a co-defendant were involved in a fist fight

with Gerald Smith and another man; two days later Appellant killed Smith in

a drive-by shooting. In 1995, following convictions for, inter alia, first-degree




1 “[T]he PCRA subsumes all forms of collateral relief, including habeas corpus,
to the extent a remedy is available under such enactment.” Commonwealth
v. West, 938 A.2d 1034, 1043 (Pa. 2007). “Simply because the merits of
the PCRA petition cannot be considered due to previous litigation, waiver, or
an untimely filing, there is no alternative basis for relief outside the framework
of the PCRA.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.
Super. 2001).

*Retired Senior Judge assigned to the Superior Court.
J-A29044-17


murder, Appellant was sentenced to life imprisonment.            This Court denied

Appellant relief on direct appeal, and his judgment of sentence became final

in 1997 after our Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Richardson, 694 A.2d 1121 (Pa. Super. 1997)

(unpublished memorandum), appeal denied, 700 A.2d 440 (Pa. 1997).

Appellant subsequently filed numerous PCRA petitions that resulted in no

relief.

          Appellant filed the petition that is the subject of the instant appeal on

June 8, 2016. Therein, Appellant claimed that he was denied constitutionally-

required due process of law based upon (1) evidence admitted in his trial of

“a prior unrelated crime;” (2) “the misrepresentation of the prior crime

evidence” offered at trial by the Commonwealth; and (3) his “preclus[ion]

from challenging the introduction of the prior crime evidence on appeal.”

Petition for Writ of Habeas Corpus, 6/8/2016, at 3.

          The PCRA court issued notice of its intent to dismiss the petition without

a hearing as an untimely-filed PCRA petition, to which Appellant filed a

response in opposition. On February 22, 2017, the PCRA court entered an

order dismissing Appellant’s petition. Appellant timely filed a notice of appeal.

Appellant presents this Court with the following questions.

          A.    Did the PCRA court commit reversible error in denying
          Appellant’s pro-se post conviction petition as untimely filed where
          Appellant established that his governmental interference and
          newly discovered fact claims were within the plain language of the



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      timeliness exception[s] at 42 Pa.C.S.[ §] 9545(b)(1)(i) & (ii) as
      well as [sub]section 9545(b)(2)?

      B.     Would Appellant be entitled to a new trial, or remand for an
      evidentiary hearing based upon the preliminary objections of the
      attorney for the Philadelphia District Attorney’s Office who
      identified the issue that the prosecutor may have improperly
      introduced other crime evidence?

      C.    Would Appellant be entitled to file a subsequent post
      conviction petition under the miscarriage of justice exception
      where the first degree murder jury instruction was improper?

Appellant’s Brief at 4 (trial court answers and unnecessary capitalization

omitted).

      We begin our review by noting the relevant legal principles. Any PCRA

petition, including second and subsequent petitions, must either (1) be filed

within one year of the judgment of sentence becoming final, or (2) plead and

prove a timeliness exception. 42 Pa.C.S. § 9545(b). The statutory exceptions

include proof that: “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,” 42 Pa.C.S. § 9545(b)(1)(i); and “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.”            42 Pa.C.S.

§ 9545(b)(1)(ii). Furthermore, the petition “shall be filed within 60 days of

the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).




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      Appellant’s 2016 petition is facially untimely, as his judgment of

sentence became final in 1997. Appellant argues that he is able to satisfy the

following timeliness exceptions: governmental interference, Appellant’s Brief

at 21-23; newly-discovered facts, Appellant’s Brief at 23-27; and “the

miscarriage of justice exception,” Appellant’s Brief at 36.

      The factual basis underlying Appellant’s arguments is that the

Commonwealth introduced at his murder trial evidence that Appellant was

involved in a fight with the victim two days before the victim was shot.

Appellant offers no explanation of how the government interfered with his

ability to present his claim before 2016, or why he did not discover before

2016 what happened at his 1995 trial. On the contrary, the issue in question

was raised by Appellant 20 years ago in his direct appeal, and this Court

rejected the argument on its merits, holding the evidence “was admissible to

show the history and natural development of the case and was probative of

[A]ppellant’s motive for the murder of the victim.” 2 Richardson, 694 A.2d

1121 (unpublished memorandum at 7).

      Furthermore, there is no “miscarriage of justice” exception to the PCRA’s

timeliness requirements.     Commonwealth v. Burton, 936 A.2d 521, 527



2 Because the claim was previously litigated, we would conclude that Appellant
is ineligible for relief if we had jurisdiction to consider the merits of the claim.
42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief under this subchapter, the
petitioner must plead and prove by a preponderance of the evidence all of the
following: … That the allegation of error has not been previously litigated or
waived….”).

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J-A29044-17


(Pa. Super. 2007) (“[T]he courts of Pennsylvania will only entertain a

‘miscarriage of justice’ claim when the initial timeliness requirement is met.

…   [T]here is no ‘miscarriage of justice’ standard exception to the time

requirements of the PCRA.”).

      Appellant’s petition was filed untimely and he failed to establish a viable

exception. Therefore, the PCRA court was without jurisdiction to entertain the

merits of Appellant’s claims, and it did not err in dismissing the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 12/4/2017




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