J-S47033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAVID A. RICHARDSON

                        Appellant                  No. 3159 EDA 2013


             Appeal from the PCRA Order of October 28, 2013
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No.: CP-51-CR-0848941-1993


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED AUGUST 13, 2014

      David Richardson appeals the October 28, 2013 order that dismissed

his sixth petition for relief pursuant to the Post-Conviction Relief Act

                             -46. We affirm.

      In 1993, Richardson was charged in two separate criminal informations

with various crimes arising from two related incidents occurring on June 5,



factual and procedural history that gave rise to these two sets of charges as

follows:

      David Richardson and co-
      were charged in two separate but related incidents which
      culminated in the death of the victim, Gerald Smith. The first of
      these incidents occurred on June 5, 1993 and resulted in
      [Richardson] being charged with simple and aggravated assault,

      violations. The second of these incidents occurred on June 7,
      1993 and resulted in [Richardson] being charged with murder,
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     aggravated assault, REAP, possession of an instrument of crime

     consolidated for trial and [Richardson] and [Edwards] were tried
     together. [Richardson] was acquitted of all the crimes charged
     in relation to the June 5th incident. He was found guilty of two
     counts of aggravated assault and one count each of PIC, REAP
     and conspiracy, all in relation to the June 7th incident. The jury
     deadlocked on the murder charge.

     [Richardson] was subsequently retried on the murder
     charge. . . . At the conclusion of trial, [Richardson] was found
     guilty of first[-]degree murder. A sentence of life imprisonment
     was subsequently imposed.

                               *     *     *

     The facts underlying the above-charged offenses are as follows.
     In February of 1993, co-defendant Edwards was involved in a
     contentious relationship with his pregnant girlfriend, Natasha
     Smith.    He and [Richardson] visited her at her home in
     Philadelphia. An argument took place between [Edwards] and
     Natasha, which culminated in [Edwards] pulling a gun and firing
     a shot into the air. [Edwards] and [Richardson] then left the
     premises.

     On June 5, 1993, [Richardson] and [Edwards] visited Natasha at

     eventual murder victim) and Ulysses Smith, asked [Edwards]
     and [Richardson] to leave.        An argument ensued and
     [Richardson] and Gerald Smith got into a fist-fight. [] Edwards
     retrieved a gun from his car and began shooting. A third uncle,
     Michael Smith, arrived on the scene, and a bullet from

     any injury to him.    [Richardson] and [Edwards] then left the
     premises.

     Two days later, on June 7, 1993, [Richardson] and [Edwards]
                                         s house. Gerald and Ulysses
     Smith were in front of the house. [Richardson], who was in the
     front passenger seat, pointed a gun out the window and fired
     four shots, hitting Gerald Smith once and killing him.

Commonwealth v. Richardson, No. 2777 Phila. 1995, slip op. at 1-3 (Pa.

Super. Feb. 6, 1997) (footnote omitted).

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Id. at 2, 9. On October 16, 1997, the Pennsylvania Supreme Court denied

                                                             Commonwealth        v.

Richardson, 704 A.2d 637 (Pa. 1997) (per curiam).

       The    PCRA     court    summarized       the   subsequent   post-conviction

proceedings as follows:

       On January 11, 2000, [Richardson] filed his first PCRA petition.
                                                    letter pursuant to
                      1
       Turner/Finley[ ] was filed. The [petition] was dismissed on
       January 12, 2001. [Richardson] did not appeal the dismissal
       order.

       On September 4, 2001, [Richardson] filed his second petition.
       After review, it was dismissed on March 1, 2002.      Again,
       [Richardson] did not appeal the dismissal order.

       [Richardson] filed a third PCRA petition on May 14, 2003, which
       was ultimately dismissed as untimely on January 6, 2004.
       [Richardson] requested the right to appeal the dismissal nunc
       pro tunc. [Richardson] filed a nunc pro tunc Notice of Appeal on
       April 9, 2004. The appeal was treated as a fourth untimely PCRA
       petition, and was ultimately dismissed on April 13, 2005.
       [Richardson] appealed, and [this Court] affirmed the dismissal
       on January 12, 2006.

       [Richardson] filed his fifth PCRA petition on October 20, 2006.
       After review, it was dismissed as untimely on September 21,
       2007.    [Richardson] filed an appeal on October 5, 2007.
       [Richardson] thereafter submitted a request to discontinue the
       appeal, which [this Court] granted on April 28, 2008.

       [Richardson] filed the instant PCRA petition, his sixth, on
       December 3, 2010.        After conducting an extensive and
       exhaustive review of the record as well as applicable case law,
____________________________________________


1
    See Commonwealth v. Turner, 544 A.2d 927                          (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 214 (Pa. Super. 1998).



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       [the PCRA court] determine
       post-conviction collateral relief was untimely filed.

                                                  -2. On October 27, 2011, the



sixth PCRA petition without an evidentiary hearing pursuant to Pa.R.Crim.P.

907.



                                                               -Conviction Relief

                                                      o File Motion to Invoke

Exception to the One-

submitted a request to the Philadelphia Police Department for all of the



Know Law, 65 P.S. § 67.101-67.3104. The Department replied by letter to

Richardson, informing him that he had failed to submit his request using the

mandated statewide request form.        Consequently, the Department did not

consider his request as a Right to Know request, and instead considered it

an informal request for information. Nonetheless, the Department ultimately



because information relating to criminal matters or investigations are

exempt fro                                                See Letter, 1/8/2013;

Letter, 2/7/2013; and 65 P.S. § 67.708(b)(16). On both June 10 and June



Know requests with the PCRA court. Finally, on May 28, 2013, Richardson



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subsequent    pleadings,     the   PCRA    court   entered   an   order   dismissing

              PCRA as untimely on October 28, 2013.

      On November 8, 2013, Richardson filed a notice of appeal. The PCRA

court did not order Richardson to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Richardson did

not file a statement.        Nonetheless, the PCRA court issued an opinion

pursuant to Pa.R.A.P. 1925(a) on January 6, 2014.

      Richardson raises the following three issues for our consideration:


      petition as untimely where the court found that [Richardson]
      attempted to invoke the government interference exception by
      alleging that the unavailability of his trial notes of testimony
      caused counsel not to file a 1925(b) statement [in a prior
      appeal] was previously litigated?


      petition as untimely where the court found that [Richardson] had
      failed to invoke the government interference exception within
      sixty (60) days of when the petition could have been presented?

      Did the PCRA court err in failing to exercise subject matter



Brief for Richardson at 3.



PCRA petition, we begin with the questions of whether the petition was



we have jurisdiction to resolve the substantive claims raised by Richardson.


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It is well-established that the PCRA time limits are jurisdictional, and are

meant to be both mandatory and applied literally by the courts to all PCRA

petitions,   regardless    of   the   potential   merit   of   the   claims   asserted.

Commonwealth         v.    Murray,      753    A.2d    201,    202-03    (Pa.   2000);

Commonwealth v. Leggett,

court may properly disregard or alter [these filing requirements] in order to

reach the merits of the claims raised in a PCRA petition that is filed in an

                          Murray, 753 A.2d at 203; see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).




                                Commonwealth v. Breakiron, 781 A.2d 94, 97

(Pa. 2001) (citing 42 Pa.C.S. §



discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking

             Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005)

(quoting 42 Pa.C.S. § 9545(b)(3)).



allowance of appeal on October 16, 1997.              Hence, Richardson had ninety

days from that date to file a petition for a writ of certiorari with the United

States Supreme Court (see U.S.S.C. Rule 13); to wit, on or about January

14, 1998. Because Richardson did not file such a petition, his judgment of

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J-S47033-14



sentence became final one year after the time to do so expired: on or about

January 14, 1998.     See 42 Pa.C.S. § 9545(b)(1).        Richardson filed the

instant petition on December 3, 2010, almost eleven years after his

judgment of sentence became final. Consequently, the petition facially was

untimely.

      Despite such facial untimeliness, a tardy PCRA petition nonetheless will

be considered timely if (but only if) the petitioner pleads and proves one of

the   three   exceptions   to   the   one-year   time   limit   enumerated   in

§§ 9545(b)(1)(i)-(iii) of the PCRA, which provide:

      (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).


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      Richardson first maintains that his petition is timely pursuant to the

governmental interference exception.        Id. § 9545(b)(1)(i).      Initially,

Richardson notes that he has uncovered after-discovered evidence that was

favorable to his defense. Specifically, Richardson explains that, on June 5,

1993, he and his co-defendant were stopped by a police officer and searched

for a weapon. No weapon was found. Additionally, Richardson points out,



6:46 p.m., Radio Patrol Car 2614, provided police radio with a flash of the



information in the statement of police officer Frank Polumbo regarding the



argues that he did not know of this information, and could not have

uncovered or utilized the information at a prior time in the proceedings,



by suppressing the fact that on June 5, 1993, [Richardson] was stopped and



Richardson offers no explanation whatsoever as to how a government official

actually interfered with his ability to uncover this information, or to present

this information in a prior PCRA proceeding. Furthermore, Richardson does

                                                                 ation of the

Constitution or laws of this Commonwealth or the Constitution or laws of the




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not established the applicability of the governmental interference exception

                time bar. This underdeveloped claim necessarily fails.

       Richardson also argues in his brief that his petition was timely under

the newly-discovered fact exception.           Id. § 9545(b)(1)(ii).   The only fact

that Richardson claims to be newly-discovered is the alleged favorability of

the June 5, 1993 traffic stop.         See Brief for Richardson at 17.     However,

central to the applicability of the newly-discovered fact exception is the

requirement that the fact be unknown to the PCRA petitioner. Undeniably,

Richardson knew that he was stopped and searched by the police on June 5,

                                                                   -discovered fact

exception renders his petition timely lacks merit, and fails.2

       Finally, Richardson argues that the PCRA court erred by concluding



proceedings. On this point, the PCRA court explained as follows:

       In his June 18, 2013 filing, [Richardson] requests [the PCRA
       court] to compel the police department to release records under
       the Right to Know Law. Attached [to the filing] is a denial of his

       appeal of this decision, and the denial of the appeal by the
                                                     dson] insists that
       jurisdiction vests with the [PCRA court], but he is mistaken. An

____________________________________________


2
       Richardson also argues that these claims were not previously litigated,
see Brief for Richarsdon at 18, and that they were raised within sixty days,
id. at 19, both of which were findings made by the PCRA court. Because we
conclude above that Richardson has not met the substantive elements of
either stated exception, we need not address these two arguments.



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        Open Records. 65 P.S. § 67.1102(a)(2).

P.C.O. at 5 n.8.

        The PCRA court was correct by concluding that it lacked jurisdiction

over the substantive claim. Pursuant to 65 P.S. § 67.1101, an appeal from

the denial of a written request for information must be directed to the Office

of Open Records or judicial, legislative or other appeals officer designated

under

a particular officer or officers to hear such appeals. 65 P.S. § 67.503. The

PCRA court in this case was not a subsection 503 hearing officer, nor, of

course, was the PCRA court the Office of Open records. Consequently, the

PCRA court correctly determined that it lacked subject matter jurisdiction



        For the foregoing reasons, neither this Court nor the PCRA court

possess jurisdiction to reach




Court nor the PCRA court had subject matter jurisdiction ove

Right to Know claim.

        Order affirmed.




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J-S47033-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2014




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