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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2014
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