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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

(“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm. 

 In 1993, Richardson was charged in two separate criminal informations 

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

1993 and June 7, 1993. In Richardson’s direct appeal, we summarized the 

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

follows: 

David Richardson and co-defendant Warren “Monk” Edwards 

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, 

recklessly endangering another person (“REAP”) and weapons 

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 

(“PIC”) and criminal conspiracy. These two sets of charges were 

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 

her grandmothers’ house. Two of her uncles, Gerald Smith (the 

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

[Edwards’] gun passed through his sweatshirt but did not cause 

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

premises. 

Two days later, on June 7, 1993, [Richardson] and [Edwards] 

drove past Natasha’s grandmother’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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On February 6, 1997, we affirmed Richardson’s judgment of sentence. 

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

Richardson’s petition for allowance of appeal. 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. 

Counsel was appointed, and a “no merit” letter pursuant to 

Turner/Finley[

1

] 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] determined that [Richardson’s] request for 

post-conviction collateral relief was untimely filed. 

PCRA Court Opinion (“P.C.O.”), 1/6/2014, at 1-2. On October 27, 2011, the 

PCRA court issued to Richardson notice of its intent to dismiss Richardson’s 

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

907. 

On November 16, 2011, in response to the PCRA court’s Rule 907 

notice, Richardson filed a “Motion for Leave to Amend Post-Conviction Relief 

Act Petition,” and an “Application for Leave to File Motion to Invoke 

Exception to the One-Year Time Limit.” On November 11, 2012, Richardson 

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

police records pertaining to his case pursuant to Pennsylvania’s Right to 

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 

denied Richardson’s request, and a subsequent appeal of that request, 

because information relating to criminal matters or investigations are 

exempt from the Right to Know Law’s parameters. See Letter, 1/8/2013; 

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

18, 2013, Richardson filed a “Petition for Review” pertaining to his Right to 

Know requests with the PCRA court. Finally, on May 28, 2013, Richardson 
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filed a second “Motion for Leave to File Amended Post Conviction Relief Act 

Petition.” After reviewing Richardson’s initial petition, and all of his 

subsequent pleadings, the PCRA court entered an order dismissing 

Richardson’s 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: 

Did the PCRA court err in dismissing [Richardson’s] sixth PCRA 

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? 

Did the PCRA court err in dismissing [Richardson’s] sixth PCRA 

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 

jurisdiction over [Richardson’s] Right to Know Law appeal?

Brief for Richardson at 3. 

As in all PCRA cases, particularly those that involve an appellant’s sixth 

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

timely filed pursuant to the PCRA’s strict time limit, and, therefore, whether 

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, 16 A.3d 1144, 1145 (Pa. Super. 2011). “[N]o 

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 

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

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

“[A]ny PCRA petition, including a second or subsequent petition, must 

be filed within one year of the date that the petitioner’s judgment of 

sentence becomes final.” Commonwealth v. Breakiron, 781 A.2d 94, 97 

(Pa. 2001) (citing 42 Pa.C.S. § 9545(b)(1)). “A judgment becomes final for 

purposes of the PCRA ‘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 

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

(quoting 42 Pa.C.S. § 9545(b)(3)). 

The Pennsylvania Supreme Court denied Richardson’s petition for 

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, 

without any favorable details, that, on June 7, 1993, “from 6:29 p.m. to 

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

suspects,” and that “a woman named Selisa “Nikky” Smith, . . . provided 

information in the statement of police officer Frank Polumbo regarding the 

front seat passenger of the car.” Brief for Richardson at 15. Richardson 

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, 

because “the Commonwealth interfered with his ability to present his claim 

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

searched by police officers.” Brief for Richardson at 16. However, 

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 

not explain how a government official’s action was “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). Consequently, Richardson has 
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not established the applicability of the governmental interference exception 

to the PCRA’s 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, 

1993. Accordingly, Richardson’s claim that the newly-discovered fact 

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

 Finally, Richardson argues that the PCRA court erred by concluding 

that it lacked subject matter jurisdiction over Richardson’s Right to Know 

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 

request from the Philadelphia Police Department, [Richardson’s] 

appeal of this decision, and the denial of the appeal by the 

District Attorney’s Office (DAO). [Richardson] 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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appeal of the DAO’s denial should be taken with the Office of 

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 section 503(d).” Subsection 503(d) directs each branch to designate 

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 

over Richardson’s Right to Know proceeding.

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

possess jurisdiction to reach Richardson’s substantive PCRA claims, because 

Richardson’s December 10, 2010 PCRA petition (his sixth) was untimely, and 

no exception to the PCRA’s time limit applies. Additionally, neither this 

Court nor the PCRA court had subject matter jurisdiction over Richardson’s 

Right to Know claim. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/13/2014