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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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 th at dismissed his sixth petition for relief pursuant to the Post-Conv iction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 -46. We affirm. In 1993, Richardson was charged in two separate crimin al informations with various crimes arising from two related incident s 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 t wo sets of charges as follows:
David Richardson and co- defendant Warren “Monk” Edwards were charged in two separate but related incidents whi ch 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 a ssault, recklessly endangering another person (“REAP”) and weapon s violations. The second of these incidents occurred on Jun e 7, 1993 and resulted in [Richardson] being charged with m urder,J-S47033- 14

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aggravated assault, REAP, possession of an instrument of crime (“PIC”) and criminal conspiracy. These two sets of charges we re consolidated for trial and [Richardson] and [Edwards] w ere tried together. [Richardson] was acquitted of all the crimes charged in relation to the June 5 th 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 7 th incident. The jury deadlocked on the murder charge. [Richardson] was subsequently retried on the murder charge. . . . At the conclusion of trial, [Richardson] w as found guilty of first[-]degree murder. A sentence of life imprisonment was subsequently imposed. * * * The facts underlying the above-charged offenses are as fo llows. 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 i n Philadelphia. An argument took place between [Edwar ds] and Natasha, which culminated in [Edwards] pulling a gun a nd firing a shot into the air. [Edwards] and [Richardson] then l eft the premises. On June 5, 1993, [Richardson] and [Edwards] visited Nat asha at her grandmothers’ house. Two of her uncles, Gerald Smi th (the eventual murder victim) and Ulysses Smith, asked [Edwar ds] 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 th ird 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 le ft the premises. Two days later, on June 7, 1993, [Richardson] and [Edw ards] drove past Natasha’s grandmother’ s house. Gerald and Ulysses Smith were in front of the house. [Richardson], who w as in the front passenger seat, pointed a gun out the window an d 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).J-S47033- 14

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On February 6, 1997, we affirmed Richardson’s judgmen t of sentence. Id. at 2, 9. On October 16, 1997, the Pennsylvania Sup reme 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 di smissal order. On September 4, 2001, [Richardson] filed his second peti tion. 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, 2 003, 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 un timely PCRA petition, and was ultimately dismissed on April 13, 2 005. [Richardson] appealed, and [this Court] affirmed the d ismissal on January 12, 2006. [Richardson] filed his fifth PCRA petition on October 2 0, 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 discontinu e 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 cas e law,

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1 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 214 (Pa. Super. 1998).J-S47033- 14

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[the PCRA court] determine d 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 di smiss Richardson’s sixth PCRA petition without an evidentiary hearing p ursuant to Pa.R.Crim.P. 907. On November 16, 2011, in response to the PCRA court’s R ule 907 notice, Richardson filed a “Motion for Leave to Amend P ost -Conviction Relief Act Petition,” and an “Application for Leave t o File Motion to Invoke Exception to the One- Year Time Limit.” On November 11, 2012, Richardson submitted a request to the Philadelphia Police Departm ent for all of the police records pertaining to his case pursuant to Pennsyl vania’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 D epartment did not consider his request as a Right to Know request, and inst ead considered it an informal request for information. Nonetheless, the Department ultimately denied Richardson’s request, and a subsequent appeal of t hat request, because information relating to criminal matters or inv estigations are exempt fro m 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” per taining to his Right to Know requests with the PCRA court. Finally, on May 28 , 2013, RichardsonJ-S47033- 14

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filed a second “Motion for Leave to File Amended Post C onviction Relief Act Petition.” After reviewing Richardson’s initial petiti on, 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 app eal. 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 issue d an opinion pursuant to Pa.R.A.P. 1925(a) on January 6, 2014. Richardson raises the following three issues for our con sideration: Did the PCRA court err in dismissing [Richardson’s] sixt h PCRA petition as untimely where the court found that [Richa rdson] attempted to invoke the government interference exce ption by alleging that the unavailability of his trial notes of testimony caused counsel not to file a 1925(b) statement [in a pri or appeal] was previously litigated? Did the PCRA court err in dismissing [Richardson’s] sixt h PCRA petition as untimely where the court found that [Rich ardson] had failed to invoke the government interference excepti on within sixty (60) days of when the petition could have been p resented? Did the PCRA court err in failing to exercise subject ma tter jurisdiction over [Richardson’s] Right to Know Law appea l?

Brief for Richardson at 3. As in all PCRA cases, particularly those that involve a n 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 r aised by Richardson.J-S47033- 14

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It is well-established that the PCRA time limits are ju risdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the cla ims 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 re quirements] in order to reach the merits of the claims raised in a PCRA peti tion 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 pe tition, must be filed within one year of the date that the petit ioner’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 Unit ed 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 peti tion for allowance of appeal on October 16, 1997. Hence, Richa rdson 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 petitio n, his judgment ofJ-S47033- 14

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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 ye ars after his judgment of sentence became final. Consequently, the p etition 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 enum erated 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 t he presentation of the claim in violation of the Constitu tion or laws of this Commonwealth or the Constitution or laws o f the United State s; (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 tha t was recognized by the Supreme Court of the United Sta tes 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 clai m could have been presented. 42 Pa.C.S. § 9545(b).J-S47033- 14

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Richardson first maintains that his petition is timely p ursuant to the governmental interference exception. Id. § 9545(b)(1)(i). Initially, Richardson notes that he has uncovered after-discovered ev idence that was favorable to his defense. Specifically, Richardson expla ins 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, R ichardson 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 ra dio with a flash of the suspects,” and that “a woman named Selisa “Nikky” Smith, . . . provided information in the statement of police officer Frank P olumbo regarding the front seat passenger of the car.” Brief for Richardson a t 15. Richardson argues that he did not know of this information, and could not have uncovered or utilized the information at a prior tim e in the proceedings, because “the Commonwealth interfered with his ability t o 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 in formation, or to present this information in a prior PCRA proceeding. Furthe rmore, Richardson does not explain how a government official’s action was “in viol ation of the Constitution or laws of this Commonwealth or the Const itution or laws of the United States.” 42 Pa.C.S. § 9545(b)(1)(i). Conseque ntly, Richardson hasJ-S47033- 14

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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 wa s timely under the newly-discovered fact exception. Id. § 9545(b)(1)(ii). The only fact that Richardson claims to be newly-discovered is the all eged favorability of the June 5, 1993 traffic stop. See Brief for Richardson at 17. However, central to the applicability of the newly-discovered fa ct 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, an d fails. 2 Finally, Richardson argues that the PCRA court erred by concluding that it lacked subject matter jurisdiction over Richard son’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 recor ds under the Right to Know Law. Attached [to the filing] is a denial of his request from the Philadelphia Police Department, [Rich ardson’s] appeal of this decision, and the denial of the appeal by the District Attorney’s Office (DAO). [Richar dson] insists that jurisdiction vests with the [PCRA court], but he is mista ken. An

____________________________________________ 2 Richardson also argues that these claims were not previ ously 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 substantiv e elements of either stated exception, we need not address these two a rguments.J-S47033- 14

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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. § 67.1 101, 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 appea ls officer designated under section 503(d).” Subsection 503(d) directs each branch to d esignate 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 o fficer, nor, of course, was the PCRA court the Office of Open records. Co nsequently, the PCRA court correctly determined that it lacked subject m atter jurisdiction over Richardson’s Right to Know proceeding. For the foregoing reasons, neither this Court nor th e 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. Addit ionally, neither this Court nor the PCRA court had subject matter jurisdictio n ove r Richardson’s Right to Know claim. Order affirmed.J-S47033- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/2014