J-S28042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

GLENN A. HOLDER, SR.

                        Appellant                  No. 2013 MDA 2014


             Appeal from the PCRA Order November 6, 2014
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0004275-1998


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                            FILED MAY 15, 2015

     Glenn A. Holder, Sr., appeals from the order of the Court of Common

Pleas of York County dismissing his fifth petition filed under the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

     On May 24, 1999, Holder was sentenced to an aggregate term of 31½

to 63 years’ imprisonment after he was convicted of rape, involuntary

deviate sexual intercourse, indecent assault, and related charges.      His

judgment of sentence was affirmed by this Court on September 22, 2000

and he did not seek allowance of appeal with the Supreme Court.

     Between January 2001 and July 2012, Holder filed four PCRA petitions,

all of which resulted in dismissals that were affirmed by this Court. Holder

filed the instant petition, his fifth, on October 3, 2014.   The PCRA court

dismissed the petition as untimely by order dated November 6, 2014 and
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this timely appeal followed, in which Holder raises the following claim,

verbatim:   Did the lower court err in denial as untimely petitioner[’]s

properly invoked newly after discovered evidence which supports his actual

innocence claim? Brief of Appellant, at 3.

     We begin by noting that our standard of review from the grant or

denial of post-conviction relief is limited to examining whether the PCRA

court’s determination is supported by the evidence of record and whether it

is free of legal error. Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.

Super. 2011) (citation omitted).     We will not disturb findings that are

supported by the record. Id. Moreover, our Supreme Court has stated:

     [I]n reviewing claims for relief in a second or subsequent
     collateral attack on a conviction and judgment of sentence, the
     request will not be entertained unless a strong prima facie
     showing is demonstrated that a miscarriage of justice occurred.
     An appellant makes such a prima facie case only if he
     demonstrates that either the proceedings which resulted in his
     conviction were so unfair that a miscarriage of justice occurred
     which no civilized society could tolerate, or that he was innocent
     of the crimes charged.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citations and

quotation omitted).

     Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the petitioner’s judgment

becomes final. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth

v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997).      There are, however, three

exceptions to the time requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1).



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Where the petition alleges, and the petitioner proves, that an exception to

the time for filing the petition is met, the petition will be considered timely.

These exceptions include:    (1) interference by government officials in the

presentation of the claim; (2) after-discovered facts or evidence; and (3) an

after-recognized constitutional right.   See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000). However, a PCRA petition invoking

one of these exceptions must “be filed within 60 days of the date the claims

could have been presented.” Id.; see also 42 Pa.C.S.A. § 9545(b)(2). A

petitioner fails to satisfy the 60-day requirement of section 9545(b) if he

fails to explain why, with the exercise of due diligence, the claim could not

have been filed earlier. Commonwealth v. Marshall, 947 A.2d 714, 720

(Pa. 2008) (citation omitted). The timeliness requirements of the PCRA are

jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely

petitions. Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).

      Here, Holder’s judgment of sentence became final on October 22,

2000, when his time to file a petition for allowance of appeal to the

Pennsylvania Supreme Court expired.         See 42 Pa.C.S.A. § 9545(b)(3).

Thereafter, Holder had one year, or until October 22, 2001, in which to file a

PCRA petition. Holder filed the instant petition on or about October 3, 2014,

nearly fourteen years after his judgment of sentence became final. As such,

his petition is untimely unless he pleads and proves one of the exceptions to

the time bar under section 9545(b).


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      In his most recent petition, Holder claimed that he was entitled to

relief based upon the “after-discovered evidence” exception to the PCRA

time bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically, Holder asserted

that, on September 9, 2014, he received an affidavit from an individual

named Anna M. Servino, a manager at Holder’s former employer, in which

Servino stated that Holder was at work at the times he was alleged to have

committed his crimes. Holder asserts that the facts contained in Servino’s

affidavit were not available at the time of his trial and, had they been, the

outcome of the trial would have been different. Holder claims that he filed

his   PCRA   petition   within   60   days   as   required   by   42   Pa.C.S.A.   §

9545(b)(1)(ii). Thus, he alleges that the PCRA court erred in denying him

relief in the form of an evidentiary hearing or a new trial.

      The Commonwealth counters that Holder advised his trial counsel of

his work schedule and also had, by his own admission in his brief, “raised

this issue within every petition and every opportunity h[e] has had[.]” Brief

of Appellant, at 9. Accordingly, the Commonwealth argues that the affidavit

does not fall within the after-discovered evidence exception because Holder

is merely presenting previously known facts from a new source. We agree.

      The timeliness exception under section 9545(b)(1)(ii) requires Holder

to allege and prove that there were facts that were unknown to him and

that he could not have earlier ascertained those facts by the exercise of due

diligence. Marshall, 947 A.2d at 720. “The focus of the exception is on the


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newly discovered facts, not on a newly discovered or newly willing source

for previously known facts.” Id. (citation and quotations omitted) (emphasis

in original).

      Here, the “fact” allegedly “discovered” through Severino’s affidavit was

that Holder was at work at the time the alleged crimes were committed.

However, Holder has been claiming this all along, and he acknowledges that

he:   (1) informed trial counsel of his work schedule during the relevant

period; (2) obtained and presented a copy of his work record at a previous

PCRA hearing; and (3) raised the issue at every opportunity he has had.

Brief of Appellant, at 8-9. Accordingly, the “facts” contained in Severino’s

affidavit were not “unknown” to Holder prior to September 9, 2014.

      In light of the foregoing, we can discern no basis upon which to

conclude that the PCRA court erred in dismissing Holder’s petition without a

hearing.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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