J-S50015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

CECIL HOLMES

                        Appellant                  No. 1964 EDA 2014


                Appeal from the PCRA Order May 30, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0721531-1979


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 05, 2015

     Appellant, Cecil Holmes, appeals pro se from the order dismissing his

petition for writ of habeas corpus as an untimely petition pursuant to the

Post Conviction Relief Act (“PCRA”).     We conclude that the trial court

correctly treated Holmes’s petition as a PCRA petition, and further, that the

petition was untimely. We therefore affirm.

     On March 28, 1980, a jury found Holmes guilty of second degree

murder, robbery, and criminal conspiracy, and he was subsequently

sentenced to an aggregate sentence of life in prison.     The judgments of

sentence were affirmed by the Supreme Court of Pennsylvania on July 5,

1983. In the following decades, Holmes filed multiple collateral attacks on

his judgments of sentence, all of which were denied.
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      On December 18, 2007, he filed the instant petition, which he later

supplemented. In his petition, Holmes raised ten explicit issues: (1) that

his confession was the result of coercive police tactics; (2) that he was

denied his right to a fair and impartial preliminary hearing; (3) that he was

denied his right to confront his accuser; (4) that the trial court lacked

subject matter jurisdiction over his prosecution; (5) that trial counsel, the

prosecutor, and the trial court conspired to deny his right to a fair and

impartial trial by jury; (6) prosecutorial misconduct and trial counsel

ineffectiveness regarding discovery; (7) that a previous PCRA court had

acted in manner to deprive him of his right to a fair collateral proceeding;

(8) that former PCRA counsel provided ineffective assistance of counsel on

appeal; (9) that he was denied a fair and impartial trial due to trial counsel’s

conflict of interest in allegedly concurrently representing the Fraternal Order

of Police; and (10) a summary allegation that his trial violated the 4th, 5th,

6th, 13th, and 14th amendments to the Constitution of the United States.

After the Supreme Court of Pennsylvania ordered that the case be

reassigned due to inaction, the trial court entered an order dismissing the

petition as an untimely PCRA petition on May 30, 2013. This timely appeal

followed.

      On appeal, Holmes first argues that the trial court erred in concluding

that his petition was subject to the jurisdictional requirements of the PCRA.

The scope of the PCRA’s eligibility requirements is to be construed broadly in


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accordance with the legislature’s intent to provide a unitary system for

collateral relief. See Commonwealth v. Hackett, 598 Pa. 350, 363, 956

A.2d 978, 986 (Pa. 2008).            As such, the PCRA subsumes state habeas

corpus claims so long as the PCRA provides a possible remedy for the claim.

See id., at 985-986. All of the alleged errors contained in Holmes’s petition

are cognizable claims under the PCRA.                See, e.g., Hackett.      See also

Commonwealth           v.   Dickerson,         900   A.2d   407   (Pa.   Super.   2006).

Therefore, the trial court properly concluded that the petition was subject to

the requirements of the PCRA.            Holmes’s first issue on appeal merits no

relief.

          In his second and third issues, Holmes argues that the PCRA court1

erred in concluding that he had not established the after-discovered

evidence exception to the time-bar.             A PCRA petition must be filed within

one year of the date that the judgment of sentence becomes final. See 42

Pa.C.S.A.      §   9545(b)(1).       “The      PCRA    timeliness   requirements     are

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

petitions.”    Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004)

(citation omitted). As Holmes’s PCRA petition was filed over 20 years after




____________________________________________


1
  Having established that the petition was properly addressed under the
PCRA, we adjust our reference from “trial court” to “PCRA court.”



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the Supreme Court of Pennsylvania affirmed his judgments of sentence,2 it

was not timely, and “the courts have no jurisdiction to grant [Holmes] relief

unless he can plead and prove that one of the exceptions to the time bar

provided in 42 [Pa.C.S.A.] § 9545(b)(1)(i)-(iii) applies.”    Commonwealth

v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000). See also Commonwealth

v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc) (“Since

Appellant’s PCRA petition is untimely, our review focuses on whether

Appellant has pled and proven that one of the three limited exceptions to the

timeliness requirements of the PCRA apply.”).

       The PCRA provides for three general exceptions to the timeliness

requirements.

       (b) Time for filing petition.—

         (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

____________________________________________


2
  There is no indication that Holmes filed an appeal to the Supreme Court of
the United States.



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            (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.A. § 9545(b)(1)-(2).     “[T]o establish jurisdiction under Section

9545(b)(1)(ii), a petitioner must allege and prove … his exercise of due

diligence in discovering” the newly discovered facts.     Commonwealth v.

Brown, 111 A.3d 171, 179 (Pa. Super. 2015) (emphasis supplied).

      Holmes contends that he has met the exception contained in

subsection (b)(1)(ii), commonly called the newly discovered evidence

exception. Specifically, Holmes has attached several statements by various

third parties that he argues are exculpatory. However, Holmes never pled

that he could not have discovered these statements earlier, let alone a

reason why he could not have discovered them earlier. Therefore, the PCRA

court correctly concluded that Holmes had failed to allege sufficient facts to

allow for the application of the newly-discovered evidence exception to the

time-bar. Holmes’s final two issues on appeal merit no relief.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/2015




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