J-S66029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GLYNN A. HOLDER

                        Appellant                    No. 286 MDA 2016


               Appeal from the PCRA Order February 4, 2016
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0004275-1998


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

MEMORANDUM BY PANELLA, J.                      FILED NOVEMBER 07, 2016

      Appellant, Glynn A. Holder, appeals from the order entered February

4, 2016, by the Honorable John S. Kennedy, Court of Common Pleas of York

County, which denied his sixth petition filed pursuant to the Post Conviction

Relief Act (“PCRA”) as untimely. We affirm.

      Holder was convicted on March 3, 1999, of rape, involuntary deviate

sexual intercourse (“IDSI”), indecent assault, criminal solicitation to commit

rape, criminal solicitation to commit IDSI, criminal solicitation to commit

statutory sexual assault, four counts of corruption of minors, and two counts

of endangering the welfare of children. On May 24, 1999, the trial court

sentenced Holder to an aggregate term of 31½ to 63 years’ imprisonment.

This Court affirmed Holder’s judgment of sentence on September 22, 2000.
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Holder did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

     On January 10, 2001, Holder filed a PCRA petition, which the PCRA

court dismissed on April 6, 2001. This Court affirmed the dismissal on

September 10, 2002, and the Supreme Court denied allocator. Thereafter,

on September 15, 2005, Holder filed his second PCRA petition, which was

again dismissed by the PCRA court. This Court affirmed the dismissal on

February 16, 2007, and the Supreme Court denied the petition for allowance

of appeal. Holder filed a third PCRA petition on October 16, 2008, which the

PCRA court dismissed as untimely on October 23, 2008. This Court affirmed

the dismissal on November 13, 2009, and the Supreme Court denied review

on July 19, 2010.

     On July 16, 2012, Holder filed his fourth PCRA petition. The PCRA court

dismissed Holder’s petition as untimely on July 30, 2012. This Court affirmed

the dismissal on April 8, 2013. Holder’s fifth petition, filed on October 3,

2014, was dismissed as untimely. This Court affirmed the dismissal on May

15, 2015.

     Less than two months later, Holder filed a document entitled “Petition

of Actual Innocence.” The PCRA court treated the document as Holder’s sixth

PCRA petition, and once again dismissed the petition as untimely. This timely

appeal followed.




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      Preliminarily, we note that we are without jurisdiction to entertain

Holder’s PCRA petition. It is axiomatic that a PCRA petition, including a

second or subsequent 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). If

a petition is filed after that one year date, the general rule is that the PCRA

court lacks jurisdiction to hear the petition. However, section 9545(b)

provides for three limited circumstances to the general rule in which such a

petition may be filed beyond that one-year period. That section provides, in

pertinent part, the following:


      (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:

                                    …

      (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) 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)(ii), (2). See also Commonwealth v. Pursell,

749 A.2d 911, 914-915 (Pa. 2000) (“The courts have no jurisdiction to grant

[a litigant] 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.”);

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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 timeliness exception set forth in Section 9545(b)(1)(ii)
     requires a petitioner to demonstrate he did not know the facts
     upon which he based his petition and could not have learned
     those facts earlier by the exercise of due diligence. Due diligence
     demands that the petitioner take reasonable steps to protect his
     own interests. A petitioner must explain why he could not have
     learned the new fact(s) earlier with the exercise of due diligence.
     This rule is strictly enforced. Id. Additionally, the focus of this
     exception is on the newly discovered facts, not on a newly
     discovered or newly willing source for previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015) (citations

and quotation marks omitted) (emphasis omitted).

     In the instant case, this Court affirmed Holder’s judgment of sentence

on September 22, 2000. Holder’s judgment of sentence thereafter became

final upon expiration of the time to file a Petition for Allowance of Appeal

with the Pennsylvania Supreme Court, on October 23, 2000. See Pa.R.A.P.

1113. Holder’s current PCRA petition was not filed until July 9, 2015, and is

patently untimely, as it was filed almost 15 years after Holder’s judgment of

sentence became final. As such, the PCRA court lacked jurisdiction to review

Holder’s petition unless he pled and proved in his petition that one of the

statutory exceptions was applicable.

     Instantly, Holder purports to invoke the so-called “newly discovered

fact” exception to the PCRA time bar.          Holder argues that he has

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“discovered” the testimony of eight alibi witnesses. He asserts that these

witnesses would testify to his presence at other locations on the dates and

times of the crimes for which he was convicted.

      Holder’s alibi witnesses are not newly discovered facts. They are newly

discovered sources that support Holder’s belief that he was somewhere else

when the crimes were alleged to have occurred. Holder should have been

aware of his potential alibi prior to trial. His potential alibi is not a new fact.

The discovery of new sources for a previously known fact does cannot satisfy

Holder’s burden under § 9545(b)(1)(ii). See Commonwealth v. Johnson,

863 A.2d 423, 427 (Pa. 2004).

      As Holder therefore fails to properly invoke an exception to the

timeliness requirements of the PCRA listed under § 9545, we find his petition

is patently untimely and was properly denied.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




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