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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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