Com. v. Cash, O.

Opinion

J-S53045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : OMAR CASH : : Appellant : No. 122 EDA 2018

Appeal from the PCRA Order December 4, 2017 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003526-2008

BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 02, 2018

Appellant, Omar Cash, appeals from the order entered in the Bucks

County Court of Common Pleas, which denied his second petition per the Post-

Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. On May 27,

2010, a jury convicted Appellant of first-degree murder, rape, and numerous

other offenses in connection with his murder of one victim and rape of another

victim, MCDA. Relevant to this appeal, MCDA was not in the United States

legally at the time of the crimes. The Commonwealth and federal government

helped MCDA obtain a U-Visa, which grants temporary legal status and work

eligibility to crime victims who cooperate with prosecution. Appellant is

currently serving an aggregate sentence of life in prison plus 68½ to 137

years’ imprisonment, which the court entered on June 2, 2010, and amended,

pursuant to post-sentence motions, on November 12, 2010. This Court

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S53045-18

affirmed the judgment of sentence on December 14, 2011; our Supreme Court

denied allowance of appeal on May 31, 2012. See Commonwealth v. Cash,

40 A.3d 191 (Pa.Super. 2011), appeal denied, 616 Pa. 632, 47 A.3d 844

(2012). Appellant timely filed pro se his first PCRA petition on August 15,

2012. After multiple PCRA hearings, the PCRA court denied relief on February

5, 2015. This Court affirmed the denial of PCRA relief on December 28, 2015;

our Supreme Court denied a petition for allowance of appeal on June 29, 2016.

See Commonwealth v. Cash, 135 A.3d 667 (Pa.Super. 2015), appeal

denied, 636 Pa. 645, 141 A.3d 478 (2016).

On January 23, 2017, Appellant sent a letter to the Department of

Homeland Security (“DHS”) to request MCDA’s alien file. DHS responded on

February 22, 2017, stating it could not confirm or deny the existence of

MCDA’s file. On March 17, 2017, Appellant filed a motion to compel against

DHS, which the magisterial district court denied on April 17, 2017. Appellant

filed the current pro se PCRA petition on June 12, 2017, and amended it on

June 29, 2017. On August 10, 2017, the PCRA court conducted a hearing.

The PCRA court denied relief on December 4, 2017. Appellant timely filed a

notice of appeal on December 29, 2017. On January 3, 2018, the PCRA court

ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors;

Appellant timely complied on January 24, 2018.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

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petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The statutory

exceptions to the PCRA time-bar allow for very limited circumstances to

excuse the late filing of a petition; a petitioner asserting a timeliness exception

must file a petition within 60 days of when the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s judgment of sentence became final on August 29,

2012, following the 90 days for filing a petition for certiorari with the U.S.

Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current PCRA

petition on June 12, 2017, which is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1). Appellant now attempts to invoke the new-facts exception per

Section 9545(b)(1)(ii), claiming the possibility of non-existence of MCDA’s U-

Visa would have provided impeachment evidence at trial. Nevertheless,

Appellant failed to prove how, with the exercise of due diligence, he could not

have discovered this “fact” earlier, when MCDA’s U-Visa status was discussed

as early as a pre-trial hearing on May 3, 2010. See 42 Pa.C.S.A. §

9545(b)(1)(ii). Additionally, the DHS letter neither confirms nor denies the

existence of MCDA’s U-Visa and is itself arguably not a “new” fact. Appellant

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also attempts to invoke the governmental interference exception per Section

9545(b)(1)(i), alleging the prosecution did not disclose material information

of MCDA’s immigration status; but, Appellant failed to plead or prove how the

government prevented him from bringing this claim. See 42 Pa.C.S.A. §

9545(b)(1)(i). Thus, Appellant’s current petition remains time-barred, and

the PCRA court lacked jurisdiction to review it. See Zeigler, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/2/18

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