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HomeMy WebLinkAboutCP-21-CR-1262-2004 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1262-2004 : : YASSIN H. MOHAMAD : IN RE: PCRA HEARING BEFORE HESS, J. MEMORANDUM AND ORDER Pending before the court is the defendant’s motion for post-conviction collateral relief. The defendant was sentenced on February 2, 2005, to a term of sixteen to thirty-two months in a state correctional institution on a count of aggravated harassment by a prisoner. The charge arose out of an incident during which the defendant, as an inmate, spit on a guard at the State Correctional Institution at Camp Hill. Mr. Mohamad represented himself at the trial with Michael Rentschler, Esquire, as standby counsel. At the time of his sentencing he was reminded that he had chosen to waive representation by counsel and that, unless he made application to the court, the filing of a post-sentence motion or an appeal was his responsibility. No appeal was taken in this case and the defendant cannot cite ineffectiveness of counsel as the reason for the lack of appellate review. The judgment in this case became final on March 2, 2005. The defendant did not file his PCRA petition until September 7, 2006. It is clear that the petition has been filed beyond the time limit allowed by statute. The Judicial Code provides, at 42 Pa.C.S.A. Section 9545, that: (a) 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: CP-21-CR-1262-2004 (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 (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. The defendant suggests that after-discovered evidence may excuse him from the one-year time limit. Specifically, he contends that a Mr. David Henry was an eyewitness to the incident and would have been called to testify had Mr. Mohamad known of him at the time of the trial. In did fact, the defendant know of Mr. Henry at the time of the trial. Mr. Henry was on the defendant’s witness list and was available to testify and the defendant chose not to call him. Trial N.T. 151. The defendant’s contention that he did not know about Mr. Henry is at the least disingenuous and is, arguably, a blatant falsehood. The defendant raises one other matter in his PCRA petition. He contends, namely, that DNA testing should have been conducted with respect to the saliva on the shirt of the corrections officer. He contends that his attorney was ineffective in failing to pursue this investigative testing. Again, we note that the PCRA petition is filed out of time. In any event, the defendant waived counsel. Moreover, the Commonwealth offered at least four eyewitnesses and the entire incident was captured on videotape. 2 CP-21-CR-1262-2004 ORDER AND NOW, this day of March, 2008, the petition of the defendant for post- conviction collateral relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Chief Deputy District Attorney Allen Welch, Esquire For the Defendant :rlm 3 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1262-2004 : : YASSIN H. MOHAMAD : IN RE: PCRA HEARING BEFORE HESS, J. ORDER AND NOW, this day of March, 2008, the petition of the defendant for post- conviction collateral relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Michelle Sibert, Esquire Chief Deputy District Attorney Allen Welch, Esquire For the Defendant :rlm