J-S02042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIL GANDY
Appellant No. 1672 EDA 2016
Appeal from the PCRA Order May 18, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006456-1984
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED JUNE 05, 2017
Jamil Gandy appeals, pro se, from the May 18, 2016 order of the
Delaware County Court of Common Pleas dismissing as untimely his fifth
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
Our prior PCRA opinion in this case sets forth a comprehensive
recitation of the facts and procedural history. See Commonwealth v.
Gandy, 38 A.3d 899 (Pa.Super. 2012).
On January 24, 1985, a jury convicted Gandy of first-degree murder
and carrying a firearm without a license.1 On March 25, 1985, the trial court
sentenced him to life imprisonment for the murder conviction and a
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1
18 Pa.C.S. §§ 2502(a) and 6106(a).
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concurrent term of 1 to 2 years’ incarceration for the firearm conviction. On
April 7, 1986, we affirmed Gandy’s judgment of sentence. On December 29,
1986, the Pennsylvania Supreme Court denied Gandy’s petition for allowance
of appeal.
Thereafter, Gandy filed numerous petitions in both state and federal
courts seeking post-conviction relief, all of which were denied. On July 2,
2015, Gandy filed a petition for writ of habeas corpus, which the PCRA court
properly treated as his fifth PCRA petition.2 On April 7, 2016, the trial court
issued a Rule 907 notice of intent to dismiss and, on May 18, 2016,
dismissed Gandy’s petition. On May 27, 2016, Gandy timely filed his notice
of appeal.
Gandy raises the following issues on appeal:
I. Whether the lower court erred when it dismissed
[Gandy’s] Writ/PCRA petition without a hearing nor
appointed counsel which [sic] to resolve the
Constitutional violations that occurred prior to any
preliminary normal/common procedures.
Procedures such as furnishing available evidence and
other pertinent material he was under the
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2
See 42 Pa.C.S. § 9542 (“The action established in this subchapter
shall be the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus and coram
nobis.”); see also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa.
2001) (“No other statutory or common law remedy ‘for the same purpose’ is
intended to be available; instead, such remedies are explicitly ‘encompassed’
within the PCRA.”).
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Pennsylvania and United States Constitution’s [sic]
entitled to by law.
II. Whether appellant was the knowing subject of
violations of prosecutorial misconduct when the
Delaware County District Attorney’s Offices without
knowledge of the Trial Court or [Gandy’s] counsel
solicited to the Pennsylvania State Police to destroy
immediately any and all blood and DNA forensic
evidence that they forwarded to them for testing.
III. Whether the court ever entered an appropriate
disposition upon the arguments [Gandy] discovered
after all major appellant [sic] statutes of limitations
had expired based upon all prior counsels for the
defense were Constitutionally ineffective and failed
to with due diligence locate and bring said matter to
the trial/appellant [sic] courts that there [sic] failure
to present such exclusive data during trial and
appellant [sic] processes prevented [Gandy] from
vi[n]dicating himself from a 1st degree murder trial
with a subsequent life imposed sentence.
IV. Whether the record clearly demonstrates bond [sic]
clear and convincing evidence within the entire
record of Brady v. Maryland[3]: violations.
Whereas there exist within the entire record of [sic]
failure to disclose various evidence existed and was
destroyed within a mere 2-weeks after [Gandy’s]
arrest without leave of the courts.
Gandy’s Br. at 3 (unnecessary capitalization omitted).
Before addressing the merits of Gandy’s present PCRA petition, we
must first determine whether his petition is timely. Under Pennsylvania law,
no court has jurisdiction to hear an untimely PCRA petition. See
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010);
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3
373 U.S. 83 (1963).
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Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super. 2007)
(timeliness requirement of the PCRA is “mandatory and jurisdictional in
nature”) (quoting Commonwealth v. Carr, 768 A.2d 1164, 1167
(Pa.Super. 2001)). “[A] PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final.” Monaco, 996 A.2d at 1079; see 42 Pa.C.S. § 9545(b)(1).
A judgment 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. § 9545(b)(3).
There are three exceptions to the PCRA’s time bar, establishing the
limited circumstances under which the late filing of a petition will be
excused. Monaco, 996 A.2d at 1079 (citing 42 Pa.C.S. § 9545(b)(1)). For
one of the exceptions to apply, a petitioner must allege and prove one of the
following:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Further, a petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).
Gandy’s judgment of sentence became final on March 30, 1987, when
the time for seeking review in the United States Supreme Court expired.
Gandy’s current PCRA petition, filed on July 2, 2015, is patently untimely.
Gandy’s petition attempted to allege the governmental interference and
newly discovered facts exceptions to the one-year time bar. He alleged that
the prosecutor purposefully requested that all forensic evidence in Gandy’s
case be destroyed two weeks after his arrest. He contends that this
constitutes governmental interference and a new fact. However, he failed to
establish that he filed the instant petition within 60 days of learning this
allegedly new information. Moreover, in his brief, he does not set forth that
he has raised these claims within the required 60 days.
Further, in his third PCRA petition, filed on April 25, 2011, Gandy
raised a nearly identical claim – alleged willful destruction of potential DNA
evidence. Thus, since approximately six years have passed since he filed
that petition alleging the destruction of forensic evidence, his current
petition has well-exceeded the 60-day requirement. See 42 Pa.C.S. §
9545(b)(2). Therefore, the PCRA court properly dismissed his current PCRA
petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2017
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Com. v. Gandy, J.
Combined Opinion