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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


       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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