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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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