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Commonwealth of Pennsylvania v. Jamil Gandy

February 16, 2012


Appeal from the PCRA Order of August 22, 2011 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006456-1984

The opinion of the court was delivered by: Bender, J.




Appellant, Jamil Gandy, appeals pro se from the order entered on August 22, 2011, denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 - 9546. Appellant contends that his otherwise untimely PCRA petition met the timeliness exception contained in 42 Pa.C.S. § 9545(b)(iii), claiming that our Supreme Court's recent decision in Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011), created a new constitutional right held to apply retroactively. Because we hold that Wright does not create a new constitutional right, we affirm.

The factual history was outlined by the PCRA court as follows:

On the evening of October 15, 1984, Gandy approached an acquaintance, Harold Parker, in Media and asked Parker to help him find Ms. Hynson. Parker did not know Gandy had a gun. Had Parker known Gandy had a gun, he would not have given Gandy a ride.

For the next few hours, Parker drove Gandy to locations in Chester and Twin Oaks, but Gandy was unable to find Ms. Hynson. Gandy then directed Parker to drive to Scott Paper's foam plant in Eddystone, where Ms. Hynson worked as a security guard. When they arrived, Parker watched Gandy walk up to the guardhouse and saw a fight break out about one minute later. Parker did not want to be "involved in things like that" and immediately drove away. He heard two shots fired as he was leaving.

Later that night, Gandy turned himself in at the Chester Police Department. He stated that he had a gun when he went to the plant; that he wrestled with Ms. Hynson; that Ms. Hynson stood up and came toward him; and that he shot her and ran away.

At the crime scene, CID Detective King collected two blood samples from nearby Ms. Hynson's head and near the guardhouse door. A police serologist testified that one blood sample was type A blood; the other was type AB.*fn1 Ms. Hynson's blood was type A. Since one person cannot have two blood types, it was reasonable to infer that the AB sample came from Gandy*fn2 during the violent struggle in the guardhouse.

Detective King observed several other blood spots on the ground outside the booth but was not able to recover samples from them.

Gandy's counsel argued that "two detectives... testified that Jamil Gandy was not injured in any way whatsoever" when he turned himself in at the Chester police station. Tr. 514; see also Tr. 457-60 (testimony of Detective Tyler and Peifer that they did not observe any injuries when Gandy turned himself in, and that Gandy was not complaining of any injuries). Moreover, Gandy's counsel contended that (a) three "pools of blood" found at the scene were unaccounted for, (b) there were two types of blood at the scene, and (c) one of the blood samples did not come from either Ms. Hynson or Gandy.

PCRA Court Opinion, 11/01/11, 1 - 3 (trial transcript citations omitted, footnotes in original).

The jury convicted Gandy of first-degree murder and possession of a firearm without a license. On March 25, 1985, he was sentenced to life imprisonment for the murder conviction, and to a concurrent term of 1 - 2 years' imprisonment for the firearms offense.

Gandy sought relief on direct appeal, but we affirmed Gandy's judgment of sentence on April 7, 1986. Commonwealth v. Gandy, 512 A.2d 724 (Pa. Super. 1986). Our Supreme Court subsequently denied his Petition for Allowance of Appeal. Commonwealth v. Gandy, 412 E.D. Allocatur Docket 1986 (12/29/86).

On July 17, 1990, Gandy filed his first PCRA petition raising claims of ineffective assistance of trial counsel. Gandy was appointed counsel. On September 27, 1990, the PCRA court notified Gandy of its intent to dismiss his PCRA petition and Gandy responded to the notice.

On October 30, 1990, the PCRA Court issued an Order dismissing the petition, and a written opinion dated December 10, 1990. On May 30, 1991, we issued a Memorandum Opinion and Order affirming the dismissal of the PCRA petition, and our Supreme Court subsequently denied Gandy's Petition for Allowance of Appeal. ...

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