Com. v. Gale, A.
CourtSuperior Court of Pennsylvania
Date FiledOctober 27, 2026
Docket766 MDA 2026
JudgeBowes
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE M. GALE :
:
Appellant : No. 766 MDA 2026
Appeal from the PCRA Order Entered April 28, 2026
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002716-1995
BEFORE: BOWES, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: OCTOBER 27, 2026
Andre M. Gale appeals pro se from the order that denied his “Motion to
Vacate Order, Sentence” as an untimely, serial Post Conviction Relief Act
(“PCRA”) petition. We affirm.
Appellant is serving a sentence of life imprisonment for convictions of
first-degree murder and conspiracy. His judgment of sentence became final
in January 1998 at the conclusion of direct review, and his first five PCRA
petitions were unsuccessful. See Commonwealth v. Gale, 108 A.3d 121,
2014 WL 10795243 (Pa.Super. 2014) (unpublished memorandum) (detailing
the procedural history of the case through Appellant’s fourth PCRA petition
and affirming the denial of his fifth).
The instant proceedings commenced when Appellant submitted the
motion to vacate at issue in this appeal. Therein, he asserted that the
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Commonwealth committed a fraud upon the court by filing a notice of
aggravating circumstances justifying the death penalty that was unsupported
by the facts, and that the trial court improperly waited until after the verdict
to grant Appellant’s motion to quash the capital prosecution. He claimed he
was entitled to relief pursuant to, inter alia, Giglio v. United States, 405
U.S. 150 (1972) (applying Napue v. Illinois, 360 U.S. 264 (1959), in holding
that due process rights are violated when the prosecution deceives the court
by presenting false evidence or failing to disclose evidence affecting witness
credibility); Great Am. Credit Corp. v. Thomas Mini-Markets, Inc., 326
A.2d 517, 519 (Pa.Super. 1974) (en banc) (“Where equity demands, the
power of the court to open and set aside its judgments may extend well
beyond the term in which the judgment was entered.”); and 42 Pa.C.S. § 5505
(“Modification of orders”). He also invoked Commonwealth v. Wrecks, 934
A.2d 1287, 1289 (Pa.Super. 2007), in suggesting that “a misrepresentation of
fact and suppres[s]ion of the truth ... cumulatively tainted [the]
disc[r]etionary aspects of his sentence.” Motion to Vacate, 7/3/24, at 1.
Although it is dated in April 2024, Appellant’s motion was not docketed
until July 3, 2024, and was not immediately forwarded to the PCRA court. In
mid-July 2024, he filed a request for an evidentiary hearing, which the PCRA
court denied on the basis that there was nothing pending on which to hold a
hearing. Appellant appealed the dismissal order, but he discontinued the
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appeal to permit the PCRA court to resolve the underlying motion. See Order,
3/6/25 (filed at 1212 MDA 2024).
By order of June 30, 2025, the PCRA court announced that it would
review Appellant’s motion to vacate sentence as a PCRA petition and directed
the Commonwealth to file a response. The Commonwealth complied and
proposed that the court issue a Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition without a hearing. Appellant replied to the Commonwealth’s
suggested notice in August 2025. The PCRA court subsequently filed a Rule
907 notice in which it indicated that it would dismiss Appellant’s pleading
because it “was filed approximately twenty-five years beyond the deadline.”
Memorandum Opinion, 12/31/25, at 4. Appellant filed an interlocutory appeal
from the Rule 907 notice that this Court quashed. See Order, 2/13/26 (filed
at 66 MDA 2026). Thereafter, the PCRA court entered a final order dismissing
his motion, and this appeal followed. The court did not order Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and none
was filed. It nonetheless supplied a Rule 1925(a) opinion explaining the
reasoning for its decision.
Appellant presents the following questions for our consideration:
1. Whether judicial impropriety/fraud was present in the
prosecution solely in regard to Appellant?
2. Whether judicial impropriety/fraud was present and
collusion when [the] trial court denied Appellant[’s] pre-trial
motion for severance, accepted the “notice of aggravating
circumstances” filed by the prosecutor[,] and allowed the
pursuit of the capital prosecution against [Appellant]?
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3. Whether 42 Pa.C.S. § 9711(d)(7), solely in regard to
Appellant . . ., was applicable?
Appellant’s brief at 4-5 (cleaned up).
As noted, the court treated Appellant’s motion as a PCRA petition.
Appellant maintains that his claims concerning fraud and the discretionary
aspects of his sentence are not cognizable under the PCRA, and should be
considered a request to modify his sentence pursuant to § 5505. Id. at 9.
Thus, before we delve into the substance of Appellant’s questions, we must
first resolve the nature of these proceedings.
Our legislature enacted the PCRA to provide “the sole means of obtaining
collateral relief[,] . . . encompass[ing] all other common law and statutory
remedies for the same purpose that exist[.]” 42 Pa.C.S. § 9542. In other
words, “the PCRA subsumes all forms of collateral relief . . . to the extent a
remedy is available under such enactment.” Commonwealth v. West, 938
A.2d 1034, 1043 (Pa. 2007). We have held that a claim does not fall outside
the domain of the PCRA “[s]imply because the merits of the PCRA petition [at
issue] cannot be considered due to previous litigation, waiver, or an untimely
filing[.]” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super.
2001). Instead, a collateral proceeding may be entertained outside of the
framework of the PCRA only if the claims “fall outside the eligibility parameters
of the PCRA[.]” Commonwealth v. Masker, 34 A.3d 841, 850 (Pa.Super.
2011) (en banc).
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By the terms of the statute, a PCRA petition must be filed within one
year of the date that the petitioner’s judgment of sentence became final unless
he pleads and offers to prove one of the three enumerated timeliness
exceptions. See 42 Pa.C.S. § 9545(b)(1) (providing exceptions in certain
instances of governmental interference, newly-discovered facts, and newly-
recognized constitutional rights). “[I]f [a PCRA] petition is untimely, courts
lack jurisdiction over the petition and cannot grant relief.” Commonwealth
v. Fantauzzi, 275 A.3d 986, 994 (Pa.Super. 2022).
All “issues that are cognizable under the PCRA must be raised in a timely
PCRA petition and cannot be raised in a . . . self-styled petition outside of the
PCRA.” Commonwealth v. Mucci, 327 A.3d 1223, 1234 (Pa.Super. 2024)
(cleaned up) (affirming dismissal of a motion to vacate as an untimely PCRA
petition). Cognizable issues include allegations that a conviction resulted
from, among other things, a constitutional violation, ineffective assistance of
counsel, or the unavailability of subsequently discovered exculpatory
evidence. See 42 Pa.C.S. § 9542(a)(2). However, this Court has held that
challenges to the discretionary aspects of a sentence fall outside the ambit of
the PCRA, such that a motion raising such a claim after the judgment of
sentence has become final must be treated as an untimely post-sentence
motion. See Wrecks, 934 A.2d at 1289.
Here, Appellant’s judgment of sentence became final in 1998. See
Gale, 2014 WL 10795243, at *2. He filed the motion sub judice in 2024,
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purportedly seeking relief for: (1) the denial of his due process rights in
violation of Napue/Giglio; and (2) an abuse of the court’s sentencing
discretion.
As our Supreme Court recently reconfirmed, Napue/Giglio accusations
are cognizable by the PCRA as constitutional-violation claims. See, e.g.,
Commonwealth v. Perez, ___ A.3d ___, 2026 WL 2435416, at *29 (Pa.
Aug. 18, 2026). As such, and in the absence of any allegations that might
support one of the PCRA’s timeliness exceptions, Appellant has failed to
establish that the PCRA court erred in dismissing the untimely petition without
a hearing.1 Furthermore, since the claim falls within those recognized by the
PCRA, § 5505 does not provide an alternative avenue for relief. See
Commonwealth v. Arnold, 256 A.3d 15, 2021 WL 1830367, at *6
(Pa.Super. 2021) (non-precedential decision) (“To the extent Appellant
contends [§] 5505 provides an avenue for relief, we disagree. Appellant’s
claim falls under the PCRA. Thus, he is required to prove the applicability of
one of the time-for-filing exceptions in order to obtain relief pursuant to a
facially untimely petition.”).
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1 This Court reviews “an order dismissing or denying a PCRA petition as to
whether the findings of the PCRA court are supported by the record and are
free from legal error.” Commonwealth v. Howard, 285 A.3d 652, 657
(Pa.Super. 2022) (cleaned up). “It is an appellant’s burden to persuade us
that the PCRA court erred and that relief is due.” Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).
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If Appellant actually raised a challenge to the discretionary aspects of
his sentence, that portion of the motion would properly be viewed as an
untimely post-sentence motion rather than a PCRA petition. See Wrecks,
934 A.2d at 1289. However, his complaint is that the trial court should have
granted his motion to quash the capital prosecution at the outset instead of
waiting until the jury reached a verdict at the guilt phase of the trial. We fail
to see how this implicates the discretionary aspects of sentencing. See 42
Pa.C.S. § 9781(b) (providing this Court may grant allowance of appeal of the
discretionary aspects of a sentence “where it appears that there is a
substantial question that the sentence imposed is not appropriate under [the
Sentencing Code]”). Indeed, a sentence of life imprisonment without the
possibility of parole was the only available alternative to a death sentence for
a first-degree murder conviction. See 42 Pa.C.S. § 9711.
Instead, it appears that Appellant is attempting to recast his due process
claims as a sentencing challenge to circumvent the time requirements of the
PCRA. As outlined above, the PCRA provides the only mechanism for raising
a constitutional violation after a judgment of sentence has become final. Since
Appellant failed to establish how his due process claim satisfied an
enumerated exception, the PCRA court properly determined that it was
untimely.
In sum, because Appellant’s motion to vacate untimely raised claims
that are cognizable through the PCRA, neither the PCRA court nor this Court
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has jurisdiction to entertain their merits. Thus, the PCRA court’s dismissal
order was proper.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/27/2026
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