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

v.

TYWAN ADAMS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1270 WDA 2021 Appeal from the PCRA Order Entered October 12, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0000350

- 2014 BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 28, 2022 Tywan Adams (“Adams”) appeals pro se from the order dismissing his
serial petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm. The factual and procedural history of this ca se is as follows. In Oct ober 2013, Erie City Patrol Officer Ira Bush was responding to the site of a reported domestic disturbance involving a man with a gun , when he received instructions from other officers to stop a sports utility vehicle (“SUV”) departing from the scene. Officer Bush stopped the SUV, which had three occupants , including Adams, who was seated in the back. The driver , w ho owned the SUV, consent ed to a search of the vehicle . Behind Adam s ’s seat,

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1 See 42 Pa.C.S.A. §§ 9541

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Officer Bush found a bag containing a semi

- automatic rifle. Adams, whom Officer Bush had handcuffed, tried to jump over a fence when he saw Officer
Bush discover the rifle. The Commonwealth charg ed Adams with perso ns not to possess firearms and carrying a firearm without a licen s e. 2 Adams proceeded to a

non - jury trial in June 2014, and the trial court convicted him of both offenses

. In August 2014, the trial court imposed a n aggregate sentence of 102 to 204
months of incarceration. This Court affirmed Adams’s judgment of sentence
in 2015 , and our Supreme Court denied his petition for allowance of appeal

o n December 30, 2015. See Commonwealth v. Adams , 122 A.3d 1148 (Pa. Super. 2015), appeal denied , 130 A.3 d 1285 (Pa. 2015). Adams did not petition the U.S. Supreme Court for a writ of certiorari

. His judgment of
sentence thus became final on March 29, 2016. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.1. In April 2016, Adams filed a motion for an evi dentiary hearing on newly
discovered evidence , which the lower court treated as a first PCRA petition,
and later dismissed. This Court affirmed the order dismissing Adams’ s PCRA petition. See Commonwealth v. Adams , 175 A.3d 108 9 (Pa. Super. 2017) (unpublished memorandum)

. Adams filed a second PCRA petition in July
2018 , which the PCRA court dismissed. Adams appealed, but he failed to file

_________________ __________ ______ ____ _______ 2 See 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1).J

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a brief, resulting in the dismiss al of his appeal. See Superior Court Order, 9/6/19.
Adams filed his late st PCRA petition , his third, on June 9, 2021 , citing

our Supreme Court’s July 2020 opinion in Commonwealth v. McClelland , 233 A.3d 717 (Pa. 2020) , and asserting that his prior counsel were ineffective
for failing to rais e a claim that the Commonwealth relied solely and improperly on hearsay evidence at his preliminary hearing . The PCRA court issued a
Pa.R.A.P. 907 notice of intent to dismiss the petition as untimely. See Rule 907 Notice of Intent, 7/20/21. 3 Adams timely respond ed to the PCRA court’s notice of intent, and the court dismissed his petition on October 12 , 2021. Adams timely appealed. The PCRA court did not order Adams to file a concise statement of errors complained of pursuant to Pa.R.A.P. 1925.
Adams raises the following issue s for our review:
1. Was [Adams] denied his right to effective assistance of counsel in violation of the F ourth, F ifth, S ixth, and F ourteenth A mendments when counsel failed to object to preliminary hearing hearsay testimony provided by [the] C ommonwealth ’ s sole witness, P atrolman I ra B ush, recognizing C ommonwealth v. Mc C lelland , 233 A .3d 717 ( Pa. 2020), clarifying that C

ommonwealth ex rel. Buchanan v. Verbonitz , 581 A .2d 172 ( P a. 1990) is and was the law at the time of [Adams’ s ] prelimi nary hearing?
2. W as [Adams] denied his right to effective assistance of appellate counsel in violation of the F ourth, F ifth, S ixth, and

_________________ __________ ______ ____ _______ 3 As noted above, Adams’s judgment of sentence became final on March 29, 2016 . He therefore had until March 29, 2017 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b)(1).J

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- F ourteenth A mendments when counsel failed to challenge the lawfulness of the C ommonwealth establishing prima facie that a crime was committed based solely on hearsay testimony?
Adams’ s Brief at 4 (unnecessary capitalization omitted)

. Our standard of review of an order dismissing a PCRA petition is well

settled:
Our review of a PCRA court’s decision is limited to examining whether the PCRA court’s findings of fact are supported by the record, and whether its conclusions of law are free from legal error
. We view the record in the light most favorable to the prevailing party in the PCRA c ourt. We are bound by any c redibility determinations made by the PCRA court where they are supported by the record

. However, we review the PCRA court’s legal conclusions de novo

. Commonwealth v. Staton , 184 A.3d 949, 954 (Pa. Super. 2018) ( internal citation and quotations omitte d). Adams alleges ineffective assistance of counsel in both of his issues; but
before we review the se issues on the merits, we must first determine whether Adams properly invoked the PCRA court’s jurisdiction over his facially untimely serial petition.
U nder the PCRA, any petition “ including a second or subsequent petition , shall be filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final “at the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and th e Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.A

. § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, and a court mayJ

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not address the merits of the issues raised if the PCRA pet ition was not timely
filed. See Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010). Pennsylvania courts may still consider an untimely PCRA petition only if the petitioner can plead and prove one of three exceptions set forth in 42 Pa.C.S.A. § 9545 (b)(1) (i)

- (iii)

. 4 See Commonwealth v. Taylor , 65 A.3d 462, 46 8 (Pa. Super. 2013) (providing that a PCRA court must dismiss an untimely petition if no exception is pleaded and proven)

. Adams does not dispute that his petition was untimely but argues that
McClelland is a “reaffirmance of the validity ” of Verbonitz , a case decided before his trial, and that this is “an indication of retroactive intent.” Adams’ s Brief at 12. He further argues that McClelland ha s retroactive applicability because it is a “material change in decisional rule.” Id . at 13. The gravamen
of Adams ’s claim thus appears to be that the PCRA court had jurisdiction over his untimely petition because of a constitutional right subsequently re cognized by the Pennsylvania Supreme Court that the Court held applies retroactive l y. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
The PCRA court considered Adams’s claim and concluded it lacked jurisdiction to entertain his petition on this basis. The PCRA court observed that Adams’s petition was facially untimely and that there is no indication from

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4 Any PCRA petition invoking an exception under S ection 9545(b)(1) “shall be filed within one year of t he date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).J

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our Supreme Court that McClelland has retroactive applicability. See Rule 907 Notice, 7/20/21, at 2

- 3 (unnumbered). Based on our review, the PCRA court’s conclusion is free of legal error. To invoke the PCRA court’s jurisdiction over his facially untimely petition under
S ection 9545(b)(1)(iii), Adams was required to plead and prove that our High
Court has already held the asserted constitutional right is both new and has retroactive applicability

. See Commonwealth v. Leggett , 16 A.3d 1144, 1147 ( Pa. Super. 2011) ; 42 Pa.C.S.A. § 9545(b)(1)(iii). However, Adams
failed to do so. 5 Because Adams did not ple a d and prove the retroactive applicability of McClelland and fails to make the requisite showing now on appeal, we conclude the PCRA court properly determined that he failed to establish the applica bility of Section 9545(b)( 1 )(iii), and that it therefore
la cked jurisdiction to entertain Adams’ s petition. 6 See Taylor , 65 A.3d at

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5 Adams failed to plead a section 9545(b)(1)(iii) claim in his petition, but instead only included it in his response to the PCRA court’s notice of intent to dismiss. Because Adams failed to plead this exception in his petition, we cou ld affirm dismissal of this claim on this basis. See Com monwealth v. Derri ckson , 923 A.2d 466, 469 ( Pa. Super. 2007) (holding, “ [I]f, after he received the PCRA court ’ s notice of its intent to dismiss, [the petitioner] desired to properly allege any of the exceptions enumerated under

. . . § 9545(b)(1), then he should have sough t leave to amend his petition in order to present such allegations. ” ). However, because the PCRA court premised its dismissal of Adams’s petition on section 9 5 45(b)(1)(iii), we address the issue

.
6 In his PCRA petition, Adams attempted to invoke the PCRA court’s jurisdiction under the governmental interference and newly discovered fact exceptions pursuant to S ections 9545(b)(1)(i) and (ii). See Adams’s Third PCRA Petition, (Footnote Continued Next Page)J

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468 ; Com monwealth v. Perrin , 947 A.2d 1284, 1287 ( Pa. Super. 2008) (affirming dismissal of a PCRA petition because “[the] PCRA petition failed to establish a statutory exception to the one

- year jurisdictional time limit for filing a petition under the PCRA . . ..” )

. As such, Adams has failed to show the timeliness excep tion contained in 42 Pa.C.S.A. § 9545(b)(1)(iii) applies.
Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/28/2022

_________________ __________ ______ ____ _______ 6/9/21, at 3. Adams, however, has not asserted on appeal, nor d eveloped any argument, that S ection s 9545(b)(1)(i) or 9545 (b)(1)( ii) apply, and has therefore abandoned these issues. See Commonwealth v. Pacheco , 263 A.3d 626, 649 n.23 (Pa. 2021) (noting that “[i] t is well

- settled that where a claim has been presented to the trial court, but abandoned on appeal, [an appellate court] should not pass upon it [,] because failure to pursue an issue on appeal is just as effective a forfeiture as is the failure to initially raise the issue. ”) (internal brackets, quot ations, and citation omitted).