Com. v. Hopkins, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELWOOD PATRICK HOPKINS
Appellant No. 2058 MDA 2014
Appeal from the PCRA Order November 6, 2014
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0000172-1990
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JULY 14, 2015
Elwood Patrick Hopkins appeals pro se from the order entered in the
Court of Common Pleas of Schuylkill County, dated November 6, 2014,
dismissing his serial petition filed under the Post-Conviction Relief Act
(PCRA)1 as untimely. Hopkins seeks relief from the judgment of sentence of
life imprisonment imposed on April 26, 1993, following his jury conviction of
involuntary manslaughter, arson endangering persons, arson endangering
property, risking a catastrophe, causing a catastrophe, and reckless burning
or exploding.2 Because we agree the petition is untimely, we affirm.
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2501, 2504(a), 3301(a)(1)(i), 3301(c), 3302(b), 3302(a),
3301(d), respectively.
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Hopkins’ convictions arose from an intentionally set fire that occurred
on January 19, 1990, in Mahanoy City, Schuylkill County, Pennsylvania. On
November 14, 1990, the jury acquitted Hopkins of both second-degree and
third-degree murder, but convicted him of the aforementioned charges. This
Court affirmed the judgment of sentence on April 15, 1994. See
Commonwealth v. Hopkins, 645 A.2d 889 (Pa. Super. 1994) (unpublished
memorandum). He did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court.
Since that time, Hopkins has filed numerous appeals from the denial of
relief by the PCRA courts, raising an assortment of claims. His efforts have
been unsuccessful.3 Hopkins filed the present PCRA petition, his fifth, on
September 9, 2014. On October 13, 2014, the PCRA court issued notice of
its intent to dismiss Hopkins’ petition without a hearing pursuant to
Pa.R.Crim.P. 907. Hopkins filed a response on October 29, 2014.
Subsequently, his petition was dismissed by the PCRA court “due to a lack of
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3
See Commonwealth v. Hopkins, 726 A.2d 411 (Pa. Super. 1998)
(unpublished memorandum), Commonwealth v. Hopkins, 830 A.2d 1046(Pa. Super. 2003) (unpublished memorandum), Commonwealth v.
Hopkins, 935 A.2d 13 (Pa. Super. 2007) (unpublished memorandum), and
Commonwealth v. Hopkins, 40 A.3d 182 (Pa. Super. 2011) (unpublished
memorandum).
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jurisdiction,” based on untimeliness.4 PCRA Court Opinion 11/6/2014, at 1.
This appeal followed.5
Our standard of review is as follows:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations
omitted).
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first determine whether the instant
PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,
768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
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4
In the Rule 907 notice, the PCRA court indicated Hopkins had 20 days to
file an amended petition setting forth facts and legal foundation for a
timeliness exception under 9545(b)(1)(ii). Hopkins’ Rule 907 response cited
Han Tak Lee v. Tennis, 2014 WL 3894306 [4:CV-08-1972] (M.D. Pa. June
13, 2014), a United States Magistrate Judge’s Report and Recommendation,
as a newly discovered fact. The PCRA court found this allegation to be
insufficient and dismissed the petition.
5
On December 8, 2014, the PCRA court ordered Hopkins to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
He complied on December 17, 2014. The PCRA court issued a Pa.R.A.P.
1925(a) opinion on February 10, 2015.
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1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id.Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).
A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
is deemed 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 review.” 42 Pa.C.S.
§ 9545(b)(3). Here, Hopkins’ judgment of sentence was affirmed on April
15, 1994. Accordingly, his sentence became final on May 16, 1994,6 30
days after the period to file a petition for allowance of appeal with the
Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113(a). Therefore,
pursuant to Section 9545(b)(1), Hopkins had one year from the date his
judgment of sentence became final to file a PCRA petition. See Taylor,
supra. The instant petition was not filed until September 24, 2014, over 20
years later, making it patently untimely.7
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6
May 15, 1994, fell on a Sunday.
7
There exists a proviso to the 1995 amendments to the PCRA that provides
a grace period for petitioners whose judgments became final on or before
the January 16, 1996 effective date of the amendments. However, the
proviso, applies to first PCRA petitions only, and the petition must be filed by
January 16, 1997. See Commonwealth v. Thomas, 718 A.2d 326 (Pa.
Super. 1998) (en banc). It is evident Hopkins is not entitled to relief
provided by the proviso.
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An untimely PCRA petition may, nevertheless, be considered if one of
the following three exceptions applies:
(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 ascertained 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.
42 Pa.C.S. § 9545(b)(1)(i-iii). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S.
§ 9545(b)(2).
Additionally, with respect to the right to an evidentiary hearing, we are
guided by the following:
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s discretion
to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other
evidence. It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine if the PCRA
court erred in its determination that there were no genuine
issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing.
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation
omitted).
In his appeal, Hopkins argues the PCRA court erred in dismissing his
petition without conducting a hearing because his arguments met the
exceptions found in Section 9545(b)(1) regarding newly-discovered facts
and governmental interference. With respect to his first issue, Hopkins
asserts the newly-discovered facts exception, subsection (b)(1)(ii), applies
because the scientific theory that he claims was used to convict him was
debunked in Han Tak Lee, supra.8 Specifically, he points to the following
“facts” as proof that arson science is unreliable:
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8
In Han Tak Lee v. Tennis, 2014 WL 3894306 (M.D. Pa. June 13, 2014),
the petitioner was convicted of arson and murder in connection with the
death of his daughter from a cabin fire in Monroe County, Pennsylvania. Id.
at 1. Throughout the trial, the Commonwealth emphasized fire expert
testimony as compelling proof that this was an intentional fire set by Lee.
Id. at 5-8. The magistrate judge noted the same scientific pillars that led to
his guilty verdict have now eroded. Id. at 1. “For example, the premise
upon which much of the prior arson science was based in this field — that
arson fires burned with greater heat and intensity than ‘normal’ fires — has
now thoroughly been debunked. It is now understood that the principal
determinant of the heat and intensity of a fire is a natural element, the
oxygen which fuels the fire, and not some artificial accelerant.” Id. at 3.
Moreover, the Commonwealth admitted the arson science testimony which
was “the only proof of the incendiary origin of th[e] fire [at Lee’s trial] —
[was] no longer reliable as an indication of arson.” Id. at 17.
Based on the evidence, the magistrate judge recommended
conditionally granting Lee’s petition for writ of habeas corpus and vacating
his sentence. The federal district court adopted the magistrate judge’s
report and recommendation. See Han Tak Lee v. Tennis, 2014 WL
3900230 [4:CV-08-1972] (M.D. Pa. August 8, 2014).
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1.) The state attorneys “concession” that the arson science
utilized decades ago was, for a better choice of words, “bad
science”, and “unreliable”, which has contributed to a conviction
rate of 97% or more; 2.) [Pennsylvania] State Police
investigators had also admitted by “concession”, that the arson
science utilized decades ago is “inherently unreliable”; 3.) the
State Police [and] attorney “conceded” that the gas
chromatography utilized decades ago is “inherently unreliable”,
and 4.) an expert in the field of arson, Mr. Lentini, had stated
that the old “orthodox” methodology of determining whether or
not a fire was an arson or not, is too, “inherently unreliable”, as
the state attorney and [Pennsylvania] State Police expert too,
had again, “conceded” to this said fact. See Petition, [at] 2-5.
See Hopkins’ Brief at 7.
The newly-discovered facts exception is further explained by the
following. “The focus of this exception ‘is on the newly discovered facts, not
on a newly discovered or newly willing source for previously known facts.’”
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
omitted). Here, the PCRA court found Hopkins “did not set forth the facts he
proposed to present at a hearing to prove that he was entitled to proceed on
an otherwise untimely post-conviction relief petition on the basis of after-
discovered evidence.” PCRA Court Opinion, 11/6/2014, at 6. We agree
with the PCRA court.
Unlike Han Tak Lee, Hopkins does not point to any specific evidence
in his case regarding the arson science testimony, how it was used, and why
it was unreliable. Instead, Hopkins merely discusses how the science was
found to be debunked and asserts that because some arson science was
disproved, all arson science is unreliable. We find that is a logical fallacy.
Additionally, Hopkins did not compare the science used at his trial to the
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debunked science in Han Tak Lee.9 Accordingly, Hopkins’ first claim does
not merit an evidentiary hearing because he has failed to relate any newly
discovered evidence to the set of facts in his case.10
With respect to Hopkins’ second issue of governmental interference,
subsection (b)(1)(i),11 we find that this argument fails because it was
waived. In his Rule 1925(b) concise statement, Hopkins only listed the
“newly discovered facts” exception argument as a matter complained of on
appeal. “Any appellate issues not raised in a complaint Rule 1925(b)
statement will be deemed waived.” Commonwealth v. Hill, 16 A.3d 484,
488 (Pa. 2011) (citation omitted). Therefore, we do not need to address
Hopkins’ second issue further.
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9
Moreover, as the PCRA court noted in its opinion, there was other evidence
demonstrating Hopkins committed the arson, including his own admissions
to a fellow inmate. See PCRA Court Opinion, 11/6/2014, at 3-4.
10
Furthermore, to the extent that Hopkins attempts to argue that Han Tak
Lee is a newly-discovered fact, we note Pennsylvania courts “have expressly
rejected the notion that judicial decisions can be considered newly-
discovered facts which would invoke the protections afforded by Section
9545(b)(1)(ii).” Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super.
2013) (citation omitted).
11
Specifically, Hopkins claims the governmental interference exception
applies because prisoners are deprived of the necessary guidance needed to
formulate their arguments as evidenced by his failure to locate Han Tak Lee
in the prison library. He claims it took a third party, who had access to
Federal “ECF” (Electronic Case Filing), to properly locate the Han Tak Lee
opinion. Hopkins also contends the lack of proper access to these cases
makes the 60-day timely petition requirement difficult for prisoners to meet.
Hopkins’ Brief at 11.
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Accordingly, based on the aforementioned, we conclude Hopkins failed
to plead and prove the applicability of the newly-discovered facts exception
to the PCRA’s timeliness requirement. The PCRA court properly denied
Hopkins’ petition and, therefore, we affirm its November 6, 2014, order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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