J-S34018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)1as 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. 

____________________________________________

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 Super. 1994) (unpublished 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 

____________________________________________

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(unpublished memorandum), Commonwealth v. Hopkins, 830 A.2d 1046 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 afterdiscovered 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.

____________________________________________

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 newlydiscovered 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