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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
RANDY TAFT,                               :          No. 169 MDA 2017
                                          :
                         Appellant        :


                 Appeal from the PCRA Order, January 29, 2016,
                  in the Court of Common Pleas of Tioga County
                Criminal Division at No. CP-59-CR-0000152-1987


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 13, 2017

        Randy Taft appeals from the order entered January 29, 2016,

dismissing his serial PCRA1 petition as untimely filed. We affirm.

        The facts of this case were set forth in a prior memorandum of this

court as follows:

                     On April 10, 1987, the bodies of Sherry Russell
              and her infant son, David C. Russell, were found
              along the driveway outside the family residence.
              Sherry Russell had been viciously attacked and her
              injuries included contusions, cuts, puncture wounds,
              slashes and lacerations.       Her skull had been
              fractured and she had multiple stab wounds to vital
              parts of her body. David C. Russell suffered from a
              blunt impact to his head and his death was caused
              by drowning. On April 15, 1987, appellant was
              arrested and charged with two counts of homicide for
              the deaths. Appellant was arraigned and pled not
              guilty on May 18, 1987. Motions for suppression of

1   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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            evidence were filed and a suppression hearing was
            held on October 1, 1987. The motion was denied by
            opinion and order of January 14, 1988.

                  Appellant entered a plea of nolo contendere
            to the two counts of homicide on April 18, 1988.
            After a lengthy colloquy by the court and a written
            colloquy signed by the appellant, the court accepted
            the plea. The court then conducted a degree of guilt
            hearing and found the appellant guilty of murder in
            the first degree with respect to Sherry Russell and
            murder in the third degree with respect to David C.
            Russell. Appellant was sentenced to consecutive
            terms of life imprisonment for murder in the first
            degree and ten to twenty years for murder in the
            third degree.

Commonwealth        v.    Taft,   No.    641    Harrisburg    1992,   unpublished

memorandum at 1-2 (Pa.Super. filed Sept. 1, 1993).

      Appellant has filed numerous PCRA petitions, all of which were

dismissed. Appellant filed the current petition on January 26, 2015, alleging

previously unknown exculpatory facts in the form of a November 26, 2014

letter from the United States Department of Justice (“DOJ”) concerning

improper   practices     by   certain   FBI    laboratory    examiners,   including

FBI Examiner Michael Malone who performed laboratory work in appellant’s

case. The November 26, 2014 letter informed appellant that Mr. Malone’s

work and testimony has been criticized by some courts and independent

scientists hired by the FBI to review his work.

      In a second letter to Tioga County District Attorney Krista Deats, dated

June 25, 2015, the DOJ advised that it had reviewed laboratory reports and

testimony by FBI laboratory examiners in cases involving microscopic hair


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comparison analysis.       The DOJ determined that a report regarding

microscopic hair comparison analysis containing erroneous statements was

used in appellant’s case. The DOJ found that the microscopic hair laboratory

comparison analysis report presented in this case included statements that

“exceeded the limits of science,” including that Mr. Malone stated or implied

that the evidentiary hair could be associated with a specific individual to the

exclusion of all others or provided a likelihood that the questioned hair

originated from a particular source.      In his September 4, 1987 report,

Mr. Malone examined a pubic hair from the crime scene and determined

that, “This hair exhibits the same individual microscopic characteristics as

the pubic hairs of [appellant] and, accordingly, is consistent with having

originated from [appellant].”    (Amended petition for post-conviction relief,

8/24/15, Exhibit F at 7; docket #16.)

      Following receipt of the June 25, 2015 letter, appellant filed an

amended PCRA petition on August 24, 2015.             Appellant’s petition was

dismissed   on   January   29,   2016,   following   Pa.R.Crim.P.   907   notice.

Apparently, appellant was not provided with a copy of the order, and no

appeal was filed; however, on January 6, 2017, appellant’s right to appeal

the January 29 order was reinstated nunc pro tunc, and this appeal

followed.   Appellant was not ordered to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, on

May 12, 2017, the PCRA court filed a supplemental opinion.



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      Appellant has raised the following issues for this court’s review:

            I.     Was [appellant]’s PCRA petition timely under
                   42 Pa.C.S.A. § 9545(b)(1)(ii), when the claims
                   in his petition were based on new facts
                   contained in two letters from the United States
                   [DOJ] that were unknown to him and could not
                   have been ascertained by the exercise of due
                   diligence, and his petition was filed within
                   sixty (60) days of the date the claim could
                   have been presented?

            II.    Did [appellant]’s PCRA petition establish a
                   strong prima facie showing to demonstrate
                   that a miscarriage of justice may have
                   occurred, so that he is entitled to relief through
                   a second or subsequent PCRA?

Appellant’s brief at 2.

            The standard of review for an order denying
            post-conviction relief is limited to whether the record
            supports the PCRA court’s determination, and
            whether that 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. Furthermore, a petitioner is not entitled to a
            PCRA hearing as a matter of right; the PCRA court
            can decline to hold a hearing if there is no genuine
            issue concerning any material fact and the petitioner
            is not entitled to post-conviction collateral relief, and
            no purpose would be served by any further
            proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

            Pennsylvania law makes clear no court has
            jurisdiction to hear an untimely PCRA petition.
            Commonwealth v. Robinson, 575 Pa. 500, 508,
            837 A.2d 1157, 1161 (2003). The most recent


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          amendments to the PCRA, effective January 16,
          1996, provide a PCRA petition, including a second or
          subsequent petition, shall be filed within one year of
          the date the underlying judgment becomes final.
          42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
          Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
          Commonwealth v. Vega, 754 A.2d 714, 717
          (Pa.Super. 2000). 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
          the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

          The three statutory exceptions to the timeliness
          provisions in the PCRA allow for very limited
          circumstances under which the late filing of a
          petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
          To invoke an exception, a petition must allege and
          prove:

          (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 asserted 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.


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           42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
           PCRA petition is not filed within one year of the
           expiration of direct review, or not eligible for one of
           the three limited exceptions, or entitled to one of the
           exceptions, but not filed within 60 days of the date
           that the claim could have been first brought, the trial
           court has no power to address the substantive merits
           of a petitioner’s PCRA claims.” Commonwealth v.
           Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
           (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

           The     timeliness     exception     set    forth    in
           Section 9545(b)(1)(ii) requires a petitioner to
           demonstrate he did not know the facts upon which
           he based his petition and could not have learned
           those facts earlier by the exercise of due diligence.
           Commonwealth v. Bennett, 593 Pa. 382, 395, 930
           A.2d 1264, 1271 (2007). Due diligence demands
           that the petitioner take reasonable steps to protect
           his own interests. Commonwealth v. Carr, 768
           A.2d 1164, 1168 (Pa.Super. 2001). A petitioner
           must explain why he could not have obtained the
           new fact(s) earlier with the exercise of due diligence.
           Commonwealth v. Breakiron, 566 Pa. 323,
           330-31, 781 A.2d 94, 98 (2001); Commonwealth
           v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
           (1999). This rule is strictly enforced. See Vega,
           supra at 718.

Id. at 1080.

     There are three exceptions under which a facially untimely PCRA

petition may still be considered. Appellant attempts to invoke the previously

unknown facts exception to the time restrictions of the PCRA, enumerated in

Subsection 9545(b)(1)(ii). Once a timeliness exception is met:

           [t]o obtain relief based upon newly-discovered
           [facts] under the PCRA, a petitioner must establish


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              that: (1) the evidence has been discovered after
              trial and it could not have been obtained at or prior
              to trial through reasonable diligence; (2) the
              evidence is not cumulative; (3) it is not being used
              solely to impeach credibility; and (4) it would likely
              compel a different verdict.

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004), citing

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa. 1998) (additional

citation omitted).2

      Appellant argues that the information relating to Mr. Malone was not

available earlier. (Appellant’s brief at 8.) However, appellant knew at least

as early as 1999 that practices at the FBI crime laboratory had been called

into question, including hair and fiber analysis. The November 26, 2014 DOJ

letter referenced a July 2014 Office of Inspector General (“OIG”) report

entitled “An Assessment of the 1996 [DOJ] Task Force Review of the FBI

Laboratory,” which was an exhaustive review of FBI laboratory practices.

The 1996 task force released an April 1997 OIG report entitled “The FBI

Laboratory:      An Investigation into     Laboratory Practices and Alleged




2 We recognize that appellant pled nolo contendere rather than choosing to
go to trial. Ordinarily, a plea of guilty or nolo contendere waives all
defects and defenses except lack of jurisdiction, legality of the sentence, and
the validity of the plea. Commonwealth v. Pantalion, 957 A.2d 1267,
1271 (Pa.Super. 2008) (citation omitted). “A plea of nolo contendere
should be treated the same as a guilty plea in terms of its effect upon a
particular case.”    Commonwealth v. Thomas, 506 A.2d 420, 422
(Pa.Super. 1986) (citations omitted).      However, in Commonwealth v.
Peoples, 319 A.2d 679 (Pa. 1974), the Pennsylvania Supreme Court held
that a newly-discovered facts claim is available to a defendant who pleads
guilty or nolo contendere.


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Misconduct in Explosives-Related and Other Cases.”     This April 1997 OIG

report was forwarded to appellant and his counsel by the Tioga County

district attorney’s office on May 12, 1998. (Commonwealth’s brief at 4.) In

that letter, appellant was informed that an FBI examiner who performed

analysis in his case was named in the report.    The July 2014 OIG review

found further issues and inconsistencies with the FBI laboratory, including

the work of Mr. Malone.

     Furthermore, on December 27, 1999, the district attorney’s office

forwarded to appellant an independent case review by Dr. Cathryn L. Levine

of the hair and fiber evidence examined by Mr. Malone in appellant’s case.

So, appellant was put on notice in 1999 at the latest that there were

systemic problems at the FBI laboratory, including with Mr. Malone who

examined the hair and fiber evidence in appellant’s case.      In fact, the

November 26, 2014 DOJ letter referenced both the 1997 OIG report and the

1999 independent case review:

           We have confirmed that you or your counsel
           previously received notice of the 1997 OIG Report
           from the prosecutor’s office responsible for the
           prosecution at issue, or that you or your counsel
           otherwise became aware of the criticisms. We have
           also confirmed that an Independent Scientific Review
           was conducted in your case and the results were
           provided to you or your counsel.

PCRA petition, 1/26/15, Exhibit A; docket #8.        Yet, appellant waited

15 years before raising this issue.    Thus, appellant cannot establish the

new-facts exception to the PCRA timeliness requirements.


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        Moreover, appellant pled nolo contendere and there was no trial.

Mr. Malone never testified, and his 1987 report was never introduced into

evidence.      Appellant complains that Mr. Malone’s expert report was a

significant factor in his decision to take a plea.       (Appellant’s brief at 9.)

However, in reality, the evidence of appellant’s guilt was overwhelming, and

appellant conceded as much at the plea hearing. (Commonwealth’s brief at

7-8; notes of testimony, 4/18/88 at 13-14.)            There was other physical

evidence placing appellant at the crime scene, recent injuries to appellant’s

face,    as   well   as   circumstantial   evidence   including   appellant’s    false

statements concerning his whereabouts at the time of the victims’ murders.

(Id.)    Therefore, we agree with the PCRA court that the inadmissibility of

Mr. Malone’s report would not have compelled a different verdict.               (PCRA

court opinion, 5/12/17 at 2-3.)        It is unlikely that appellant’s decision to

plead nolo contendere hinged on Mr. Malone’s expert report.

        For these reasons, the PCRA court did not err in dismissing appellant’s

serial PCRA petition without a hearing as untimely.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/13/2017



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