J-S51025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    RANDY TAFT                                 :
                                               :
                       Appellant               :       No. 399 MDA 2019

            Appeal from the PCRA Order Entered February 18, 2019
                In the Court of Common Pleas of Tioga County
             Criminal Division at No(s): CP-59-CR-0000152-1987


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.:                     FILED SEPTEMBER 27, 2019

        Appellant, Randy Taft, appeals from the order entered in the Tioga

County Court of Common Pleas, which denied his serial petition filed pursuant

to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinion, the PCRA court set forth the relevant facts of this case.

Therefore, we have no reason to restate them.          Procedurally, on April 18,

1988, Appellant entered an open plea of nolo contendere to two counts of

murder generally.       The court held a degree-of-guilt hearing that day, and

found Appellant guilty of one count of first-degree murder and one count of

third-degree murder. The court sentenced Appellant to life imprisonment for

the first-degree murder conviction, and imposed a consecutive 10-to-20 year


____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S51025-19


sentence for the third-degree murder conviction.        Appellant did not obtain

direct review.

      Between 1990 and 2012, Appellant unsuccessfully litigated multiple

PCRA petitions. In 2014 and 2015, Appellant received two letters from the

Department of Justice (“DOJ”), discussing a FBI investigation into the

examiner who performed the hair analysis in Appellant’s case and indicating

the hair analysis in Appellant’s case contained erroneous statements.

Appellant filed the current, serial pro se PCRA petition on January 26, 2015,

and amended counseled petitions on June 1, 2015 and August 24, 2015,

claiming the DOJ letters constituted “newly-discovered facts.”         Appellant

insisted he would have gone to trial if he had known the hair analysis

contained erroneous statements and was inadmissible.

      On October 20, 2015, the court issued notice of its intent to dismiss the

petition without a hearing, per Pa.R.Crim.P. 907. The court dismissed the

petition as untimely on January 29, 2016. This Court affirmed on October 13,

2017. See Commonwealth v. Taft, 179 A.3d 562 (Pa.Super. 2017). On

March 21, 2018, our Supreme Court vacated and remanded for further

consideration, in light of Commonwealth v. Chmiel, 643 Pa. 216, 173 A.3d

617 (2017) (holding FBI’s concession of widespread error in microscopic hair

analysis constituted newly-discovered fact and date of FBI’s concession

triggered   statutory   window   to   submit   timely    PCRA    claim).    See

Commonwealth v. Taft, 645 Pa. 745, 182 A.3d 990 (2018) (per curiam).


                                      -2-
J-S51025-19


On remand, this Court reversed the January 29, 2016 order denying PCRA

relief and remanded for a hearing on the merits of Appellant’s underlying

after-discovered evidence claim. See Commonwealth v. Taft, 194 A.3d 686

(Pa.Super. 2018).

      The court held a PCRA hearing on December 14, 2018.            Appellant

testified at the hearing, inter alia, that defense counsel told him the FBI had

matched his hair sample with evidence collected at the crime scene and the

Commonwealth was going to seek the death penalty. Appellant said defense

counsel advised him to enter a plea of nolo contendere in light of the

incriminating hair analysis evidence to avoid the possibility of the death

penalty. Appellant claimed he would have probably gone to trial if he knew

the hair analysis evidence was inadmissible.       (See N.T. PCRA Hearing,

12/14/18, at 4-7; R.R. at 65a-68a). The Commonwealth did not present any

witnesses. At the conclusion of the hearing, the court gave the parties the

opportunity to file briefs.

      Following briefing, the PCRA court denied relief on February 13, 2019.

Appellant timely filed a notice of appeal on March 6, 2019. On March 22,

2019, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied.

      Appellant raises one issue for our review:

         SHOULD [APPELLANT] BE PERMITTED TO WITHDRAW HIS
         PLEA OF NOLO CONTENDERE BECAUSE [OF] THE AFTER-
         DISCOVERED FACT THAT HAIR ANALYSIS EVIDENCE THAT
         WOULD HAVE BEEN PRESENTED AT TRIAL WAS

                                     -3-
J-S51025-19


         ERRONEOUS BECAUSE IT EXCEEDED THE LIMITS OF
         SCIENCE AND WAS THEREFORE INADMISSIBLE?

(Appellant’s Brief at 2).

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). If the record supports a post-conviction court’s credibility

determination, it is binding on the appellate court.      Commonwealth v.

Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

      To obtain relief on a substantive after-discovered-evidence claim under

the PCRA once jurisdiction is established, a petitioner must demonstrate: (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. Washington,

592 Pa. 698, 927 A.2d 586 (2007). See also Commonwealth v. Small, ___

Pa. ___, 189 A.3d 961 (2018) (discussing quality of proposed “new evidence”

and stating new evidence must be of higher grade or character than previously

presented on material issue to support grant of new trial).

                                     -4-
J-S51025-19


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable John B. Leete,

we conclude Appellant’s issue merits no relief.      The PCRA court opinion

comprehensively discusses and properly disposes of the question presented.

(See Opinion and Order on Amended PCRA Petition following Remand, filed

February 13, 2019, at 7-8) (finding: Appellant’s claim, that he would not have

entered nolo contendere plea if he had known hair analysis used in his case

was inadmissible, lacks merit; given vast evidence against Appellant

demonstrated at     his preliminary hearing and degree-of-guilt hearing

immediately following plea, Appellant’s decision to enter plea was based on all

evidence Commonwealth had against Appellant, not just hair analysis

evidence, which was only small part; Appellant failed to satisfy after-

discovered evidence test to warrant PCRA relief). Accordingly, we affirm on

the basis of the PCRA court’s opinion.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/27/2019



                                     -5-
                                                                               Circulated 09/13/2019 11:52 AM




COMMONWEALTH OF                              :IN THE COURT OF COMMON PLEAS
PENNSYLVANIA                                 :OF TIOGA COUNTY, PENNSYLVA�.I�,.,.        FILED
                                                                               !   iUt:A COfliny
                                                                                            � l            1 '   •'
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                                                                                                                      I   r,
Vs.                                          :No. 152 of 1987
                                                                            . ZC 19 FEB 13 AH 9; 4 3
                                                                                     . :''' ·.,1 • ....... ,
RANDY TAFT                                    :CRIMINAL DIVISION               .; ,':',1          IARY &
                                                                                           [!Jr-:_:J
                                                                             · l.,L[:r<t'\    Or COURTS

                                    OPINION AND ORDER ON
                        AMENDED PCRA PETITION FOLLOWING REMAND

       Before the court is a matter remanded from the Superior Court pursuant to a

memorandum opinion dated July 18, 2018. While that opinion did not deal with all of the

information previously received by the defendant on the hair analysis going back many years,

this court proceeded to schedule argument and testimony on that matter. Briefs were filed by

both the Commonwealth and the defense relative to the validity of defendant's no contest pleas

to two counts of murder, those peas being entered on April 18, 1988.


       Defendant claims that the existence of the purported Malone hair comparison testimony

caused him to enter his plea. As noted by the defense, that particular evidence, if offered, placed

him at the scene and in the bedroom of the female victim. Further, defendant argues there was

no recitation of the evidence against him since a plea was entered and no trial was held. He posits

that he is entitled to a new trial for that reason. Defendant is not entirely correct. There was a

preliminary hearing held in this case on May 6, 1987, for which defendant and his counsel were

present and participated. In addition, the Commonwealth presented testimony and evidence to

establish the degree of murder at hearing held on April 18, 1988. That hearing followed

defendant's two no contest pleas to murder generally, with one victim being Sherry Russell and

the other victim being her four-month-old son, David Russell.


                                                 1
       The Commonwealth asserts the invalid hair comparison evidence was completely

cumulative, thus rendering a new trial unnecessary. While the Commonwealth argues in its letter

brief that evidence against the defendant was "overwhelming", and that there was "substantial

physical and circumstantial evidence," the Commonwealth in the present matter failed to detail

that evidence and its sources. As a result, the court has carefully reviewed the transcripts

previously noted and will summarize the evidence offered against the defendant at both the

preliminary hearing and the degree of guilt hearing following his plea.


       A preliminary hearing was held before Magistrate Cunningham on May 6, 1987. It was

established that the victims were discovered on April 10, 1987, at about 3 PM, and that they had

last been seen alive on April 9, at approximately 11 PM. Referring to that transcript, Dr. James

Wilson, Tioga County coroner, testified as to the location of a human bite mark on the female

victim's clavicle area. (P.H. Tr. 4), along with various bruises contusions, stab marks, and

lacerations found on her body. Extensive testimony was also taken regarding the whereabouts

of defendant's car and the defendant himself, on both April 9 and 10th 1987. Much of this

testimony was from Cora Flynn, defendant's aunt (P.H.Tr.6-10}. Essentially defendant left a car

at his aunt's home on April 9, and it was still there at 11 PM that night. The next morning Mrs.

Flynn was awake at 5: 30 AM and noticed that the defendant's car was gone. She went back to

bed and awoke again close to 7 AM. She saw a car similar to the defendant� near her driveway

although that car continued up the hill toward the home of the victims. While she did not see the

defendant driving the car at that time, she identified the car as being a small white car with a

loud muffler similar to defendant's vehicle. She watched the car go up the road and pull into an

upper driveway where it sat for a minute then backed out and went up the road. Defendant and

                                                2
his car were again seen by Mrs. Flynn at her home at approximately 11 AM on April 10 when

defendant parked the car and went into town. lt was noted that the car lacked a proper

inspection sticker and had been previously parked at the Flynn residence from time to time. (P.H.

Tr. 6-10).



        Gerald Jeffers also testified at the preliminary hearing. He stated that as he was going to

Elkland on April 10, 1987 at about 7 AM, he was nearly hit by a vehicle very similar to the

defendant's as it pulled out of a driveway spinning tires. He felt defendant was trying to get out

of the area of the murders, where defendant's car was seen. (P.H. Tr. 16-17).


        According to the testimony given by Pennsylvania State Police Trooper Walushynsky,

several searches were made on or about April 10 and 11, with the latter search being done

pursuant to a search warrant. Included was a search for dental impressions of the defendant,

which were made by a local dentist, Or. Ronald Waclawik. (P.H.Tr. 22-23). The Trooper also

testified that he observed a bite mark on the upper arm shoulder area of the female victim

(P.H.Tr. 23). Impressions were compared by expert dentist Dr. Haskil Askings on or about April

15, 1987. Shortly thereafter, Dr. Askings filed a report indicating that the bite mark on the female

victim had been made by the defendant. (P.H.Tr. 24).



        Footprints at the scene were noted by the trooper, including sneaker prints inside the

house on a diaper as well as prints outside the house near the bodies. Casts were made and sent

to the FBI (P.H. Tr.25). Blood was also found on one of the defendant's sneakers which had been

seized pursuant to a search. The tread patterns noted at the scene, among others, were similar

to those of the defendant's sneakers (P.H. Tr. 26). The same officer noted a bruise on defendant's


                                                  3
neck, which defendant claimed came from a work-related injury at the rendering plant where he

was employed (P.H.Tr. 26).


       The female victim's brother-in-law had been at the trailer and took a shower in the early

morning hours Friday, and some of his footprints were found in the area but not near the bodies

(P.H. Tr.34-35). Among other prints found at the scene were boot prints similar to those owned

by the defendant. (P.H. Tr.36)


       Significant evidence was also presented to the court at the degree of guilt hearing held

before the late Tioga County President Judge Robert Kemp on April 18, 2018. This hearing came

immediately after defendant's no contest plea to two counts of murder. With reference to that

trial transcript, in the course of the plea discussion, defendant's counsel William Hebe

acknowledged on the record that the evidence was "overwhelmingly against" defendant, based

upon counsel's own extensive investigation and testing (TR.13-14). In addition, various exhibits

were offered into evidence. (Exhibits 125-130, 132-34,137). In the course of representing the

defendant, defense counsel had vigorously pursued a variety of pretrial motions. Counsel sought

psychiatric, psychological, and investigative assistance as well as a forensic dental expert and a

pathologist. These motions can be found in the appellate court records filed with the Superior

Court on Jan. 22, 1993, starting at page 52. Various sums of county money were made available

to counsel to pursue all of these matters.


       Trooper Witushynsky also testified on this at this later hearing. He had interviewed

various individuals, including William Warner who was at the scene with the defendant and

several other young people near the crime scene on April 9. (Tr.25). It was noted the defendant


                                                4
lived approximately 5 miles from the crime scene. (Tr.26). Defendant acknowledged being in the

area of the crime late at night on April 9. The trooper observed a mark on defendant's face on

April 10. Defendant indicated that he had received it the evening before from a bar fight.

Defendant further acknowledge being out on the evening of April 9, and                that he had in fact

parked his car at the Cora Flynn home across the road from his residence. He further indicated

he had walked into town to a bar and returned home after having several drinks (TR. 27).

Defendant explained that the upper part of a bruise on his face came for a pool cue during a bar

fight on the evening of April 9. (TR.28). Another mark in the general area was found on

defendant's neck, which defendant had not previously mentioned to the officer. The trooper

sensed conflicts with defendant's explanations and investigated (TR.28-30).


        Defendant's sneakers were located, and they had obviously been washed. A spot of what

later proved to be human body was found on the tongue of one of his shoes. His sneakers were

matched with the prints at the murder scene, after the sneakers were located at work where

they were not typically kept. (TR.31-32). The defendant further acknowledged knowing the

victim's husband, as well as that the...,, t..lr\CV'\   .'s husband worked away delivering hay outside of

the area (TR.32). Further testimony indicated that the bite mark on victim Sherry Russell's body

was identified as being from the defendant (TR.36).


        Additional references were made to the testimony of Cora Flynn who indicated that the

. defendant's car was gone at 5 AM on April 10, but was back at about 6:45 when an individual,

 possibly the defendant, pulled out and headed south (TR. 37).




                                                         5
        Witnesses at the bar where defendant was drinking on the evening of April 9 noticed no

injuries on his body and were not aware of any fights or disturbances that evening while

defendant was at the bar. Others saw him at the bar at about 11:30 PM. One of those witnesses

described defendant as "acting like drugged out or something." Defendant left the bar

between12:00 and 12:30 Am on April 10 (TR. 37�38).



       A witness, Janice Hatch, informed the police that she had left work approximately 1 AM

on April 10, and was driven home by the defendant's mother, Shirley Taft. Mrs. Taft reported

that the defendant's car was at the victim's home when she passed by, with the defendant later

claiming that he had stopped there to change a tire (TR. 39). The statement was reinforced by

the defendant then he arrived home a few minutes after his mother in the early morning hours

of April 10. He made specific reference to changing a tire while his car was at the Russell

residence, and complained that his mother had not set stopped to assist when she passed by (TR.

40). A later examination of defendant's car showed no evidence of a flat tire or tires being

changed. {TR. 41).



       Footprint evidence linked a sneaker print found on a diaper in the house of the deceased

to defendant {TR. 48). Reference was also made by Pennsylvania State Police Cpl. Patterson to

the now discredited hair evidence match up, as noted by the FBI, in the course of discussing the

details of the sneaker prints. This was reflected by Commonwealth Exhibit 13 as well (TR.49).
                                                              6f-
Further testimony from the same trooper indicated a match the f f'\1'� of defendant's cowboy
                                                              A

boots with the boot print found at the scene. Specifically he said that the prints were similar in

design and character. (TR.49). Finally, a spot of blood was found on defendant's car window.



                                                6
Further inspection of defendant's spare tire indicated that it had not been moved nor were there

any sign   of any of the lug nuts on the car having been recently removed (TR. 52-53).


       Against the backdrop of all this evidence including statements from the defendant's own

mother placing him at the scene in the early morning hours of April 10, defendant continues to

assert that his plea was induced by the discredited hair match evidence. That explanation defies

both reason and is totally incredible given the evidence against the defendant and his own

counsel's summary of that evidence. Defendant's decision to plea was obviously based on all the

evidence in the case of which the hair match evidence was only a small part.


       The ultimate question here is whether or not defendant can withdraw his nolo pleas and

have a new trial, In order to obtain a new trial on after discovered evidence, he must establish

by a fair preponderance of the evidence that the newly discovered evidence would likely bring

about a different result. Com. v. Fisher, 870 A2d. 864 (Pa. 2005). In the Fisher case, the issue

dealt with discredited expert testimony. Com. v. Burgess, 288 A2d 810 (Pa. 1972} is in accord.

As pointed out by the Commonwealth,� involved perjured testimony by a lab technician.

The Supreme Court declined relief.


       In order for the defendant to obtain relief on the basis of after-discovered evidence,

various criteria must be met. Com. v. Rivera, 939 A2d 355, 359 (Pa. Super. 2007}. For our

purposes, that inquiry is limited to whether the newly discovered evidence, and the elimination

of the proposed hair match testimony, would bring about a different result. Com. v. Heaster, 171

A3d 268 (Pa. Super.2017). Like Heaster, defendant's situation is unusual as he entered a plea

and was sentenced long before the new evidence was discovered. To obtain relief, evidence that


                                               7
tends to establish innocence must be presented, as opposed to simple impeachment evidence.

Here the disputed evidence would not point to innocence, especially in view of all the other

evidence against defendant. At most, it could have been used to impeach the FBI agent who did

the hair comparisons. As such, the evidence does not exculpate defendant. Com v. Fisher, supra.

This is in accordance with the applicable provision of the PCRA, section 9543 A2 (Vi).



       While the Commonwealth persists in arguing that the present PCRA petition is untimely,

that issue was dealt with by the Superior Court in its memorandum decision of July 18, 2018 and

will not be discussed further.



       Under all ofthe facts and circumstances presented, defendant has wholly failed to justify

his position that he should be able to withdraw his pleas. An appropriate order follows.




                                                8
