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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 JULY 18, 2018

      This case comes to us on remand from the Supreme Court of

Pennsylvania for further consideration. See Commonwealth v. Taft, 2018

WL 1410227 (Pa. 2018) (per curiam). Upon careful review, we reverse the

Court of Common Pleas of Tioga County’s January 29, 2016 order denying

appellant’s petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, and remand to the PCRA court for further

proceedings consistent with this memorandum.

      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
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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

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



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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.

       On October 13, 2017, we entered our initial decision in this case, in

which we affirmed the PCRA court’s denial of appellant’s PCRA petition.

Appellant filed a petition for allowance of appeal with our supreme court on

November 2, 2017. On April 11, 2018, our supreme court vacated our initial

decision and remanded to this court to reconsider our holding in light of our

supreme court’s holding in Commonwealth v. Chmiel, 173 A.3d 617 (Pa.

2017).1

       In Chmiel, the defendant was convicted of murder and sentenced to

death. Id. at 619. During trial, George Surma, a forensic scientist with the

Pennsylvania State Police, testified that he had analyzed six hairs retrieved

from a sweater mask recovered from the crime scene.                 Id. at 620.

Mr. Surma testified that two of the hairs “found on the sweater sleeve mask

were ‘microscopically similar’ to hair samples obtained from [the defendant,]




1   Chmiel was announced on November 22, 2017.


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but not to those obtained from [the defendant’s] brother, Martin, or to the

victims.” Id. (citations omitted).

      On April 20, 2015, the FBI issued a press release in which the agency

released the findings of an investigation that “scrutinized the testimony of

FBI analysts concerning microscopic hair comparison analysis prior to 2000,

the point at which mitochondrial DNA testing became routine in the FBI.”

Id. at 621.

              The FBI concluded that its examiners’ testimony in at
              least 90% of cases contained erroneous statements.
              The FBI’s findings “confirm[ed] that the FBI
              microscopic hair analysts committed widespread,
              systematic    error,  grossly    exaggerating     the
              significance of their data under oath with the
              consequence of unfairly bolstering the prosecution’s
              case. . . .”

              The FBI press release quoted Peter Neufeld,
              co-director of the Innocence Project, as saying that
              the results of the FBI’s review demonstrated an “epic
              miscarriage of justice.”      The press release also
              quoted Norman L. Reimer, Executive Director of [the
              National Association of Criminal Defense Lawyers],
              as stating that, although “[i]t will be many months
              before we can know how many people were wrongly
              convicted based on this flawed evidence,” he was
              certain that there were “many whose liberty was
              deprived and lives destroyed by prosecutorial
              reliance on this flawed, albeit highly persuasive
              evidence. Mr. Reimer called upon lawmakers to
              prevent similar systemic failures, and upon the
              courts to “give those who were impacted by this
              evidence a second look at their convictions.” . . . .

              ....

              Over the course of 25 years, the FBI conducted
              multiple two-week training courses that reached


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           several hundred state and local hair examiners
           throughout the country and that incorporated some
           of the same scientifically flawed language that the
           FBI’s examiners had used in some lab reports and
           often in trial testimony.      In response to the
           FBI/[Department of Justice (“DOJ”)] review, the
           Texas Forensic Scientific Commission has already
           begun a review of cases handled by analysts at state
           and local crime labs. Similar audits are needed in
           most states.

Id. at 621-622 (citations omitted).

     The Chmiel court held as follows:

           [T]he fact that the FBI was internally reviewing the
           accuracy of microscopic hair analysis or testimony is
           not the newly discovered fact upon which Chmiel’s
           claim is based. Rather, the newly discovered facts
           are the FBI’s admissions, as the proponent of
           microscopic hair analysis, that its examiners gave
           flawed and scientifically unsupportable testimony,
           and spread its flawed methodology to state and local
           analysts.    Although the existence of the FBI’s
           internal investigation was known, the press release
           marked the first public admission by the FBI
           regarding its conclusions about testimony premised
           upon microscopic hair analysis and the dissemination
           of such scientifically flawed language to state and
           local analysts.

           ....

           Although the [National Academy of Sciences] Report
           compiled preexisting public data and studies and
           questioned the science underlying microscopic hair
           analysis, it unquestionably was not an admission by
           the authority behind the science that the science and
           related testimony were, in fact, flawed. In contrast,
           the FBI press release is not old wine in a new bottle;
           it was a public admission by the FBI, as the nation’s
           premier law enforcement agency and the proponent
           of this forensic technique, of widespread error. It is
           this concession, not the suspected unreliability of the


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              forensic evidence as developed through scientific
              advancements, that triggers the sixty-day window
              within which Chmiel was required to file his claim.
              This concession did not exist in the public domain
              prior to April 20, 2015.

Id. at 626.

     In the instant appeal, given a broad reading of Chmiel, we find that

the FBI’s concession of widespread error in microscopic hair analysis

triggered appellant’s 60-day window for appellant to timely submit a claim

under the PCRA.       Accordingly, we reverse the PCRA court’s denial of

appellant’s petition and remand for further proceedings consistent with this

memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/18/2018




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