J. S58007/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S58007/17

- 2 -

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Commonwealth v. Taft, No. 641 Harrisburg 1992, unpublished 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 
J. S58007/17

- 3 -

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. 
J. S58007/17

- 4 -

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 
J. S58007/17

- 5 -

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.
J. S58007/17

- 6 -

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 
J. S58007/17

- 7 -

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.
J. S58007/17

- 8 -

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.
J. S58007/17

- 9 -

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