Com. v. Taggart, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLESTAE TAGGART :
:
Appellant : No. 1925 EDA 2021
Appeal from the PCRA Order Entered August 20, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003001-2014
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 28, 2022
Charlestae Taggart (“Taggart”) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court previously summarized the factual background of this matter
as follows:
[O]n August 16, 2014, police executed a search warrant at
35 Foundry Street, Coatesville, Chester County. During the
search of the residence, the officers located [Taggart] sleeping,
naked, and in bed with a female friend. As a safety precaution,
the officers attempted to place [Taggart] in custody during the
search. [Taggart] resisted the officers’ attempt to place him in
custody by repeatedly failing to comply with the officers’ verbal
commands and not allowing them to restrain him. Ultimately, it
took three officers and the repeated use of a taser to subdue
[Taggart] so that he could be placed in custody.
After [Taggart] was placed in custody and the residence was
secured, the officers conducted the search. During the search,
the officers recovered four hundred fourteen (414) bags of heroin,
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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weighing 10.95 grams, five (5) bags of cocaine, weighing 12.61
grams, a fully loaded and stolen Ruger []9 millimeter handgun
with an extended magazine, two different types of ammunition,
cutting agents, scales, and hundreds of baggies commonly used
to package cocaine and heroin.
Commonwealth v. Taggart, 178 A.3d 205 (Pa. Super. 2017) (unpublished
memorandum at *1-2).
Police arrested Taggart and charged him with various firearms, drug,
and related offenses, including possession with intent to deliver (“PWID”)
heroin and cocaine. Taggart filed a motion to suppress which he later
withdrew. Taggart then filed an amended motion to suppress which the trial
court denied following a hearing. The Commonwealth submitted swabs from
the firearm, the ammunition in the clip of the firearm, and the knotted area
of one of the bags of cocaine to the Pennsylvania State Police Crime Lab
(“Crime Lab”) for DNA testing and comparison with a buccal sample obtained
from Taggart. The matter then proceeded to a jury trial.
At trial, the Commonwealth presented the expert testimony of Jillian
Crouch, a forensic DNA scientist, who testified regarding the DNA testing
performed on the swabs taken from the firearm, ammunition, and the bag of
cocaine. Ms. Crouch testified that “regular” or “human” DNA testing
performed on the DNA taken from the ammunition and the bag of cocaine
indicated that the amounts of DNA retrieved were insufficient to permit
interpretable results. See N.T., 11/12/15, at 44-45, 48-53. She further
testified that that “regular” or “human” DNA testing performed on the DNA
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taken from the firearm contained a complex mixture of at least four people
and was uninterpretable. Id. at 48-50. Accordingly, Ms. Crouch explained
that the Crime Lab used “y-DNA” testing, in which the y chromosomes (which
only males carry) in the questioned sample are compared with the y
chromosomes in the known sample. Id. at 45-46. Ms. Crouch explained that
y-DNA testing of the DNA taken from the firearm yielded a mixture of at least
three persons with the primary contributor not being Taggart. Id. at 49. Ms.
Crouch further explained that y-DNA testing of the DNA taken from the
ammunition and bag of cocaine yielded a match in nine out of sixteen areas
such that Taggart and his paternally related male relatives (with the same y
chromosome as Taggart) could not be excluded from the pool of individuals
who had potentially touched those items. Id. at 50-53, 58.
At the conclusion of trial, the jury convicted Taggart of persons not to
possess firearms, receiving stolen property (firearm), possession of a
controlled substance (cocaine), possession of a controlled substance (heroin),
possession of drug paraphernalia, and resisting arrest. The jury found Taggart
not guilty of the PWID charges. On January 19, 2016, the trial court sentenced
Taggart to an aggregate prison term of eight and one-half to eighteen years.
This Court affirmed the judgment of sentence, and our Supreme Court denied
allowance of appeal on August 7, 2018. See Taggart, 178 A.3d 205(unpublished memorandum), appeal denied, 190 A.3d 1128 (Pa. 2018).
Taggart did not seek review in the United States Supreme Court.
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On October 31, 2019, Taggart filed a timely PCRA petition.2 Taggart
also filed a motion for discovery of items in the district attorney’s possession,
which the PCRA court initially granted. Specifically, Taggart requested, inter
alia, hand-written bench notes for any serologic and/or DNA testing
performed, worksheets reflecting any serologic and/or DNA testing performed,
hard copies of all chromatographic data, statistical calculations worksheets
and data for all tested samples, all case related communications between
laboratory personnel and outside parties, copies of all computer data files
created during the DNA testing, copies of all video and photo files documenting
the crime scene and collection of evidence, copies of all protocols and
procedures for serologic and DNA testing, chain of custody documents. In
response, the prosecutor indicated that the majority of the requested
materials were not in the district attorney’s immediate possession. Taggart
then filed another motion for discovery directed to the Pennsylvania State
Police, Bureau of Forensic Services, which was the entity in charge of the DNA
testing. The PCRA court denied the second motion for discovery. Taggart
thereafter filed an amendment to his petition. The Commonwealth filed a
response in which it requested summary dismissal. Taggart filed a reply, and
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2 As Taggart did not seek review in the United States Supreme Court, his
judgment of sentence became final on November 5, 2018, when the time for
seeking such review expired. See 42 Pa.C.S.A. § 9545(b)(3). Taggart had
until November 5, 2019 to file the instant petition. See id. § 9545(b)(1).
Thus, his petition filed on October 31, 2019, was timely.
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the Commonwealth filed a further response. The PCRA court thereafter issued
a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing.
Taggart filed a response to the court’s Rule 907 notice. On August 20, 2021,
the PCRA court entered an order dismissing Taggart’s petition. Taggart filed
a timely notice of appeal, and both he and the PCRA court complied with
Pa.R.A.P. 1925.3
Taggart raises the following issues for our review:
I. Did the PCRA court err by concluding that trial counsel was
not ineffective for failing to obtain independent expert
review of the DNA testing relied upon by the prosecution?
II. Did the PCRA Court err in concluding that trial counsel was
not ineffective, despite her neglecting to seek disclosure of
those persons besides [Taggart] within the testing
authorities’ database alleged to have matched the y-
chromosome DNA pattern found on the gun and bag of
cocaine?
III. Did the PCRA Court err by concluding that trial counsel was
not ineffective for stipulating to the proper handling of the
DNA samples – and in holding the issue waived?
IV. Did the PCRA court err by concluding that [trial] counsel was
not ineffective for failing to make timely objection to
inaccurate statements by the prosecutor during opening and
closing, and by the witness Detective [Shannon] Miller, to
the effect that [Taggart’s] DNA was found on the gun?
V. Did the PCRA Court err by failing to find that trial counsel
was ineffective for arguing to the jury, contrary to the
evidence, that [Taggart] was conclusively excluded by the
DNA evidence, thus weakening the credibility of the
defense?
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3In its Pa.R.A.P. 1925(a) opinion, the PCRA court directed this Court to its
Rule 907 notice and its August 20, 2021 order dismissing Taggart’s petition.
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VI. Did the PCRA Court err by failing to find that trial counsel
was ineffective for putting on evidence as to the number of
maternally-related rather than paternally related relatives,
thus weakening the credibility of the defense?
VII. Did the PCRA Court err by failing to find ineffective
assistance of [trial] counsel based on the aggregate
prejudice suffered due to the individual instances of
ineffectiveness set forth above?
VIII. Did the trial court err by denying [Taggart’s] amended
petition for discovery, thus preventing PCRA counsel from
meaningfully reviewing the stewardship of trial counsel?
Taggart’s Brief at 4-6 (unnecessary capitalization omitted, issues reordered
for ease of disposition).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Additionally, when a petitioner alleges trial counsel’s ineffectiveness in
a PCRA petition, he must prove by a preponderance of the evidence that his
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conviction or sentence resulted from ineffective assistance of counsel “which,
in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). The petitioner must also
demonstrate:
(1) that the underlying claim has arguable merit; (2) that no
reasonable basis existed for counsel’s actions or failure to act; and
(3) that the petitioner suffered prejudice as a result of counsel’s
error. To prove that counsel’s chosen strategy lacked a
reasonable basis, a petitioner must prove that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. Regarding the prejudice prong, a
petitioner must demonstrate that there is a reasonable probability
that the outcome of the proceedings would have been different
but for counsel’s action or inaction. Counsel is presumed to be
effective; accordingly, to succeed on a claim of ineffectiveness[,]
the petitioner must advance sufficient evidence to overcome this
presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). A failure to satisfy any prong of the
test for ineffectiveness will require rejection of the claim. See
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In his first issue, Taggart contends that trial counsel was ineffective for
failing to retain a defense expert to independently evaluate the DNA testing
relied upon by the prosecution. The mere failure to obtain an expert rebuttal
witness is not ineffectiveness. See Commonwealth v. Chmiel, 30 A.3d
1111, 1143 (Pa. 2011). Instead, a PCRA petitioner must demonstrate that an
expert witness was available who would have offered testimony designed to
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advance the petitioner’s cause. Id. Further, trial counsel need not introduce
expert testimony on his client’s behalf if counsel is able effectively to cross-
examine prosecution witnesses and elicit helpful testimony. Id.Taggart claims that, when trial counsel was retained, she had “the better
part of a month” before trial in which to obtain the necessary information for
an independent analysis of the DNA evidence by a defense expert or seek a
continuance. Taggart’s Brief at 20-21. Taggart explains that he retained an
expert, Theodore D. Kessis, Ph.D., to evaluate whether a defense expert
witness would have advanced his case at trial. Taggart maintains that Dr.
Kessis provided a statement in which he concluded that, in order to make such
a determination, additional information was necessary to adequately evaluate
the Commonwealth’s evidence, including bench notes, worksheets,
chromatographical data, worksheets, data files, protocols and procedures in
use by the laboratory involved, conditions of storage of the samples, and chain
of custody. Taggart submits that Dr. Kessis’s conclusion demonstrates that
trial counsel was ineffective for failing to retain a DNA expert so that she could
have credibly requested such information from the prosecution and, if needed,
request a continuance to have the information evaluated.
The PCRA court considered Taggart’s first issue and determined that Dr.
Kessis’s statement failed to establish that the underlying claim was of arguable
merit. See Rule 907 Notice, 3/16/21, n.4 (at 8). The PCRA court reasoned
that Dr. Kessis’s statement was based on “pure conjecture and speculation”
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and “neither offers a proper expert opinion nor is based upon facts of record.”
Id. The PCRA court concluded that because Dr. Kessis was unable to
contradict the Commonwealth’s DNA expert or offer any expert opinion that
would have changed the outcome of trial, his testimony would have been
irrelevant and inadmissible at trial. Id.4
We discern no abuse of discretion by the PCRA court in reaching its
determination that Taggart failed to establish the first prong of the
ineffectiveness test. At its core, the statement by Dr. Kessis provides nothing
more than speculation that, if additional notes, worksheets, data files, storage
conditions, chain of custody, and other data had been provided by the
prosecution or state police, Dr. Kessis (or another expert) might have been
able to find a basis to challenge the Commonwealth’s DNA evidence. Such
speculation falls woefully short of Taggart’s burden to prove that his
underlying claim—that independent expert evaluation was necessary—has
arguable merit. On the record before us, Taggart has not established that any
expert witness was available who would have offered testimony designed to
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4 The PCRA court additionally determined that Taggart failed to establish that
trial counsel had no reasonable basis for not calling an independent DNA
expert, and that the absence of a defense expert may have inured to Taggart’s
benefit. See Rule 907 Notice, 3/16/21, n.4 (at 8). However, we need not
address this additional ruling on Taggart’s first issue as the failure to satisfy
any prong of the ineffectiveness test will result in the failure of the claim. See
Martin, 5 A.3d at 183
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advance his cause. See Chmiel, 30 A.3d at 1143. For these reasons,
Taggart’s first issue warrants no relief.
In his second issue, Taggart contends that trial counsel was ineffective
for failing to request data to investigate the identity of other potential
suspects, including Taggart’s father, Taggart’s paternal male relatives, and
Evonne Milbourne, the woman who was with Taggart at the time of his arrest.
Taggart additionally contends that, although the y-DNA pattern found on the
ammunition was found in ten out of 25,665 individuals within the DNA
database and the y-DNA pattern found on the bag of cocaine was found in two
out of 25,643 individuals within the DNA database, none of these individuals
was ever investigated. Taggart asserts that counsel’s failure “to request the
necessary data to investigate the identity of these other suspects prejudiced
him by depriving him of an important line of defense which had the potential
to alter the result of trial.” Taggart’s Brief at 30-31.
This issue was not raised in Taggart’s petition or amendment thereto.
Although Taggart noted in his petition that his father, paternal male relatives,
Ms. Milbourne, and individuals with matching y-DNA patterns were not tested,
he did so as part of his factual introduction regarding the DNA evidence. See
PCRA Petition, 10/31/19, at ¶¶ 24, 25. In the separate section of his PCRA
petition where he asserted specific claims of trial counsel’s ineffectiveness,
Taggart did not assert any claim that trial counsel was ineffective for failing to
request data related to these individuals. See id. at ¶¶ 27-45. This issue
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was not raised in the amendment to the petition. See Amendment to PCRA
Petition, 3/20/20, at 1-3. Accordingly, as Taggart’s second issue was not
raised in the lower court, it is waived. See Pa.R.A.P. 903(a) (providing that
issues not raised in the lower court are waived and cannot be raised for the
first time on appeal).
In Taggart’s third issue, he contends that counsel was ineffective for
stipulating that the DNA found on the firearm and ammunition was properly
secured and handled by police and crime laboratory personnel. Taggart claims
that competent counsel would have inquired about potential cross-
contamination, whether Taggart’s samples were stored with evidentiary
samples, and whether the samples could have been cross-contaminated by
secondary transfer from Taggart to one of the persons who handled the gun.5
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5 Taggart notes that he attached a photograph to the amendment to his
petition which showed ammunition scattered on top of a letter addressed to
him. Taggart maintains that the photograph “clearly illustrates the potential
for [his] DNA on the envelop [sic] to have been transferred to ammunition
possibly deposited by one of the other DNA contributors.” Taggart’s Brief at
32. Taggart asserts that trial counsel made no use of this photograph which,
he claims, would have suggested improper handling in such a way as to
expose the ammunition to secondary transfer. Importantly, Taggart fails to
explain when or where any such photograph was taken and by whom. See
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (holding that
arguments which are not appropriately developed are waived, and that mere
issue spotting without analysis or legal citation to support an assertion
precludes our appellate review of a matter); see also Pa.R.A.P. 2119
(providing that the argument shall include discussion and citation of
authorities as are deemed pertinent). As Taggart failed to properly develop
any argument relating to the photograph, we deem it waived. See Ramsden,
94 A.3d at 1088-89; Pa.R.A.P. 2119.
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The PCRA court considered Taggart’s third issue and concluded that it
lacked merit. The court reasoned:
[Taggart] appears to conflate chain of custody with
secondary transfer. . . . [T]he stipulation asserted by [Taggart]
. . . only covers chain of custody and not secondary transfer of
DNA. [Taggart] fails to plead and prove that the DNA evidence
was not properly secured or handled correctly by the aforesaid law
enforcement offices.
[Taggart] attempts to buttress his boilerplate claim by
stating that competent counsel would have inquired into whether
the DNA samples could have been contaminated by secondary
transfer from [Taggart] to one of the individuals who handled the
gun. [Amendment to] PCRA Pet[ition], 3/30/20, at 11. Although
we acknowledge that the handling of DNA is critical in any case,
there is no evidence in the record that the evidence at issue was
not properly secured or handled. [I]t is [Taggart’s] burden to
prove that the procedures to prevent secondary transfer were not
followed in this case. [Taggart’s] speculative claim certainly
cannot satisfy this burden.
Rule 907 Notice, 3/16/21, n.4 (at 9-10) (unnecessary capitalization omitted).6
Here, the stipulation provided that the DNA samples were “properly
secured and handled by the Coatesville City Police, Chester County Detectives,
and the Pennsylvania State Police Forensic labs.” N.T., 11/10/15, at 101. The
stipulation did not address cross-contamination or secondary transfer, nor did
it limit or preclude trial counsel from cross-examining the Commonwealth’s
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6 The PCRA court additionally reasoned that the issue was waived because it
could find no evidence of the stipulation in the record, and Taggart failed to
indicate the place in the record where the stipulation could be found. See
Rule 907 Notice, 3/16/21, n.4 (at 9). However, we decline to find waiver, as
our review discloses that Taggart indicated in his petition the material terms
of the stipulation as well as the place in the record where the stipulation could
be found. See PCRA Petition, 10/31/19, at ¶ 35.
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DNA expert regarding the potential for cross-contamination or secondary
transfer. Moreover, on cross-examination of the Commonwealth’s DNA
expert, trial counsel elicited testimony that there is no way to determine when
or how the DNA got on the bag of cocaine. See N.T., 11/12/15, at 57.
More importantly, Taggart has not met his burden of proving that he
suffered prejudice as a result of trial counsel’s stipulation. In the instant
matter, Taggart offers no evidence that there was any lapse in the securing
or handling of the DNA samples by law enforcement. Thus, Taggart cannot
demonstrate that there is a reasonable probability that the outcome of the
proceedings would have been different but for trial counsel’s stipulation. See
Johnson, 139 A.3d at 1272. For these reasons, his third issue merits no
relief.
In his fourth issue, Taggart contends that trial counsel was ineffective
for failing to object to inaccurate statements made by the prosecutor during
opening and closing remarks to the jury and by Detective Shannon Miller
regarding the y-DNA evidence pertaining to the firearm. Taggart argues that,
although the y-DNA testing of the firearm indicated that there was a mixture
of DNA from at least three people and that Taggart was not the primary
contributor, the prosecutor nevertheless stated in his opening argument that
his forensic scientist would testify that the DNA from the firearm was a partial
match to Taggart or his paternal male relatives. Taggart additionally claims
that trial counsel was ineffective for failing to object when the prosecutor
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elicited testimony from Detective Miller that trial counsel’s remark to the jury
that “there was no direct connection to the firearm” was incorrect “[b]ecause
there’s DNA evidence that does not exclude him from touching the firearm.”
Taggart’s Brief at 36-37 (quoting N.T., 11/10/15, at 149). Taggart asserts
that trial counsel was also ineffective when she failed to object to testimony
that she elicited from Detective Miller on recross-examination that “the DNA
evidence doesn’t exclude [Taggart] or his male relatives.” Id. at 37 (quoting
N.T., 11/10/15, at 151). Finally, Taggart claims that trial counsel was
ineffective for failing to object to the remarks made by the prosecutor during
closing arguments that, “with the DNA for the gun. [Taggart] is connected to
it. . . . It’s in his house with his DNA.” Id. at 38 (quoting N.T., 11/12/15, at
120-21).
Notably, Taggart challenged the prosecutor’s opening and closing
remarks regarding the DNA related to the firearm in his direct appeal under
the theory of prosecutorial misconduct. Although the trial court deemed the
issue waived, this Court nevertheless concluded that even if the issue had
been preserved, it lacked merit for the reasons expressed by the trial court:
Here any perceived error is harmless in light of the
overwhelming inculpatory evidence presented at trial and defense
counsel’s thorough cross-examination of the Commonwealth’s
DNA expert concerning this evidence. In fact, during cross
examination, the DNA expert acknowledged that she was unable
to conclusively match [Taggart’s] DNA profile with the DNA found
on the firearm and magazine. Therefore, any misstatement by
the prosecutor concerning this evidence was clearly pointed out to
the jury by defense counsel during trial. Moreover, the jury was
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instructed during the trial that the opening statements and closing
arguments were not evidence.
Taggart, 178 A.3d 205 (unpublished memorandum at *25) (quoting
Supplemental Pa.R.A.P. 1925(a) Opinion, 1/30/17, at 12 (citations to the
record omitted)).
With respect to Taggart’s claim that trial counsel was ineffective for
failing to object to Detective Miller’s testimony, the PCRA court concluded that
the claim lacked merit for the following reasons:
Detective Miller testified as a lay or fact witness. It was
stressed repeatedly to the jury by trial counsel that [the detective]
was not an expert[] and could not opine as such concerning the
DNA evidence. Accordingly, the jury is presumed to have afforded
the proper weight to Detective Miller’s testimony.
Detective Miller appeared to initially conflate or confuse the
DNA evidence found on the firearm by testifying that the DNA
obtained from the firearm did not exclude [Taggart] from touching
the gun. However, any prejudice from her testimony was later
cured during direct examination when the detective stated that
[Taggart’s] DNA was found on the ammunition, inside the gun and
on the top of the baggie containing narcotics. Accordingly,
[Taggart’s] claim affords him no relief under the PCRA.
Rule 907 Notice, 3/16/21, n.4 (at 12) (unnecessary capitalization and citations
to the record omitted).
For the reasons expressed by the trial court and the PCRA court, we
conclude that Taggart has failed to establish that he was prejudiced by trial
counsel’s failure to object to the prosecutor’s remarks during opening and
closing statements to the jury and to the testimony provided by Detective
Miller regarding the DNA from the firearm. The jury received specific
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instructions that it was not to consider as evidence the opening and closing
arguments made by counsel. See N.T., 11/12/15, at 82-83; N.T., 11/10/15,
at 15. The jury is presumed to follow instructions from the court. See
Commonwealth v. Simpson, 66 A.3d 253, 269 (Pa. 2013) (holding that
appellate courts presume that that juries follow instructions). Additionally,
the prosecutor elicited accurate DNA testimony from Detective Miller that
incriminating DNA evidence was found on the ammunition and the bag of
cocaine. See N.T., 11/10/15, at 100. As we discern no abuse of discretion
by the PCRA court in rejecting this ineffectiveness claim, Taggart’s fourth issue
warrants no relief.
In his fifth issue, Taggart contends that trial counsel was ineffective for
repeatedly and emphatically remarking to the jury in her closing arguments
that the DNA evidence conclusively “excluded” Taggart from the potential
group of individuals who could have committed the crimes. Specifically,
Taggart points to trial counsel’s statements that “I don’t know what the
prosecution doesn’t get about the fact that my client was excluded from all of
the [DNA] evidence. That means that he is not in the subset of people who
could have committed this crime, and it conclusively establishes he’s not
guilty.” Taggart’s Brief at 41-42 (quoting N.T., 11/12/15, at 94-95). Taggart
points out that the DNA results indicated that he and nine other individuals in
the DNA database of 25,665 individuals could not be excluded from having
touched the ammunition. Taggart argues that because these statements were
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not supported by the evidence, trial “counsel’s decision to make them in such
an emphatic fashion clearly risked destroying the credibility of her
presentation as a whole.” Id. at 42. Taggart asserts, the reasonably expected
result of trial counsel’s misstatements regarding the DNA evidence would be
to lessen her credibility, thereby causing him prejudice.
The PCRA court considered Taggart’s fifth issue and determined that it
lacked merit. The court reasoned:
[Taggart’s] argument is once again based on pure
conjecture. [The] argument would require the court to make an
unsubstantiated finding that the jury convicted [him] based on its
distrust of trial counsel’s credibility. The record is devoid of any
evidence that [Taggart] was convicted solely because of trial
counsel’s lack of credibility. Rather, [Taggart’s] argument is
belied by the record in that the jury perplexingly acquitted [him]
of the PWID charges despite trial counsel conceding that if
[Taggart] was guilty of possession of a controlled substance than
[sic] he was also guilty of the PWID offenses. Accordingly,
[Taggart] is unable to establish actual prejudice.
Additionally, we reiterate that the jury had been specifically
instructed that opening statements and closing arguments are not
to be considered by them as evidence. Here, the jury was
specifically instructed on how closing arguments may be
considered. The jury is presumed to have followed the court’s
instructions. Since the jury is the sole finder of facts from the
evidence presented at trial and the sole judge of a witness’
credibility, [Taggart] cannot identify any cognizable prejudice
attributable to trial counsel’s remarks so as to be entitled to relief.
Although a perfectly conducted trial is indeed the ideal
objective of our judicial process, the defendant is not entitled to
relief simply because of some imperfections in the trial, so long as
he has been accorded a fair trial. Because the record is devoid of
any evidence that trial counsel’s closing argument caused the jury
to form a fixed hostility or bias toward [Taggart] or prevented the
jury from rendering a fair verdict, [this court] is constrained to
deny the request for relief.
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Rule 907 Notice, 3/16/21, n.4 (at 13-14) (citations, quotation marks, and
unnecessary capitalization omitted).
We discern no abuse of discretion by the PCRA court in determining that
Taggart failed to establish that trial counsel’s remarks caused him any
prejudice. As the PCRA court explained, the jury received specific instructions
that it was not to consider as evidence the opening and closing arguments
made by counsel. See N.T., 11/12/15, at 82-83; N.T., 11/10/15, at 15. The
jury is presumed to follow instructions from the court. See Simpson, 66 A.3d
at 269. Moreover, Taggart has presented this Court with no evidence from
the record demonstrating that there is a reasonable probability that the
outcome of the proceedings would have been different but for trial counsel’s
remarks. See Johnson, 139 A.3d at 1272. Such a showing is necessary
particularly where, as here, this Court previously noted that the inculpatory
evidence of Taggart’s guilt was overwhelming. See Taggart, 178 A.3d 205(unpublished memorandum at *25) (quoting Supplemental Pa.R.A.P. 1925(a)
Opinion, 1/30/17, at 12). Thus, Taggart’s fifth issue merits no relief.
In his sixth issue, Taggart contends that trial counsel was ineffective for
presenting evidence related to Taggart’s maternally related male relatives
rather than to his paternally related male relatives. Taggart points out that
the y-DNA testing indicated that Taggart and his paternally related male
relatives could not be excluded from the pool of individuals whose DNA was
found on the ammunition and the bag of cocaine. Taggart asserts that trial
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counsel presented the testimony of Taggart’s cousin, Kyhil Gregory Raison
(“Raison”) concerning the number and names of his paternally related male
relatives. Taggart argues that trial counsel was ineffective in presenting
Raison’s testimony because Raison is maternally related to Taggart rather
than paternally related. Taggart maintains that trial counsel’s presentation of
Raison’s irrelevant testimony undermined the credibility of the defense.
The PCRA court determined that Taggart essentially contends that trial
counsel called the wrong witness at trial. See Rule 907 Notice, 3/16/21, n.4
(at 14). The PRA court explained that, when raising a claim of ineffectiveness
for the failure to call a potential witness, a PCRA petitioner must establish
that: (1) the witness existed; (2) the witness was available to testify for the
defense; (3) counsel knew of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the defense; and (5) the
absence of the testimony of the witness was so prejudicial as to have denied
the defendant a fair trial. See id. (citing Commonwealth v. Johnson, 966
A.2d 523, 536 (Pa. 2009)). The PCRA court concluded that Taggart’s sixth
issue lacked merit because he failed to identify which witness should have
been called, that trial counsel knew of the existence of the uncalled witness,
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and that the uncalled witness was available to testify on Taggart’s behalf. See
id.7
Here, Taggart has not identified any particular witness that trial counsel
should have called, nor has Taggart even acknowledged the remaining
requirements to establish a claim of ineffectiveness for the failure to call a
potential witness. See Johnson, 966 A.2d at 536; see also 42 Pa.C.S.A.
§ 9545(d)(1). Thus, Taggart’s claim that trial counsel was ineffective for
calling the wrong witness entitles him to no relief.
To the extent that Taggart faults trial counsel for presenting irrelevant
testimony, his claim has arguable merit. Although the record indicates that
Taggart is, in fact, paternally related to Raison, they do not share the same y
chromosome. Raison testified that he and Taggart are cousins and that “[m]y
mother and [Taggart’s] father are brother[] and sister[].” N.T., 11/12/15, at
74. Thus, Raison is Taggart’s paternally related male relative. Nevertheless,
not all paternally related male relatives share the same y chromosome.
Although the Commonwealth’s DNA expert repeatedly used the term
“paternally related male relatives,” her testimony was clear that the y
chromosome can only be handed down from father to son, thereby narrowing
____________________________________________
7 The PCRA court additionally concluded that Taggart failed to include in his
PCRA petition a signed certification regarding the proposed uncalled witness
stating the witness’s name, address, date of birth and substance of testimony,
as required by 42 Pa.C.S.A. § 9545(d)(1). See Rule 907 Notice, 3/16/21, n.4
(at 14).
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the scope of paternally related male relatives who carry the same y
chromosome. See N.T., 11/12/15, at 45-46. Based on the explanation
provided by Ms. Crouch, Raison’s y chromosome would have come from his
own father and would differ entirely from the y chromosome shared by Taggart
and his father. Accordingly, Raison’s testimony regarding his paternally
related male relatives was irrelevant, since those relatives would have
different y chromosomes than Taggart. See id.
Nevertheless, Taggart has not demonstrated that he was prejudiced by
counsel’s decision to call Raison as a witness. As explained above, to establish
prejudice, a PCRA petitioner must demonstrate that there is a reasonable
probability that the outcome of the proceedings would have been different but
for counsel’s action or inaction. See Johnson, 139 A.3d at 1272. Taggart
has not demonstrated that, but for trial counsel’s decision to call Raison, there
is a reasonable probability that the outcome of the proceedings would have
been different. Therefore, his sixth issue entitles him to no relief.
In his seventh issue, Taggart contends that if any of his individual claims
of ineffectiveness fail for lack of prejudice, then the cumulative effect of his
various claims of ineffectiveness should satisfy the prejudice prong. Our
Supreme Court has explained:
We have often held that no number of failed [ ] claims may
collectively warrant relief if they fail to do so individually.
However, we have clarified that this principle applies to claims that
fail because of lack of merit or arguable merit. When the failure
of individual claims is grounded in lack of prejudice, then the
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cumulative prejudice from those individual claims may properly be
assessed.
Commonwealth v. Spotz, 84 A.3d 294, 2321 n.22 (Pa. 2014) (internal
quotation marks and citations omitted). The Court went on to add that no
cumulative prejudice will be found when the “ineffectiveness claims at issue
are independent factually and legally, with no reasonable and logical
connection warranting a conclusion that the cumulative effect was of such
moment as to establish actual prejudice.” Id.Here, although Taggart raised six ineffectiveness claims, the only claims
which failed solely because he did not establish the prejudice prong of the
ineffectiveness test were the following: (1) trial counsel’s failure to object to
the prosecutor’s opening statement and closing remarks to the jury and
Detective Miller’s comments regarding the DNA evidence; (2) trial counsel’s
repeatedly and emphatically remarking to the jury in her closing arguments
that the DNA evidence conclusively “excluded” Taggart from the potential
group of individuals who could have committed the crimes; and (3) trial
counsel’s presentation of Raison’s irrelevant testimony regarding his
paternally related male relatives. In our view, the DNA evidence presented at
trial was somewhat complicated and, at times, confusing. Nevertheless, the
jury was specifically instructed that it could not consider counsel’s remarks as
evidence, and the jury was presented with accurate testimony from Ms.
Crouch and ultimately Detective Miller regarding the DNA evidence. Given
these considerations, as well as the overwhelming inculpatory evidence of
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Taggart’s guilt presented at trial, we conclude that the cumulative effect of
these misstatements was not of such moment as to establish actual prejudice.
Id. Accordingly, Taggart’s seventh issue merits no relief.
In his eighth issue, Taggart challenges the PCRA court’s denial of his
second request for discovery from the Pennsylvania State Police, Bureau of
Forensic Services. In non-capital PCRA cases, no discovery is permitted at
any stage of the proceedings except upon leave of court and after a showing
of exceptional circumstances. See Pa.R.Crim.P. 902(E)(1). The PCRA and
the applicable rules do not define "exceptional circumstances” that would
support discovery on collateral review. Commonwealth v. Frey, 41 A.3d
605, 611 (Pa. Super. 2012). Rather, it is for the PCRA court, in its discretion,
to determine whether a case is exceptional and discovery is warranted. Id.Discovery in a PCRA proceeding cannot be used as a “fishing expedition.”
Commonwealth v. Lark, 746 A.2d 585, 591 (Pa. 2000), overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267, 1285-86 (Pa. 2020).
A petitioner’s “mere speculation” that exculpatory evidence may exist does
not establish that exceptional circumstances exist. Commonwealth v.
Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006). We will not disturb a PCRA
court’s determination regarding the existence or absence of exceptional
circumstances unless the court abused its discretion. See Frey, 41 A.3d at
611. An abuse of discretion is not a mere error in judgment; rather, it is a
decision based on bias, ill will, partiality, prejudice, manifest
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unreasonableness, or misapplication of law. Id. An appellant has the duty to
convince this Court that such an abuse occurred. Id.Taggart claims that the information he sought to request from the
Pennsylvania State Police, Bureau of Forensic Services was critical to right to
effective assistance of counsel in a first PCRA petition. Taggart argues that
Dr. Kessis indicated that, in order to adequately evaluate the Commonwealth’s
DNA evidence, he needed supporting documentation for the DNA analysis,
such as bench notes, worksheets, chromatographical data, data files,
protocols and procedures in use by the laboratory involved, conditions of
storage of the samples, and chain of custody. Taggart claims that he therefore
filed a motion for discovery of items in the district attorney’s possession which
the PCRA court granted. Taggart explains that, in response, the prosecutor
indicated the majority of the items that Taggart requested were not in the
district attorney’s possession. Taggart asserts that he then filed an amended
motion for discovery directed to the Pennsylvania State Police, Bureau of
Forensic Services, requesting the same information. Taggart argues that it
was unreasonable for the PCRA court to grant the motion for discovery when
directed to the district attorney but to deny the very same motion when the
discovery was directed to the Pennsylvania State Police, Bureau of Forensic
Services. Taggart claims that exceptional circumstances are presented in this
case given his inability to demonstrate what the probable outcome would have
been had counsel obtained a DNA expert for the defense. Taggart asserts that
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this is particularly true because this is his first PCRA and his lack of access to
discovery has frustrated the ability of Taggart’s PCRA counsel to undertake a
thorough first PCRA review.
The PCRA court considered Taggart’s eighth issue and concluded that it
lacked merit. The court reasoned:
Here, the court liberally granted [Taggart’s] initial request
for post-conviction discovery to afford [him] ample opportunity to
develop his claim. After the Commonwealth provided the initial
discovery, [Taggart] attempted to seek additional discovery,
which again was not legally required under the PCRA. Specifically,
[Taggart] requested “discovery of the underlying data and State
Police bench notes and other similar material necessary for the
desired expert review of the Commonwealth’s DNA analysis.”
[Amendment to] PCRA Pet[ition], 3/30/20, at 1. The additional
discovery request amounts to an impermissible “fishing
expedition” as [Taggart] was unable to articulate any legal basis
for his second request for discovery. Rather, [Taggart] appears
to have requested this material in hope that it would provide some
new evidence that would be favorable to his case.
Rather, than satisfying his burden entitling him to the
requested discovery, [Taggart] appears to blame the court for his
inability to make out valid PCRA claims. . . ..
****
Because [Taggart’s] overly broad requests failed to
establish that the requested material exists . . ., the court properly
concluded that [Taggart] failed to establish an “exceptional
circumstance” exists. Logic dictates that if [Taggart] is unsure
whether the requested materials exist or what their contents may
show, [he] cannot claim that [this] court failed to permit
exculpatory discovery.
Rule 907 Notice, 3/16/21, n.4 (at 15-16) (unnecessary capitalization omitted).
Here, Taggart has not demonstrated any exceptional circumstances
which would support an exception to the general rule that discovery is not
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permitted in non-capital PCRA proceedings. The mere fact that Taggart hoped
that the requested items might exist and further hoped that, if such materials
did exist, that they might provide a basis to question the Commonwealth’s
DNA evidence is simply insufficient to meet the requisite threshold. See
Dickerson, 900 A.2d at 412 (holding that petitioner’s “mere speculation” that
exculpatory evidence may exist does not establish that exceptional
circumstances exist). Accordingly, as we discern no abuse of discretion by
the PCRA court in denying Taggart’s second motion for discovery, his eighth
issue merits no relief.
Having found no merit to Taggart’s issues, we affirm the PCRA court’s
order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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