*1 DеLozier, Lee, for Gordon L. Inc. Kenneth Weller Monico, Township Au- Municipal Ralph Michael Greenfield thority. NIGRO, C.J., CAPPY, CASTILLE, ZAPPALA,
Before NEWMAN, EAKIN, JJ. SAYLOR
ORDER PER CURIAM. 2002, is day August, appeal
And this 20th NOW granted. having improvidently been DISMISSED as dissents. Justice NIGRO
Argued May 2002. Aug. 2002. Decided Reargument Denied October *5 Jr., Gen., Fisher, Ryan, H. Robert Atty. William D. Michael Harrisburg, for Fogelsanger, Graci, Kreisher Marianne A. Commonwealth. Barre, Gelso, LLP, Moses, Wilkes Moses & P.
John *6 Stephen Barry Scher. THE JUDGMENT ANNOUNCING
OPINION OF THE COURT NEWMAN. Justice for Allow Petition granted
We the Commonwealth’s violated decide whether the Commonwealth Appeal to ance (Scher) rights to of law Barry due Stephen Scher’s and Article Section Constitution under the United States twenty-year delay Pennsylvania by the of the Constitution (Dillon). of Martin Dillon with the murder charging in Scher delay did not violate the due twenty-year We find Superior Court. and reverse the process rights Scher AND PROCEDURAL HISTORY FACTUAL gunshot of a wound to the chest June Martin Dillon died family property called “Gun- at the Dillon recreational County. only was the other Scher Susquehanna smoke” in died, and How Dillon when Dillon died. present individual an act of was an accident or intentional that death whether murder, in fits and starts story that evolved is decades, being culminating in murder intervening two degree for first in 1996 and his conviction against Scher filed Resolution of jury trial following a six-week murder how where understanding the scene appeal requires 1976; investigators what lay appeared Dillon dead and how that concerning Dillon’s death initially concluded conducted; prosecutors what succession investigation death; why Susquehan- suspicious to this respect did with finally reopen Attorney’s decided to County District Office na related case; and, how the lies that Scher important, most appear to it staging and his of the scene make investigators to accidentally impacted investigation. that Dillon died
The Scene' Russin, a neighbor approximately Andrew house whose Gunsmoke, that, two miles from day testified on the Dillon died, at appeared Scher Russin’s house with his hands mouth covered in blood and asked Russin to call the authori- appeared upset ties because Dillon been shot. but Scher call, crying. was not Russin whom did know so Scher telephone made the call himself. proceeded two Gun- smoke, vehicle, each in own Russin’s while son stood road leads entrance Gunsmoke direct the police they ambulance and the when arrived. After the two parked trailer, arrived Gunsmoke and near Dillons’ area, led path Scher Russin towards the shooting skeet body. Russin where saw Dillon’s Russin testified that Dillon’s placed chest was saturated blood and that he a blanket over body. Dillon’s Russin as picked up then watched Scher gun lying that was near Dillon’s body and smashed it against *7 tree, breaking barrel from the the stock.
Trooper Police, William Hairston Pennsylvania the State barracks, Conarton, Gibson arrived at Gunsmoke with John Susquehanna Coroner, County the approximately at p.m.1 7:25 parked Trooper Hairston his family vehicle near Dillon the and up path trailer walked the that led to a clearing where on body lay Dillon’s its back. A pair of hunting goggles and shooting “earmuffs” ground nearby. were the Trooper Hairston the observed earmuffs had blood on them. a puddle There was blood to the body. left side Dillon’s Trooper Hairston and Coroner Conarton returned to the area trailer sitting, where Scher was door open, the passenger Hairston, side a car. Trooper with Coroner present, Conarton took a statement from Scher. his June statement, (1) Scher told Trooper Hairston: he and Dillon shoot; (2) had to come Gunsmoke to firing skeet after twenty rounds, about they decided to take a break and re- individuals, including Pennsylvania game Other a commissioner and members of the corps, already Silver Lake Ambulance were at the scene Trooper when investigating Hairston —the first officer at scene—and Coroner Conarton arrived. (3) potato chips; and to the trailer some beer turned trial in discussing upcoming murder in the trailer two sat defendant;' (4) Dillon, lawyer, representing a which clearing to trail towards the where they then went back and a trap up was set fired few more skeet-shooting rounds; (5) to get back to the trailer go Dillon then wanted a shotgun, sixteen-gauge, be so Scher loaded cigarettes, while Dillon unloaded his ready firing, for the next round of (6) nearby stump; placed and it on twenty-gauge shotgun trail, placed and Dillon down the Scher and then walked Scher stand, gun shotgun approximately on metal his loaded (7) area; they as went further skeet-shooting from the feet trail, something around and saw Dillon turned down thought up was a ran porcupine, field that back open he (8) stand; heard from the grabbed gun trail and Scher’s Scher fire, it he could not gun and heard but see Dillon cock (9) Dillon; up Dillon then walked the trail found Scher down; (10) Scher, a ran physician, face lying ground, on the over, bleeding saw Dillon was up to Dillon turned him stop bleeding, but knew the chest and tried dead; (11) keys car took the from Dillon’s Dillon was Scher (12) house; and Russin pocket and drove Russin’s Scher scene, trigger of to the and Scher noticed that the returned (13) it; shotgun twig Scher then sixteen-gauge tree, stated, against the “I know I shotgun smashed the 2, 1976 that.” This June statement shouldn’t done twenty Hairston, testimony trial more than Trooper as Scher’s admitted, years was a lie. later
' 2, 1976, Gazda, on June who arrived Gunsmoke Carol along with her husband and other members of Silver Lake *8 of a responding report who to the corps Ambulance were accident, concerning the 1996 trial Scher’s hunting testified at unusual at scene: demeanor jury you go your I on in own words tell
Q: want you exactly what saw and heard. was a vehicle in front of Okay. gentleman
A: There me, believe, standing okay. to it. he I next And seemed around, know, you normal. And looking then just He was him, get him came near to talk to he would when someone start, know, you like, very My emotional and best [sic] dead, dead, I my friend is can’t believe best friend is he’s dead, left, I they can’t believe it. When seemed fine he again, previous like he when he was alone. And when somebody again, thing. came do It was kind he’d the same me, strange but I had no idea who he was. Now, you Q: point did at some find this person out who was—
ItA: was—
Q: What his name was at least? mentioned, believe, A: —later in that hour I someone Dr. Scher.... 9/24/97, of Testimony, pp. *9 variety high magnum four load brass shell—a
charged number shooting. Dillon’s left in skeet Beneath commonly used clay pigeons. hand were unbroken Investigation The Initial a.m., 4,1976, days two after his statement at 11:30 On June Attorney’s Hairston, to the District Trooper Scher came Montrose, at County Courthouse in Susquehanna at Office At gave a investigators, and statement. request Collier, Susque- for the Williard the detective interview were office, Attorney’s Troopers John Salin- County hanna District Police, a Pennsylvania State and and John Fekette of the kas Attorney’s Susquehanna County District secretary from Trooper Fekette questioning, At of office. the commencement his Miranda and rights, which Scher waived advised Scher During lawyer present.- without a questioned to be agreed essentially story repeated same interrogation, this Scher 2, Trooper in his June statement that he had related gone to he and Dillon had explained that Hairston. Scher shooting, they returning that were go skeet Gunsmoke thought that Dillon he saw get cigarettes, trailer to it, that Scher path pursue ran and porcupine up and after, lying Dillon and followed where he found the shot heard gunshot wound to the chest. One ground on with a this second statement noteworthy difference between 2,1976 placed had was that Scher said he June statement tree, his June shotgun against whereas sixteen-gauge placed the loaded shot- indicated he 1976 statement gun he and gun stand. When asked whether on the metal said, “No. We were any disagreements, Dillon had Scher I thinking leaving I talking this rumor. told was about him just a rough It him. sat and told me I was town. He away just .. it small quitter chicken—‘don’t run ” answer, became talking.’ giving Scher people After interview, and left room. terminated the angry, Little, Attorney Susquehanna Coun- Edward District on Scher’s ty pretrial hearings from 1968 to testified investigation June to Dismiss as to the state Motion explained during why no were filed Grace, general practitioner tenure office. Dr. James who 3, 1976, autopsy2 conducted an of Dillon on June had issued a report explained, given “[h]istory hav- [Dillon’s death] *10 accident,” ing in a hunting been involved and listed the cause “gunshot chest,” of death as wound of the but made no determination whether the was the result of a death homicide. Conarton,3 gave Coroner who present was when Scher his 2, Hairston, June Trooper 1976 statement to had determined that was and Dillon’s death accidental had listed this as the Although manner death Dillon’s death certificate. De- had a strong may tective Collier that belief Dillon’s death accident, expressed been a rather than an murder this opinion Little, report4 in a was June Scher not he, too, explained arrested. Little not convinced Dillon’s death was an and requested accident that Coroner Conarton issuance of the death in order to certificate allow investigation. additional time to conduct Little testified, however, brought against he never Scher he felt that because there was insufficient evidence of prosecute successfully. murder to the case Kelly Laurence as Attorney succeeded Little District Susquehanna County and held that until office 1988. Little that he Kelly regarding testified had no discussions with the investigation Kelly into Dillon’s death. confirmed that: performed autopsy, 2. When Dr. Grace funeral director who had charge body already of Dillon’s sutured the wound Dillon's chest. 3. Coroner Conarton was not a medical doctor. This is not unusual in counties, requirement smaller because there is no that a coroner have training § formal medical Indeed, hold P.S. order to office. See 16 413. legislature prescribed it was not until 1988 course of professional newly-elected complete, education that all coroners must training investigation, toxicology, which includes crime-scene autopsies. §§ forensic See 16 P.S. 9525.2-9525.3. report, 4. In explained this Detective Collier that ‘‘an examination of the scene, angle of the wound of available entrance information present satisfactory investigator being are not as caused fall weapon.” Testimony, p. on the Notes of Detective Collier 5/7/97 expressed report physiognomy subject, also in this that "the one partial weapon explanation of the destruction and his of the incident satisfactory investigator.” are not to this Id. (1) Little or Detective he had no conversation with either (2) death; did know where concerning Dillon’s he Collier investigative on the Dillon matter in the office the file (3) located, it; any he did not initiate nor did he look Dillon; (4) gathered investigation concerning the death of he (5) death; no into Dillon’s he conducted no additional evidence investiga- gathered during initial review of the evidence (6) and, tion; anyone Pennsylvania never met he years, For regarding eight Police the Dillon case. State therefore, Dillon was dor- investigation into the matter mant. Investigation
The Reactivated Attorney Susquehanna Jeffrey Snyder was the District Attorney until 1996. District County from 1988 Riemel, Al telephone call from a sociаl Snyder received a and the Snyder family brother-in-law acquaintance *11 a Lawrence Dillon, meeting at the home of requesting Martin Dillon, telephone Prior to the of Martin Dillon. this father case, call, any of Dillon Snyder had not conducted review the Attorney’s file re- investigative but had the District Office District in order to review the matter. storage trieved file, it Dillon but that Attorney Snyder reviewed the found contained to no information” decided to meet “little At police discuss status of the the the state to the case. Dillon, arranged meetings with Snyder of Lawrence behest investigators, Troopers original Pennsylvania State Police the Fekette, police and John and reviewed the state John Salinkas investigative Attorney Snyder District to have agreed file. investigation point that developed facts as the to the holding a experts to of medical who presented panel a were University Pennsylvania, Philadelphia. of in conference at the “get some May Snyder of went to the conference to in the field” whether consensus from those forensic about Dillon died or was murdered. The conference accident examiners, pathologists, of attendees consisted medical Police Pennsylvania of coroners. Three members the State conference, along the with Dr. Isadore accompanied Snyder to Mihalikis, actually pathologist presented who the forensic Following presenta- this case to conference attendees.5 tion, significant majority opined of the conference members wound, gunshot that a either accidental or inten- self-inflicted tional, Snyder “an caused Dillon’s death. viewed vote as that overwhelming for prosecution” defeat concluded no at time. prosecution successful could be mounted investigation Although open, Susquehanna remained steps County Attorney’s District took no substantial to Office investigation years. advance the next five private In 1990 and Lawrence Dillon retained investi- gators unsuccessfully look petitioned into the case and body autopsy. have Dillon’s At that exhumed for another time, Snyder family felt that the efforts of the Dillon were counterproductive investiga- resumption successful However, tion.6 in at again urging the Dillon family, two Pennsylvania no State Police officers who had previous in involvement in to brought the case were reexamine evidence, witnesses, and, Sny- conduct interviews with in words, rumor, innuendo, der’s out my “winnow opinion riddled much already material on file.” The “rumor” to by Snyder report referred was the that Scher wife, Patricia,7 and Dillon’s having had been affair before Dillon’s death. These rumors were known investigators but, time the incident appear for reasons that do not record, pursued. were not who placed The officers were charge police the state investigation 1994 reinter- viewed witnesses and interviewed additional who witnesses had not been questioned in 1976. Based this renewed investigation, finally developed the Commonwealth evidence a motive for Scher Dillon that had not murder been *12 in developed the earlier that investigation: namely, Scher had having prior Patricia been an Dil- extramarital affair to In peti- lon’s death. successfully the Commonwealth presentation 5. photographs autopsy This included from the conducted by Dr. Grace in June of 1976. Snyder family's private investigative 6. feared that the Dillon in activities early pressure arresting prematurely 90s would him into Scher when there would be little prosecution. chance of successful Scher, 7. having Patricia Dillon is Patricia now married Scher in 1978. Scher,8 tioned, to have objection of the Patricia spite in Following this autopsy. for a seсond body Dillon’s exhumed April in obtained autopsy Commonwealth second Mihalikis, Dr. expert pathologist, support from its forensic gunshot of Dillon’s position physical that evidence of a discharge an with accidental wound was consistent it that concluded dropped shotgun. The Commonwealth9 prosecute to evidence murder possessed sufficient first-degree charged with murder successfully and Scher of 1996. June Testimony Trial
Scher’s theory physi- was that the Commonwealth’s case The wound, (i.e., gunshot cal the condition evidence wound, at the appearance body of Dillon’s angle of boots) scene, was inconsistent spatter blood Scher’s those in the story the conclusion of involved Scher’s —and gun- Dillon died from an accidental investigation initial —that presented ex- Accordingly, shot wound. the Commonwealth theory support its that Dillon could not have pert testimony to accidentally dropped shotgun. aby been shot The Common- its testimony support from witnesses presented wealth also an having that affair with theory motive Scher been about Patricia that Dillon knew it. case, took
Confronted with Commonwealth’s Scher previous that his statements the investi- stand and admitted explain proceeded of 1976 false. He gators June were day at happened what Gunsmoke. proceedings In contest exhumation
8. court Commonwealth’s having affair. petition, and Scher had been an Patricia denied that she conference, Indeed, they press which Scher and called Patricia prior they having Dillon’s had been an affair denied the rumors with Scher’s sworn statements death. These denials were consistent proceedings papers divorce from Scher’s first in the court having marriage he had been where Scher denied that and Patricia Scher later conceded at trial he committed extramarital affair. lies perjury, denials of an affair with Patricia were and that these sworn fact, trial, he and Patricia had as Scher admitted at under oath. having been an affair. Attorney prosecution of General's office assumed the case Susquehanna Attorney’s District Office. *13 Well, ready I [p.m., A: 3:00 June and was to 1976] came I go. my going I had clothes on that was to wear got I Marty Gunsmoke. And wasn’t there.... So [Dillon] everything my put my out into car. I took house hamburger and and ketchup buns and relish and mustard potato chips; my gun, sixteen-gauge shotgun, and I took clay put and and ammunition to—and it in some birds some I for until my Marty the trunk of car. about 3:15 waited p.m. up.... when he showed Marty, I still you go? Marty
And asked Do want to ... Yeah, said, meat, just bought I a whole bunch of hamburger go. let’s right up
And we road into drove Gunsmoke there, out, got trailer cabin. We and we took out the things, all food took out the food stuff that we had to take up to the trailer. porch, sat down and
We on the we had a beer and a cigarette, just point on, unwound. Then after finishing beer, put couple we a in our pockets, beers actually, one each. We back to car got went and stuff going got clay we were shoot with. We birds guns and the ammunition and the bird thrower machine.
[*] [*] [*] got trail up We was a clearing where we—there machine, clay we shot up where birds. We set birds, machine that out clay spring throws action. Q: minute, interrupt you me you got Let Doctor. When you out at Gunsmoke and took the food and stuff up to [sic] you cigarettes beer, trailer sat smoked and drank you what did talk about? quite couple things
A: talked ... We about talked .we Marty’s upcoming about trial that public he was made a It defender. was murder case and he never tried a murder case. talked to me a He little bit about that trial. and went it we finished our beer
And that was about before up guns with the and— back the trailer after interrupting you. happened Q: sorry I’m What *14 that discussion? shooting Well, get went to the up
A: that’s when we clearing. trail to up Jeep We paraphernalia. walked boxes and put thrower and down the up And we the bird set shooting. started rounds ten. And shot about five or six
Anyhow, up we hot, And ran so them down. we also guns putwe were to go had to back down the trail clay birds. So we out clay get car some more birds. the cabin and the and got cabin and we sat down we drank We to the beers, cigarettes. We couple had a more couple more chips and talked potato chips ate the and opened up some going back out there. before you talk about time?
Q: What did trial was about the murder that he Mostly A: we talked for.... talked a little bit a defendant We going [sic] to be proceeding. then we left. We went my about divorce And shooting again. out clearing. trail This time up back to the
So we walked me, I and then I shot first. He threw out ten birds using him. He still the same threw off ten birds for was twenty gauge. using I was still gun, and ten, very last at the end of the my Then second round shot, me, said, to me told me Ann came and he turned he Pat. you you love told her put I said, happen?
I did that And down When log. it twenty put and I it half and on the gauge broke his And I over him to side. walked said, happened. it matter when it He doesn’t said, her? you I Do believe said, crazy. I don’t know wheth- I don’t know. She’s
He and talk But with all the rumors her not. er believe my breath- and town and father’s gossip gossip [sic] and ing my gossip, really down about this I neck need to —I stopped know. And and he at ground he looked down know, and it was really like he—it like he didn’t want to but, know, you then up. right but he looked He looked said, eye. He I you me know. Are and Pat having an affair? just
And I him had —I had to tell truth. He looking eye. longer keep me in I no it could from him. said, Yes, affair, I having, we’re not a but a physical love affair.
And very very, then he became anxious very upset. sitting log He was there his he had hand over rocking ears he was down and me a asked whole bunch I And questions. don’t—I don’t remember his exact words, phrased questions. how he I don’t even remem- them, ber order that he asked but he wanted to know *15 me, to he wanted know how did this start. just I told him it I happened. Pat and were close all together just happened. the time. It I was to talk him way, embarrassed to I course. looking ground. him, know, was at the I to You said this is your as much as it anybody’s. fault is scream, Then I yell. hear a And I up look and he has the hand, gauge gun sixteen reached around I—I and just I had get gun away. get knew—I knew to I had to it. I didn’t know what going he was to do with it. I just with my knew his state mind at that and time state good that it mind wasn’t to have a of a I gun hold and time, lunged. a matter of that much I grabbed gun pulled away (indicating). and struggled We and gun off. went 10/6/97, 90-92, Testimony,
Notes of pp. 94-100. then explained why engage Scher he decided to in a cover- up why investigators, of and press, he had lied to to the and to public twenty-one years. for the next anybody can I this accident thinking,
I How tell was anybody me Mont- this and have believe happened like rose, going were on and me what all the rumors that is Marty’s to the and father being a relative newcomer area town, only county? in the mayor and I’m the Jew anybody. I tell And I felt couldn’t going I it was an accident that I was And decided since public it accident. I couldn’t face make into another right of an accident. I had make telling them the truth story I something up accident. made up of another So I falling. running gun tripping him with the and and about if if I didn’t—and I was afraid that I would be convicted convicted, again. to practice never be able medicine I’d gun I story dropped I and took the up made
So off with a discharged wiped when it the barrel right my pocket. I took the put it back into handkerchief facing I his head where he gun put it with the muzzle make it like there Then I untied his shoelace to look laid. And I ran down the something tripped he over. bаck cabin, go tell Mr. past going cabin. I was trail to get help. Russin 10/6/97,
N.T., pp. 102-03. first-degree murder and the jury convicted Scher imprisonment court him to life on October trial sentenced Court, appeal Superior Scher raised numer- On issues, delay in including twenty-year ous the claim that the right process of charges against him violated his to due filing *16 Pennsylvania by and guaranteed law as the United States of Superior Judgment Constitutions. The Court reversed the Scher, concluding discharged that the Common- Sentence rights by delaying due process wealth violated Scher’s v. charging him with murder. Commonwealth twenty years Scher, granted (Pa.Super.1999). 1278 We Com- 732 A.2d Appeal of to address the monwealth’s Petition Allowance an individual’s question pre-indictment delay of violates when rights to due law. process
303
DISCUSSION
The Due Process Standard
In
44,
Commonwealth v. Snyder, 552 Pa.
United States v. 455, 404 92 U.S. S.Ct. (1971), L.Ed.2d 468 was the seminal case address whether a defendant’s federal rights constitutional are violated delay extensive between the occurrence of a crime Marion, indictment or arrest of a defendant for the crime. charged the defendants were having engaged a fraudu- lent business beginning scheme ending March of 1965 and in January of 1966. prosecutor The federal in Marion did not empanel grand jury to investigate the until Septem- scheme Constitution, 10. Known as the Due Pennsylvania Process Clause of the provides, this Section part, in relevant "nor can [an be accused] life, deprived liberty property, of his or judgment unless of his peers or the law of the § land.” Pa Const, art. 11. The Due Process Clause of provides, the Fourteenth Amendment life, any "nor deprive any person shall State liberty, property, or XIV, process without due of law....” § U.S. Const 1. The amend Supreme United States Court process decisions that have examined due grounded pre-arrest claims that arose in federal criminal prosecutions, infra, discussed have relied on the Due Process Clause of Amendment, the Fifth provides, which person "[n]o shall ... be de- law____” life, prived liberty, property, without due U.S. analyze V. Amend. We pursu- Scher’s federal constitutional claims Const. Amendment, ant to the specifically applicable Fourteenth which is Haven, City Commonwealth's actions. Shoemaker v. Lock Cf. (M.D.Pa.1995) F.Supp. (“Rights guaranteed by the Fifth incorporated Amendment are not rights, into the where .. . such Fourteenth exist, they if can directly be asserted under the Fourteenth Amendment”).
304 1969, until March and no indictment returned
ber
indictment,
to dismiss
claim-
The defendants moved
1970.
(1)
delay
indicting
them violated their Sixth
ing:
trial; and, (2)
delay violated
right
speedy
to a
Amendment
right
to due
of law. The
process
Fifth Amendment
their
motion and
granted
district court
defendants’
federal
Supreme Court
the indictment. The United States
dismissed
dismissal, rejecting the
Sixth Amend-
defendants’
reversed
claims,
did
holding
protection
trial
not
speedy
such
ment
until “either a formal indictment or information
else
apply
holding
arrest
imposed
actual restraints
answer
implicated
not
charge,” which was
defendants’
a criminal
320,
delay.
Id.
pre-arrest
at
The Thus, concedes that the Due Process the Government require of the Fifth Amendment would dismissal of Clause pre shown indictment if it were at trial delay prejudice in this case caused substantial indictment rights to a fair trial appellees’ gain advantage tactical over the accused.
intentional device to 1194, Brady v. 373 83 S.Ct. Maryland, Cf U.S. . Ilinois, (1963); v. Napue L.Ed.2d 215 360 U.S. 79 10 (1959). However, not, 1217 need 3 L.Ed.2d we S.Ct. now, circum could not determine when and what resulting from pre-accusation stances actual de prosecution. lays requires dismissal (footnotes omitted). 324-25, 455 Court Id. S.Ct. stated: later however, is, period prosecution of no limitations murder
12. There Pennsylvania. § Commonwealth of Pa.C.S. in the appellees Nor have adequately pre- demonstrated that the delay by indictment the Government violated the Due Pro- cess Clause. No actual prejudice to conduct of *18 alleged defense is or proved, and showing there is no the Government intentionally delayed gain to some tactical advantage appellees over or to harass them. 325,
Id. at 92 455. S.Ct. The Court Opinion by concluded its “[ejvents stating, at may trial prejudice, demonstrate actual present but at appellees’ the time process due claims are speculative premature.” 326, and Id. at 92 455. S.Ct. Marion, years
Six
after
Supreme
United States
Court
process implications
revisited the due
pre-arrest delay
in
Lovasco,
783,
2044,
United States v.
431 U.S.
97
52
S.Ct.
(1977). Eugene
L.Ed.2d 752
Lovasco was
in
indicted March
of 1975
possessing
for
firearms stolen from the mail beginning
in July
ending
and
in August of 1973. Lovasco
moved
indictment,
dismiss the
claiming that
prosecutor’s delay
bringing the indictment
prejudice
caused him
through the
deaths of two favorable
and
witnesses
therefore
violated
process rights.
due
The trial court agreed and dismissed the
indictment, finding that the
delay
seventeen-month
before the
presented
case was
grand
jury
explained
“had not been
or justified” and
“unnecessary
and unreasonable.” Id. at
787,
undertaken the Government accused’____” 795, 2044, citing Id. at 97 tage over the S.Ct. Thus, Marion, two-prong 404 92 test S.Ct. U.S. emerged process from Marion and Lovasco to establish a due (1) delay: the defendant must show actual pre-arrest claim (2) delay, is not prejudice from the alone process violation show a of due where sufficient continuing government’s investigation due to crime.' United
From the time Lovasco was decided
has
Supreme
granted
certiorari to discuss
States
Court
depth
standard as established Mar
more
the due
Lovasco,
tangentially
has
only
discussed
ion
involving
See
standard
cases
other issues.
Marion/Lovasco
Gouveia,
180, 192, 104
States v.
U.S.
S.Ct.
United
(1984) (in
involving right
a case
appointment
L.Ed.2d
*19
placed
who
in
prison
counsel for
inmates
were
adminis
federal
in
for
pending
trative detention
indictment
crimes committed
stated,
dicta,
the
“the Fifth Amendment
prison,
Court
indictment,
brought
an
requires the
of
even if it is
dismissal
limitations,
prove
of
if
can
within the statute
the defendant
delay
bringing
the
was a
that the Government’s
indictment
advantage
an
that it
gain
over him and
deliberate device
him
also
v.
prejudice”).
Young
caused
actual
See
Arizona
(1988)
blood,
51, 57,
333,
488
109
102
281
U.S.
S.Ct.
L.Ed.2d
(in
concerning
process rights
whether defendant’s
case
due
by
police
violated
destruction of
the
were
evidence
of
motives
police,
absence
bad faith
the Court cited
“no
of
language
prejudice
Marion’s
that
actual
to the conduct
proved,
showing
and
alleged
defense
there is no
is
delayed to
tacti
intentionally
gain
that the Government
some
them”).
advantage
appellees
cal
over
to harass
delay
All
that
pre-arrest
circuits
have examined
federal
agree that
process
due
claims
standard
Marion/Lovasco
establish,
matter,
that
as
that
requires
a defendant
a threshold
prejudice
delay.
actual
from the
All federal
he or she suffered
require
also
that Marion and Lovasco
another
agree
circuits
is a
step
process
for there to be a successful due
claim. There
307
however,
authority,13
step
as to what that next
in
split
A
circuits hold that a
majority
volves.
defendant bears
delay
prejudice
both actual
from the
proving
the burden
delay
“intentionally
that
undertaken
government
purpose
gaining
for the
some tactical advan
tage
contemplated prosecution
over the accused
or for
impermissible,
other
bad faith
United
purpose.”
some
States
(5th Cir.1996).
Crouch,
1497,1514
See,
84
e.g.,
v.
F.3d
United
Johnson,
(10th Cir.1997);
v.
120 F.3d
States
1107
United
(6th Cir.1997);
v.
Attorneys County postponed of Luzerne Appellant. over gain advantage a tactical prosecution exercise of their appears prosecutors, It discretion, appear for reasons do decided record, Nor is prosecutorial that this case lacked merit. Attor- any to conclude that current District [the there basis prosecution this- ney] intentionally continued to defer
309 However, inappropriate Appellant reasons. asserts the reviving investigation against dormant him was improp- this er, death, years Snyder’s solely eleven after Mrs. based on changed policies Attorney’s of the District Office. not, intentionally
Whether done the Commonwealth strategical gained advantage against Ap- tremendous pellant passage to the due time the loss critical testimony through memory.... defense death and We hold that, case, bringing based on all of the facts of this prosecution years after more than caused eleven actual Appellant deprived process to the him due of law proper unless there reasons the delay. were Id. at 605. then remanded in order for We the Common- opportunity wealth to to present for the reasons delay.14
In reviewing
process
pre-arrest
Scher’s due
claim based on
delay,
Superior
Court examined the
development
Lovasco,
standard in Marion and
and our
discussion
in
Scher,
standard
v.
Snyder. Commonwealth
A.2d
732
1278
(Pa.Super.1999).
interpretation
The court summarized our
in
standard
as
Snyder
requiring
evalu-
Marion/Lovasco
(1)
of:
ation
whether
pre-arrest delay
in
resulted
actual
(2)
prejudice to
appellant,
whether
the Common-
wealth’s
for postponing
appellant’s
reasons
arrest were
Scher,
proper.
732
however,
A.2d at 1282.
opined,
The court
not, in
that we had
Snyder, “specifically
set forth
standard
for lower
apply
evaluating
courts
propriety
of an
investigation
undertaken
the Commonwealth.” Id. at 1283.
concluding
After
that “our case law reveals no other stan-
dard,” the court
relied on Ninth Circuit opinion, United
(9th
States v. Mays,
Cir.1977),
[T]he for with the fulcrum the delay] has to do where indictment Marion, Court states balancing placed. is to be the test from presence prejudice resulting pre- of actual of by warrant the dismissal delay indictment would not itself delay the greater length the of prosecution. a criminal prejudice to the defen- substantial the actual and the more becomes, greater and the ne- the the reasonableness dant out be to balance the cessity for will to the However, prejudice, despite degree the actual prejudice. dismissal, in must be some judgment a favor of there for form of government’s either in the culpability part on the negligence. misconduct or intentional 678) Scher, (quoting Mays, 549 F.2d 782 A.2d at omitted). standard, Superior on this (emphasis Based Court concluded: and prejudicial pre- has an there been excessive
[W]here only as there delay, inquire will not to whether arrest we delay by prosecution gain to a intentional any has been accused, we also consid- advantage over the but will tactical negligent by failing to has prosecution er whether the been pursue reasonably diligent investigation. a criminal mere by Superior Id. Court—that It is determination im- an investigation a crime constitutes negligence must consider purpose pre-arrest delay we proper —that presently. previously-cited language our apparent made
As we by subscribed we do not follow view Snyder, prevail defendant can circuits a majority the federal pre-arrest delay only where he claim based on process due delay was an prejudice and that proves or actual she gain tacti- prosecutor employed device intentional agree the court advantage the-accused. We cal over delay inten- reading of Marion and Lovasco that below its gain a tactical prosecution tionally undertaken case, advantage only is not the over defendant one but case, pre-arrest delay process. where would violate due
However, requiring, in Snyder, as we did an examination delay, for the did not to create an reasons we intend obligation on the Commonwealth conduct all criminal inves- tigations standard, pursuant negligence to a or diligence due measured from the moment criminal are filed when the defendant raises his due claim. Such a onerous, requiring judicial oversight standard would be too traditionally decisions prosecutor. entrusted Further- more, require diligence negligence due standard would inquiry methods, resources, techniques into law enforcement in conducting investigation a criminal that would judicial second-guessing amount to of how the Commonwealth must build Supreme its case. We are mindful of the Court’s against admonition in Lovasco *23 placing stringent respon- too sibility on prosecution justify the to delay the in the face of these claims:
[T]he Due Process
not permit
Clause does
courts to abort
prosecutions
disagree
criminal
simply
they
because
with a
prosecutor’s judgment as to when to seek an indictment.
free,
Judges
in defining
process,”
are not
to impose
“due
“personal
law enforcement officials our
private
notions”
of
to “disregard
fairness and
the limits
judges
that bind
in
judicial
their
function.”
v. California,
Rochin
342 U.S.
(1952).
72 S.Ct.
Lovasco, 431 atU.S. 2044. S.Ct.
Indeed, disposition Snyder following case our remand order illustrates flaw in Superior Court’s adoption negligence of a standard Scher. Pursuant our remand Snyder, order in court days the trial conducted two hearings to ascertain propriety the Commonwealth’s charging reasons for Snyder years eleven after the crime Snyder, occurred. A.2d at The Commonwealth presented testimony previous County Luzerne District Attorneys investigation as to the they status of when held office, steps and what investigation. were taken advance the trial court concluded hearings, the of these
At the close not improper filing prosecutor’s Superior An en banc conviction. Snyder’s murder affirmed that the the trial court agreed court affirmed. The Court improperly Attorneys not aсted had County District Luzerne right deprive Snyder of did not that their actions court summarized Notably, of law. process due judicially- require do not principles why due reasons oversight of for negligence standard diligence imposed due investigation: a criminal ... that in it is clear precedents of the
From our review delay in as to prosecutors assessing performance of hesi- is a distinct characteristic charges, there initiating making day-to-day decision tancy critically evaluate This, undoubtedly, stems prosecutor. of the of the office a stream of must face prosecutor recognition from a and are immediate attention cases which demand current scrutiny; typically office subject public to intense judi- legislative, which must react limited resources has addressing priority cial, public demands media and problems.... of social ever-changing array if it standards even constitutional It should offend period undergone case has given that a may be said neglect. benign even perhaps deferral or informed omitted). (footnote panel that a of that Recognizing Id. at 589 terms, “by its applied a standard court Scher concept in the diligence and due negligence both a implicates the en prosecutor’s performance,” judicial evaluation that stan- refused to follow specifically in Snyder court banc *24 stated, decision was The court Scher “[t]he Id. at 590. dard. in the instant hearing and order remand after the filed diligence’ not to follow the ‘due elected matter and we have en As a court adopted standards therein. negligence superior panel a court banc, bound to follow are not we omitted). (citations Id. opinion.” or due negligence that this rationale agree
We
not
investigation is
of a criminal
in the conduct
diligence
delay in indictment
deciding
for
whether
standard
appropriate
deprives a
result,
defendant of
process.
due
As a
the test that
we believe is the correct
must
one
take into
all
consideration
of the facts and
case,
surrounding
circumstances
including:
the deference that courts must afford
prosecutor’s
to the
conclusions that a case is not ripe
prosecution;
for
the limited
resources available to law
agencies
enforcement
when conduct-
ing a criminal investigation;
prosecutor’s
in delay-
motives
ing indictment, and;
degree
to which the defendant’s own
Therefore,
actions contributed to the delay.
to clarify the
standard established in Snyder, we hold
that
order
prevail
process
on a due
claim
pre-arrest
based on
delay, the
defendant must first show
delay
caused him actual
prejudice,
is,
substantially impaired
or
ability
her
against
defend
the charges. The court must then
all
examine
of the circumstances to
validity
determine the
of the Common-
wealth’s reasons for
delay. Only
in situations where the
evidence shows that
product
intentional,
was the
faith,
bad
or
reckless15 conduct
prosecution, however,
will we find a violation of
process.
due
Negligence in the
concept
We borrow this
process
pre-arrest
due
claims based on
delay must show
negligence
more than mere
in the conduct of a
investigation
criminal
rights
concerning
federal caselaw
federal civil
brought
pursuant
lawsuits
§
to 42
allege
U.S.C.A.
which
a
violation of the Due Process Clause of the Fourteenth Amendment.
Plaintiffs who raise those
ordinary
claims must show
negli-
more than
gence
part
on the
of state actors in order to recover in a Section 1983
they
lawsuit where
a
claim
procedural
violation of either substantive or
Williams,
process.
327, 328,
due
See Daniels v.
474 U.S.
314 more, investigation, without will not be of a
conduct criminal pre-arrest a due claim based on prevail to sufficient mind, turn standard in we delay. With this clarification of the to Scher’s case. Prejudice
Actual a defen we must address whenever question The threshold pre-arrest delay is process claim due dant raises a due prejudice from the suffered actual whether defendant Sneed, 597, See, 526 v. 514 Pa. delay. e.g., Commonwealth 749, (1987). meaning of We have not elucidated the A.2d 752 however, appellate numerous federal prejudice”; “actual concept. In order a defendant courts have refined was he or must show that he or she prejudice, show actual she ability against in his meaningfully impaired or her defend such an disposition extent the state’s Angelone, v. proceedings likely affected. Jones criminal (4th Cir.1996). This kind is prejudice 94 F.3d 907 documentary loss of evidence commonly demonstrated v. unavailability of an witness. United States or the essential (2d. Cir.1999). Cornielle, 748, 752 It is not sufficient 171 F.3d claims of speculative conclusory make or for a defendant to passage prejudice as result of the time. United possible Cir.2000). (8th F.3d 452 Where v. 207 Sturdy, States witnesses, through the absence of prejudice defendant claims wit specific missing or she must show what manner he v. Tram would aided the United nesses defense. States (10th Cir.1998). Sneed, mell, 1343, 1351 See also 133 F.3d (defendant prejudice at 752 failed to from unavaila A.2d show to show witnesses’ bility of because he failed how witnesses him). Further testimony exculpate have tended to would more, to show lost it is burden the defendant’s through is means. testimony not available other information Cir.1997). (6th 118 F.3d Rogers, States v. United certain claims that he suffered because Scher important was lost the time witnesses died and evidence shooting aided trial that would have his defense accidental, Specifically, points he Dillon intentional. Grace, Conarton, four witnesses: Dr. Coroner the deaths Trooper Collier and claims Detective Salinkas. Scher also *26 from prejudice decomposition body the of Dillon’s that oc- during twenty-year period, curred the from the Common- wealth’s conduct of second in autopsy the which he his ability present expert testimony claims interfered with to in of support position his that death Dillon’s was accidental. Further, argues Scher that the loss or destruction of other evidence, ejector such as: the mechanism sixteen- the shotgun; gauge recording autopsy; the audio of the June 1976 photographs scene; shotgun certain taken the the unused ammunition, and; any bloodstains on the inside of shot- the to gun, impaired ability his show that shooting the was acci- premeditated dental and not a act of murder. to argue prеjudice order or from the loss destruc claims,
tion of in due process evidence these the defendant must show that loss destruction of evidence related to in delay filing charges. With respect some items claims lost or Scher were destroyed, delay filing clearly charges had no role in causing items to lost or these be First, destroyed. charges Scher contends that the time him, against were shotgun filed had been fired numerous times, eliminating any thus may bloodstains have been barrel, inside the which would prove have tended to a close range of fire story consistent Scher’s shooting However, was an accident. experts, one of George Scher’s Fassnacht, consultant, a forensic firearms testified that the repeated firing shotgun police during testing of the would weapon any have removed bloodstains from inside the Accordingly, barrel. loss of this evidence cannot delay be attributed to the in indicting mur Scher for der, as the bloodstains would have been eliminated and hence unavailable for his defense even if the Commonwealth had charges in filed 1976. Additionally, Scher asserts that the fact that Dillon’s body was washed and embalmed before the June autopsy prejudiced him it ability because affected his to determine whether there was any gunpowder on residue the skin around the wound that would have indicated the also fails because the
range prejudice fire. This claim delay cannot attributed to loss of this evidence be Indeed, body Dillon’s had been washed indicting Scher. death, and, therefore, would day within a embalmed in this if the have condition even Commonwealth been inves- immediately. Finally, points Scher filed ammunition from the unused tigators’ preserve failure type of ammunition claims because scene and his claim of supported unused could have present that was but position that the negated the Commonwealth’s accident however, Commonwealth, never killing intentional.16 The scene, which, from the there- ammunition the unused collected fore, regardless been available Scher would rely cannot filing Consequently, Scher charges. his claim that support in these instances the loss of evidence *27 him.17 pre-indictment delay prejudiced the of that also claims from the loss evidence Scher delay, specifically, during twenty-year the sometime occurred and sixteen-gauge shotgun from the ejector mechanism the in body at that of Dillon’s taken the scene were photographs custody. Detective Collier’s Fassnacht to testimony George the
Scher offered that, shotgun, show based certain characteristics of the on a was weapon during struggle of the discharge accidental high four type of shell that killed Dillon was number load 16. The argued magnum that this of shell brass shell. The Commonwealth kind presence shooting in the trap be used or and that its would not in skeet shotgun sixteen-gauge intent of to Dillon. evidenced the Scher murder they had a with Scher that mix of ammunition them contends sale, bought presence therefore other whatever was on the that shells in the unused ammunition would shown number four nothing for and Dillon to utilize number four there was unusual him shooting. trap shells skeet or properly process to a due claim based on 17. claims more relate These Supreme police preserve Court evidence. United States failure clear, however, police that do violate a defendant’s has the made failing potentially rights by preserve useful due evidence police the acted in faith. the defendant can show that bad unless Youngblood, 488 U.S. 109 S.Ct. L.Ed.2d v. Arizona (1988). part showing the of the has no of bad faith on There been respect in police the loss of evidence these instances. possible. respеct ejector With the mechanism from the shotgun, report Fassnacht testified that a police concerning weapon prepared in 1976 no that contained notation ejector However, missing mechanism was at that time. police April report prepared ejector 1996 noted that the missing, which if only Fassnacht testified would occur gun had been ejector disassembled Fass- removed. nacht on ejector testified direct examination that mecha- nism weapon allows the to be fired in “normal manner” and subsequent its absence showed that it was not its original police condition when the it 1996. cross- tested On examination, however, Fassnacht ejector conceded that Indeed, mechanism does not the firing gun. affect response question, ejector really to the “So the tore has [sic] do nothing gun with whether or not off go will otherwise, it?”, pulling trigger does Fassnacht an- swered, “That’s correct.” expert Because Scher’s admitted ejector the absence of bearing mechanism has no gun discharge whether the would accidentally, his claim of prejudice from the loss of this evidence cannot be sustained.18
During death, investigation the initial of Dillon’s Detec tive apparently Collier obtained photographs Polaroid Dil body lon’s Pennsylvania were taken game commis sioner who one of the first individuals at the scene. When the authorities reactivated the investigation urging family, the Dillon Mr. Dillon requested investigators Moreover, only connection ever Fassnacht made between the ejector absence of mechanism and a determination whether the *28 gun discharge accidentally could he "I when testified don't that know to ejector dislodge used remove any didn't may drop detritus which cause a shock or failure the mechanism.” p. explained N.T. 27. Fassnacht grease that he 10/9/97 observed and 1976, weapon dirt inside that would present have also been in responsible which could have been firing, for an accidental but that he get to weapon discharge unable to pulling trigger without Nevertheless, despite when he tested it in 1997. the absence of the ejector inability duplicate mechanism and the firing to an accidental that, weapon when he tested the opined Fassnacht to a degree certainty reasonable of scientific on based his examination of the weapon, shotgun accidentally during struggle could have fired between Dillon and Scher. 20. Id. p. 818 police photographs and review them. state
obtain those widow, were investigators contacted Detective Collier’s but they and concluded that had photographs unable locate destroyed. now claims that the destruction of been Scher deprived potentially exculpatory him of photographs these evidence, him. prejudiced and therefore earlier, loss of prejudice we a claim of based on
As stated testimony or information is must show lost evidence v. through other means. United States not available See . Cir.1997) (6th Here, the lost 118 F.3d Rogers, only body as photographs not the of Dillon’s photographs were Zanin had appeared Trooper it at Gunsmoke. taken numer scene, body of Dillon’s at were photographs which ous experts trial introduced at been reviewed Scher’s testimony.19 explain fails what would prior their Scher not appeared photographs Polaroid could be have by Trooper taken Zanin in his docu photographs seen entirely claim of prejudice of the scene. His is mentation photo in light is without of the other speculative support was available to him. graphic evidence that prejudice the deaths of witnesses Schеr claims three Trooper investigation initial of Dillon’s death: involved in the Salinkas, Collier, Detective and Coroner Conarton. We noted that a who claims previously defendant specific must through absence of witnesses show what missing manner the witnesses would have aided the defense. (10th Trammell, United States v. F.3d See Cir.1998). Trooper argues Scher Salinkas and Detective testimony provided exculpatory would have because Collier in time to they the evidence close Dillon’s death viewed respect pursue against Troop- did Scher. With Salinkas, speculation: argument pure is he does not er Scher’s how if he Trooper know Salinkas would have testified were exculpatory no time of trial and offers instance of alive Trooper possessed information that Salinkas the exclusion Shane, M.D., behalf, pathologist who 19. John testified Scher's twenty-seven photographs of taken at identified black-and-white Dillon 10/9/97, p. he had reviewed. N.T. the scene that *29 Collier, Regarding other witnesses. Detective the extent glean report can his we views his June pretrial hearing,20 at claim introduced Scher Scher’s provided testimony no exculpatory that he would have has Indeed, support report, the record. Detective Collier’s testimony pretrial hearing contempo- from Collier’s raries, suspected having demonstrate that Collier Scher murder, and provided committed therefore would not have testimony favorable to Scher.21 is, however,
It prejudice Scher’s claim of from the death of Coroner Conarton that illustrates the flaw his argument regarding potentially exculpatory testimony trial, investigating At these officers. Scher’s defense was that shooting accidentally. occurred claim of prejudice His Collier, Salinkas, from the deaths of and Conarton is based on assumption that because pressed these individuals never filing Scher, against they murder must have agreed that Dillon’s Specifically death was an accident. with regards Conarton, to Coroner Scher notes that Dillon’s death certificate, Conarton, completed by lists the cause of Dillon’s death as accidental. Scher contends that he was prejudiced opportunity when he lost explain why to have Conarton he believed Dillon’s death ignores, was accidental. What Scher however, is that the section of the death certificate that asks, occur?”, injury wrote, “How did Coroner Conarton “Run fell, ning gun, gun went off.” As Scher admitted in his testimony, died, trial this is not how Dillon and his stories Conarton, Collier, and investigating the other officers to this effect present were lies. Conarton was gave when Scher Trooper scene, statement to Hairston at the which related the 4, supra. 20. See n. witness, potential
21. As an instance of Collier’s usefulness as a Scher points photographs allegedly to the Polaroid possession in Collier’s were never pro- recovered. Scher claims Collier could either photographs duced the they or described what showed. We have held, however, previously photographs absence of those cannot support prejudice light Scher's claims of the numerous other photographs body of Dillon's taken at the scene that were relied on experts. Consequently, Scher's we will not find from the loss testimony regarding of Collier's photographs. these running with the tripped Dillon while story of how false formed strongly suggests that Conarton record shotgun. The *30 mainly on Dillon’s death based cause of opinion as to the his of the scene cursory and a review statement false Scher’s manner, with shoelaces body lay positioned a Dillon’s where that appear it untied, deliberately set to make that Scher shotgun.22 Whеn carrying while tripped and fell Dillon did not occur from shooting finally testified Scher told the repeatedly as had falling, he tripping Dillon substantially undermined public, and the he investigators on this conclusions relied any investigatory of importance com- we cannot credit Scher’s Consequently, false scenario. testimony of from the absence Conarton’s prejudice of plaints accidental, was that Dillon’s death explain why he concluded of the accepted a version that Conarton apparent when it is upon was false and himself admitted “accident” that Scher his defense. which he did base by of raised Scher most serious claim
The loss of audio record of Dr. Grace and the concerns the death Grace, by Dr. autopsy performed ings from the June during the second body of Dillon’s as the alteration as well was defense in 1995. The critical issue Scher’s autopsy -with an acciden was consistent physical evidence whether of weapon during struggle. Evidence discharge tal wound, presence absence angle of Dillon’s chest gunpowder around presence or absence “scalloping”23, stated, why ... know Superior will never “[w]e Court below 22. Scher, A.2d at to be accidental." believed Dillon’s death Conarton why proof we will never have absolute it is true that 1286. While accidental, ample evi- there is believed Dillon's death Conarton record, notation in addition to above-referenced dence in the certificate, accepted false version that Conarton Scher’s Dillon's death investigation. Trooper early Hairston testified very on in the of events opinion expressed him the that Coroner Conarton given statement, right shooting after Scher had was an accident 9/25/97, pp. 18-19. inspecting the scene. N.T. minutes of within that this Conarton was "hellbent Little testified that Coroner Edward accidental,” with Conarton to and that he had to intervene certificate, days within 10 which occurred of the death issuance Dillon's death. Wecht, pathologist According Cyril who testified Dr. forensic Scher, continuously curled contour from “scalloping" is "a kind of a wound, and the size of the wound were relevant to the range, determination of whether Dillon was shot from a close struggle, range consistent with a or a more distant that could discharge during not have been caused an accidental struggle.
In support theory, presented of his defense Scher a number Shane, M.D., expert witnesses. a pathologist, John re- viewed, among evidentiary other twenty-seven items: black scene; photographs and white the clothes worn Dillon, photographs Dr. during autopsy; taken Grace’s 1995; photographs during taken autopsy forty- the second microscopic body; three slides of tissue taken from Dillon’s autopsy report; Dr. cup Grace’s and the shot retrieved body. Dillon’s Dr. Shane observed that Dr. Grace did not scalloping margins note around the of Dillon’s chest wound in *31 3,1976 autopsy report, June and that his own review of the from photographs autopsy that no scalloping. indicated Based on his autopsy review of the photographs and Dr. Grace’s report, opined, Dr. Shane degree to a reasonable of medical certainty, that there was scalloping margins no around the of Dillon’s chest wound and that this range indicated close of discharge twelve Dr. inches. Shane also noted that —within autopsy the June report “what apparently showed powder tract, burns” in the wound and his examination of slides from the 1995 autopsy presence indicated the of carbon that Dr. Shane gunpowder identified as residue. Dr. Shane that presence testified of gunpowder residue the wound signaled tract range of fire would have been within inches, eighteen due to the limited that gunpowder distance travels from the barrel when a discharged. Finally, firearm is examination, the close of direct Scher’s counsel asked Dr. following: Shane the shell, scallop just mollusk of the may where the instead of a line straight, may curvy, be be linear but it has continuous non-indented Scalloping usually line. ... fairly is an indentation of uniform nature.” p. presence N.T. 105. scalloping of is useful in determin- 10/14/97 fire, Wecht, ing range shotgun according to Dr. because "as the shotgun pellets beginning blast moves further back then the are you begin get irregular disburse a little bit. Then will some contour- ing edges p. of the wound.” Id. reports Doctor, of the various your review
Q: based jury, your examination for the you identified that case, analysis you have in this physical evidence degree of opinion to a reasonable conducted, you have do between muzzle as to the distance certainty medical case? skin
A: Ido.. opinion?
Q: your What is from the distance of the muzzle is My opinion A: 12 inches or less. surface was skin p. 67. N.T. 10/10/97 M.D., Wecht, Cyril testimony of presented the
Scher also Allegheny County. and the Coroner pathologist forensic reviewed, autopsy Dr. among other items: Grace’s Dr. Wecht clothing; autopsy; Dillon’s from the 1995 report report; Commonwealth; various by the photographs produced from Dillon’s samples obtained reports; and tissue expert that, his examination based on body. Dr. concluded Wecht any notation and the absence autopsy photographs scallop- was no autopsy report, there scalloping in Dr. Grace’s wound, which indicated edges of Dillon’s chest ing around the on his range. at close Based was fired shotgun extracted prepared from tissue of the slides examination gunpowder residue Dr. Wecht concluded body, Dillon’s Concerning wound. whether in Dillon’s chest present *32 an dis- inconsistent with accidental was physical evidence that was no opined Dr. Wecht there during struggle, a charge that, scenario, and inconsistent with that that was evidence certainty, range of fire degree of medical a reasonable examination, the close of direct than foot. Towards less one following opinion: counsel elicited the Scher’s on Now, Wecht, opinion an to a—based you Dr. do have Q: your and review physical all of the evidence your review of photo- and your review of the slides reports of the degree of reasonable you opinion do have graphs, certainty medical as to whether or not the wound caused in a struggle? this case is consistent with Yes, I an opinion. A: have
Q: opinion? What is that Yes, my opinion, degree A: with a of reasonable medical certainty, findings this case which we talked entirely struggle about would be with a consistent and the discharge accidental of weapon. p.
N.T. 10/14/97 M.D., pathologist, Baden, Another forensic Michael testified reviewed, among for the Dr. defense. Baden other items: the Grace; Dillon; autopsy report Dr. the death certificate of photographs body Dillon’s at the scene and the initial autopsy; police laboratory reports; various and slides prepared from samples during autopsy. extracted the second Dr. Baden testified that material present carbonaceous prepared slides from tissue wound extracted tract indicated presence Further, of gunpowder. Dr. Baden photographs reviewed the from the scene and the initial concluded, autopsy Wecht, as Drs. Shane and there was no scalloping present margin gunshot Wecht, wound. Similar to Drs. Shane and Dr. opined Baden shotgun distance between the muzzle and the inches, skin was up within few to one foot. theAt close of examinatiоn, testified, his direct Dr. Shane to a reasonable degree medical certainty, physical evidence “was entirely consistent with being struggle,” there and that there was “no scientific evidence is inconsistent with a strug- gle.” ability experts to support Scher’s defense
by offering opinions degree to a reasonable of medical certain ty based on a review of the evidence available to them why demonstrates Scher’s claims of fail. He has not shown that meaningfully he was impaired ability in his against defend to such disposi an extent that the proceedings tion likely affected. See Jones v. *33 824 (4th Cir.1996). the Despite F.3d 907 ab-
Angelone, 94 testimony concerning his observa- of Dr. Grace’s direct sence autopsy tapes autopsy, audio of that tions from the the evidence, including and Dr. photographs there sufficient specific experts opinions offer report, Grace’s Scher’s tract, concerning presence gunpowder in the wound the the fire, was consis- range physical and whether the evidence Further, struggle.24 prejudice claims from with a Scher tent entry” during the “wound of from Dillon’s chest the removal of Mihalakis, Dr. who autopsy performed by later Commonwealth, expert for the which Scher’s as an testified (Dr. Baden, Dr. they unable to examine when experts were Wecht) Shane, performed autopsy a third in 1996. and Dr. however, by Dr. prepared the slides experts, Scher’s utilized during in autopsy the 1995 Mihalakis from tissue removed presence of carbonaceous forming opinions regarding the their Dr. hearings, tract. In the pretrial material in the wound opinions other given conceded that he eases Wecht directly or autopsy personally he to do where was unable “reports, photo- body and therefore relied on observe the slides, microscopic reports, investiga- lab graphs, [and] crime find, his reports by police” forming conclusions. We tive therefore, due to that Scher did suffer actual Grace, loss audio tapes of Dr. from the first death during entry extraction of the autopsy, and the wound remaining where evidence of sufficient autopsy, quality highly-qualified pathologists enable three offer testimony example of how Dr. would have been 24. As Grace’s case, testimony experts, helpful to relies of his who Scher on conclusions, gunpowder present as whether is that some such stated wound, along scalloping edges is are best and whether there case, body individual who first examined the Dr. made —in However, report Scher used fact that Dr. Grace’s indicated Grace. presence gunpowder tract and did not note the wound scalloping along margins advantage, which left the wound to his explain burden on the Commonwealth to the inconsistencies be- position Dr. conclusions and its that Scher murdered tween Grace’s Moreover, it far certain that Dr. Grace would have Dillon. is shooting. theory support of Scher's of an accidental A testified in report indicated Grace had police of an October 1994 interview opinion no the manner of Dillon’s death was formed as to whether homicide, suicide, pp. 108-09. accidental. N.T. 10/15/97 expert testimony specific dispute matters render opinions degree certainty to a of medical reasonable *34 accidental, physical was consistent an evidence with close- range discharge during struggle. a
Finally, argues to prejudice Scher due the faded present memories of witnesses and his a supposed inability psychological profile Preliminarily, of Dillon. note we difficulty precisely of witnesses to what happened years recall ago likely present any is to be murder case where years filed many legislature, are after the Our crime оccurred. wever, place has chosen no statute of limitations on ho prosecutions murder policy has made a that determination punishment of the most serious outweigh crime should difficulties otherwise incurred in of prosecution “stale” A charges. who claims prejudice actual from the defendant witnesses, therefore, faded memories must show concrete memory terms how the loss of or deprived has him her of the ability against general defend the charges; allegations of prejudice Here, are sufficient. only Scher offers one specific example memory the faded of a witness sustain prejudice: this claim of testimony Jocelyn Richards.25 that, during Richards testified a conversation at the hospital they together prior death, where worked to Dillon’s Scher had her told that “if he something, way wanted he it get would one testimony, this, another.” In his denying Scher contracted Contrary that he ever made such a statement. Scher’s claim, this is not instance of memory fading. a witness’ making Richards Scher recalled this and so statement testi Hence, fied—Scher simply disputes that it. he said this claim of prejudice pretrial fails. At hearings, proffered Scher testimony Fischbein, M.D., explained of Richard who that opinion he was unable to offer an psychological as to Dillon’s at state the time his death passage because the of time impossible it made him to necessary obtain the data. When asked to make an offer of proof concerning the rele of psychological autopsy26, vance explained Scher’s counsel Brief, Appellee's pp. 25. See 46-47. Fischbein, According “psychological to Dr. autopsy” is: “[tjhere may victim possibility is that ... to that issue.” N.T. goes suicide. I believe it
committed course, place p. testimony, of took before 175. This 7/18/97 Scher, story testimony of when the fabricated the trial running shotgun shooting Dillon himself while that Dillon was shot The admission Scher still issue. weapon with the eliminat engaged struggle while two Fischbein marginal opinions of Dr. whatever relevance ed potential suicidal tendencies regarding would have Dillon. suffered has to establish he
We hold Scher failed delay. as a result actual the Delay Reasons for has not Although have concluded that Scher met we *35 demonstrating delay due to the burden of actual there, indictment, analysis in and could end our we neverthe in this the reasons for compelled less feel to examine has not violated why to illustrate the Commonwealth case pursuant principles to process to due of law right Scher’s that, in order for developed opinion. in this We have stated process, the Commonwealth’s to be a violation due there merely causing than negligent must be more behavior intentionally delay. Commonwealth has de Only where the gain advantage recklessly a or acted layed order to tactical one’s as shock one’s conscience offend degree to such process. justice deprivation will find of due We sense we in this to be so do not find the Commonwealth’s behavior case been no outrageous as to that standard. There has meet intentionally delayed indict allegation that the Commonwealth him, gain advantage in order to tactical over ing Scher from a succession of record contains credible denials individual, looking whereby, after the death of an method [A] individual, history, looking previous at the facts of the where medical members, found, talking they talking family other loved were trying set of individual ones ... we are to reconstruct the mind that asking questions may that disclose risk factors that could be death, may factors be with other risk that associated accidental associаted suicide. pp. N.T. 23-24. 7/18/97 Susquehanna County Attorneys they District ever inten- tionally Furthermore, employed delay tactics. we cannot ac- cept Superior Court’s conclusion that the Commonwealth’s actions “grossly negligent.” Astonishingly, were Superior opinion Court’s makes no mention of the watershed moment in this case: when Scher admitted that he had lied to investiga- that, tors about how Dillon’s death occurred and past twenty years, he lied when having he denied had an affair with prior Patricia to the incident at Gunsmoke. Rather than exercise his right say nothing, would, constitutional which likelihood, all heightened suspicion against him and possibly resulted in an investigation that would have resulted charges, immediate staged he instead the scene and fabri- story gained cated a some investigators. credence with Perhaps, argues, as investigators Scher those should have circumspect been more in accepting pursued his tale and their suspicions more thoroughly, but we cannot find the Common- wealth’s when, actions towards so egregious Scher in a small town, in part a rural of Pennsylvania part-time with a District Attorney, responsible those for enforcing the law would find it difficult to disbelieve the word of a respected physician. Nor can ignore we gained the benefit by lying Scher authorities rather than remaining enjoyed silent: he his liber- ty for twenty years. circumstances, In these we cannot find that the Commonwealth’s charge failure to Scher with murder right sooner violated his to due of law.
CONCLUSION *36 We Superior reverse the Order of the Court and remand to Superior Court for the remaining consideration of Scher’s appellate issues. Jurisdiction relinquished.
Former Chief Justice participate FLAHERTY did not decision this case. CASTILLE, NIGRO, SAYLOR, Justices file a Concurring Opinion.
Chief ZAPPALA Dissenting Justice files a Opinion in which joins. Justice CAPPY
328 CASTILLE, concurring.
Justice
Judg
Announcing the
Opinion
join
portion
I
in that
failed
show
appellee
which holds
of the Court
ment
delay in
pre-arrest
from the
prejudice
actual
that he suffered
course,
indispens
is an
prejudice,
actual
Proof of
this case.
initiating prosecution
any claim that a
element of
able
Lovasco, 431
v.
U.S.
See United States
process.
violated due
(1977);
v.
2044,
States
783,
I quarrel have no with the Angelone cogently distinction as applied by formulated and Saylor Mr. Justice I here. never- join opinion (1) theless question the lead on this because: our majority opinion in Snyder followed an actual prejudice ap- proach, 601; (2) 713 A.2d at whether the Fourth Circuit’s Angelone formulation is as viewed a matter of nomenclature nuance, satisfied, constitutional I am upon based the lead opinion’s thorough review, appellee prove failed to Mar- (3) prejudice; and ground narrowest ion/Lovasco deci- sion here is the of prejudice absence and I it believe is important attempt to decide majority cases clear opinion possible, whenever and particularly when case is upon heard discretionary appeal. Barnett, See Airways, U.S. Inc. v. 391,---, 1516, 1526-27, U.S. 122 S.Ct. 152 L.Ed.2d (2002) (O’Connor, J., concurring). Although of absence enough alone is to decide appeal, opinion the lead also addresses prong the second test, due which requires con- Marion/Lovasco sideration of Lovasco, “the reasons for delay.” 431 U.S. at opinion’s inquiry into this 97 S.Ct. The lead *38 view, my given supervi- in appropriate, is this Court’s
question
panel opinion
published,
is
sory
Superior
Court
role.
to the evalua-
panel adopted
super-minority approach
that
a
delay,
quarter-
a
pre-arrest
upon
for
based
tion of the reasons
Circuit,
Ninth
century-old opinion from the
United States v.
(9th Cir.1977),
Lovasco,
after prejudice the of time causes actual to the defense.” Id. at 605. The opinion today *40 (2nd (defen- Hoo, 667, Cir.1987) v. 825 F.2d 671
United States government delayed had improperly dant must “show that prosecution gain advantage”); to a tactical order United (3d Cir.1987) (defendant Ismaili, 153, F.2d v. 828 167 States government intentionally that proving bears burden “the delayed bringing gain the indictment order to some advan- Crouch, 1497, defendant); v. 84 tage” over Unitеd States F.3d (5th Cir.1996) “intentionally (delay by 1515 undertaken tactical government purpose gaining for some advan- purpose”); ... for other bad faith tage impermissible, or some (6th Cir.1997) 466, v. 118 F.3d 476 Rogers, United States
333 (defendant prove delay government must was “device Sowa, gain 34 advantage”); a tactical States v. F.3d United Cir.1994) (due 447, (7th implicated if process “only 450-52 government purposely delayed the indictment to take advan- tage, tactically, prejudice or acted in otherwise bad faith”; government provide bears burden reasons de- (8th lay); 1229, v. 138 1232-33 Benshop, United States F.3d Cir.1998) (“Absent showing government a acted inten- tionally or gain advantage, to harass a tactical no due found”); may Johnson, process violation be United v. States (10th Cir.1997) (defendant 1107, prove 120 F.3d 1110 must “government delayed purposefully gain order Foxman, 1220, tactical advantage”); United States v. 87 F.3d (11th Cir.1996) 1223 (delay be “product must deliberate government gain act designed a tactical advan- tage”).2 Barker, 889, (4th But see Howell v. 904 F.2d 895 Cir.1990) test, (applying general due rather than more specific Lovasco); promulgated test in Marion and Jones v. (4th Cir.1996) 900, Angelone, 94 F.3d (noting that Fourth standard); employ and Ninth Circuits “more lenient” United Gilbert, 1180, (9th Cir.2001) (first v. States 266 F.3d prong requires test actual prong and second requires showing delay, prosecu- when against balanced it, tion’s reasons for conceptions offends “fundamental justice which at the our political lie base of civil and institu- tions”); (9th Doe, Cir.1998) United v. 149 F.3d States (same). intentional,
This bad faith standard is also the formulation actually stated applied by Court Commonwealth v. Daniels, (1978), 480 Pa. 390 A.2d 179-181 a case represented Lovasco, which our first foray into this after area and a approval Many case cited with in Snyder. other state interpreted courts have also requiring as Marion/Lovasco showing intentional bad faith conduct to establish a due majority A require of these Circuit Courts also defendant Lebron-Gonzalez, prove Hoo, supra; such intentional conduct. See Ismaili, Crouch, supra; Johnson, supra; supra; Rogers, supra; supra; Foxman, supra.
334 noted, Fave “there is As Professor La has process violation.3 anything to treat no inclination lower courts discernible improper as an except hamper intent the defense 18.5(b), § Fave, al., reason.” 4 La et Criminal Procedure ed.1999). (2d Moreover, another has as commentator 272 noted, requirement proves that “the defendant proceedings gain a intentionally delayed the government ... reflects advantage tactical or to harass the defendant prosecutorial judicial discretion.” reluctance interfere Cole, Trial, Proceedings, Preliminary II. Speedy Sarah Jane George- Procedure, 89 Annual Review Criminal Thirtieth omitted). 2001) (citations 1877, (May 1378 town Law Journal such, requirement of is one dictated As intentional conduct Due Ac- inherent Process Clause. considerations standard, view, is my any relaxation of if one cordingly, in had, Supreme from Court. to be should come the U.S. actual following authority, and the weight
Instead
Marion/Lovasco,
opinion
approve
would
language of
the lead
totality
which focuses on the
the circumstances
test
if
finding
Due
was violated
permit
which would
Process
“intentional,
faith, or
bad
reckless
resulted
Prince,
(Ala.Crim.App.1991); State v.
3. See
v.
[SJeveral other ... strongly considerations against militate utilizing a ... balancing test to determine prejudi- whether preindictment cial delay process violates due and in favor of requiring that have intentionally been caused prosecution gain a tactical advantage over the defen- dant or for some other bad purpose.... faith The items to placed be on either side of the (imprecise balance in them- selves) wholly are different from each other and no possible common denominator that would allow determina- most____ tion of which ‘weighs’ then, Inevitably, ‘length of the Chancellor’s foot’ sort of resolution will ensue judges necessarily will process define due in each such weighing by ‘personal their own and private notions’ of fairness,’ contrary to the admonition of Lovasco. ‘[Historically, guarantee process of due has ap- been plied to deliberate government decisions of officials to de- prive life, a person of liberty, or property,’ ... and hence ‘the Due Process Clause ... is implicated by the lack of due care of an official causing injury life, unintended liberty or property.’ ... Contrary to these principles, however, the [balancing] test would find a due violation government where the in good acted faith and did not deliberately to prejudice seek party ultimately ac- cused.
Crouch, (citations 84 omitted) F.3d at 1512-13 (emphasis in original). reasoning, This rooted as it in is history and purpose Clause, the Due Process seems unimpeachable.
Although opinion recognizes lead that a negligence unworkable, standard is the recklessness standard it would approve amounts to nothing than heightened more negli- Supreme As Court has admon-
gence standard.4
the U.S.
ished,
“font
should not become a
the Fourteenth Amendment
Davis,
Paul v.
U.S.
S.Ct.
of tort law.”
(1976).
is
heightened negligence
A
standard
matic the lead because conscience-shocking standard with a standard. recklessness *43 Announcing Op. 1229- Opinion Judgment the Court Lewis, 833, 118 1708, In v. 523 U.S. 140 30. S.Ct. Sacramento (1998), however, sug Supreme L.Ed.2d 1043 Court U.S. gested “conscience-shocking” terms “reckless Indeed, synonymous. conscience-shocking ness” are with than closely aligned standard is more intentional conduct reckless conduct:
[Cjonduct unjustifiable by injure way intended to some any is the sort of official action most government interest likely conscience-shocking to rise to the level.... Whether inju- point conscience-shocking of the- is reached when produced culpability falling ries within middle are range, following something negligence than but more conduct, ‘gross “less than intentional such as recklessness or ” negligence’ is a matter for closer calls. instances, many Pennsylvania statutes use the terms "reckless” (invol- 2504(a) interchangeably. E.g., § "gross negligence” Pa.C.S. 18 untary manslaughter); (powers, § 20 Pa.C.S. 5521 duties and liabilities (limitation guardians); liability § 20 8642 in cornea Pa.C.S. (landowner limitation); liability 27 harvesting); § 27 Pa.C.S. 8106 limitation); (adjudi- § (project liability § 8107 42 Pa.C.S. 1520 Pa.C.S. (court-appointed spe- § program); 42 Pa.C.S. cation alternative 6342 advocates); program (immunity § 42 cial Pa.C.S. 8340 administra- tors); food); (liability § § 42 42 Pa.C.S. 8338 for donated Pa.C.S. 8527 care). (inmate health
337 849, added). Id. at 1708 (emphasis 118 S.Ct. Since terms “conscience-shocking” always and “recklessness” do not connotations, equivalent opinion’s internally the lead inconsis- tent perpetuate standard will confusion in this area. importantly, conscience-shocking
More
is a sub-
standard
jective
far too
judicial tempera-
standard
reliant on individual
ment to
valid
Simply put,
vindicate
due
concerns.
may
what
judge
shocking,
may
one
find
not.
another
As
noted in
Justice Scalia
in Lewis: “[Lewis
concurrence
]
ultra,
ne plus
Napoleon Brandy,
resuscitates the
Ghandi,
Celophane
Mahatma
th’ ol’
subjectivity,
‘shocks-
861,
(Scalia, J.,
test.”
Id. at
118
the-conscience’
S.Ct. 1708
concurring) (emphasis in original).
subjective
Such a
standard
is an inappropriate measure for a
claimed violation
due
Lovasco,
(“the
790,
process.
Significantly, this Court
approved
has
a conscience-shocking
standard in very limited
predominately in the
circumstances —
area of weighing jury verdicts. See Commonwealth v.
Williams,
1,
(1998)
554 Pa.
A.2d
Johnson,
G.J.D. v.
552 Pa.
*44
(1998)
A.2d 1127
(conscience-shocking
applicable
standard
to
weighing jury
punitive damages);
Hines,
verdict for
Neison v.
(1995)
516,
539 Pa.
I apply subjective believe it is unwise to such a standard to requests outright for dismissal of on premised pre- delay. particularly arrest This is given jurisprudence so our in jeopardy/prosecutorial double jurispru- misconduct cases—a which, dence it since involves the extreme sanction dismiss- 338 conduct, is most similar to that prosecutorial and on
al
focuses
eases,
misconduct
prosecutorial
presented here.
only
been
prohibits
prosecution
a second
where it has
Court
intentionally
the misconduct
undertaken
determined that
v.
a fair trial.
Commonwealth
deny
to
the defendant
See
(state
(1999)
533,
Martorano,
Id. at 925. guide The same should our formulation aof standard in pre-arrest delay area. primary protection against prosecutions delayed is the limitations;
applicable statute of
Assembly
the General
is
generally
position to
the best
balance the
interests
inform the
of
appropriate
determination
limitations period.
599-600,
in Snyder,
noted
A.2d at
As
there is no statute of
prosecutions
limitations on
of
gravity
murder
because
offense,
only
challenge
thus the
available
is
constitu-
one, wit,
tional
truly
whether the
fundamental concerns
suggested by this Nation’s traditional notion of Due Process
Lovasco,
implicated.
are
See
Accordingly, I although concur in I judgment, respect- fully disagree with lead opinion’s proposed further relax- ation standard. Marion/Lovasco NIGRO, concurring. Justice join Opinion
I Announcing the Judgment of the Court except for portion of its applies decision that the second prong of the due standard pre-arrest delay, as developed by opinion, the lead the facts the instant case. failed to
I lead meet agree opinion with the Scher *46 demonstrating prejudice. of actual Once threshold burden however, reached, I no need to even is see this conclusion that simply I would hold prong consider second of the test. the not claim fails he did demonstrate process because Scher’s due prejudice. actual SAYLOR, concurring.
Justice disposition announced the I concur the Although and Court, fully agree opinion’s analysis I with the lead do surrounding of prejudice component Appellant’s the conclusion process claim. due upon a due claim based prejudice element of of actual and substantial delay requires proof both
pre-arrest 307, 324, Marion, v. 404 U.S. United States prejudice. See 455, 466, (1971); 325-26, 465, 468 v. 30 L.Ed.2d Jones 92 S.Ct. (4th Cir.1996). To establish actual F.3d 907 Angelone, 94 speculative, or rely upon vague, a defendant cannot prejudice Crouch, v. 84 F.3d conclusory allegations. United States See (5th Cir.1996). Rather, prejudice such is demon 1515 the a loss of evidence or strated the results where witnesses, showing a and where there is absence of testimony actually aided the defense. would evidence (5th Cir.1994). Beszborn, 66 v. F.3d See United States however, а proof involves that defen prejudice, Substantial meaningfully the was ability against dant’s to defend of criminal impaired disposition to an extent that the the Jones, F.3d likely See at 907-08. proceeding was affected. it is burden demonstrate respect, In this the defendant’s through testimony or evidence is not available that the lost 466, 475 v. 118 F.3d Rogers, See United States other means. (6th Cir.1997). proving burden Appellant
I that satisfied his believe Dr. testimony prejudice upon actual based absence Grace, autopsy, initial as well performed who physician at at A issue trial was distance as the coroner. critical fired, Appellant since maintained which fatal shot was during struggle, accidentally discharged a gun trial that shot having the wound consistent was been contrast, fired at range. close the Commonwealth asserted gunshot was medium-to-long- wound consistent with end, range firing, indicative murder. Toward challenged qualifications findings Commonwealth Dr. Grace. initial autopsy report findings While the contained close-range consistent with shooting, Appellant was unable present concerning from Dr. testimony qualifica- Grace his tions and experience explaining findings. Further- more, coroner, testimony who absence from the assisted autopsy in the and determined that cause death accidental, actual prejudice. constituted noted,
Nevertheless, as also defendant must demonstrate substantial, a heavy which is burden. *47 Alexander, See generally N.J.Super. State v. 708 A.2d that, 774 (App.Div.1998) (noting since there have only been two cases which federal due claims based upon pre-indictment delay have upheld). regard, been ability the of a defendant to mount is not controlling. a defense example, For although in Snyder, the was defendant able to including offer testimony, expert from a opinions pathologist (sui- a toxicologist, theory and consistent with his defense cide), present he was expert testimony unable to in the form of psychiatric autopsy would bolstered such theory. 48, 57-58, Snyder, 597-98, See 552 Pa. at A.2d 602-03. Although I as case, view this close I do believe that Appellant’s ability against charges defend to the suffi- indeed, ciently impaired; amply as by demonstrated the lead opinion, he to expert marshal opinion able considerable fact testimony and supporting theory of defense. Accord- ingly, I would simply Appellant hold that has failed to demon- strate prejudice. substantial ZAPPALA,
Chief dissenting. Justice Twenty years passed between Martin time Dillon died a shotgun wound and filing of homicide against Dr. Stephen Scher in connection with the incident. During time, District Office Attorney’s failed to surrounding investigation the shoot-
pursue any events Dr. The charges against to Scher. ing chose not file times, but Attorney changed hands several of District position shortly investigation an until no made to renew efforts were Although the matter was charges were filed. before the years, investiga- no active during twenty those dormant years, time eighteen passage tion of those during of critical evidence. resulted in the destruction delay in unexcused The inordinate and Commonwealth’s in actual filing charges against Dr. resulted Scher charges. At ability against Dr. himself Scher’s defend trial, issue Mr. Dillon’s death resulted pivotal was whether and Dr. shotgun of the as he Scher firing from an accidental from the intentional struggled shotgun with the resulted firing shotgun Dr. at a distance by Scher deliberate prem- away from Dillon. The Commonwealth several feet following testimony its witnesses theory expert ised The years Dillon’s death. autopsy conducted 18 after findings testimony sought to contradict the made expert imme- upon autopsy Dr. based he conducted James Grace trial, During competency diately Dillon’s death. after autopsy findings Dr. and the them- to conduсt the Grace challenged by selves the Commonwealth. were great lengths disparage Commonwealth went specific and to critical criticize Dr. Grace’s abilities undermine physical findings regarding Dr. Grace condition made findings contrary Dr.- were of the wound. Grace’s *48 the case and undermined the testi- theory Commonwealth’s the mony experts who had examined Commonwealth Dr. body eighteen years it later. While until was exhumed body shotgun were of the the wound Grace’s observations importance determining shotgun whether the paramount bringing accidentally, the fired Commonwealth’s unavailability of Dr. Grace as prosecution resulted in the witness. 27,1995. His death before July
Dr. died occurred Grace Dr. charges against Scher. While the Commonwealth filed incident, shooting years Dr. lived for 19 after the Grace lost recording during Commonwealth the audio made autopsy performed by Dr. Grace and failed to subsequently preserve his recollection of the examination of crucial evi- dence. than autopsy report prepared by Other Dr. Grace incident, shortly after the no by efforts were made the Com- monwealth to Dr. purpose interview Grace for the of recording personal his physical observations of the condition of body or the medical conclusions premised upon that were those observations. While Dr. Grace’s medical findings were made of controversy by trial, center the Commonwealth at Dr. deprived Scher was opportunity to prepare his defense against charges the homicide because the Commonwealth’s failure to file the period within a reasonable of time. resulting prejudice to Dr. Scher’s defense to due unavailability of this compounded crucial witness was by the Commonwealth’s deliberate tactics trial to disparage the findings by made Dr. Grace which contrary were to the prosecution’s theory. support theory order to its shooting, the attempted flatly Commonwealth to contradict Dr. Grace’s by observations suggesting jury to the that as a physician he was incompetent simplest make even the physical observations and claimed that the observations re- corded Dr. Grace his autopsy report were not those that Dr. actually Grace intended to make. below,
As detailed the Commonwealth willing go was outrageous lengths dispute physical findings made Dr. findings Grace when those prosecution’s contradicted the theory. For example, the presented Commonwealth expert testify witness to that when Dr. Grace referred to the area surrounding shotgun wound as “somewhat darkened” autopsy report, Dr. Grace could have meant that the area surrounding the wound was not at all. darkened This refer- ence surrounding darkened area the wound in Dr. autopsy Grace’s report extremely significant because the presence of carbonaceous material around the wound inconsistent with prosecution’s theory shotgun was fired from a distance.
344 the order because Superior Court’s
I would affirm filing charges against in delay protracted Commonwealth’s for his critical evidence in loss of Dr. Scher resulted Dr. Scher prejudiced inaction The Commonwealth’s defense. the United process rights under him of his due deprived and Constitution. States 455, Marion, 307, 30 v. 404 U.S. S.Ct.
In United States addressed the (1971), Supreme Court the U.S. L.Ed.2d 468 was of a indictment dismissal federal issue whether of a three passage of the required by reason constitutionally criminal acts alleged occurrence period between the year were appellees, who indictment. The filing of the and the im- installing home selling and business of engaged involv- charged counts indicted were provements, of documents misrepresentations, alteration fraudulent ing cov- period contracts. The nonperformance and deliberate 1965, February from March was by the indictment ered 21,1970. April on 6,1967. was filed The indictment indictment, to dismiss the a motion appellees filed The prosecution in the asserting that speedy trial under process and to a rights to due violated their No to the U.S. Constitution. Fifth and Amendments Sixth The motion on the motion. evidentiary hearing was held business appellees’ of counsel indicated argument order issued of a cease-and-desist subject been 6, 1967. In October February Commission Federal Trade reported statements newspaper articles a series Attorney for the District Columbia made the U.S. improvement investigation of home his office’s describing busi- forthcoming appellees’ The including indictments. firms, Attorney, by the U.S. specifically mentioned was ness the article. business was identified although the appellees’ from the Attorney’s Office obtained records the U.S. grand jury of its officers. The and interviewed one business of 1969. September impaneled appellees indicted charges, arguing sought dismissal of the appellees Attorney negligence of the U.S. delay was due grand jury. No case to the presenting investigating specific prejudice demonstrated; however, appellees *50 claimed that specific representations recollection of acts and years made several delay. before would be affected the The District charges Court dismissed for speedy the lack of prosecution, concluding that Attorney the U.S. was aware of the relevant facts 1967 and that defense of the case would seriously be prejudiced by year delay. the three
On appeal, direct Supreme the U.S. Court reversed the judgment of the District Court. The court addressed the appellees’ claim in the context of right the Sixth Amendment to a speedy public trial. The appellees claimed that their rights speedy to a trial delay were violated between the end of the criminal charged scheme They and the indictment. argued delay that the was so substantial and inherently preju- dicial that dismissal of required the indictment was under the Sixth Amendment. Supreme claim, U.S. rejected appellees’ Court finding speedy trial provision of the Sixth Amendment does apply until an individual becomes “accused.” This
triggering event was found to have occurred appel- when the lees were indicted face,
On its protection of the Amendment is activated only when a criminal prosecution begun has and extends only to persons those who have been “accused” in the course prosecution. provisions These would seem to afford protection no yet accused, to those not nor they would seem require to discover, the Government investigate, and any accuse person any particular within period of time. The Amendment appear would to guarantee to a criminal defendant that the Government will dispatch move with the is appropriate to early assure him an proper disposition of against him. “The essential ingredient orderly is expedition and not speed.” mere States, Smith v. United 1, 360 U.S. 79 S.Ct. (1959).
L.Ed.2d Marion
arrest, primary of limitations serve as the that statutes noting charges. filing overly stale criminal guarantee against dismissal, for relied support appellees their claim crime and alleged of time between solely passage on the no claim potential prejudice. Since the indictment and found by appellees, was made the Court of actual disposi- claim was analysis that its of the Sixth Amendment raise the issue of actual appellees could Noting tive. trial, proceeded matter the Court prejudice when the prosecution claim that potential addressed of the Fifth Amend- implicate would the Due Process Clause ment to the Constitution. U.S. limitations to note that the statute of appropriate
It is here appellees’ rights respect fully does not define *51 Thus, occurring prior indictment. the Govern- events Fifth that the Due Process Clause of the ment concedes if it require of the indictment Amendment would dismissal delay in this pre-indictment at trial that the were shown to a prejudice appellees’ rights case caused substantial delay gain an intentional device to fair trial and that the However, not, advantage over the accused. we need tactical now, and in circum- and could not determine when what de- resulting pre-accusation from stances actual prej- requires prosecution. Actual lays the dismissal may of a criminal case from the udice the defense result no necessary delay; suggests one shortest and most delay-caused to a case every that detriment defendant’s prosecution. criminal To accommodate the should abort a justice rights defen- administration of the sound judg- necessarily to a fair trial will involve delicate dant circumstances of each case. It would be ment based on the juncture attempt at to forecast our decision unwise such cases. (citations omitted). 324, 92 455 and footnotes
Id. S.Ct. appellees that had not demon- The Court determined had delay that the Government pre-indictment strated appellees The had not violated the Due Process Clause. delay preju- had resulted in actual alleged proved that the dice; they nor had had established the Government intentionally delayed gain the indictment to a tactical advan- tage. appellees’ The claim due was found to be speculative premature stage proceedings. at that later, Supreme years granted
Six U.S. Court certiorari Lovasco, States v. 431 U.S. United 97 S.Ct. (1977), L.Ed.2d 752 to consider when the U.S. Constitution require delay would an indictment to be dismissed because of commission between of an offense and the initiation of prosecution. respondent possessing The had been indicted mails, eight firearms stolen the United States and for the dealing unlicensed firearms July August between respondent 1973. The moved to dismiss the indictment based upon eighteen delay month before the indictment was filed. Court,
During a hearing before the District respondent a report investigation introduced undertaken Inspector. report, Postal The which was prepared one month committed, after offenses were respon- indicated already dent had admitted to had agents Government he sold five It the stolen firearms. also reflected that the purchaser of the stolen firearms had told agents Government respondent that the had sold actually eight him firearms. The report agents indicated that the had not confirmed or refuted respondent’s claim that he had found the firearms in car his son, visiting handler, after his a mail at work. respondent asserted prejudiced
defense testimony because the of two material had witnesses as been lost Both result. "witnesses had died before the was At hearing, indictment filed. the respondent admitted possession and of eight all weapons. respondent sale The witnesses, Stewart, claimed that the one of Tom had been his for two or source three the firearms. Stewart had not been as respondent identified the source when the was questioned by Inspector. respondent the Postal The also testified that brother, witness, his who was the second present was when he called to obtain the firearms and had witnessed the sales the firearms. stipulаted that little additional evidence
The Government the crimes was obtained in the 17 months after the concerning explain delay no effort to the was report prepared, and was however, conceded, investigation that the made. It was not report prepared. Although had after the was the ended no that indicating that there was evidence the report stated involved, respondent’s son was the Government indicated that responsible the for the thefts. theory its was that son hearing, After the District dismissed the indict- the Court found that had all ment. The court the Government the charged against the re- relating information the offenses report was The 17 spondent by prepared. the date that the grand the delay jury month before the case was submitted to unjustified. unnecessary The court was found be respondent by prejudiced that the had been the determined Stewart, delay to the death a material witness. due Appeals Eighth for to the U.S. Court of the appeal On Circuit, investigation asserted that the had the Government respon- open been to establish the involvement the kept of Appeals accepted dent’s son in theft. The Court the Government, by explanation offered but affirmed the finding District actions Court’s Government’s were justified. nor necessary neither It further determined respondent demonstrated that defense had that by testimony, loss which could impaired been' of Stewart’s respondent’s did not supported claim that he know stolen from mails. guns were the United States The Appeals affirmed the dismissal of the for Court possession.1 Supreme Court on
The U.S. reversed the basis delay identify efforts to other was caused Government’s may have individuals who been involved the offenses. The explanation pre-indictment offered the Government to be to avoid dismissal of was found sufficient Supreme under the circumstances. The Court indictment charge Appeals for the Court reversed dismissal of respondent alleged dealing in had not unlicensed firearms because provided charge. exculpatory that Stewart could have evidence *53 respondent to compelling stand trial determined not unfair where the fundamentally would be Government respondent filing charges against the while the inves- deferred tigation continued. decision, the reaching Supreme its Court observed that must process inquiry
“the due
consider the reasons for the
as
delay
well as the
to the accused.”
U.S.
pre-indictment
Judges in defining process,” impose are not “due to “personal law our private enforcement officials notions” “disregard of fairness and to limits judges that bind judicial their function.” Our is task more circumscribed. are to only complained
We determine whether the action here, compelling respondent to stand trial after Govern- delayed investigate ment to indictment further-violates conceptions justice those “fundamental which lie at the institutions,” our civil political base ... and which ” community’s define “the play decency.... sense of fair 790, 97 Id. S.Ct. Supreme
The
Court
prosecutors
concluded that
not
do
from the
conceptions
justice” by
deviate
“fundamental
deferring indictments
they
probable
until
cause to be-
lieve an
has
duty
accused
committed an
was any
offense. Nor
imposed upon
prosecutors
be
file charges
as soon as
exists,
probable
they
cause
but before
they
were satisfied that
guilt
would be able to
a suspect’s
beyond
establish
a reason-
Supreme
able doubt.
rejected
argument
Court
once the Government has assembled sufficient
evidence
prove guilt
doubt,
beyond a reasonable
it should be constitu-
required tionally
charges,
file
investigation
even if its
complete.
entire criminal transaction
weighed
Several
in concluding
considerations were
timing
an indictment should be
left
the discretion of the
First,
prosecutors.
Supreme
that “compel-
Court observed
*54
soon
ling
requisite
to file an indictment as
as the
prosecutor
a
developed
on one
against
participant
one
proof-
been
in
in
problems
those cases
cause numerous
charge would
person
more
one
criminal transaction involves
than
which a
Second,
793,
act.” Id. at
97
2044.
illegal
than one
S.Ct.
more
pressure prosecu-
“would
prosecution
on immediate
insistence
early
in favor of
resolving
tors into
doubtful cases
—and
prosecutions.”
“Finally requiring
Id.
possibly unwarranted —
immediately upon
charging
make
decisions
Government
guilt
pre-
would
assembling evidence sufficient
establish
giving
full consideration to
clude the Government
Id.
particular
in
at
desirability
prosecuting
of not
cases.”
considerations,
upon
Supreme
these
97
Based
S.Ct.
following an
prosecution of an accused
Court held that the
deprive
pro-
of due
investigative delay does not
accused
cess,
might
preju-
if
been somewhat
his defense
have
“even
at
In Marion we with delay” Due that a “tactical would violate the conceded renews that concession Process Clause. Government here, by stating: “A due expands ... it somewhat process might upon showing be out violation also made delay disregard circum- prosecutorial incurred reckless stances, suggesting that there prosecution, known to the delay impair the risk that would appreciable existed ” ability to mount an effective defense.... As Govern- notes, however, is no of recklessness there evidence ment here. we in the conceded that determine Marion we could delay preaccusation
abstract the circumstances which at require dismissing prosecutions. would U.S. later, years than five that statement 455. More S.Ct. Indeed, intervening years so remains true. few prejudiced they defendants have established that were any this Court nor lower court has had a neither opportunity signifi- sustained consider the constitutional for delay. cance various reasons therefore leave to We courts, instance, the lower in the first task of applying principles process settled of due we discussed particular circumstances of cases. simply individual We hold that the lower in dismissing case courts erred the indictment. 796-97,
Id.
The factual circumstances of the case were summarized as follows: 2, 1982, July Appellant’s
On wife and six-week-old son in a died fire their in Wright Township, inside home Lu- County, Pennsylvania. zerne Appellant The was scheduled to work from 1:00 until on p.m. p.m. day 10:00 day, neighbor fire. Earlier Appellant saw the leave Later, the house between 12:15 and 12:20 p.m. young two boys, twelve, ages nеighbor’s nine and were in a playing yard they Snyder when saw the on house was fire and ran to the house. Unable enter the house because the front locked, they neighbor door told a who notified the fire department p.m. fighters at 1:31 Fire approx- arrived within imately four minutes found Appellant’s wife and bedroom, child in the master both from carbon dead monox- poisoning. Autopsy ide tests barbiturates revealed blood, in Snyder’s alcohol Mrs. with a blood alcohol content expert opined .046%. witness The Commonwealth’s nature, it incendiary deprived and that was the fire was approximately it one oxygen, caused to smolder which hour, filling the house smoke. incident, Wright Township
Immediately after Pennsylvania Police, Lu- Police State and the Department, an in- Attorney’s County zerne District Office commenced vestigation, yield any years. arrests two which did after Attorney empaneled County Luzerne District jury probe special investigating grand the deaths [sic] jury grand investigation The Snyder of Mrs. and her child. time it without continued until some when ended returning any indictments.
The continued to live and work Luzerne Appellant County, investigation throughout dormant and the remained Attorneys. of several No new or the administration District jury grand became known after the additional evidence During newly investigation concluded its in 1986. Attorney County, Paul of Luzerne Peter elected District Olszewski, Jr., filed reopened case. The Commonwealth counts complaint charging Appellant a criminal with two 8,1993. murder September Id. at 597. charges appellant pre-trial filed motion dismiss the year lapse the eleven time before the
on the basis rights violated his due under were filed *56 Pennsylvania U.S. Constitution. The Constitution and the his charges to the was sub- appellant asserted defense extraordinary delay stantially by the because evi- prejudiced his had had establishing that wife committed suicide dence delay. court because of the The trial become unavailable evidentiary at the intro- hearing appellant conducted an which establishing could have that witnesses who duced evidence severely depressed was the birth that his wife after testified filed, charges were and that son had died before the their many not facts be- possible other witnesses could remember The delay the had dimmed their memories. lengthy cause hearing. present any did not evidence at the Commonwealth appellant’s trial court motion The denied to dismiss the trial, charges. proceeded parties When the matter presented argument presiding judge oral to the on the issue. presiding judge The also was appellant determined charges, finding delay not to dismissal of the entitled that the substantially appellant had not prejudiced the because the appellant sought present evidence that the was either presented through or could exculpatory be other witnesses. subsequently was appellant The convicted of two counts of degree judgment first murder and arson. of sentence was Superior affirmed Court. granted appellant’s petition appeal
We for allowance of issue of pre-arrest delay address limited whether the right had process. violated to due We determined trial court committed error of law when it found that the appellant had not sustained his of proving preju- burden dice. appellant We concluded that had demonstrated prejudice upon actual based the record before us. Because any record silent as to the proper existence reason for delaying filing charges, of criminal we reversed the Superior order of the Court remanded the matter trial court for the limited purpose of determining whether filing there valid to justify were reasons of the charges aftеr such an period extensive time.2
We observed that
is no
there
statute
limitations that
applies
charges
Pennsylvania
Code;
to murder
in the
Crimes
“[hjowever, statutes of limitation do not define the full extent
rights
the accused
concerning the time which the
charges can be
at
right
filed.” Id.
599. “The constitutional
due
also protects defendants from having to defend
charges,
stale
and criminal
should be dismissed if
improper pre-arrest delay
causes
to the defendant’s
right to fair
(citing
trial.” Id.
599-600
Commonwealth v.
Daniels,
(1978)).
480 Pa.
We Court provided by Supreme the U.S. perspective with the and Lovasco and Lovasco. Marion “[T]he decisions Marion a due proposition that stand for the establish decisions delay must prosecution, defendant process violation for and that prejudice of time actual passing caused show post- proper sufficient and reasons prosecution lacked analy- prosecution.” two-pronged Id. at 601. The poning the (1) required pre-arrest that we whether sis determine: (2) accused; whether in actual to the resulted appellant’s postponing reasons for the Commonwealth’s proper. were arrest trial, wife was appellant’s of mind of the
At the state guilty determining appellant crucial factor in whether charges. and arson of the homicide Commonwealth’s wife, appellant drugged had started theory was that the the house. The circumstantial evidence the fire left indicated that the wife presented the Commonwealth a trail of and oil system gasoline and that barbiturates her ignited. anticipation appel- house had been suffering post-partum his wife lant’s defense that by taking barbiturates depression and committed suicide house, twelve setting fire to the Commonwealth introduced happy testify appeared that the wife had be witnesses shortly before her death. *58 on appellant
The testified his own behalf and introduced the testimony appeared of that to several witnesses the wife be depressed toxicologist after birth of child. A the her testified ingested that not been the barbiturates the wife could given they to her had a bad taste. surreptitiously because lengthy delay bringing charges, appel- Due to the the the testimony lant was unable to introduce the several wit- evidentiary hearing who had before nesses died the trial. The motion to for purpose the dismiss disclosed the which the appellant testimony, would have offered the as witnesses’ follows: Appellant that
The contends these witnesses would have Snyder depressed that severely testified Mrs. after the Nolan, Specifically, Monsignor birth of her son. who Snyders’ family parish priest, the friend and died before the Appellant’s Monsignor many arrest. Nolan had contacts Snyder with Mrs. working before her death because he was with her to prepare baby’s fоr baptism, the which was for day According Margaret scheduled after the the fire. to Krupa, Snyder who the Monsignor drove the home to rites, administer Monsignor the last the told her that after house, the seeing Snyder bodies in the he that believed Mrs. committed Monsignor suicide. Because Nolan died before charges, Appellant the Commonwealth filed the could these present concerning evidence the basis the Monsi- gnor’s opinion Snyder Mrs. that committed suicide. Appellant’s father, George Snyder,
The was also deceased at time of trial. Appellant’s that brother said Snyder’s Mrs. George Snyder co-workers told said she goodbye day Appel- her co-workers before fire. lant’s brother Monsignor also testified that Nolan told the Appellant’s Snyder father he believed that Mrs. committed suicide. Furthermore,
Snyder,
The evidence death. wife at the time of her appellant’s of mind of state against filing charges extensive The Commonwealth’s deprived opportunity present him appellant testimony opportunity who had an observe the of witnesses after birth of her child. wife’s behavior demeanor trial, the Com- developments the case “Because of concerning evidence Mrs. introducing monwealth considerable mind, unavailability key witnesses Snyder’s state Snyder, we conclude the Commonwealth’s close to Mrs. these sooner resulted actual failure file *59 trial.” at presenting in Id. Appellant defense to the analyzed then whether the Commonwealth’s reasons for We Although proper. were the appellant’s the arrest postponing period the of time the wife’s trial court had described between delay,” appellant’s “investigatory as we death the arrest in that was no basis the record to conclude determined there investigation. delay required that for further the Attorneys that of the District of any did not claim appellant intentionally prosecution the County postponed Luzerne however, advantage; appellant did assert gain a tactical investigation an that had been dormant and renewing that years change the District filing charges after 11 based improper. Attorney’s Office was appellant required was not to estab- concluded that the
We delayed prosecu- intentionally that lish the Commonwealth in order to gain advantage appellant tion to a tactical over the that process rights. violation of his We held establish a due prosecute after than 11 Appellant decision to more “the ongoing no evidence and with no investi- years, additional it years, egregious last is so cannot gation seven of Id. the most deferential standard review.” withstand even at 605. that,
We stated not, intentionally done Whether the Commonwealth gained strategical advantage against Ap- a tremendous pellant passage due to of time and the loss of critical testimony through memory defense death and loss. This expressly disapproves subjecting Court of defendants to delayed prosecutions prose- changing cases in which policies only cutorial are the to revive dormant reason investigations passage after time causes actual prejudice that, to the defense. We hold based on all case, facts of this bringing prosecution more than after years eleven prejudice Appellant caused actual to the him deprived process proper due law there unless were reasons for delay. emphasize
We only due violations will occur cases, in extreme which no justify valid reasons a defen- dant’s arrest after an inordinate amount without time investigation. This recognizes Court prosecu- murder tions come to many years investiga- often fruition after do tion. We to limit power intend of the Common- prosecute wealth to investigation a murderer if and when yields many years new evidence after of inactivity. Howev- er, if no additional appears, evidence results in defendant, actual to proper there are no for postponing arrest, reasons pro- defendant’s the due cess clauses of the Constitutions of the United States and *60 Pennsylvania require that charges the be dismissed. added).
Id. (emphasis at 605 Applying analysis, this the record in this case establishes year that pre-arrest the delay in actual resulted and prejudice substantial Dr. to Scher and that the Commonwealth lacked sufficient proper delay.3 reasons for the inordinate 3. When pre-arrest delay, the courts have addressed the issue of the first typically is passage examination whether the of time has resulted in actual to the accused. Since it is the rare instance which pre-arrest delay prejudice, analysis has been to found result in actual of prejudice prong the of the test under the Due Process will Clause ordinarily dispositive be the of accused’s claim. I have chosen to address Dr. Scher's by claim of a due reviewing violation first the year delay events that the culminated in because it assists in an proceed- course the hearing, throughout the of
At the the that the defense ings, position took the Commonwealth Dr. actual and required prove that Scher suffered was time, passage and that prejudice because the substantial by prosecution gain the was an intentional device the The advantage over the accused. Commonwealth tactical proper failure conduct a investi- neglect that asserted to warrant dismissal the gation would not be sufficient highly The 1447ag-1449ag.4 R. Commonwealth charges. way investigation the into Mr. Dillon’s critical of the which investigation not argue conducted and did the death was prosecutor contrary, stated: properly. was handled To early on was not contesting investigation We’re things dragging, was foot other perfectly, done there been that were done and should have done could been that, that is not much We have conceded but done later. the issue. 1456ag.
R. pre- filed an omnibus March counsel On defense alia, based seeking, motion dismissal trial inter The trial court conducted an upon pre-arrest delay. May 7, At evidentiary hearing on motion on testimony evidentiary hearing, presented the defense counsel Attorney individuals who had served as District period of County during the time between Susquehanna Dillon and the Dr. Scher. The death of Martin arrest in that Attorney part-time position was a position of District county. Jr., Little, initial term first was Edward whose
The witness any understanding prejudiced by lack of of how Dr. Scher during significant portion investigation of that time. by Attorney pages reproduced record filed General’s 4. The in the designations. are with different numerical Office marked two designated by page reproduced record are number references “ag”. precise page avoid as to the followed the letters To confusion Court, reproduced record the references in this filed designation Attorney provided opinion incorporate the letter General's Office. *61 as District Attorney began in 1968.5 District Attorney Little served three successive terms and left the office the end of early 1979 or 1980. R. 1439ag-1440ag. was in He office when Martin Dillon died. Attorney District Little did not undertake any prosecution any individual in connection with the death Dillon; of Martin nor any during arrest made his tenure. request No by was made Attorney District Little to the Attorney General’s Office for assistance the investigation or prosecution. time,
At that the District Attorney’s employed office investigator, County Chief Detective Willard G. Collier. De- Collier, only tective employed by detective the District Office, Attorney’s was assigned to investigate the death of Martin Dillon. Detective Collier died before the arrest of Dr. Scher. He was responsible for gathering and reviewing the evidence connection with the death. upon
Based his investigation shortly after Mr. Dillon’s death, Detective Collier indicated to Attorney District Little that he believed that shooting was not accidental and that Dr. may Scher responsible. have been pre- Detective Collier pared 9, 1976, letter dated June a week after Mr. Dillon’s death, to reflect the fact that he investigation wanted the remain open despite the fact that Coroner John Conarton determined it to be an accidental death.6 The letter was addressed Little, to District Attorney who described the letter as something he and Detective Collier had cooperated in and as “a mutual idea”. R. 1443ag-1444ag. 9, 1976,
The June letter summarized Detective Collier’s impressions initial the evidence did not support Dr. 2, Scher’s statements on June as to how shooting occurred. The letter stated as follows:
1. At about 1200 Hours on Subject June deceased his Mortal Life Physical Trauma, namely a Contact Shot-Gun Blast to the Chest. private practice, law Attorney represented District Little Edna Scher in a divorce against action filed her 1478ag. Dr. Scher. R. 28, 1992,
6. Coroner John Conarton February died on before the arrest of Dr. 1467ag, Scher. R. 2748ag. *62 County Conarton issues a Susquehanna 2. Coroner John Subsequent Death: conver- Accidental tentative Verdict Verdict, will this if change indicate that he can and sations now conducted this and other Inves- Investigation being it. tigators Warrant knowledge of his his personal Subject, Religion,
3. Prom at 1530 he talked to mind Hours when care-free State Montrose, any Rule out Troopers Fekette and Selinkas possibility of deliberate self-destruction. Scene, angle of the
4. An examination of the Wound Entrance, present not and information available are Investigator this as caused a fall on satisfactory being to the weapon. Subject, partial of one destruction Physiognomy
5. The explanation and his of the incident are Weapon, Investigator. satisfactory to Investigation severely hampered by gos-
6. The has been sip, Newspaper and at one erroneous account. Rumors least Anon- Top City Reporters getting unsigned *63 1481ag. Little, Attorney along was accidental.” R. District (Detective Collier, with investigating Trooper officers Fek- Police), Trooper Pennsylvania ette and Salinkas of the State did not want Coroner Conarton to a death release certificate noting they accidental death because infor- believed sources of community up mation from if dry would that determina- tion was made. that they He testified had several conferences to prevail delay Coroner Conarton him upon release of the death certificate. He was able to release of the death certificate for 10 that days, explained Collier’s Detective reference his to the fact that “time letter was vital” reflected that the delay encouraged. had been R. 1482ag. When the death was issued on certificate June 1976, it reflеcted that Mr. Dillon’s death was R. accidental. 2758ag-2759ag. Conarton Coroner revised his never determi- nation.7 Attorney
District Little testified that he on the relied investigators to investigation continue their and that he be- all of lieved had evidence been accumulated the time that 1491ag. he left office. R. subsequently He made the determination there was insufficient evidence to warrant prosecution of Dr. shooting Scher. From time of 7. A signed revised certificate of death was Robert A. Barton on December 1995. The revised certificate indicated that the immediate gunshot death cause of was a wound chest and the manner of 2760ag. death was described as homicide. R. 1980, no Attorney office in District Little left in 1976 until arrest was made. Attorney District Kelly succeeded Little as
Laurence M. Kelly served in office two terms Attorney 1980. District Collier was still 1988. He testified Detective from 1980 to tenure, during and that Detec- investigator an employed as completion of his terms. prior to the two tive Collier retired office, the matter dormant. years For the he served shooting only ongoing investigation no Not was there incident, Kelly no even Attorney knowledge had but District on the existing file matter. there was as Attorney Kelly testified follows:
District Attorney, did Q. took the office of District you When over concerning the file the death anyone you tell where Martin Dillon?
A. No.
Q. file? you Did ever find the I it I look for it. I no idea that A. found nor did never if it it was was there. there understand, you say- what
Q. -just Larry, so I are From— left, you you you office the date ing, the date took it you knew was there? for the file never never looked A. correct. That’s *64 you conversation with about the
Q. any Did Collier file?
A. No. file on the of Martin —strike
Q. you open Did new death of Martin Dillon? that —on the death A. No. concerning death any investigation
Q. you Did initiate of Martin Dillon?
A. No. concerning additional
Q. you gather any Did evidence death of Martin Dillon?
IA. did not.
R. 1513ag-1514ag. Kelly Attorney
District had further testified he not 9, 1976, seen the letter dated June from Detective Collier to Attorney Kelly, former District and did ever review the evidence that been collected as a result of the 1976 investigation. any did not meetings He conduct with the Pennsylvania concerning State Police Mr. Dillon’s nor death correspondence did any he receive from the State Police on Attorney the matter. District did not any Little receive any request from law any enforcement officer to conduct scientific examination on the evidence accumulated investigation into the death. He was of any never made aware investigation being actively conducted the State Police or any law agency other enforcement while he was District R. Attorney. 1514ag-1516ag. January Jeffrey B. Snyder became the District
Attorney. He served two concurrent terms previously He had as an attorney served assistant district Kelly under District Attorney 1987. As an assistant district attorney, the matter had never been discussed with him and he was not aware of any the existence of file the District Attorney’s 1591ag. office. R.
yearA after District Attorney Snyder elected, he was by a acquaintance contacted social who was the son-in-law of (Martin father) Lawrence Dillon Dillon’s and was asked to meeting have a with Dillon family. agreed He to meet family. family requested that he not any involve part the detectives who were of the District Attorney’s family expressed office. The members their concerns over the investigation Pennsylvania undertaken State Police. meeting, After the he indicated case, that he would review the including the initial Pennsylvania investigation. State Police R. 1593ag; 1597ag.
His review the official file the District Attorney’s office indicated that it “contained no little to information.” R. 1592ag. District Attorney Snyder arranged meetings with *65 Dillon’s and State Police address Dillon
Lawrence investigation, in Troopers State involved concerns. The Fekette, meetings. in the participated Troopers Salinkas original criminal re- Attorney Snyder examined the District provided and additional materials ports, the State Police file summarizing thoughts. own He also Dillon Lawrence hunting 1598ag. R. camp. a visit to the made site ceased, investigation agreed it was years after the Thirteen panel to a a the case would be made presentation assembling University at experts who were medical May Dr. Isadore Miha- Philadelphia 1989. Pennsylvania Common- lakis, as a witness for the subsequently who testified trial, on behalf of the Com- presentation wealth at made the Attorney testified that he was Snyder District monwealth.8 an what occurred present merely as observer and described following presentation: present individuals
By my twenty-nine count there were matter, poll on this straw of who would vote terms half of And less than those individuals indicated fashion. they known felt there was basis that on the facts remainder voted either for intentional homicide. The I gunshot wound. viewed accidental self-infliction any overwhelming prosecution, defeat for the that as theory of caused another. death was that of the 29 who 1601ag; 1617ag. R. His recollection voted, of death was homicide. only believed that the manner Dr. Snyder against did not file Attorney
District results after those efforts. He testified Scher opinions expressed by variance presentation and the officers who had State Police been involved number investigation played heavily in his determination that in 1989. He prosecution could be mounted successful Troopers investigators, identified the initial Fekette Salin- kas, under state of the two officers who were undecided as 1625ag. R. that time. evidence Attorney Snyder Dr. did not select Mihalakis make District by the presentation. presentation itself was undertaken State 1616ag. R. Police. *66 that in request by He testified further no was made Mihalakis body Dr. for an exhumation of Mr. Dillon’s autopsy. subject conduct another of exhumation was The discussed, however, with the State Police: fact, I you presentation
In will take back to panel I May approached persons of of when number who again, give you I can’t names. I had never met voted— I these was as individuals. there an observer. indicated, I already
I—as have I was a felt this setback as any far as poll straw that had been So I taken. took the initiative to approach presentation several after the inquire directly might of them what more be done to investigation, advance this and whether an exhumation and autopsy any additional would be of benefit. given
I guidance was by no those individuals as to what might accomplished. be basically And I was led be [sic] it fishing expedition. would be a And under state of the you evidence that time—and on have touched of it some my testimony elicited here in feel didn’t there was —I sufficient basis to come before and request the Court exhumation.
R. 1628ag.
District Attorney Kelly acknowledged that the Common- possession wealth had physical evidence that col- lected after shooting. This evidence included: the cloth- ing worn Dr. Scher Mr. Dillon date of the shooting; Dr. 16-gauge shotgun, Scher’s Mr. 20- Dillon’s gauge shotgun, ammunition and shells found at the scene of shooting, shooting glasses protectors and ear found at the scene, clay birds, thrower, bird log. sections R. 1632ag-1634ag. He also admitted that had he discussions Conarton, Dr. Grace and Coroner and indicated that the State Police had again interviewed them part as revisiting investigation. 1643ag. R. The record reflects none the interviews preserved. were ever recorded or Snyder
District Attorney was critical of the investigation that had been done. He investigation testified that the done; 1737ag. R. properly.” eigh- getting
“not death, Mr. Dillon’s two different State Police years after teen Stroud) assigned to the (Troopers Schmidt and were officers away from the direct investigation The was taken case. responsible originally supervision of barracks investigation. case, assigned to the District troopers the two were
After granting Attorney Snyder obtained court order body purpose Mr. Dillon’s for the permission to exhume conducting autopsy. autopsy The second was done a second Mihalakis, presented the case in 1989 to the Dr. who autopsy place on experts. second took panel of medical *67 Thereafter, 29, amended April death certificate was from to homicide. change of death accident the manner identify Attorney Kelly testified that he could District troopers physical evidence examined any additional they involved in the that was not examined before became any He of the witnesses inter- case. further testified be by would have been available to troopers viewed 1716ag. in 1976. R. interviewed no ongoing
This record demonstrates that there was investi- gation investigation into of Mr. Dillon. The was the death Indeed, years pre-arrest delay. for most of the 20 dormant Not years, “investigation” was non-existent. for 8 of those pursue any investigation Attorney Kelly not only did District 1988, him through no informed from 1980 one even Kelly, Attorney District the chief law existed in this case. file County, never ad- Susquehanna officer for was enforcement any predecessor case law enforcement vised agency. delay pre-arrest is basis to conclude that the
There no investigation. further The record establishes required for for the proper Commonwealth did not have a reason stated, Superior delay. As the Court inordinate investigation The conducted the Commonwealth was in its no possession it had proper. far to in 1976 witness that was not available it when evidence or Moreover, find, prior cannot shooting occurred. we commencement of investigation the most recent any instance where the diligently pursued Commonwealth investigation in this case. findWe the Commonwealth’s inactivity regarding this case to grossly negligent, be as it provided has proper us with no reasons for such an egre- gious prolonged delay. Scher,
Commonwealth v. 732 A.2d 1287 (Pa.Super.1999) (citation omitted).
As
previously,
noted
the Commonwealth
not attempt
did
argue before the trial
investigation
court that the
was ongoing
or that
pre-arrest
the unusual
proper.
prose-
The
cutor was extremely
handling
critical of the
investiga-
tion, but
argument
focused his
only on the issue of whether
the Commonwealth had intentionally delayed prosecution sole-
ly to gain a tactical advantage over the accused.
prosecu-
tor did not
circumstances,
address
here,
such as occurred
where
not,
“[w]hether done intentionally or
the Common-
gained
wealth
strategic
tremendous
advantage against the
[accused] due to the passage of time and the loss of critical
defense testimony through
memory
death and
loss.” Snyder,
Although the Commonwealth has now offered additional
testing
physical
evidence that had been collected in 1976
as an excuse for the
pre-arrest delay,
extensive
the record
establishes that the facilities
experts
who conducted the
*68
testing were available to the Commonwealth when the investi
gation began. “Moreover, any new
performed by
tests
Commonwealth and the
Investigation
Federal Bureau of
failed
any
reveal
new
relevant information that could not
and/or
have been
by
discovered
testing procedures available to them
Scher,
in 1976.”
The next question is whether 20 year pre-arrest resulted actual and substantial prejudice to Dr. Seher. The Superior Court determined that Dr. Seher had suffered actual prejudice concrete as a pre-arrest result delay.9 Superior The Court stated: Although concrete”,
9. Superior Court used the words “actual and rather than "actual and substantial” to describe the suffered at note that there were numerous instances
Initially, we hearings and at trial where were preliminary witnesses many their had facts because memories unable remember Moreover, many preceding twenty years. waned over time of trial. key witnesses were deceased upon which the Commonwealth One of the issues gun the barrel the distance between of the focused was expert, Dr. and Dillon’s chest. Commonwealth’s pre-trial hearing Mihalakis, at a the barrel testified that away gun approximately three to five feet of the was body He, when the shot was fired. there- from Dillon’s fore, opined shooting not been an this could Dr. accident or suicide. Mihalakis based this conclusion finding blackening autopsy there was no or on his entry. Significantly, powder at the wound of found findings, contrary to Dr. Grace’s which were record- autopsy report dated June In that ed his pen- report, noted the area around the Dr. Grace apparent him with what were etration was darkened why powder will know Dr. as burns. We never and how he at his conclusions as died in Grace arrived explain having opportunity find- without ings. Collier, county assigned detective to the
Detective may not opinion of the that Dillon’s case death We, however, why will know have been an accident. never why or he did not further he made such determination Scher, quarrel I cannot Dr. I would not with its choice words. suggest protec- how words could be twisted to fathom those an accused under the Due Process Clause could be lost tions' afforded to particular word. one uses the “actual the use of a Whether words substantial”, concrete”, (as "actual” we “actual and alone recently Snyder), Supreme U.S. in Marion Court’s articulation did requires prong of the test this Court to determine and Lovasco of this hampered has been in his defense whether an accused because preserve failure to critical evidence and the observa- Commonwealth's upon judgment” This “delicate is made based tion witnesses. magical will make this of the individual case. No words circumstances automatic, analysis will and the use of different words due pre-arrest delays significant Penn- prejudicial make less under the sylvania and U.S. Constitutions. *69 pursue investigation prior as he also to Dr. Scher’s died arrest. Conarton,
Also deceased at the time trial was John who Dil- Susquehanna County Coroner the time signature lon’s appeared death. Coroner Conarton’s certificate, initial opinion Dillon’s death and it was his death, Dr. death accidental. Due to Conarton’s will, question was not Scher able to Conarton at trial. We therefore, why never know Conarton believed Dillon’s death to be accidental. prolonged delay by
Whether or not the the Common- intentional, in prosecuting wealth its case was it caused the gain advantage Commonwealth to Dr. remarkable over above, As Scher. stated certain important witnesses were and, therefore, pre- to Dr. deceased unavailable Scher Moreover, his senting case. called numerous witnesses both the Commonwealth and Dr. unable to Scher were courts, remember facts appellate relevant this case. Our Court, along with the Supreme United States have found prejudice substantial and actual of wit- where memories dimmed, unavailable, have nesses witnesses become prosecutorial delay. evidence has lost been due to Marion, supra; Snyder, supra. however, prejudice, This nature, speculative cannot be it must actual and be Snyder, supra. Sneed, concrete. See [Commonwealth v.] (1987)],(where A.2d 749 during delay [526 died witness filing required defendant is show how witnesses him). exculpate would have Presently, tended to we find that Dr. Scher’s case suffered actual and concrete memory due to important loss and the death of witnesses testimony whose could have explained the contradictions the findings investigation between of the initial conducted in 1976 and investigation those the more current conducted eighteen nearly years later. added).
732 A.2d at 1285-86 (emphasis brief, In Dr. categories Scher’s counsel has identified lost, that was destroyed irretrievably evidence altered during year delay: *70 entry destroyed by lost or the
1. wound of was The Commonwealth, 5920ag, 5956- (R.263ag, 502ag, 5747ag, (R. year delay, twenty and the 57ag), deteriorated over experts could 4148-49ag), before defendants’ '4142-43ag, (R. 273-80ag). shape. size examine its or body and of and the wound track 2. Between 1976 decompositional autolytie and Dillon suffered “extensive (R. changes particularly 4148-49ag). The were changes.” entry. body of of Id. around area the wound The severe the first autopsy. before the also washed and embalmed was (R. changes These affected the size of the 2761ag, 5949ag). of in the wound wound, gunpowder and the residue presence wound, range indicative of track and on the skin around (R. 4162ag, 5279ag, 5949ag). 4157ag, fire. routinely recordings during audio 3. Dr. Grace made recording performed. he He made many autopsies that (R. 3762ag). It was never collected case. Commonwealth, destroyed between 1976 and was lost (r. 3762-63ag). 1996. used, ammunition on the 4. unused discarded The at were never ground and the incident scene boxes Commonwealth, destroyed was over by the lost or collected delay and was at the time of decades-long unavailable (R. presence spent num- 2824ag, 3761-62ag). trial. seriously damaged scene would have ber four shells at the (R. theory 2885-86ag, of the case. the Commonwealth’s 6578-79ag). 2894ag, 3360-65ag, victim incident Photographs alleged
5. of the scene (R. 1976. 1638- by game protectors taken June were They destroyed during lost or 39ag). were either (R. delay. year pre-arrest 1638-41ag). twenty shotgun ejector 6. was removed from After (R. Thus, 5150ag). 4980-90ag, and lost. that killed Dillon tests). (R. (jar/shock properly could not be tested gun 5150ag). 5138ag, delay, bloodstains During pre-arrest
7. the course (indicative range shotgun close inside the barrel (R. 3996-97ag), gun when discharge), destroyed were discharged proper testing of it be before could done. (R. 4993-94ag). twenty
8. year pre-arrest Because delay, the defen- possibly perform dant could not psychiatric autopsy Martin ascertain Dillon’s mental condition the time (R. death. 2602-04ag, 2612-15ag, 2625-26ag, 2637ag.) (R. during Memories faded pre-arrest delay. 1445ag, 1465ag, 1473ag, 1834ag, 1932ag, 2010ag, 1958-59ag, Furthermore, 2286-87ag). defendant confronted present witness’s recollection of events that occurred twenty years ago. *71 Appellee
Brief for at 15-16. agree I Superior with the Court pre-arrest delay in actual resulted and substantial prejudice to Dr. Scher important because of the death of witnesses who could have explained during the original observations made the autopsy significance the of in determining those findings the manner of death. only Dr. Grace was the physician who body examined the at the of time incident. the He recorded findings from his original autopsy that were inconsistent with the theory Commonwealth’s of how shooting the occurred testimony by the medical offered at Commonwealth trial. Dr. Grace was available the Commonwealth from 1976 until July Although his death on three individuals Attorney time, served as District during this two of whom consulted him on this shooting, no effort was made to obtain a recorded or written statement from Dr. Grace to significance address his of findings autopsy report. Despite fact investigators that had discounted Dr. Scher’s occurred, 1976 explanation of how shooting investigator no obtained a statement Dr. detailing findings Grace explaining 3, 1976, the observation that he made June darkening around the wound area.
No effort was preserve made to only the recollection of the expert medical body any who examined the 1976 at time during next 19 years. Even as possibility exhuming body for examination was by considered 1989 District Police, Commonwealth Snyder and the State
Attorney any Nor were undertaken make such efforts. efforts failed to investigation in 1994. was renewed when the fact, recording, detailing autopsy findings only by Trooper was lost the Commonwealth. by Dr. Grace made Fekette, Police from the State who retired John evidence, in addition to the loss of this loss of testified about evidence, follows: other as I Now, autopsy. And as under-
Q. you about the talked it, autopsy? at of the you present were the time stand Yes, A. sir. Dr. autopsy of the
Q. it that the time Grace Isn’t true findings; isn’t that true? tape-recording amade Yes, A. sir. tape-recording is lost?
Q. And isn’t it true what I understand. A. That’s 3762-3763ag.
R. of the because of the prejudicial pre-arrest effect the record re- Although death Dr. Grace is undeniable. by Dr. the loss other prejudiced Scher flects significant death several physical evidence Dr. witnesses, I find that suffered Scher dispositive Dr. in itself is of the death of Grace *72 because due deprived Dr. Scher was of his issue of whether reason, I rights. For this will focus the discussion on the impact Dr. as a witness. devastating of the loss of Grace testify as a may Dr. not been available Grace trial, credibility qualifications his were at but and witness attack the Commonwealth. The Commonwealth under autopsy findings. and his From the castigated competence imperative Dr. perspective, Commonwealth’s this because was. that findings explained way not be would could Grace’s in shotgun theory that the was support the Commonwealth’s fired from á distance. by Dr. autopsy report prepared Grace June
The following findings. highlighted portion the The set forth findings reflects crucial was the the Commonwealth un- willing accept vociferously and disputed at trial:
History given having hunting of in been involved acci- male, yesterday, p.m. dent about 6 is age He a white 6/2/76 years, being height about 30 about 5'1" 5'11" in and weighing approximately pounds. chest, portion the central the the slightly to left of
the 3" upper portion sternum about below the the sternum, chest, is a in roughly being hole oval in length roughly character measures about in 1" 1½" hole, It penetration width. is a apparently result of a shotgun proceeds wound which in an inferior lateral portion direction toward the lateral of the chest. There is a ecchymotic axillary area in area of posterior line at axilla, an about 6" below the area of fullness with surround ing eccymosis thought possibly which is slug contain the gun from bullet. There is no other contu evidences sions or lacerations found on body. body having been embalmed the time
examination, rigidity. there is moderate post mortem There is post lividity dependent moderate mortem in the portions. was opened However,
The chest the usual manner. of entry area of the wound widely as described was chest, excised and the skin was turned back and then on, from was opened then the usual manner. The chest plate point was then It removed. was observed at this gunshot previously hole as noted on exterior of the skin that apparent powder there no burns. However, through as the hole was traced the anterior chest slightly wall a lateral and a inferior direction as described, penetration area around the some- what darkened appаrently powder with what was burns and, surrounding this, large course awas amount of free and some clotted blood. % %
The heart was found to be about removed impact force and this charge. The left ventricle was *73 entirely missing of and most the gone. left auricle was The and large with amount of blood surrounded
heart was pellet found the heart portions of shot were various examined, being it beyond. The was removed heart A about, stated, amputated by charge. the force of as ^ the portion was in the lower of amount of blood found large cavity. chest associat- lung also involved the destruction left was
The in the impact charge. The wad was found ed However, wall. there was posterior of the left chest portion shot in this area. Numerous penetration no discernible Also numer- posterior chest wall. pellets were found on permeated had had entered some apparently ous shots lung apparently not right The through diaphragm. of the left chest injury. in the Numerous fractures involved same is involvement of the musculature wall. There pellets of ribs and with numerous with numerous fractures throughout the area. entire gunshot wound
R. The of death was noted as 2761ag. cause of the chest. theory trial was that Mr. Dillon at
The Commonwealth’s autopsy Dr. from Dr. been a distance. Grace’s shot Scher around area presence darkening findings regarding the burns contradicted appeared powder to be the wound theory. darkening presence The the Commonwealth’s consistent, however, with a close around the wound area Dr. autopsy findings supported range gunshot wound. discharged testimony shotgun trial that the acciden- Scher’s at testimony of tally, shotgun. The live during struggle physical that he Dr. could have addressed the evidence Grace Dr. findings autopsy report. Grace’s and the observed bums were testimony powder could have demonstrated demonstrating did during autopsy, shotgun visible that the Commonwealth’s expert fire the distance trial. suggested witnesses addition, to his Dr. could have testified observa- Grace entry wound. Dr. Grace was regarding
tions the size entry wound before expert witness who observed only It and buried. was conceded body was embalmed *74 embalming process Commonwealth’s witnesses that the decomposition the extensive deterioration occurred years body the 19 while the was buried had affected their ability to determine the of entry size wound.
Dr. Grace could have regarding testified also whether or not entry was scalloped.10 autopsy report wound His did not any set forth finding scalloping of the wound had been presence observed. The or scalloping absence of is likewise range relevant weapon which a is fired. The scalloping absence of gun would indicate that the muzzle of the was skin close to the surface at of discharge. the time R. 5249ag, 5770ag. expert proffered
The witnesses by the Commonwealth and disagreed absent, the defense as to scalloping whether but only Dr. Grace had the opportunity to observe the area of the original wound its embalming process state. The included sewing of the wound of entry, which original altered the state of the wound. expert The witnesses who testified at trial examining after photographs autopsy taken at the disa- greed as to photographs whether the depicted themselves scalloping of the wound. only factual recitation regarding the condition body of the given by Grace, could have Dr. been upon based his direct observation of body. testimony, His however, presented could not be jury to the of because Commonwealth’s unexcused in investigating this matter properly filing charges.
In the absence Dr. testimony Grace’s on this critical issue, jury was left with no testify witness to regarding the original state of the wound when Dr. Grace examined the Instead, body. jury was required speculate as to whether Dr. capable Grace was making observation, such whether in fact he such made an observation but was Baden, witness, 10. Dr. Michael explained who testified as a defense Baden, significance scalloping. Dr. the medical examiner for the Police, anatomic, New York State was board certified in the field pathology. clinical and forensic “[s]calloping, He stated that when it’s wound, shotgun used to describe a irregu- refers to small semi-circular along margin larities gradual of the entrance wound caused dispersion pellets.” 5930ag. of shot R. had not fact understanding significance, its incapable of the Commonwealth’s to the detriment scalloping observed made to witnesses were expert all of the Additionally, case. facts and unlike from a of assumed conclusions set their draw facts. of the Grace, provide a foundation they could not Dr. Shane, Department Chairman example, Dr. John For regarding Hospital, testified Lehigh Valley Pathology at Mihalakis, for the Common- also testified Dr. who this matter. matter, of that same was a member regarding wealth autopsy photo- had examined Dr. Shane department. During visible. scalloping that no and concluded graphs *75 Dr. Shane discussed photographs, testimony regarding his did autopsy report Dr. fact that Grace’s significance of the scalloping: presence not refer ob- that, any personally physician did In addition Q. 3rd, 1976? on June serve wound A. Yes. that?
Q. And who was Dr.
A. That was Grace. concerning a report in his any notation Q. Did he make wound? non-scalloping of the scalloping or please, Honor the absence your If [PROSECUTOR]: Besides, even Dr. was not Grace is not evidence. evidence ordinary physician. an hospital pathologist. He was or a objection Judge, is this COUNSEL]: [DEFENSE speech? objection. had an
THE He COURT: asking questions I am and he COUNSEL]: [DEFENSE objecting. is objection. going I to overrule the am
THE COURT: question. Answer the at the time these this wound
A. Dr. Grace observed at the time of These were taken were taken. photographs scalloping. Scalloping did not describe autopsy. He his of muzzle of a determination margin terms wound physician’s of a examination sophomoric is terms distance mean, very thing basic I it is—it is entry. wound of of a I if you look believe Dr. was able to tell there for. Grace mean, or if I scalloping scalloping present. no it were He, obviously, opinion, it would sophomoric. my is so in his report. it included objected say That is to. He didn’t [PROSECUTOR]: scalloping. say anything way didn’t one there no He the other.
THE COURT: Sustained. added). (emphasis 5241-42ag
R. challenged veracity The Commonwealth of Dr. Grace’s autopsy findings impugned qualifications. an at- tempt during to minimize crucial physical findings made Dr. body Grace’s examination the Commonwealth’s expert could not explain, prosecutor witnesses otherwise Dr. characterized Grace as a medical witness who lacked the requisite autopsy. skills to conduct an Over strenuous and counsel, repeated objections by permit- defense the trial court prosecutor engage ted the in a character assassination of Dr. Grace. harshly
The Commonwealth’s criticized Dr. witnesses' qualifications, but Grace’s not one the witnesses could testify familiar they Dr. were abilities from Grace’s own personal experiences during their with him his medical *76 Instead, expert career. the Commonwealth’s witnesses were permitted speculate to competent that Dr. Grace was not autopsy findings make the that refuted the Commonwealth’s theory expert qualifi- because the Commonwealth’s -witnesses’ “superior” cations were qualifications. to Dr. Grace’s The amply record demonstrates that Dr. actual Scher suffered prejudice substantial as a result the loss of Dr. Grace as a witness. availability expert testify other witnesses Dr. dissipate on Scher’s behalf could not be- cause body none of those witnesses observed the as it appeared during the autopsy.
The Commonwealth’s attack Dr. Grace went ridiculous lengths as following testimony demonstrated of its witness, Joseph Davis, formerly Dr. H. Dr. Davis. the Chief Florida, about testified County, of Dade Examiner
Medical pen- around finding “that the area autopsy Dr. Grace’s apparently what was darkened was somewhat etration powder bums.” in this case? report Dr. Grace’s Now, review you did
Q. Yes, I did. A. report in that comments Now, certain did he make
Q. this matter? regarding
A. Yes. they what were jury to the Now, explain you would
Q; [sic], you attach them? any, if signature what soiling, as I recall gunpowder InA. reference he’s Grace, term —and he used the by Dr. report autopsy skin, along the wound under the tissue about the talking darkened,” goes onto which then he pathway —“somewhat soil. gunpowder as evidence interpret [sic] that, pathologist who as a my interpretation Now, years, it over things has done describes it, indicates, if I wrote darkened” description “somewhat means somewhat the word not sure because that I was indeterminate. Honor. That Your Objection, COUNSEL]:
[DEFENSE speculation. calls
THE Overruled. COURT:
Q. Proceed. “some- in there Well, modification word interpret I A. certain, insecure, question. maybe, meaning what” as COUNSEL]; Objection. [DEFENSE [PROSECUTOR]: interpret— Iway
A. That’s the COURT; Overruled. THE
[PROSECUTOR]: *77 words, —those
A. Now, Q. right. you you All can us why tell us—can tell interpreted way in the definition you it that terms of of that word? Well,
A. that word itself is a word that means indetermi- nate, uncertain, what, et not certain of cetera. It’s a word, way modifier. And if I use that that’s the I use it. I That’s how understand that word as it’s used English language.
Therefore, interpret I indicating would this as who person high degree used those words is not of the certainty as— added). 6118-19ag (emphasis
R. objection, Over defense permit- counsel’s Dr. Davis also testify that a forensic has pathologist training ted and eye, experience detecting, presence the naked residue, gunpowder a general while physician does not. R. 6123ag. This generalization overbroad about the relative qualifications of pathologists physicians forensic to detect gunpowder residue intended to discredit Dr. Grace’s findings jury, any before without personal knowledge or training evidence Dr. experience. Grace’s Notably, Dr. did not attempt explain Davis how the forensic pathologists who testified at trial arrived at diametri- cally opposed regarding presence conclusions of gunpow- residue, presence der scalloping, absence and the away body shotgun distance at which discharged. Although opined he that these peculiarly matters were within specialized experience those as patholo- trained forensic gists, proffered opinion he why expertise no as to of so many pathologists eminent significant left the issues unre- solved. limitations, well as as the importance, expert wit- are
nesses demonstrated this is for case. It this reason I cannot accept plurality’s reasoning that Dr. Scher did not suffer actual substantial because he present expert could witnesses on his behalf. Under the case, circumstances of the most critical evidence for the *78 through physical Dr. his that obtained Grace defense was body shooting. time of loss at the observation directly from of this the Commonwealth’s evidence resulted delay.11 improper pre-arrest in his to the prejudiced
Dr. defense Scher Dr. as a witness. Dr. Grace against him the loss of Grace specula- without to his visual observations could have testified body revealed physical tion as what the examination of report would findings autopsy forth his to him. The set subject of extensive direct cross-examina- have been the weigh his jury opportunity would have had tion. The findings crucial to a explaining those that were testimony shotgun discharged at close determination whether range body. to the upon preser- even science
Ultimately, depends forensic filing vation evidence. The Commonwealth’s Dr. him of evidence critical charges against deprived Scher result, due deprived Dr. Scher was of his As defense. Pennsylvania and under the United States process rights Constitutions.
I dissent. dissenting joins opinion. Justice CAPPY distinguishes where the the case before us from circumstances This by the witness or is not occasioned Common- loss of the evidence delay. wealth’s Notes 156-57. Trooper Police, Pennsylvania Francis Zanin State barracks, Dunmore was the records and identification officer who documented the Trooper scene June Zanin body lying observed Dillon’s on its back with its arms out- wearing stretched. eight-inch high Dillon boots that had eyelets round pass through for the laces to except top, at the pass where laces would through three hooks. Trooper Zanin noticed although top laces right- untied, foot boot were the rest of pulled the laces remained against tightly leg. He also pant leg noticed Dillon’s was pulled up higher than the boot. were blood There droplets face, on Dillon’s boots and shooting on the goggles protective eyewear lay nearby, stump and on the tree approximately that was to six five-and-a-half feet from Dillon’s body. Trooper observed, however, Zanin that there were no droplets blood immediately eyes around Dillon’s and ears goggles where the and earmuffs would have had Dillon been been wearing them he when was shot. The barrel shotgun shattered sixteen-gauge lay body, close to Dillon’s but a subsequent examination of the outside inside of shotgun barrel showed no evidence blood. Inside the chamber of the broken sixteen-gauge shotgun was a dis-
Notes
The lead notes this Court addressed length. at some test We stated Sny- the Marion/Lovasco that proposition der that those two cases “stand for for a delay prosecution, a due violation establish passing must show that the caused actual defendant time prejudice prosecution prop- and that the lacked sufficient apparent Mays good post- not is still law in the Ninth Circuit It is that Gilbert, See, (9th e.g., v. 1187 Lovasco. United States 266 F.3d Cir.2001) (first prong requires prong of test actual and second showing delay, against prosecution’s requires when balanced rea it, conceptions justice which lie at sons for offends “fundamental Doe, institutions”); political base of our civil and United States v. Sherlock, (9th Cir.1998) (same); U.S. 962 F.2d F.3d v. (9th Cir.1989) (same). 1353-54 prosecution.” er reasons for A.2d postponing Snyder, 713 at 601. The trial court Snyder had concluded appellant there had of proving not sustained his burden actual prejudice, and did inquire thus it even “whether ” investigatory proper.’ was intentional or Id. at 599 (footnote omitted) opinion). trial (quoting court After deter- Snyder mining prejudice, in fact had established actual this Court remanded the case for the trial court to determine justify filing “if were valid there reasons these after period analysis extensive time.” Id. at 606. our may “proper what be deemed delay,” reasons we opined that we “expressly disapprove[ defen- subjecting ] delayed prosecutions dants to changing prosecutorial which policies only are the reason to investigations revive dormant
lead
notes
our
Snyder necessarily
decision in
rejected
majority
the
of
view
the federal Circuit
that delay intentionally
Courts
undertaken
by
prosecution
gain
the
a
advantage
only
tactical
is the
circumstance where
second
prong
Marion/Lovasco
would be satisfied.
opinion attempts
clarify
The lead
to further elucidate and
prong
and,
the second
of the
test
in
doing,
so
Marion/Lovasco
strays even farther
from the actual
in
language
the U.S.
Supreme Court’s decisions.
opinion
The lead
would
hold
insufficient
reasons
improper
delay
exist whenever
totality
consideration
the evidence “shows that the
delay
product
intentional,
faith,
bad
or reckless
conduct
by
prosecution.” Opinion Announcing
Judg-
added).
ment of
(emphasis
the Court at 25
I
in
joined
recognize
I
Snyder opinion, and
opinion fairly
the lead
However,
today.
characterizes it
upon further careful consid-
eration of this recurring
question,
federal
in
particularly
light of the
Pennsylvania experience
difficulties in the
since
Snyder,
opinion’s attempt
clarify
which necessitate the lead
today,
firmly
the standard
I am now
convinced that
should
we
simply
actually
by
return
the standard
articulated
Supreme
by majority
Court and followed
of the Circuit
332
Thus,
proper
I
believe that a
assessment
Courts.
prosecution
must
con-
delay
initiating
for the
be
reasons
i.e.,
question
prosecution’s
bad
fined to the
faith —
delay
intentionally
prose-
undertaken
whether the
advantage
a tactical
over the defendant.
gain
cution to
9,
1,
correctly notes that Article
Section
opinion
The lead
with
Pennsylvania
is co-extensive
the due
Constitution
and,
process protections of
United States Constitution
thus,
query
governed
is
cases
the U.S.
our
here
Court, i.e.,
Marion
Supreme
primarily,
and Lovasco.
noted
Lovasco that “the Due Process
Supreme
U.S.
Court
abort
permit
prosecutions
not
courts to
criminal
Clause does
disagree
prosecutor’s judgment
as
simply
they
because
Lovasco,
790, 97
to when to seek an indictment.”
431 U.S. at
“the
Process
has a limited
S.Ct. 2044. Because
Due
Clause
789,
against
delay,”
id. at
protecting
oppressive
role to play
only
is
if the
caused
97 S.Ct.
Clause
violated
actual
to the defendant
“was
intentional
Marion,
advantage
tactical
over the accused.”
gain
device to
Lovasco, supra.
have been notes calls, ymous Through personal friendship and information. complete them us our possible get it has been to let Investigation. point: photo- 7. vital at this must have all Time is We examination, Laboratory reports, and graphs for intensive persons may any who have knowl- further Interviews with edge, re-interviewing subjects as with information of as well importance. time, Inquest is not at this for the 8. A Coroners advisable following reasons: (a) may give finding of jury A coroners Accidental— hampering Investigation. (b) negligence They could Rule Homicide—Criminal —or other, night Charge force us without evidence [sic] Magistrates get through Court. (c) any Suspect get Attor- Inquest An would force testify, him ney certainly would advise to refuse —who Investigator. any talk to Photos, Interrogation: Reports, all Lab State- With ments, and request Polygraph as last resort a examina- [sic], only weapons on a Suspects tion: are the left to work Knowledge) any present. if is (Guilty only inquest, requested by 10. The Coroner will call an if you; you And I would us to respectfully request allow Investigation continue this the manner we found past. effective R. 2751ag. Attorney District Little indicated that Detective Collier strong feelings shooting also was not accidental. He testified that Coroner Conarton that this John was “hellbent