Opinion
No. 1557 Harrisburg, 1998.
Filed: February 1, 2000. Petition for Reargument Filed February 15, 2000.
Appeal from the Order entered September 30, 1998, In the Court of Common Pleas, Luzerne County, Criminal Division, at No. 2604 of 1993.
BEFORE: POPOVICH, ORIE MELVIN and BROSKY, JJ.
OPINION
¶ 1 This is an appeal from an order, the effect of which was to affirm Appellant's previous conviction for first-degree murder. Appellant raises one issue, "whether a defendant is deprived of due process when an eleven year and two month pre-arrest delay has prejudiced his ability to present his defense at trial and an unreasonable and less than diligent Commonwealth investigation of his alleged crimes has been the reason for the delay?" We affirm.
¶ 2 On July 2, 1982, Appellant's wife and six-week-old son died as a result of carbon monoxide poisoning suffered when their home, in Wright Township, Luzerne County, caught on fire. Although it was determined soon after the incident that the fire was intentionally set, the purported responsibility for setting the fire was not determined to the satisfaction of the District Attorney until sometime in 1993. On September 8, 1993, the Commonwealth filed a criminal complaint against Appellant charging him with arson and two counts of murder.
¶ 3 Appellant responded by filing a pre-trial motion to dismiss the charges asserting that the length of the delay between the commission of the crime and his arrest violated his constitutional right to due process. Specifically, Appellant asserted that the delay had resulted in the unavailability of exculpatory evidence and had substantially prejudiced his ability to present a defense. The Honorable Hugh F. Mundy denied the motion concluding that Appellant did not demonstrate that the pre-arrest delay had caused him substantial prejudice, and, consequently, "there was neither reason nor requirement to determine whether the investigatory delay was intentional or proper."
¶ 4 Appellant's trial commenced on June 7, 1994 and culminated in his conviction of arson and two counts of first-degree murder. Appellant was sentenced to two consecutive terms of life imprisonment and a concurrent five-year term of imprisonment. On appeal to this court his judgment of sentence was affirmed. Appellant subsequently petitioned the Supreme Court for Allowance of Appeal which granted the petition to determine whether the pre-arrest delay of more than eleven years denied Appellant due process of law. The Supreme Court then reversed, concluding that Appellant had indeed been prejudiced by the lengthy delay and finding that the trial court had erred in holding "that there was no requirement to consider the Commonwealth's reasons for postponing the filing of charges." Commonwealth v. Snyder, 713 A.2d 596, 599 (Pa. 1999). The Supreme Court remanded to the Court of Common Pleas to conduct a hearing to determine "whether the Commonwealth's delay was proper or improper." Id., 713 A.2d at 606.
¶ 5 Upon remand, the trial court held a hearing and received considerable testimony from all the District Attorneys who held that office during the time in question as well as from other police officers and investigators who worked on the case.
¶ 6 It is important for the determination of the present matter to recount the evidence received at the remand hearing. The substance of the testimony received at the remand hearing was to the effect that it was quickly determined that the fire was an arson and, therefore, that the deaths were a homicide. Also, Appellant was a prime suspect from the outset. However, the case against Appellant was primarily circumstantial and believed to be insufficient to prosecute. After approximately two years had passed, no arrests had been made. A special investigating grand jury was impaneled in 1984 to probe the deaths of Mrs. Snyder and her son. The grand jury investigated the case until 1986, when it ended without the presentment of an indictment. The grand jury concluded that the "evidence established unequivocally that the fire at the Snyder residence was intentionally set"; however, the grand jury believed that "the evidence is legally insufficient to support an indictment." At that point, in the words of Joseph Jacob, Chief of Wright Township Police, investigators had "hit a stone wall with this investigation. . . ." N.T. 8/06-07/98, p. 203.
¶ 7 From the point the grand jury was dismissed until Peter Paul Olszewski, Jr. took office as District Attorney of Luzerne County in 1993, the investigation was considered primarily a police matter. Chief Jacob continued to investigate the case, as did certain members of the Pennsylvania State Police; however, the District Attorney's Office did not play an active role. The investigation at this juncture was relatively passive. The case was reviewed twice a year by the Chief of Police and was similarly reviewed by the State Police. Chief Jacob also attended numerous conferences on criminal investigation and would often consult with certain homicide detectives and arson investigators he encountered there. The investigating officers of both the Pennsylvania State Police and Wright Township also consulted with other criminal investigators on occasion to gain insights into the case and also met occasionally with the current District Attorney to review the case. Witnesses were not reinterviewed, however, as it was Chief Jacob's experience that reinterviewing witnesses without having additional information was not only fruitless but acted to produce a less cooperative witness for the future. Id., at 204.
A total of five District Attorneys were involved with this case. Robert J. Gillespie, Jr., Esquire was in office on the date of the fire. Bernard A. Podcasy, Esquire, succeeded Mr. Gillespie in January 1986. Correale F. Stevens, Esquire, now a member of this court, succeeded Mr. Podcasy in January 1988 and served until July 1991, when he was appointed to the Court of Common Pleas. Jerome Cohen, Esquire assumed the role of acting District Attorney upon the departure of Judge Stevens. Peter Paul Olszewski, Jr., Esquire took office in January 1992 and has served in that capacity since.
¶ 8 Sometime after District Attorney Olszewski took office an investigatory team was created to review the investigation and to go reinterview witnesses and reexamine the physical evidence. District Attorney Olszewski also met with the FBI Behavioral Science Unit in Quantico, Virginia in preparation for a future interview with Appellant. Mr. Olszewski also met with fire experts, representatives of ATF, retained a forensic pathologist, met with criminologists and physicians, and met with a theology expert regarding suicide, the probable defense of Appellant.
¶ 9 During this stage of the investigation, substantial new evidence was discovered. Notably, Stephanie Kluck, who had been previously questioned, admitted for the first time to having an extramarital affair with Appellant. She also related Appellant's expressions of love for her. Another individual, Sandy Miller, was interviewed and corroborated Ms. Kluck's testimony. Additionally, it was discovered that two other women, both co-employees, had sexual relationships or encounters with Appellant as well prior to the occurrence of the fire. The above evidence was viewed as crucial to developing a theory of motive, a glaring omission in the case to that point. All the District Attorneys testified that they did not delay the arrest of Appellant to gain a tactical advantage over him but, rather, that the lack of an arrest was solely attributed to a perception of insufficient evidence to convict Appellant.
¶ 10 Based upon the above testimony and evidence, Judge Mundy concluded that the reasons for the filing of the charges were valid and the reasons for the delay in arrest were not improper.
¶ 11 Additional evidence that came to light during this investigative period included evidence that Appellant had an "ill will" toward his infant son, evidence that Mrs. Snyder had scheduled appointments and appeared excited regarding anticipated events scheduled to occur after the time of the fire, and evidence that Appellant appeared fidgety and nervous at a bank teller's window on the day of the fire. All of this evidence was viewed as helpful to building a case against Appellant or, conversely, in negating the anticipated defense that Mrs. Snyder had intentionally set the fire as a mode of suicide. Following the hearing the trial court found that "the reasons for the delay were valid and that, such being the case, the delay was proper." Appellant then filed the present appeal from the trial court's decision, bringing us to the current juncture.
The evidence described above is a summary of some, but not all, of the new evidence discovered during the time frame in question.
¶ 12 First, we believe it is necessary to state what this Opinion is not meant to convey. This Opinion should not be construed by District Attorneys in this Commonwealth to mean that they can drag their feet in murder, or other investigations with little concern that they will lose a conviction because of it. However, in short, what this Opinion attempts to convey is that hindsight is 20-20, and that in those rare cases where murders remain unsolved for many years but then are ultimately tried and convictions obtained, District Attorneys need not fear that every step they took, or did not take, will be scrutinized under a microscope to see if the case could have been brought to trial sooner.
¶ 13 As a starting point, it must be kept in mind that the present case is on appeal after a remand to the trial court from our Supreme Court. Accordingly, we must endeavor to determine precisely what issues are before us, which requires scrutiny of the reason for the remand. Appellant argues that the case was remanded for purposes of determining whether the Commonwealth "conducted a reasonable and diligent investigation." Although this is the focus that affords Appellant the best chance to prevail, we are not as certain as he that such a focus is required by either the Supreme Court's prior decision in this case or by prior case law.
Appellant's brief, Summary of Argument section, at p. 11.
¶ 14 The Supreme Court remanded this case to the trial court for, in their words, "the limited purpose of discovering if there were valid reasons to justify filing these charges after this extensive period of time." Commonwealth v. Snyder, 713 A.2d 596, 606 (Pa. 1998). Perhaps, the phrase "valid reasons" encompasses the concept of diligence, but if so, it does so only implicitly; clearly it is not set forth in explicit fashion. Other expressions by the Supreme Court in their Snyder opinion are no more helpful to Appellant's position. Earlier in the Supreme Court's Opinion, the Court announces its holding that the delay in prosecution prejudiced Appellant and deprived him of due process "unless there were proper reasons for the delay." Id., 713 A.2d at 605. Lastly, in its conclusion section, following the first passage quoted above, the Court states, "on remand, the trial court shall determine whether the Commonwealth's delay was proper or improper." Id., 713 A.2d at 606.
¶ 15 Were we to limit our inquiry to the first quoted passage from Snyder, our job might be rather simple. Were there "valid reasons" to justify the filing of the charges when they were filed? We believe the answer is "yes." Whereas previously it was believed that there was insufficient evidence to successfully prosecute Appellant, there was substantial "new evidence" discovered during District Attorney Olszewski's tenure which "completed" the case and made it a viable case for prosecution. However, the Supreme Court also states in its opinion that the delay in prosecution prejudiced Appellant and deprived him of due process "unless there were proper reasons for the delay," id., 713 A.2d at 605, and further remands for determination of whether the delay was "proper or improper." Thus, does answering the "valid reason" question also answer the question of whether there were proper reasons for the delay? This is not as clear.
¶ 16 The trial court found no evidence that prosecution was delayed in order to gain some form of tactical advantage of Appellant and even Appellant does not appear to suggest that there was an ill motive in delaying prosecution. We find this relevant because the terminology "proper" and "improper" seems to implicate a focus of the motivation behind the delay.
¶ 17 Read in context, there are other passages of the Supreme Court's Snyder opinion that seemingly limit the scrutiny to the prosecutor's motivation. For instance, after the above quoted passage, the Court states:
We emphasize that due process violations will occur in only extreme cases, in which no valid reasons justify a defendant's arrest after an inordinate amount of time without investigation. . . . We do not intend to limit the power of the Commonwealth to prosecute a murderer if and when an investigation yields new evidence after many years of inactivity. However, if no additional evidence appears, the delay results in actual prejudice to the defendant, and there are no proper reasons for postponing the defendant's arrest, the due process clauses of the United States and Pennsylvania require that the charges be dismissed.
Id.
The Court's statement indicates that it did not wish to foreclose the prospect of the Commonwealth prosecuting someone years after the crime occurred where additional investigation yields new evidence even "after many years of inactivity." This statement would seem to contradict Appellant's focus upon the diligence exercised by the prosecutor in discovering new evidence, as "inactivity" is the antithesis of due diligence. Rather, the language used by the Supreme Court suggests that the due process inquiry is limited to those circumstances where the delay was calculated to favor the Commonwealth at the defendant's expense.
Or possibly, to a situation where prosecution is sought after many years of inactivity without the discovery of additional evidence.
¶ 18 Nevertheless, appellant's interpretation, that the prosecuting body's failure to proceed with sufficient diligence in accumulating evidence and bringing the case to trial would be equal to an "improper reason," is not without certain logical appeal. Time elements pervade all areas of the law, as does the legal responsibility to act with reasonable diligence. For instance, Pa.R.Crim.P. 1100 requires the Commonwealth to bring a defendant to trial within either a 180 or a 365-day period; if the Commonwealth does not, any period of time outside the above parameters must be excused. Permeating the examination of Rule 1100 claims is the matter of whether or not the Commonwealth exercised due diligence in bringing the defendant to trial. See, Rule 1100(g). More importantly, the Supreme Court did mention diligence in the Snyder case while contrasting a prior decision, Commonwealth. v. Colson, 490 A.2d 811 (Pa. 1985). The Court states "[t]hus, the Commonwealth's diligence in Colson makes that case readily distinguishable from the present case, in which there is no evidence that the Commonwealth diligently pursued this investigation." Snyder, 713 A.2d 596, at 604. Although this statement was made somewhat in passing while distinguishing Colson, thereby rendering it seemingly less of a direct statement of intent than those quoted above, it does appear that diligence was a factor of concern to our Supreme Court.
¶ 19 Prior cases add little to our inquiry. In Commonwealth v. Sneed, 526 A.2d 749 (Pa. 1987), the Supreme Court states that "[e]ven were a defendant to show prejudice due to a delay in his arrest, the adverse affect on his defense is excusable if the delay was a derivation of reasonable investigation by the authorities." Id., 526 A.2d at 782-53.
¶ 20 For an intermediate appellate court obligated to apply the decision of our Supreme Court, this presents a quandary. The last quoted phrase from Snyder suggests that the Commonwealth is obligated to exercise due diligence in investigating a case, yet the Court states that it does not wish to preclude a prosecution after "many years of inactivity" where additional evidence is discovered. Considering the whole of the Snyder opinion, we believe that the Supreme Court has indeed implicated due diligence as a factor to be considered in cases of this kind. Moreover, this seems a reasonable policy, which is consistent with similar obligations imposed upon the Commonwealth in other aspects of criminal law. There is no reason that the District Attorney should be completely excused from proceeding with a certain degree of diligence on unsolved cases and allowing the fate of a case to rest upon a potentially serendipitous discovery of crucial evidence. Nevertheless, given the remaining statements of our Supreme Court in Snyder, we are hesitant to impose anything resembling a strict due diligence standard to the equation this case presents.
¶ 21 We hesitate to impose a due diligence standard to the present inquiry absent a directive from the Supreme Court, in part, because to do so interjects a rather speculative assessment. Although it may be reasonable to require a certain degree of diligence in continuing an investigation of an "unsolved crime," it is rather difficult to fairly assess whether or not the prosecuting body exercised "due" or sufficient diligence in investigating the case. As the saying rightfully goes, hindsight is 20-20. Keep in mind that at any given time there might be numerous cases that are "unsolved" in the sense that there is insufficient evidence to warrant prosecution. Also, it must be kept in mind that resources are limited and new crimes are constantly being committed that will require utilization of available investigative resources. Lastly, it must be kept in mind that the inquiry facing us now will not be presented unless additional evidence comes to the fore that was unavailable previously prompting the filing of a criminal complaint many years after the crime was committed. With regard to that case breaking evidence, while it may be easy, after it is discovered, to question why that evidence was not found sooner, it is somewhat unfair to do so. Viewed from the position the investigating authorities were in, the path to that discovery may not have been so obvious, and the paths actually chosen may not have been purely inept.
¶ 22 Using the present case as an example, it is true that the case was not "cracked" until District Attorney Olszewski took office, ten or more years after its commission. It could also be argued that District Attorney Olszewski acted more aggressively toward this case than his predecessors had. Nevertheless, we cannot conclude that the intervening District Attorneys who held office acted improperly or unreasonably with respect to this case. Nor do we think it can be safely argued or assumed that this case would have been "solved" if only the prior District Attorneys had taken steps similar to those taken by Mr. Olszewski.
¶ 23 It would be easy to view an approach that led to success and then indicate that such actions should have been taken earlier. However, unless certain routine or standard investigative procedures were being ignored, is it truly fair to say that it should have been thought of earlier? Further, this approach overlooks the role that individual creativity or style might play. Perhaps the District Attorneys that preceded Mr. Olszewski took the standard approaches but Mr. Olszewski, or those working under him, came up with some creative approach that bore fruit. To supply a useful analogy, a crossword puzzle looks a whole lot more obvious after it is finished than it does while one is working on it and, invariably, when one comes up with that key clue, one wonders what took him so long.
¶ 24 Additionally, it is somewhat speculative to say that the breaks that came later would have been experienced earlier if only the investigators had taken similar steps. In the present case, some investigative breaks came after certain witnesses provided greater information than they had previously given. In these situations, investigators had questioned these witnesses previously, yet did not receive completely forthcoming responses. How do we know that these witnesses would have provided crucial information had the same steps District Attorney Olszewski took been taken earlier? It is entirely possible that variables other than a lack of due diligence helped produce more co-operative witnesses. Further, why should the Commonwealth be punished because a witness who was previously not completely forthcoming later provides information that is in itself probative or leads to probative evidence? Further still, circumstances change — some that may prompt a more cooperative behavior. In the present case, certain witnesses provided details that they had not provided earlier when they no longer worked with Appellant. Perhaps these witnesses felt more comfortable divulging information about Appellant when they no longer had to worry about encountering him on a frequent basis.
Appellant's previous place of employment closed in the 1991-1992 timeframe. N.T. 8/06-07/98, at p. 205-06.
¶ 25 Consistent with the above thoughts, we cannot assert, as a matter of fact, that the additional evidence gathered under District Attorney Olszewski's term would have necessarily been discovered by his predecessors had they merely taken the same steps. Nor are we inclined to conclude that the prosecutors and investigators did not proceed diligently. Diligence must be evaluated in the context of the facts of the case. The case was never in inactive status and efforts were made to solve the crime. The efforts taken may not have been similar to those taken to solve the Lindberg kidnapping/murder or the O.J. Simpson case. However, it is impossible for every case to receive that kind of attention or devotion of resources. Moreover, given that investigators had come to a "wall" in the investigation, the efforts taken were reasonable. Such a case may never be solved absent a "break" in the investigation. In the present case, that break may not have occurred until Appellant's place of employment had closed. Perhaps not coincidentally, individuals who had been previously interviewed were found to be considerably more forthcoming.
¶ 26 Since the evidence supports the conclusion that the prosecution in the present case followed the discovery of substantial new evidence and that the delay was not prompted by an attempt to acquire an unfair advantage over Appellant or otherwise to prejudice Appellant, and that reasonable diligence was exercised to solve the crime, we shall affirm the order on appeal.
¶ 27 Order affirmed.
¶ 28 POPOVICH, J., files a Dissenting Opinion.
¶ 1 Unlike the Majority, I am unable to find that the investigative efforts of the prosecution in this case were either proper or without "prejudice" to the appellant. Accordingly, I respectfully dissent.
¶ 2 The appellant, Keith E. Snyder, appeals the September 30, 1998, order of the Court of Common Pleas of Luzerne County finding that the reasons the Commonwealth delayed over eleven years to prosecute him for the death of his wife and infant child were valid and that, such being the case, the delay was proper and did not warrant a discharge.
¶ 3 An examination of the record discloses that on July 2, 1982, the appellant's wife and six-week-old son died of carbon monoxide poisoning caused by a fire in their home in Wright Township. The appellant left for work approximately one hour before the fire was reported. An autopsy of Mrs. Snyder revealed barbiturates and a blood alcohol level of .046%.
¶ 4 An investigation was commenced immediately by Wright Township police, the Pennsylvania State Police and the District Attorney's Office of Luzerne County, but no arrests were made after two years. This was followed by the empanelling of a special grand jury in 1984, but it too ended in 1986 without issuing any presentments.
¶ 5 It was not until 1993 that a newly elected District Attorney reopened the case and filed a criminal complaint on September 8, 1993. Pre-trial motions were filed and claimed the passage of more than eleven years violated the appellant's due process rights under the Constitutions of the United States and Pennsylvania, which rendered exculpatory evidence unavailable and prejudiced the defense (suicide) via witnesses who had died or their memories faded. The trial court held the appellant was not prejudiced.
¶ 6 Following trial, a jury convicted the appellant of arson and two counts of first-degree murder. The trial court sentenced the appellant to two consecutive terms of life imprisonment, with a concurrent five-year term for the arson conviction. This Court affirmed the judgment of sentence (No. 0934 Philadelphia 1995). On allocatur, our Supreme Court held "the excessive lapse of time caused actual prejudice to the Appellant", which necessitated a remand for the prosecution to justify the delay. Commonwealth v. Snyder, 713 A.2d 596 (Pa. 1998).
¶ 7 Two days of hearings were conducted wherein three former and present District Attorneys of Luzerne County gave testimony concerning the eleven-year, two-month time lapse between the fire and the appellant's arrest. To appreciate the ruling of this Court, a detailed review of evidence is imperative.
¶ 8 The initial District Attorney served from 1982 until December of 1986. During his tenure, the investigation began and included interviews of some seventy witnesses.
¶ 9 The District Attorney testified that the Wright Township Police Department was leading the investigation, joined by the Pennsylvania State Police and his office. Over the next several years, the District Attorney's personnel met constantly with investigators in an effort to secure sufficient evidence to arrest the perpetrator of the arson deaths. Input came from a variety of sources, e.g., Dr. Hudock's autopsy concluded the deaths were the result of criminal homicide. Other contributions came from a private drug lab (Eli Lilly Co.), the Fire Commissioner of Philadelphia, the FBI crime lab in Georgia, the National Medical Services Lab and the Pennsylvania State Police Crime Lab.
¶ 10 As far as the District Attorney was concerned, two issues needed to be resolved before an arrest could occur. One, the time lapse between the appellant leaving his home and the fire being detected was sufficient to justify restraint in issuing an arrest. Despite consulting "everybody" to establish the "burn time", the District Attorney was "frustrated" in his efforts to obtain answers he believed would be acceptable to a jury.
¶ 11 Two, the drug (Tuinal) detected in the decedent's bloodstream needed to be linked to the appellant. Efforts to accomplish this consisted of police interviews of the appellant's former wife, girlfriends, and any of his friends who had access to Tuinal were screened through the Drug Enforcement Agency without success.
¶ 12 When conventional investigative tools proved fruitless, the District Attorney empanelled a grand jury in September of 1984 to inquire into the Snyder matter as well as four other cases. Before he left office in December of 1985, eleven witnesses were subpoenaed before the grand jury, which sat from time to time as the District Attorney received sufficient evidence to submit on either the Snyder case or the others under review.
¶ 13 After all witnesses were called, the District Attorney concluded there was "insufficient evidence to sustain a conviction or to ensure the conviction of the defendant." He stated he did not fail to arrest the appellant to gain a tactical advantage.
¶ 14 The next District Attorney had a term from January of 1986 through January of 1988, a period during which the grand jury had all the evidence save for hearing from the appellant's parents. This occurred in August of 1986 and resulted in the issuance of a "Report and Recommendation" that the fire was intentionally set. However, the grand jury held the evidence was legally insufficient to indict the appellant at that time. Nonetheless, it recommended that law enforcement officials "continue to vigorously pursue this investigation".
¶ 15 In light of the grand jury's refusal to indict, the District Attorney "made the decision that th[e evidence] was insufficient to approve or recommend an arrest of Mr. Snyder." Likewise, in the District Attorney's opinion there was insufficient evidence to sustain a conviction. The District Attorney's remaining term was consumed with prosecuting other cases, which meant he had a "very busy" schedule that excluded pursuing the appellant.
¶ 16 The successor District Attorney served from January of 1988 until July of 1991. At the start of his watch, he was briefed on the case by the county detective involved in the original investigation. He reviewed the file with his chief detective and other staff members before concluding that "there was insufficient evidence" to arrest or convict the appellant.
¶ 17 A policy existed during this District Attorney's tenure regarding older, unsolved murder cases: "The policy was if it was basically a police matter, [his office] would be available when the time came to make a decision whether or not to make an arrest. And then once an arrest was approved under the law, then the District Attorney's office would vigorously pursue it." Thus, except for a report in June of 1990 from the Pennsylvania State Police disclosing the appellant's remarriage, no documents germane to the appellant's case were generated by any of the governmental agencies during the remainder of this District Attorney's term.
¶ 18 Further, the District Attorney's office made no demand upon the state and local police departments to take additional action in the Snyder case, and the reason given was that "[i]t would not be the normal policy". Interestingly, the District Attorney conceded contacting the Attorney General of Pennsylvania for assistance (because of a lack of resources) on one other murder case (Wolsieffer), but he refrained from doing so in Snyder since "[t]hey were in different postures at the time". Moreover, despite Trooper Martz's report in May of 1988 "that this [Snyder] crime was solvable", the District Attorney declined to prosecute. His rationale: a case may be "solvable" but that does not translate into it being "prosecutorial". Further, the District Attorney testified that:
. . . nothing was new from the previous District Attorney . . ., and he still had Detective Matt Parrell as a liaison with the police in this matter. And he ethically and morally could not authorize an arrest if in [his] discretion as District Attorney [he] didn't feel there was evidence.
¶ 19 The fourth District Attorney in this line of succession served from August of 1991 to January of 1992, but he had no knowledge of nor was he directly involved with the Snyder case.
¶ 20 The last of the District Attorneys to testify was the current office-holder. His appointment came on January 5, 1992, and he met with county detective Jack Hlivia to discuss the Snyder case. The outgrowth of the meeting was Hlivia's assignment to obtain files from the Pennsylvania State Police, the Wright Township police department and his own office. This process took approximately six months before the District Attorney could digest the reports and the grand jury transcripts.
¶ 21 Moreover, the District Attorney had a series of meetings with a variety of officials (Hlivia, Pennsylvania State Police's retired fire marshall, the retired member of the Pennsylvania State Police R I unit and the Wright Township police chief) to discuss their roles in the case. Thereafter, he was of the opinion that it was inappropriate to effectuate an arrest of the appellant. He also testified that he was unaware of the source of the Pennsylvania Supreme Court's statement in the Snyder opinion that the arrest of the appellant occurred "because the policies of the Luzerne County District Attorney's office changed when a newly-elected district attorney took office."
¶ 22 The District Attorney also took issue with the Supreme Court's comments that no additional investigation or evidence surfaced after the grand jury convened in 1986. Specifically, he gave a chronology of events since he took office to counter the remark by the high Court of a lack of investigative activity in the case; to-wit:
1) April 5, 1993 — First formal meeting convened at the Pennsylvania State Police barracks in Hazleton. Present were Wright Township police and members of the District Attorney's office to hear the District Attorney's view and discuss the feasibility of developing a full-time team to do additional investigation.
a) An investigative team was appointed to review and familiarize itself with the evidence to date;
b) Reinterviewing and locating witnesses was to occur, which was described by the District Attorney as a "mammoth" project;
c) Leads were to be followed and individuals were to be interviewed who had yet to be questioned;
d) All physical evidence gathered by the different agencies was to be placed in a central depository and "chains of custody" were to be created so as to render all evidence admissible in court; and
e) All photographs were to be collected, identified and placed in order.
¶ 23 In May of 1993, the District Attorney met with the FBI's Behavioral Science Unit in Quantico, Virginia. Additionally, the files of Nationwide (the insurance carrier) were reviewed, the medical record of each decedent was examined, meetings were conducted to locate fire experts on the "cause and origin" of the conflagration, and the burn time and burn pattern had to be evaluated. Toward that end, two fire experts were hired.
¶ 24 A forensic pathologist (Dr. Michael Baden) was retained to resolve significant toxicology issues concerning the autopsy. A criminologist hired in 1982 to test for solvents in the Snyder's carpet was interviewed several times. He indicated an oil and gas residue in the nap of the rug was consistent with a mixture found in the Snyder's residence.
¶ 25 Discussions were had with Dr. Baden concerning the drug Tuinal, which was found in Mrs. Snyder and the amount of time it would take to affect the victim. Investigators also spent a significant amount of energy locating the source of the drug.
¶ 26 Efforts to bring closure to the case did not end until the District Attorney: 1) met with a theology expert to examine all the ramifications to a Christian (as Mrs. Snyder was) who committed suicide; 2) reviewed a cult movie seen by the victim before her death; and 3) consulted a jury selection expert.
¶ 27 Even after the appellant's arrest, the investigation continued. The new, additional and different evidence obtained subsequent to 1993 consisted of the following:
1) Janice Braskey provided information "critical" to the District Attorney's office allowing follow-up interviews of Stephanie Kluck, Carol Maughan and Patricia Brown;
2) Stephanie Kluck told investigators that Mrs. Snyder came to her shop on July 1st (the day before her death) and related the christening of young Brian to occur on Saturday, July 3rd; Mrs. Snyder ordered Tupperware from Ms. Kluck and indicated she would pay her in the future, all of which undermined a defense of suicide; at a second interview on June 15th, Kluck admitted that she had a "significant" sexual affair with the appellant during his marriage; a third interview of Ms. Kluck on July 20th related the cessation of her relationship with the appellant, which established a "motive" for the killings in the District Attorney's mind;
3) Sandy Miller was interviewed at Ms. Kluck's urging because Miller read a letter written by the appellant admitting his affection for Ms. Kluck;
4) Carol Maughan was supervised by the appellant and admitted having an affair ("making out") with him on the job;
5) Elizabeth Warman-Wark disclosed for the first time she engaged in sex with her supervisor/appellant while at work;
6) Grace Winters was also supervised by the appellant and engaged in sexual conduct at work and in the appellant's home during his marriage;
7) Elizabeth Skuba was Ms. Kluck's neighbor and corroborated information provided by Ms. Kluck and not known until 1993;
8) Dolores Margistish was a nurse for the doctor treating Mrs. Snyder and her son on June 15th, and the appointment book revealed the two had scheduled July 15th to return for a visit; Mrs. Snyder did not appear depressed. Rather, Mrs. Snyder was "happy" and "thrilled" about her baby;
9) Mary Ann Peeler was the secretary for the church where the baptism was to occur on July 3rd, and Mrs. Snyder phoned on July 1st "to confirm . . . the scheduled baptism of young Brian". Ms. Peeler described Mrs. Snyder as in "good spirits", "happy", and "very perky" the day before the fire;
10) Julia Koziel was a and friend of Mrs. Snyder who heard the appellant say "he was going to throw darts at his own young infant child". Ms. Koziel observed her friend being "happy", "thrilled" and "proud" of the baby, and she was not depressed nor did she drink;
11) Steven Majetski confirmed that Mrs. Snyder did not drink alcohol;
12) Jean Hudock was a friend of Mrs. Snyder and saw her with the baby and she was "proud" of the child;
13) Gladys Moran was employed at the appellant's store and witnessed, as did Ms. Hudock, mother and child in the thirty-day period before the fire exhibit signs of being "very happy, thrilled with the child";
14) Ann Marie Banks saw Mrs. Snyder on July 1st and recounted how elated she was to be able to purchase jeans given the Snyders' financial hardship;
15) Robert Corradini played softball with the appellant on the evening of July 1st and did not notice him limp or sustain an injury that would cause him to limp. Mr. Corradini gave authorities a neighbor's name (Joe Thomas) who described the appellant having a limp when he left the house shortly before the fire was discovered;
16) Kelly Lucas-Carr was a bank teller where appellant did business on July 2nd and described him as "fidgety, nervous, and in a hurry while standing in the line at the bank.";
17) Ed Goodford was a neighbor who shut off the gas meter during the fire, corroborated and confirmed other information about the fire which was helpful in reconstructing the blaze;
18) Wright Township fire chief Gary Smith was first on the scene and corroborated other fire fighters' accounts that the windows were locked and closed;
19) Bill Spudia provided new information about the mattress on which the bodies were found as to the varying degrees of how the mattress could burn and the effect of the fire on the mattress;
20) Bill Ward was an employee of Westland Oil Company, the manufacturer of the one-gallon can in which the gas and oil mixture was found and linked to the carpeting in the home;
21) Edward St. Hart installed the smoke detector in the Snyder residence and at no time thereafter was he notified it malfunctioned;
22) Stanley Brenner was the inventor of the smoke detector and he testified that it could be de-activated without cutting wires, which was consistent with the charred detector being inoperable; and
23) Arthur Barnes was the prospective godfather. He saw Mrs. Snyder riding a stationary bike to lose weight.
¶ 28 The District Attorney testified that, excluding experts, over eighty witnesses were questioned as a result of the renewed investigation in 1993, but not all interviewees were called to testify at trial.
¶ 29 Prior to the renewed investigation, the District Attorney refused to arrest the appellant. Only after embarking on a collation and re-examination of the evidence and witnesses was an arrest and indictment of the appellant deemed warranted. The trial court agreed and held that the reasons offered for the delay were valid.
¶ 30 Our Supreme Court remanded this case after concluding that the Commonwealth's failure to file charges sooner prejudiced the appellant. In particular, the Court wrote:
The Commonwealth's case against the Appellant was based on circumstantial evidence and the inferences arising from them, and they established that Mrs. Snyder had barbiturates in her system and that someone had ignited a trail of gasoline and oil throughout the house. The Commonwealth's theory was that the Appellant drugged his wife, started the fire, left the house between 12:15 and 12:20 p.m. and the fire smoldered for approximately one hour before the children discovered it.
At trial, the Commonwealth also sought to counter the Appellant's defense that Mrs. Snyder was depressed and committed suicide by taking barbiturates and setting fire to the house killing herself and her son. To establish Mrs. Snyder's state of mind, the Commonwealth introduced extensive evidence including the testimony of twelve lay witnesses who testified that they had contacts with her shortly before death and she appeared happy after the birth of the child.
After the Commonwealth raised the issue of Mrs. Snyder's state of mind in its case-in-chief, the defense attempted to rebut that evidence with contrary evidence showing she was depressed before death. The Appellant testified on his own behalf and introduced the testimony of three other witnesses who had contact with Mrs. Snyder before she died. Forensic pathologist Cyril Wecht, M.D., also testified as a defense witness, and opined that his review of all the available evidence led him to conclude that Mrs. Snyder committed suicide. The Appellant's toxicologist testified that the barbiturates in Mrs. Snyder's system could not have been given to her secretly in food or a drink because they had a bad taste.
In addition to the witnesses who became unavailable because of the passing of time[ — e.g., Dr. Berger, a psychiatrist experienced in performing psychiatric autopsies to assess the decedent's mental state hampered because passage of time resulted in loss of close friends and family members who knew the decedent; Monsignor Nolan, before he died, interacted with Mrs. Snyder because of the upcoming baptism. He commented after seeing the bodies in the home that Mrs. Snyder committed suicide; the appellant's father was told while alive by the victim's co-workers that she said "goodbye" the day before the fire; and the victim's father was told by a family friend (Amy Kochanski) his daughter should not have seen a movie involving the suicide of the characters (mother and child) by fire], the record is replete with instances where prosecution and defense witnesses . . . changed their testimony or could not remember specific details when they testified at trial.
* * * *
Because of the developments in the case at trial, the Commonwealth introducing considerable evidence concerning Mrs. Snyder's state of mind, and the unavailability of key witnesses close to Mrs. Snyder, we conclude that the Commonwealth's failure to file these charges sooner resulted in actual prejudice to the Appellant in presenting his defense at trial.
Snyder, 713 A.2d at 602-603 (Footnote omitted).
¶ 31 Even though the first prong of the Marion/Lovasco criteria (to determine whether pre-indictment delay results in actual prejudice to a defendant) was satisfied, the Supreme Court found it necessary to remand to address the second prong, i.e., were there valid reasons for delaying prosecution? In the absence of satisfying both prongs, a discharge is not warranted. Id.
United States v. Marion, 404 U.S. 307 (1971) and United States v. Lovasco, 431 U.S. 783 (1977).
¶ 32 Initially, I find no support in the record to conclude that any District Attorney of Luzerne County, either prior or present, intentionally postponed prosecution to gain a tactical advantage over the appellant. On the other hand, I, in contrast to the Majority, am unable to discern from the record any valid reason why this case lay dormant from 1986 until 1992 before being resurrected by an administration implementing measures (collating existing data, re-interviewing witnesses for new information and leads, and hiring experts) that were just as extant in 1986 thru 1992 as they were post-1992. If this fervor existed in January of 1992 to reactivate the case, the record is devoid of any reason why this same incentive should not have fueled the "ongoing" investigation, as recommended by the grand jury in 1986 of "vigorously" pursuing the case, before 1992.
¶ 33 Query: Why did those in a position of authority wait six years to amass this armada of men and resources? No one was asked this question, and I would not remand for a second time to have it resolved. See Zappala, J.'s Concurring and Dissenting Opinion in which Flaherty and Cappy, JJ. joined in Snyder, supra (Chastising the Majority for remanding because the Commonwealth had the opportunity to give reasons for delaying in prosecuting the appellant and did not seize the moment at the pre-trial hearing scheduled for just that purpose).
¶ 34 In this light, given the mandate of the Supreme Court to glean whether valid reasons existed for the inordinate delay, I conclude that no valid investigatory reason was given to justify the hiatus in prosecuting this case. When this fact is coupled with the Supreme Court's initial finding that the appellant was actually prejudiced by the delay (with the loss of witnesses and memories waning), I believe that we must vacate the judgment of sentence. Snyder, supra; Commonwealth v. Scher, 1999 WL 360142 (Pa.Super.).
¶ 35 The Majority takes the view the prosecution followed the discovery of substantial new evidence and that the delay was not motivated by the securement of an unfair advantage that prejudiced the appellant. Therefore, the delay is to be sanctioned. I do not subscribe to that position. In fact, quite the contrary is true in regard to the prejudicial ramifications flowing from the Commonwealth's delay in prosecution this case. For example, it is to be recalled that our Supreme Court has already concluded that the appellant, in fact, was "prejudiced" by the Commonwealth's inordinate delay in investigating the double homicide. Snyder, supra.
¶ 36 All that is left for this Court to assess are the reasons for the delay to ascertain if they were valid in origin and purpose. From my assiduous review of the voluminous record, I find that the reasons proffered were neither valid (to forestall Due Process violations) nor devoid of prejudice (as the aftermath of inactivity resulted in the defendant's witnesses dying and their memories waning) and, certainly, do not merit the imprimatur of this Court as proper prosecutorial behavior.
¶ 37 Accordingly, I respectfully dissent.