Commonwealth v. Scher

Justice SAYLOR,

concurring.

Although I concur in the disposition announced by the Court, I do not fully agree with the lead opinion’s analysis and conclusion surrounding the prejudice component of Appellant’s due process claim.

The prejudice element of a due process claim based upon pre-arrest delay requires proof of both actual and substantial prejudice. See United States v. Marion, 404 U.S. 307, 324, 325-26 , 92 S.Ct. 455, 465, 466 , 30 L.Ed.2d 468 (1971); Jones v. Angelone, 94 F.3d 900, 907 (4th Cir.1996). To establish actual prejudice a defendant cannot rely upon vague, speculative, or conclusory allegations. See United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir.1996). Rather, such prejudice is demonstrated where the delay results in a loss of evidence or the absence of witnesses, and where there is a showing that the evidence or testimony would have actually aided the defense. See United States v. Beszborn, 21 F.3d 62, 66 (5th Cir.1994). Substantial prejudice, however, involves proof that a defendant’s ability to defend against the charges was meaningfully impaired to an extent that the disposition of the criminal proceeding was likely affected. See Jones, 94 F.3d at 907-08 . In this respect, it is the defendant’s burden to demonstrate that the lost testimony or evidence is not available through other means. See United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997).

I believe that Appellant satisfied his burden of proving actual prejudice based upon the absence of testimony from Dr. Grace, the physician who performed the initial autopsy, as well as the coroner. A critical issue at trial was the distance at which the fatal shot was fired, since Appellant maintained at trial that the gun accidentally discharged during a struggle, *341 and that the wound was consistent with the shot having been fired at close range. In contrast, the Commonwealth asserted that the gunshot wound was consistent with a medium-to-long-range firing, indicative of murder. Toward this end, the Commonwealth challenged the qualifications and findings of Dr. Grace. While the initial autopsy report contained findings consistent with a close-range shooting, Appellant was unable to present testimony from Dr. Grace concerning his qualifications and experience and explaining his findings. Furthermore, the absence of testimony from the coroner, who assisted in the autopsy and determined that the cause of death was accidental, constituted actual prejudice.

Nevertheless, as noted, a defendant must also demonstrate that the prejudice was substantial, which is a heavy burden. See generally State v. Alexander, 310 N.J.Super. 348 , 708 A.2d 770, 774 (App.Div.1998) (noting that, since 1975, there have been only two federal cases in which due process claims based upon pre-indictment delay have been upheld). In this regard, the ability of a defendant to mount a defense is not controlling. For example, in Snyder, although the defendant was able to offer testimony, including expert opinions from a pathologist and a toxicologist, consistent with his theory of defense (suicide), he was unable to present expert testimony in the form of a psychiatric autopsy that would have bolstered such theory. See Snyder, 552 Pa. at 48, 57-58, 713 A.2d at 597-98, 602-03.

Although I view this as a close case, I do not believe that Appellant’s ability to defend against the charges was sufficiently impaired; indeed, as amply demonstrated by the lead opinion, he was able to marshal considerable expert opinion and fact testimony supporting his theory of defense. Accordingly, I would simply hold that Appellant has failed to demonstrate substantial prejudice.