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For the second time this year, the Pennsylvania Superior Court has ruled that a man who was arrested more than 11 years after his wife and infant son were killed in a fire that he was found guilty of setting was not denied his right to due process by the delay. Keith Snyder was arrested in September 1993 and charged with arson and two counts of murder after his wife and their 6-week-old son died in a July 1982 fire in their Wright Township home in Luzerne County, Penn. The most recent decision in Commonwealth v. Snyder comes from a heavily split en ban court and, in an interesting twist, the middle appeals court chose not to follow a prior three-judge panel Superior Court decision deciding the same issue. The decision that the court chose not to follow was in Commonwealth v. Scher where it decided an 18-year delay in prosecution violated a convicted killer’s due process rights. Scher, who was convicted of first-degree murder in the 1976 shooting death of his wife’s former husband, was set free after the appeals court’s decision and is awaiting a decision from the state Supreme Court. The high court heard oral arguments in that case in May. The Scher decision set up a negligence and due diligence standard which the most recent Snyder court said it was not bound to follow. The appeals court in the instant case said a trial court must be mindful of the daily duties of a prosecutor and the “stream of current cases.” “However, the courts will not tolerate any purposeful shelving of a case to gain advantage,” Judge James R. Cavanaugh wrote for the majority. “While it may not be expected that an older unsolved case may always receive the highest priority among competing demands, the prosecutor who exhibits studied recognition of his ongoing responsibilities to his constituency should not be censured for a good faith election in the performance of his duty.” Cavanaugh was joined by Judges John T.J. Kelly, Justin M. Johnson, Joseph A. Hudock, Kate Ford Elliott and J. Michael Eakin. Judge Zoran Popovich, who penned the dissent in the previous Snyder opinion, led the dissent. He was joined by Judges Debra B. Todd and Frank J. Montemuro. To determine whether pre-indictment delay is sufficient to reverse a conviction, Pennsylvania courts apply a two-prong test established under U.S. v. Marion and U.S. v. Lovasco. First the court must determine whether the delay actually prejudiced the defendant’s case. Under the second prong, the court must determine whether the delay in prosecution was “valid.” PROCEDURAL HISTORY After Snyder’s wife and baby died of carbon monoxide poisoning from the fire in their home in 1982, investigators soon determined that the fire was an arson. While Snyder remained the primary suspect throughout the investigation, the district attorney’s office saw the case as “primarily circumstantial” until more information became available. When Peter Paul Olszewski Jr. took office as the district attorney in 1993, he created an investigatory team to review evidence and to re-interview witnesses in the Snyder case. During this stage of the inquiry, investigators discovered “substantial new evidence,” namely that Snyder was having an extramarital affair prior to the fire. Five district attorneys were involved in the case, including now-Superior Court Judge Correale F. Stevens. In 1993, Snyder was officially charged in light of the new information. After he was charged, Snyder filed a pre-trial motion to dismiss the charges on the ground that the delay in prosecution violated his constitutional right to due process. The motion was denied, and Snyder was convicted in 1994 of arson and two counts of first-degree murder. He was sentenced to two consecutive terms of life imprisonment and a concurrent five-year prison sentence. After his sentencing, Snyder appealed to the Superior Court, which affirmed the sentence. Snyder appealed to the state supreme court, which ruled that Snyder was prejudiced by the delay and remanded the case so the trial court could determine “whether the commonwealth’s delay was proper or improper.” After a hearing and after reviewing testimony from all pertinent district attorneys and police officers, the trial court determined that the delay was in fact proper, and a Superior Court panel affirmed. Snyder petitioned to have the case reargued before an en banc court and was granted the opportunity. LATEST DECISION The en banc court said each prosecutor involved in the Snyder case made “even handed” decisions” in the case and it wasn’t until Olszewski took office that the investigation took off. But, the majority said, just because the case was somewhat dormant for a while does not “depreciate the integrity” of Olszewski’s predecessors. “It should not offend constitutional standards even if it may be said that a given case has undergone a period of informed deferral or perhaps even benign neglect,” Cavanaugh wrote. “So understood, we find that the hearing court did not abuse its discretion in finding that the reasons for the delay were valid and the delay was proper.” The court noted that during the progress of the Snyder case, the Scher decision was released which followed a standard set by the 9th Circuit. The Scher court ruled that a court dealing with the merits of a pre-arrest delay should “inquire as to whether there has been any intentional delay by the prosecution to gain a tactical advantage … [and] consider whether the prosecution has been negligent by failing to pursue a reasonably diligent criminal investigation.” The Snyder court said it did not want to adopt the due diligence and negligence standard and instead has “chosen to go forward” with its decision to prevent any further delay in the case. DISSENT In his dissent, Popovich said he could not conclude that the “efforts of the prosecution” were “proper or without ‘prejudice.’ “ Popovich provided a lengthy case history to assert his position that the delay was improper. “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,” Popovich wrote. “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 …”

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