Commonwealth v. Scher

CourtUnited States State Supreme Court of Pennsylvania
Citation569 Pa. 284,803 A.2d 1204
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Stephen Barry SCHER, Appellee.
Decision Date20 August 2002

803 A.2d 1204
569 Pa. 284

COMMONWEALTH of Pennsylvania, Appellant,
Stephen Barry SCHER, Appellee

Supreme Court of Pennsylvania.

Argued May 2, 2002.

Decided August 20, 2002.

Reargument Denied October 7, 2002.

803 A.2d 1207
D. Michael Fisher, Atty. Gen., William H. Ryan, Jr., Robert A. Graci, Marianne Kreisher Fogelsanger, Harrisburg, for Commonwealth

John P. Moses, Moses & Gelso, LLP, Wilkes Barre, for Stephen Barry Scher.

803 A.2d 1205

803 A.2d 1206

Justice NEWMAN.

We granted the Commonwealth's Petition for Allowance of Appeal to decide whether the Commonwealth violated Stephen Barry Scher's (Scher) rights to due process of law under the United States Constitution and Article 1, Section 9 of the Constitution of Pennsylvania by the twenty-year delay in charging Scher with the murder of Martin Dillon (Dillon). We find that the twenty-year delay did not violate the due process rights of Scher and reverse the Superior Court.


Martin Dillon died of a gunshot wound to the chest on June 2, 1976 at the Dillon family recreational property called "Gunsmoke" in Susquehanna County. Scher was the only other individual present when Dillon died. How Dillon died, and whether that death was an accident or an intentional act of murder, is a story that evolved in fits and starts in the intervening two decades, culminating in murder charges being

803 A.2d 1208
filed against Scher in 1996 and his conviction for first degree murder following a six-week jury trial in 1997. Resolution of this appeal requires an understanding of how the scene where Dillon lay dead appeared in 1976; what the investigators initially concluded concerning Dillon's death and how that investigation was conducted; what a succession of prosecutors did with respect to this suspicious death; why the Susquehanna County District Attorney's Office finally decided to reopen the case; and, most important, how the lies that Scher related to investigators and his staging of the scene to make it appear that Dillon died accidentally impacted the investigation

The Scene

Andrew Russin, a neighbor whose house was approximately two miles from Gunsmoke, testified that, on the day Dillon died, Scher appeared at Russin's house with his hands and mouth covered in blood and asked Russin to call the authorities because Dillon had been shot. Scher appeared upset but was not crying. Russin did not know whom to call, so Scher made the telephone call himself. The two proceeded to Gunsmoke, each in his own vehicle, while Russin's son stood by the entrance of the road that leads to Gunsmoke to direct the ambulance and the police when they arrived. After the two arrived at Gunsmoke and parked near the Dillons' trailer, Scher led Russin to the path towards the skeet shooting area, where Russin saw Dillon's body. Russin testified that Dillon's chest was saturated in blood and that he placed a blanket over Dillon's body. Russin then watched as Scher picked up the gun that was lying near Dillon's body and smashed it against a tree, breaking the barrel from the stock.

Trooper William Hairston of the Pennsylvania State Police, Gibson barracks, arrived at Gunsmoke with John Conarton, the Susquehanna County Coroner, at approximately 7:25 p.m.1 Trooper Hairston parked his vehicle near the Dillon family trailer and walked up the path that led to a clearing where Dillon's body lay on its back. A pair of hunting goggles and shooting "earmuffs" were on the ground nearby. Trooper Hairston observed that the earmuffs had blood on them. There was a puddle of blood to the left side of Dillon's body.

Trooper Hairston and Coroner Conarton returned to the trailer area where Scher was sitting, with the door open, in the passenger side of a car. Trooper Hairston, with Coroner Conarton present, took a statement from Scher. In his June 2, 1976 statement, Scher told Trooper Hairston: (1) he and Dillon had come to Gunsmoke to skeet shoot; (2) after firing about twenty rounds, they decided to take a break and returned to the trailer for some beer and potato chips; (3) the two sat in the trailer discussing an upcoming murder trial in which Dillon, a lawyer, was representing the defendant; (4) they then went back to the trail towards the clearing where the skeet-shooting trap was set up and fired a few more rounds; (5) Dillon then wanted to go back to the trailer to get cigarettes, so Scher loaded his shotgun, a sixteen-gauge, to be ready for the next round of firing, while Dillon unloaded his twenty-gauge shotgun and placed it on a nearby stump; (6) Scher and Dillon then walked down the trail, and Scher placed his loaded shotgun on a metal gun stand, approximately 120 feet from the skeet-shooting area; (7) as they went further

803 A.2d 1209
down the trail, Dillon turned around and saw something in the open field that he thought was a porcupine, ran back up the trail and grabbed Scher's gun from the stand; (8) Scher heard Dillon cock the gun and heard it fire, but he could not see Dillon; (9) Scher then walked up the trail and found Dillon lying on the ground, face down; (10) Scher, a physician, ran up to Dillon and turned him over, saw that Dillon was bleeding from the chest and tried to stop the bleeding, but knew that Dillon was dead; (11) Scher took the car keys from Dillon's pocket and drove to Russin's house; (12) Scher and Russin returned to the scene, and Scher noticed that the trigger of the sixteen-gauge shotgun had a twig in it; (13) Scher then smashed the shotgun against the tree, and stated, "I know I shouldn't have done that." This June 2, 1976 statement to Trooper Hairston, as Scher's trial testimony more than twenty years later admitted, was a lie.

Carol Gazda, who arrived at Gunsmoke on June 2, 1976, along with her husband and other members of the Silver Lake Ambulance corps who were responding to the report of a hunting accident, testified at the 1996 trial concerning Scher's unusual demeanor at the scene:

Q: I want you to go on in your own words and tell this jury exactly what you saw and heard.
A: Okay. There was a gentleman in the vehicle in front of me, I believe, standing next to it. And he seemed okay. He was just looking around, you know, normal. And then when someone came near him to talk to him, he would get very emotional and start, you know, like, My [sic] best friend is dead, I can't believe he's dead, my best friend is dead, I can't believe it. When they left, he seemed fine again, like he was previous when he was alone. And when somebody came again, he'd do the same thing. It was kind of strange to me, but I had no idea who he was.
* * *
Q: Now, did you at some point find out who this person was—
A: It was—
Q: What his name was at least?
A: —later in that hour someone mentioned, I believe, Dr. Scher....

Notes of Testimony, 9/24/97, pp. 156-57.

Trooper Francis Zanin of the Pennsylvania State Police, Dunmore barracks, was the records and identification officer who documented the scene on June 2, 1976. Trooper Zanin observed Dillon's body lying on its back with its arms outstretched. Dillon was wearing eight-inch high boots that had round eyelets for the laces to pass through except at the top, where the laces would pass through three hooks. Trooper Zanin noticed that although the laces at the top of the right-foot boot were untied, the rest of the laces remained pulled tightly against the leg. He also noticed that Dillon's pant leg was pulled up higher than the boot. There were blood droplets on Dillon's boots and face, on the shooting goggles and protective eyewear that lay nearby, and on the tree stump that was approximately five-and-a-half to six feet from Dillon's body. Trooper Zanin observed, however, that there were no blood droplets immediately around Dillon's eyes and ears where the goggles and earmuffs would have been had Dillon been wearing them when he was shot. The barrel of the shattered sixteen-gauge shotgun lay close to Dillon's body, but a subsequent examination of the outside and inside of the shotgun barrel showed no evidence of blood. Inside the chamber of the broken sixteen-gauge shotgun was a discharged number four load high brass magnum shell—a variety not commonly used in skeet shooting. Beneath Dillon's left hand were unbroken clay pigeons.

803 A.2d 1210
The Initial Investigation

On June 4, 1976, at 11:30 a.m., two days after his statement to Trooper Hairston, Scher came to the District Attorney's Office at the Susquehanna County Courthouse in Montrose, at the request of the investigators, and gave a statement. At the interview were Williard Collier, the detective for the Susquehanna County District Attorney's office, Troopers John Salinkas and John Fekette of the Pennsylvania State Police, and a secretary from the Susquehanna County District Attorney's office. At the commencement of questioning, Trooper Fekette advised Scher of his Miranda rights, which Scher waived and agreed to be questioned without a lawyer present. During this interrogation, Scher repeated essentially the same story that he had related in his June 2, 1976 statement to Trooper Hairston. Scher explained that he and Dillon had gone to Gunsmoke to go skeet shooting, that they were returning to the trailer to get cigarettes, that Dillon thought he saw a porcupine and ran up the path to pursue it, and that Scher heard the shot and followed after, where he found Dillon lying on the ground with a gunshot wound to the chest. One noteworthy difference between this second statement and the June 2, 1976 statement was that Scher said that he had placed the sixteen-gauge shotgun against a tree, whereas his June 2, 1976 statement indicated that he had placed the loaded shotgun on the metal gun stand. When asked whether he and Dillon had any disagreements, Scher said, "No. We were talking about this rumor. I told him I was thinking of leaving town. It was rough on him. He sat and told me I was just...

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