Commonwealth v. Wright, 2004 PA Super 484 (PA 12/22/2004), 1203 MDA 2003.

• Decision Date: 22 December 2004
• Docket Number: No. 1282 MDA 2003.,No. 1203 MDA 2003.,1203 MDA 2003.,1282 MDA 2003.
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. LEON F. WRIGHT, Appellant. COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEPHEN D. FREELAND, Appellant.
• Court: Pennsylvania Supreme Court

Page 1

2004 PA Super 484

COMMONWEALTH OF PENNSYLVANIA, Appellee v. LEON F. WRIGHT, Appellant.

COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEPHEN D. FREELAND, Appellant.

No. 1203 MDA 2003.

No. 1282 MDA 2003.

Superior Court of Pennsylvania.

Filed: December 22, 2004.

Appeal from the Judgments of Sentence entered April 21, 2003 in the Court of Common Pleas of York County, Criminal Division, at No(s). 3343 CA 2002, 5625 CA 2001.

Before: ORIE MELVIN, MONTEMURO^*, JJ., and McEWEN, P.J.E.

OPINION PER CURIAM:

¶ Appellants, Leon F. Wright and Stephen Freeland, bring these appeals from their respective judgments of sentence,¹ which were imposed following their convictions by a jury of murder in the second degree under the pre-amended Crimes Code.² We affirm.

¶ 2 This case commenced in the summer of 1969, when on the night of July 18, 1969, York City Police Officer Henry Schaad was wounded by gunfire while traveling through a predominantly African American neighborhood that was the scene of racial unrest. Two weeks thereafter, Officer Schaad died as a result of the gunshot wounds. At the time he was shot, Officer Schaad was a passenger in a converted bank delivery vehicle, which was thought to be an impervious "armored car,"³ but which proved vulnerable to large caliber rifle rounds. While these facts are undisputed, almost every other fact of this case was the subject of deep disagreement at trial.

¶ 3 The Pennsylvania State Police initially conducted an investigation of the shooting, but terminated that investigation four months later, in November of 1969, without identifying any suspects. One witness, Barbara Gaines, provided a statement to the York City Police Department that Stephen Freeland shot a rifle at the police vehicle, but shortly thereafter, when given the opportunity, she professed an inability to identify him as the shooter. As a result, the York City police did not pursue the matter against Stephen Freeland. Nor were charges filed against anyone else at that time. Thereafter, little work was done on the case for thirty years.⁴

¶ 4 In 1999, the York City police again interviewed Ms. Gaines,⁵ who then signed a statement typed by the police, which stated that Mr. Freeland had in fact fired a rifle round at the armored car on that July 1969 night. A grand jury investigation followed,⁶ and the York City police conducted an extensive investigation, interviewing more than 400 witnesses, including witnesses who identified each of the appellants as firing shots on the night in question.

¶ 5 Leon Wright appeared without counsel before the grand jury in August 2001 and, although he was advised along with several other witnesses of his right to counsel and his right not to incriminate himself, he nonetheless testified. Stephen Freeland also appeared before the grand jury in August 2001, but invoked his right to silence. At the conclusion of the grand jury proceedings, which spanned almost two years,⁷ homicide charges were filed on October 30, 2001, against both Mr. Wright and Mr. Freeland. Both filed pre-trial motions, including applications to dismiss the prosecutions by reason of the delay between the 1969 date of the incident and the 2001 date of their respective arrests. The eminent Judge Edward G. Biester was specially assigned by the Pennsylvania Supreme Court to rule on the pre-arrest delay applications, and following an evidentiary hearing in November 2002, denied the motions. A separate hearing was held in December 2002, before the distinguished Judge John C. Uhler, to consider appellants' remaining pre-trial motions, which were denied.⁸ The matter proceeded to a jury trial in March 2003, before the learned York County President Judge John H. Chronister.

¶ 6 The trial lasted nearly two weeks. Although several witnesses described Stephen Freeland as being in possession of a large and powerful rifle, that weapon was never produced as evidence. Stephen Freeland testified on his own behalf and denied shooting at the police vehicle. Leon Wright did not testify at trial, but, upon motion of the Commonwealth, a redacted version of his grand jury testimony was admitted as evidence, which included his denial that he had shot at the vehicle. The remaining evidence against Leon Wright was contradictory—ranging from the testimony of Wright's own brother, who testified that he saw Wright fire a shotgun at the vehicle in which Officer Schaad was riding,⁹ to one witness who said that Wright had a pistol,¹⁰ to one who testified that Wright had a rifle with a scope on it,¹¹ to yet another witness who testified that Wright did not shoot any weapon at all.¹² There was also testimony from Commonwealth witnesses that Stephen Freeland and Leon Wright were among as many as ten people who were armed with rifles that night,¹³ and that there were multiple shots fired at the police vehicle.¹⁴ At the conclusion of trial, both men were convicted of second degree murder, and thereafter sentenced to the terms of imprisonment set out above. These separate appeals followed, which we have now consolidated for purposes of addressing the questions they present.

¶ 7 The first argument of both appellants is directed to the extraordinary delay that transpired between the shooting of Officer Schaad and the filing of charges against them. Although the Pennsylvania Supreme Court, in Commonwealth v. Scher, 569 Pa. 284, 803 A.2d 1204 (2002) (Opinion Announcing the Judgment of the Court), cert. denied, 538 U.S. 908, 123 S.Ct. 1488, 155 L.Ed.2d 228 (2003), sought to resolve the issue confronted by trial courts when there has been a significant period of delay between a crime and the prosecution of that crime, that Court was unable to agree on a controlling standard as to when such delay constitutes a due process violation.¹⁵ The following divergent views of the members the Court reveal that absence of concord on this issue of extensive pre-arrest delay:

— Madame Justice Newman, who penned the lead opinion, expressed the view that in order to demonstrate a constitutional violation a "defendant must first show that the delay caused him actual prejudice," and that the Commonwealth's delay "was the product of intentional, bad faith, or reckless conduct ...." Id. at 313, 803 A.2d at 1221.

— Mr. Justice Castille, in a Concurring Opinion, agreed that a defendant must first show actual prejudice, but on the issue of delay he was of the mind that the defendant must demonstrate that the delay "was intentionally undertaken by the prosecution to gain a tactical advantage over the defendant." Id. at 332, 803 A.2d at 1233.

— Mr. Justice Nigro, in a Concurring Opinion, agreed that a defendant must first show actual prejudice, but did not express an opinion on the validity of the Commonwealth's actions, and saw "no need to even consider the second prong of the test." Id. at 340, 803 A.2d at 1238.

— Mr. Justice Saylor, in a Concurring Opinion, also refused to express his view on the standard applicable to the Commonwealth. Id. at 341, 803 A.2d at 1239.

— Mr. Chief Justice Zappala, joined by Mr. Justice, now Chief Justice, Cappy, disagreed with the other four Justices on the threshold question of whether the defendant Scher had been prejudiced by the delay in prosecuting the charges against him, since the delay was shown to have "deprived him of evidence critical to his defense." Id. at 380, 803 A.2d at 1262. As for the governing standard, the author quoted the Supreme Court's prior Majority Opinion in Commonwealth v. Snyder, 552 Pa. 44, 62, 713 A.2d 596, 605 (1998), in which the Court held that a due process violation will be found to have occurred "if no additional evidence appears, the delay results in actual prejudice, and there are no proper reasons for postponing the defendant's arrest." Id. at 357, 803 A.2d at 1248.

— Former Chief Justice Flaherty did not participate in the decision of the Court.

Thus, it is clear that there was no consensus in Scher about the standards to be applied in pre-arrest delay cases.

¶ 8 Consequently, in our view, the standards set out by the Supreme Court in Commonwealth v. Snyder, 552 Pa. 44, 713 A.2d 596 (1998), and the subsequent application of those standards in the en banc decision of this Court in Commonwealth v. Snyder, 761 A.2d 584 (Pa.Super. 2000) (en banc), appeal denied, 572 Pa. 703, 813 A.2d 841 (2002), are the touchstones upon which we must analyze the claim of appellant.

¶ 9 The Supreme Court in Snyder held that pre-arrest delay constitutes a due process violation where there has occurred "actual prejudice to the defendant" and there existed "no proper reasons for postponing the defendant's arrest." Commonwealth v. Snyder, supra, 552 Pa. at 62, 713 A.2d at 605. This Court, thereafter, stated that "even in the face of prejudice, delay is excusable if it is a derivation of reasonable investigation." Commonwealth v. Snyder, supra, 761 A.2d at 587 (emphasis supplied), citing Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987).¹⁶ Thus, it is clear that any inquiry into pre-arrest delay must be directed to both the existence of prejudice to the defendant and to the cause of the delay.

¶ 10 In this case the learned Judge Biester, in rendering his pre-trial ruling on the delay issue, did not apply the Superior Court Snyder "reasonable investigation standard," but instead measured the evidence against the "intentional, bad faith, or reckless conduct by the prosecution" standard advanced by Madame Justice Newman in her lead Opinion in Scher.¹⁷ See: N.T. November 19, 2002, at pp. 251-252. Since in our view, for the reasons earlier stated, that standard is not the controlling standard, we are unable to accept the basis of the trial court's conclusion on appellants' pre-arrest delay claim. As a result, we are obliged to conduct our own review of the record, applying the standards pronounced by the Supreme Court and this Court in the Snyder decision, and to reach our own conclusion as to whether appellants...