The opinion of the court was delivered by: Thomas I. Vanaskie United States Circuit Judge (Sitting by Designation on the District Court)
Keith E. Snyder, an inmate presently confined at the State Correctional Institution, Mercer, Pennsylvania, commenced this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner is represented by counsel. Oral argument was conducted in this matter on April 20, 2010. For the reasons that follow, the habeas corpus petition will be denied.
On July 2,1984, Petitioner's wife Diane and their six (6) week old son Brian died of carbon monoxide poisoning caused by a fire in their residence. The bodies were discovered in the master bedroom. After autopsies were performed, the Luzerne County Coroner ruled that the manner of the deaths was criminal homicide. (Dkt. Entry # 14-10 at 4.) It is undisputed that the fire was incendiary in nature. During the ensuing criminal investigation, two significant issues arose concerning Petitioner's alleged culpability: the burn time of the fire and the presence of alcohol and the drug, Tuinal, in Diane Snyder's bloodstream.
Between 1984 and 1986, a special grand jury empaneled in Luzerne County investigated several criminal matters, including the deaths of Mrs. Snyder and her infant son. An August 1986 unanimous report by the grand jury concluded that, although there was unequivocal evidence that the fire was set deliberately, there was insufficient evidence to support an indictment against Keith Snyder. Over the course of the next several years (during the terms of three different district attorneys), there were no new material developments in the case.
With a new District Attorney taking office in Luzerne County in January, 1992, came renewed interest and action in the Snyder investigation. An investigation team was assembled, witnesses were re-interviewed; physical evidence was gathered, and experts were consulted. On September 8, 1993, approximately eleven (11) years and two (2) months following the death of his wife and son, the Commonwealth filed a criminal complaint charging Petitioner with arson and two counts of murder.
A motion to dismiss on the basis of pre-arrest delay was filed by Petitioner. Following a hearing, the motion to dismiss was denied by the trial court on the grounds that the delay had not resulted in substantial prejudice to Snyder. (Id. at 6.)
During Snyder's June 1994 jury trial in the Luzerne County Court of Common Pleas, he maintained that, based upon the time line established by the Commonwealth, it was not possible for him to have set the fire. Petitioner further contended that his wife had committed suicide and that the prolonged passage of time had prejudiced his ability to present that defense.*fn1 Mr. Snyder was convicted of arson and two counts of first degree murder. He was sentenced to two (2) consecutive life sentences on October 3, 1994.
On September 13, 1995, Snyder's conviction and sentence were affirmed by the Pennsylvania Superior Court. Commonwealth v. Snyder, 671 A.2d 773 (Pa. Super. 1995) (Table). Thereafter, in a 4 to 3 decision, the Pennsylvania Supreme Court concluded that "the Commonwealth's failure to file these charges sooner resulted in actual prejudice to the Appellant [Mr. Snyder] in presenting his defense at trial." Commonwealth v. Snyder, 713 A.2d 596, 603 (Pa. 1998). Based upon that determination, the Supreme Court remanded the matter with instructions that a hearing be conducted by the trial court as to whether the Commonwealth had "valid reasons to justify filing these charges after this extensive period of time."*fn2 Id. at 606.
On August 6 and 7, 1998, an evidentiary hearing was conducted in the Luzerne County Court of Common Pleas. The Commonwealth called as witnesses the five Luzerne County District Attorneys who served during the relevant time period, a Pennsylvania State Police Investigator, and the Wright Township Police Chief. The District Attorneys testified as to the action taken (or lack thereof) with respect to the investigation during their respective administrations. They also similarly indicated that the delays in the investigation and prosecution were not for the purpose of gaining a tactical advantage.
Testimony presented during the hearing by former District Attorney Olszewski established that he restarted the investigation in 1992. Under his direction, there were interviews of some 80 persons who had not been previously questioned; consultation with the FBI's Behavioral Science Unit, physicians, a criminologist, and the ATF; and the retention of a forensic pathologist. As a result of this aggressive investigation, new information was acquired, including evidence of a motive by Mr. Snyder (that he was engaged in extramarital relationships and likely desired to end his marriage); evidence that contradicted any suggestion that Diane Snyder was contemplating suicide; evidence that the presence of alcohol in Diane Snyder's blood stream on the morning of the incident was completely out of character for her; evidence that Petitioner was seen walking with a limp as he exited his residence and appeared nervous and in a hurry on the morning in question; and evidence that a smoke detector had been rendered inoperative. (Dkt. Entry # 14-10, at 11-15.) Based upon the evidence presented at the hearing, the trial court concluded that the investigation "although extended, was ongoing and eventually uncovered evidence," and that there had been valid reasons for the pre-arrest delay. (Id. at 19.)
On October 17, 2000, a divided en banc Superior Court affirmed the trial court by a vote of 6 to 3. Judge Cavanaugh, writing for the majority, explained:
From our review of the precedents, many of which involve homicides for which there is no statute of limitations, it is clear that in assessing the performance of prosecutors as to delay in initiating charges, there is a distinct characteristic of hesitancy to critically evaluate the day-to-day decision making of the office of the prosecutor. This, undoubtedly, stems from a recognition that the prosecutor must face a stream of current cases which demand immediate attention and are subject to intense public scrutiny; that the office typically has limited resources which must react to legislative, judicial, media and public demands for priority in addressing an ever-changing array of social problems. However, the courts will not tolerate any purposeful shelving of a case to gain advantage. 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.
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. 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. Commonwealth v. Snyder, 761 A.2d 584, 589 (Pa. Super 2000)(en banc)(emphasis added). Thus, the majority rested its determination on the absence of evidence of an improper purpose for the delay in bringing charges, i.e., to gain an unfair tactical advantage. In reaching this result, Judge Cavanaugh wrote that the court had elected not to employ the due diligence and negligence standards applied by a Superior Court panel in Commonwealth v. Scher, 732 A.2d 1278 (Pa. Super. 1999).*fn3 Judge Cavanaugh further observed that the substantial commitment of public resources by one District Attorney to conduct a renewed investigation "does not depreciate the integrity" of his predecessors "as to the proper urgencies during their occupancy of the office." Snyder, 761 A.2d at 589.
The dissenting opinion, authored by Judge Popovich, while finding "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," concluded that the motive for the delay was irrelevant. Id. at 596 (Popovich, J., dissenting). Judge Popovich focused instead on the lack of reasons for the delay, and concluded that the record did not contain evidence of "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." Id. The dissent reasoned that, absent evidence of a "valid" reason for the delay, the prejudice to Petitioner found by the Pennsylvania Supreme Court compelled the conclusion that the conviction should be vacated. Id. Snyder's petition for allowance of appeal was denied by the Pennsylvania Supreme Court on December 10, 2002. Commonwealth v. Snyder, 813 A.2d 841 (Pa. 2002)(Table).
On March 4, 2004, Petitioner sought relief pursuant to Pennsylvania's Post Conviction Relief Act (PCRA). His PCRA petition asserted various claims of ineffective assistance of trial counsel, including the claims that are presently raised before this Court. The trial court denied relief on July 21, 2004. The Superior Court affirmed the denial of PCRA relief on August 8, 2006. Allowance of appeal was denied by the Pennsylvania Supreme Court on February 23, 2007.
In his present action, Snyder initially claims that he was denied his right to a fair trial because the eleven-year delay preceding his arrest prejudiced his ability to present a defense. His second claim contends that trial counsel provided ineffective assistance by embracing the testimony of the Commonwealth's arson expert, John Barracato,*fn4 especially his opinion as to the time line of the fire,*fn5 and by not impeaching the testimony of the Commonwealth's expert. Snyder claims that counsel was ineffective by failing to (1) call the defense's arson expert witness, Richard Custer; (2) show a videotape of a 1985 recreation of the fire by the Pennsylvania State Police;*fn6 and (3) introduce a letter from a highly regarded expert, John DeHaan, who challenged the theories relied upon by Barracato as not being scientifically accepted.*fn7 Snyder adds that this evidence also would have confirmed his alibi defense.
Petitioner's third claim is that trial counsel was deficient for not objecting to the shifting of the burden of proof that occurred "when the jury was led to believe that defense testimony had to be believed or proven by a preponderance of the evidence." (Dkt. Entry # 1, ¶ 12, GROUND THREE.) In his fourth claim, Snyder raises a related claim of ineffective assistance of counsel. He alleges that trial counsel erred by not calling Anthony DiMaria, who was twelve-years old at the time of the incident, to testify that he saw the bedroom window pop out and also witnessed smoke pouring out of an open ...