concurring and dissenting.
I join the majority opinion, except for the determination that a remand is necessary for the purpose of discovering whether there were valid reasons to justify the unusual delay of eleven years after the deaths of Appellant’s wife and child in filing the charges against Appellant. The trial court conducted a pre-trial hearing to address Appellant’s motion to dismiss the charges due to pre-arrest delay. The Commonwealth had sufficient opportunity to introduce evidence of its reasons for the delay at that hearing. There is no legitimate reason to allow the Commonwealth a second opportunity to explain or justify the delay.
The trial court did not foreclose the Commonwealth from introducing any evidence at the pre-trial hearing to refute Appellant’s claim that the pre-arrest delay violated his due process rights under the state and federal constitutions. The Commonwealth took the position that the evidence offered by Appellant at the pre-trial hearing failed to establish substan*65tial prejudice because of the delay. We have concluded, however, that the Commonwealth’s failure to file the charges sooner resulted in actual prejudice to Appellant in presenting bis defense at trial. The Commonwealth’s failure to supplement its position at the pre-trial hearing with evidence that the delay was justifiable does not entitle it to another hearing to rectify that omission. The Commonwealth simply chose not to introduce evidence to explain the delay, although it had the opportunity to do so.
Because of the absence of any evidence on this record to justify the delay, I would vacate the judgment of sentence and discharge Appellant. To hold otherwise would create a dangerous precedent of allowing a party to present evidence at a second evidentiary hearing that was available at the original hearing but not offered. In this case, the Commonwealth felt that it would be successful in arguing the absence of prejudice to Appellant and proceeded on that assumption at the pre-trial hearing. The record is not incomplete, as the majority suggests. Having elected not to submit evidence that the delay was justifiable, the record is complete but inadequate to support the Commonwealth’s position.
Appellant introduced evidence at the pre-trial hearing that established that the Commonwealth was prepared to prosecute him by August 1986, but that prosecution was delayed for a period of over seven years1. This evidence satisfied Appellant’s burden of proof and is sufficient to support a determination that the delay was improper. The Commonwealth offered no evidence in rebuttal. The trial court found it was unnecessary to determine whether the delay was proper based upon its conclusion that Appellant had not met his burden of establishing substantial prejudice. Since we have determined that the trial court erred and that substantial prejudice was demonstrated by Appellant, and no evidence exists in the *66record to find that the delay was proper, Appellant should be discharged.
FLAHERTY and CAPPY, JJ., join this Concurring and Dissenting Opinion.. In August 1986, four years after the deaths of Diane Snyder and her child, a special investigating grand jury was impaneled in Luzerne County to investigate the deaths.