dissenting.
Twenty years passed between the time that Martin Dillon died from a shotgun wound and the filing of homicide charges against Dr. Stephen Scher in connection with the incident. During that time, the District Attorney’s Office failed to *342pursue any investigation of the events surrounding the shooting and chose not to file charges against Dr. Scher. The position of District Attorney changed hands several times, but no efforts were made to renew an investigation until shortly before the charges were filed. Although the matter was dormant during those twenty years, with no active investigation during eighteen of those years, the passage of time resulted in the destruction of critical evidence.
The Commonwealth’s inordinate and unexcused delay in filing charges against Dr. Scher resulted in actual prejudice to Dr. Scher’s ability to defend himself against the charges. At trial, the pivotal issue was whether Mr. Dillon’s death resulted from an accidental firing of the shotgun as he and Dr. Scher struggled with the shotgun or resulted from the intentional and deliberate firing of the shotgun by Dr. Scher at a distance of several feet away from Dillon. The Commonwealth premised its theory on the testimony of expert witnesses following an autopsy conducted 18 years after Dillon’s death. The expert testimony sought to contradict the findings made by Dr. James Grace based upon the autopsy he conducted immediately after Dillon’s death. During the trial, the competency of Dr. Grace to conduct the autopsy and the findings themselves were challenged by the Commonwealth.
The Commonwealth went to great lengths to disparage and criticize Dr. Grace’s abilities and to undermine specific critical physical findings made by Dr. Grace regarding the condition of the wound. Dr.- Grace’s findings were contrary to the Commonwealth’s theory of the case and undermined the testimony of Commonwealth experts who had not examined the body until it was exhumed eighteen years later. While Dr. Grace’s observations of the body and the shotgun wound were of paramount importance in determining whether the shotgun fired accidentally, the Commonwealth’s delay in bringing the prosecution resulted in the unavailability of Dr. Grace as a witness.
Dr. Grace died on July 27,1995. His death occurred before the Commonwealth filed charges against Dr. Scher. While Dr. Grace lived for 19 years after the shooting incident, the *343Commonwealth lost the audio recording made during the 1976 autopsy performed by Dr. Grace and failed to subsequently preserve his recollection of the examination of crucial evidence. Other than the autopsy report prepared by Dr. Grace shortly after the incident, no efforts were made by the Commonwealth to interview Dr. Grace for the purpose of recording his personal observations of the physical condition of the body or the medical conclusions that were premised upon those observations. While Dr. Grace’s medical findings were made the center of controversy by the Commonwealth at trial, Dr. Scher was deprived of the opportunity to prepare his defense against the homicide charges because of the Commonwealth’s failure to file the charges within a reasonable period of time.
The resulting prejudice to Dr. Scher’s defense due to the unavailability of this crucial witness was compounded by the Commonwealth’s deliberate tactics at trial to disparage the findings made by Dr. Grace which were contrary to the prosecution’s theory. In order to support its theory of the shooting, the Commonwealth attempted to flatly contradict Dr. Grace’s observations by suggesting to the jury that as a physician he was incompetent to make even the simplest physical observations and claimed that the observations recorded by Dr. Grace in his autopsy report were not those that Dr. Grace actually intended to make.
As detailed below, the Commonwealth was willing to go to outrageous lengths to dispute the physical findings made by Dr. Grace when those findings contradicted the prosecution’s theory. For example, the Commonwealth presented an expert witness to testify that when Dr. Grace referred to the area surrounding the shotgun wound as “somewhat darkened” in his autopsy report, Dr. Grace could have meant that the area surrounding the wound was not darkened at all. This reference to the darkened area surrounding the wound in Dr. Grace’s autopsy report was extremely significant because the presence of carbonaceous material around the wound was inconsistent with the prosecution’s theory that the shotgun was fired from a distance.
*344I would affirm the Superior Court’s order because the Commonwealth’s protracted delay in filing the charges against Dr. Scher resulted in the loss of critical evidence for his defense. The Commonwealth’s inaction prejudiced Dr. Scher and deprived him of his due process rights under the United States Constitution.
In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the U.S. Supreme Court addressed the issue of whether the dismissal of a federal indictment was constitutionally required by reason of the passage of a three year period between the occurrence of alleged criminal acts and the filing of the indictment. The appellees, who were engaged in the business of selling and installing home improvements, were indicted and charged with 19 counts involving fraudulent misrepresentations, alteration of documents and deliberate nonperformance of contracts. The period covered by the indictment was from March 15, 1965, to February 6,1967. The indictment was filed on April 21,1970.
The appellees filed a motion to dismiss the indictment, asserting that the delay in the prosecution of the charges violated their rights to due process and to a speedy trial under the Fifth and Sixth Amendments to the U.S. Constitution. No evidentiary hearing was held on the motion. The motion and argument of counsel indicated that the appellees’ business had been the subject of a cease-and-desist order issued by the Federal Trade Commission on February 6, 1967. In October of 1967, a series of newspaper articles reported statements made by the U.S. Attorney for the District of Columbia describing his office’s investigation of home improvement firms, including forthcoming indictments. The appellees’ business was not specifically mentioned by the U.S. Attorney, although the business was identified in the article. In 1968, the U.S. Attorney’s Office obtained records from the appellees’ business and interviewed one of its officers. The grand jury that indicted appellees was impaneled in September of 1969.
The appellees sought dismissal of the charges, arguing that the delay was due to the negligence of the U.S. Attorney in investigating and presenting the case to the grand jury. No *345specific prejudice was demonstrated; however, the appellees claimed that recollection of specific acts and representations made several years before would be affected by the delay. The District Court dismissed the charges for lack of speedy prosecution, concluding that the U.S. Attorney was aware of the relevant facts in 1967 and that defense of the case would be seriously prejudiced by the three year delay.
On direct appeal, the U.S. Supreme Court reversed the judgment of the District Court. The court addressed the appellees’ claim in the context of the Sixth Amendment right to a speedy and public trial. The appellees claimed that their rights to a speedy trial were violated by the delay between the end of the criminal scheme charged and the indictment. They argued that the delay was so substantial and inherently prejudicial that dismissal of the indictment was required under the Sixth Amendment.
The U.S. Supreme Court rejected appellees’ claim, finding that the speedy trial provision of the Sixth Amendment does not apply until an individual becomes an “accused.” This triggering event was found to have occurred when the appellees were indicted in 1970.
On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of the prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. “The essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959).
Marion at 313, 92 S.Ct. 455. The Court declined to extend the reach of the Sixth Amendment to the period prior to *346arrest, noting that statutes of limitations serve as the primary guarantee against the filing of overly stale criminal charges.
In support of their claim for dismissal, the appellees relied solely on the passage of time between the alleged crime and the indictment and the potential for prejudice. Since no claim of actual prejudice was made by appellees, the Court found that its analysis of the Sixth Amendment claim was dispositive. Noting that the appellees could raise the issue of actual prejudice when the matter proceeded to trial, the Court addressed the potential claim that the delay in prosecution would implicate the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
It is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.
Id. at 324, 92 S.Ct. 455 (citations and footnotes omitted).
The Court determined that the appellees had not demonstrated that the pre-indictment delay by the Government had violated the Due Process Clause. The appellees had not alleged or proved that the delay had resulted in actual preju*347dice; nor had they established that the Government had intentionally delayed the indictment to gain a tactical advantage. The appellees’ due process claim was found to be speculative and premature at that stage of the proceedings.
Six years later, the U.S. Supreme Court granted certiorari in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), to consider when the U.S. Constitution would require an indictment to be dismissed because of delay between the commission of an offense and the initiation of prosecution. The respondent had been indicted for possessing eight firearms stolen from the United States mails, and for the unlicensed dealing of firearms between July 25 and August 31, 1973. The respondent moved to dismiss the indictment based upon an eighteen month delay before the indictment was filed.
During a hearing before the District Court, the respondent introduced a report of the investigation undertaken by the Postal Inspector. The report, which was prepared one month after the offenses were committed, indicated that the respondent had already admitted to Government agents that he had sold five of the stolen firearms. It also reflected that the purchaser of the stolen firearms had told Government agents that the respondent had actually sold him eight firearms. The report indicated that the agents had not confirmed or refuted respondent’s claim that he had found the firearms in his car after visiting his son, a mail handler, at work.
The respondent asserted that the delay had prejudiced his defense because the testimony of two material witnesses had been lost as a result. Both "witnesses had died before the indictment was filed. At the hearing, respondent admitted to possession and sale of all eight weapons. The respondent claimed that one of the witnesses, Tom Stewart, had been his source for two or three of the firearms. Stewart had not been identified as the source when the respondent was questioned by the Postal Inspector. The respondent also testified that his brother, who was the second witness, was present when he called to obtain the firearms and had witnessed the sales of the firearms.
*348The Government stipulated that little additional evidence concerning the crimes was obtained in the 17 months after the report was prepared, and no effort to explain the delay was made. It was not conceded, however, that the investigation had ended after the report was prepared. Although the report stated that there was no evidence indicating that the respondent’s son was involved, the Government indicated that its theory was that the son was responsible for the thefts.
After the hearing, the District Court dismissed the indictment. The court found that the Government had all the information relating to the offenses charged against the respondent by the date that the report was prepared. The 17 month delay before the case was submitted to the grand jury was found to be unnecessary and unjustified. The court determined that the respondent had been prejudiced by the delay due to the death of Stewart, a material witness.
On appeal to the U.S. Court of Appeals for the Eighth Circuit, the Government asserted that the investigation had been kept open to establish the involvement of the respondent’s son in the theft. The Court of Appeals accepted the explanation offered by the Government, but affirmed the District Court’s finding that the Government’s actions were neither necessary nor justified. It was further determined that the respondent had demonstrated that his defense had been' impaired by the loss of Stewart’s testimony, which could have supported the respondent’s claim that he did not know that the guns were stolen from the United States mails. The Court of Appeals affirmed the dismissal of the charges for possession.1
The U.S. Supreme Court reversed on the basis that the delay was caused by the Government’s efforts to identify other individuals who may have been involved in the offenses. The explanation offered by the Government for the pre-indictment delay was found to be sufficient to avoid dismissal of the indictment under the circumstances. The Supreme Court *349determined that compelling the respondent to stand trial would not be fundamentally unfair where the Government had deferred filing charges against the respondent while the investigation continued.
In reaching its decision, the Supreme Court observed that “the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 97 S.Ct. 2044. Dismissal of charges for pre-indictment delay was found not to be warranted for a mere disagreement regarding the prosecutor’s judgment as to when to seek an indictment.
Judges are not free, in defining “due process,” to impose on law enforcement officials our “personal and private notions” of fairness and to “disregard the limits that bind judges in their judicial function.” Our task is more circumscribed. We are to determine only whether the action complained of here, compelling respondent to stand trial after the Government delayed indictment to investigate further-violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” ... and which define “the community’s sense of fair play and decency.... ”
Id. 790, 97 S.Ct. 2044.
The Supreme Court concluded that prosecutors do not deviate from the “fundamental conceptions of justice” by deferring indictments until they have probable cause to believe an accused has committed an offense. Nor was any duty to be imposed upon prosecutors to file charges as soon as probable cause exists, but before they were satisfied that they would be able to establish a suspect’s guilt beyond a reasonable doubt. The Supreme Court rejected the argument that once the Government has assembled sufficient evidence to prove guilt beyond a reasonable doubt, it should be constitutionally required to file charges, even if its investigation of the entire criminal transaction was not complete.
Several considerations were weighed in concluding that the timing of an indictment should be left to the discretion of the prosecutors. First, the Supreme Court observed that “compel*350ling a prosecutor to file an indictment as soon as the requisite proof- had been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act.” Id. at 793, 97 S.Ct. 2044. Second, insistence on immediate prosecution “would pressure prosecutors into resolving doubtful cases in favor of early — and possibly unwarranted — prosecutions.” Id. “Finally requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases.” Id. at 794, 97 S.Ct. 2044. Based upon these considerations, the Supreme Court held that the prosecution of an accused following an investigative delay does not deprive the accused of due process, “even if his defense might have been somewhat prejudiced by the lapse of time.” Id. at 796, 97 S.Ct. 2044.
The Supreme Court reiterated, however, that the prosecutor’s discretion is not without limits, and that constitutional challenges may be brought for pre-indictment delay where the Due Process Clause has been violated.
In Marion we noted with approval that the Government conceded that a “tactical delay” would violate the Due Process Clause. The Government renews that concession here, ... and expands it somewhat by stating: “A due process violation might also be made out upon a showing of prosecutorial delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.... ” As the Government notes, however, there is no evidence of recklessness here.
In Marion we conceded that we could not determine in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions. 404 U.S. at 324, 92 S.Ct. 455. More than five years later, that statement *351remains true. Indeed, in the intervening years so few defendants have established that they were prejudiced by delay that neither this Court nor any lower court has had a sustained opportunity to consider the constitutional significance of various reasons for delay. We therefore leave to the lower courts, in the first instance, the task of applying settled principles of due process that we have discussed to the particular circumstances of individual cases. We simply hold that in this case the lower courts erred in dismissing the indictment.
Id. at 796-97, 97 S.Ct. 2044.
This Court was presented with the opportunity to address a claim of deprivation of due process based upon a pre-arrest delay of eleven years and two months in Commonwealth v. Snyder, 552 Pa. 44, 713 A.2d 596 (1998). The Commonwealth filed a criminal complaint against the appellant charging two counts of murder in connection with the deaths of his wife and infant son. The charges were filed more than eleven years after the appellant’s wife and son had perished in a fire inside the family home. Seven years had passed since the investigation into the deaths had been concluded.
The factual circumstances of the case were summarized as follows:
On July 2, 1982, Appellant’s wife and six-week-old son died in a fire inside their home in Wright Township, Luzerne County, Pennsylvania. The Appellant was scheduled to work from 1:00 p.m. until 10:00 p.m. on the day of the fire. Earlier that day, a neighbor saw the Appellant leave the house between 12:15 and 12:20 p.m. Later, two young boys, ages nine and twelve, were playing in a neighbor’s yard when they saw the Snyder house was on fire and ran to the house. Unable to enter the house because the front door was locked, they told a neighbor who notified the fire department at 1:31 p.m. Fire fighters arrived within approximately four minutes and found the Appellant’s wife and child in the master bedroom, both dead from carbon monoxide poisoning. Autopsy tests revealed barbiturates and alcohol in Mrs. Snyder’s blood, with a blood alcohol content *352of .046%. The Commonwealth’s expert witness opined that the fire was incendiary in nature, and that it was deprived of oxygen, which caused it to smolder for approximately one hour, filling the house with smoke.
Immediately after this incident, the Wright Township Police Department, Pennsylvania State Police, and the Luzerne County District Attorney’s Office commenced an investigation, which did not yield any arrests after two years. In 1984, the Luzerne County District Attorney empaneled [sic] a special investigating grand jury to probe the deaths of Mrs. Snyder and her child. The grand jury investigation continued until some time in 1986, when it ended without returning any indictments.
The Appellant continued to live and work in Luzerne County, and the investigation remained dormant throughout the administration of several District Attorneys. No new or additional evidence became known after the grand jury concluded its investigation in 1986. During 1993, the newly elected District Attorney of Luzerne County, Peter Paul Olszewski, Jr., reopened the case. The Commonwealth filed a criminal complaint charging the Appellant with two counts of murder on September 8,1993.
Id. at 597.
The appellant filed a pre-trial motion to dismiss the charges on the basis that the eleven year lapse in time before the charges were filed violated his due process rights under the Pennsylvania Constitution and the U.S. Constitution. The appellant asserted that his defense to the charges was substantially prejudiced by the extraordinary delay because evidence establishing that his wife had committed suicide had become unavailable because of the delay. The trial court conducted an evidentiary hearing at which the appellant introduced evidence establishing that witnesses who could have testified that his wife was severely depressed after the birth of their son had died before the charges were filed, and that other possible witnesses could not remember many facts because the lengthy delay had dimmed their memories. The Commonwealth did not present any evidence at the hearing.
*353The trial court denied the appellant’s motion to dismiss the charges. When the matter proceeded to trial, the parties presented oral argument to the presiding judge on the issue. The presiding judge also determined that the appellant was not entitled to dismissal of the charges, finding that the delay had not substantially prejudiced the appellant because the evidence that the appellant sought to present was either not exculpatory or could be presented through other witnesses. The appellant was subsequently convicted of two counts of first degree murder and arson. The judgment of sentence was affirmed by the Superior Court.
We granted the appellant’s petition for allowance of appeal to address the limited issue of whether the pre-arrest delay had violated his right to due process. We determined that the trial court had committed an error of law when it found that the appellant had not sustained his burden of proving prejudice. We concluded that the appellant had demonstrated actual prejudice based upon the record before us. Because the record was silent as to the existence of any proper reason for delaying the filing of criminal charges, we reversed the order of the Superior Court and remanded the matter to the trial court for the limited purpose of determining whether there were valid reasons to justify filing of the charges after such an extensive period of time.2
We observed that there is no statute of limitations that applies to murder charges in the Pennsylvania Crimes Code; “[hjowever, statutes of limitation do not define the full extent of the rights of the accused concerning the time in which the charges can be filed.” Id. at 599. “The constitutional right to due process also protects defendants from having to defend stale charges, and criminal charges should be dismissed if improper pre-arrest delay causes prejudice to the defendant’s right to a fair trial.” Id. at 599-600 (citing Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978)).
*354The constitutional right to due process under Article I, Section 9 of the Constitution of Pennsylvania provides the same protections to an accused in the area of pre-arrest delay as does the U.S. Constitution. “This Court has chosen to extend greater protections to criminal defendants pursuant to our state Constitution than federal courts have recognized pursuant to the United States Constitution in other areas of constitutional law, but this Court has never afforded defendants greater protections when examining due process challenges based on pre-arrest delay.” Id. at 602 (footnote omitted). Therefore, our analysis of the appellant’s due process claims addressed his rights under both the state and federal constitutions.
We undertook the analysis of appellant’s claims starting with the perspective provided by the U.S. Supreme Court decisions in Marion and Lovasco. “[T]he Marion and Lovasco decisions stand for the proposition that to establish a due process violation for a delay in prosecution, a defendant must show that the passing of time caused actual prejudice and that the prosecution lacked sufficient and proper reasons for postponing the prosecution.” Id. at 601. The two-pronged analysis required that we determine: (1) whether pre-arrest delay resulted in actual prejudice to the accused; and (2) whether the Commonwealth’s reasons for postponing the appellant’s arrest were proper.
At trial, the state of mind of the appellant’s wife was a crucial factor in determining whether the appellant was guilty of the homicide and arson charges. The Commonwealth’s theory was that the appellant had drugged his wife, started the fire and left the house. The circumstantial evidence presented by the Commonwealth indicated that the wife had barbiturates in her system and that a trail of gasoline and oil in the house had been ignited. In anticipation of the appellant’s defense that his wife was suffering from post-partum depression and committed suicide by taking barbiturates and setting fire to the house, the Commonwealth introduced twelve witnesses to testify that the wife had appeared to be happy shortly before her death.
*355The appellant testified on his own behalf and introduced the testimony of several witnesses that the wife appeared to be depressed after the birth of her child. A toxicologist testified that the barbiturates ingested by the wife could not have been given to her surreptitiously because they had a bad taste. Due to the lengthy delay in bringing the charges, the appellant was unable to introduce the testimony of several witnesses who had died before the trial. The evidentiary hearing on the motion to dismiss disclosed the purpose for which the appellant would have offered the witnesses’ testimony, as follows:
The Appellant contends that these witnesses would have testified that Mrs. Snyder was severely depressed after the birth of her son. Specifically, Monsignor Nolan, who was the Snyders’ family friend and parish priest, died before the Appellant’s arrest. Monsignor Nolan had many contacts with Mrs. Snyder before her death because he was working with her to prepare for the baby’s baptism, which was scheduled for the day after the fire. According to Margaret Krupa, who drove the Monsignor to the Snyder home to administer the last rites, the Monsignor told her that after seeing the bodies in the house, he believed that Mrs. Snyder committed suicide. Because Monsignor Nolan died before the Commonwealth filed these charges, the Appellant could not present evidence concerning the basis for the Monsignor’s opinion that Mrs. Snyder committed suicide.
The Appellant’s father, George Snyder, was also deceased at the time of the trial. The Appellant’s brother said that Mrs. Snyder’s co-workers told George Snyder that she said goodbye to her co-workers the day before the fire. Appellant’s brother also testified that Monsignor Nolan told the Appellant’s father that he believed that Mrs. Snyder had committed suicide.
Snyder, 713 A.2d at 598. Furthermore, medical records of the appellant’s wife reflected that she had dropped from a weight of 150 pounds before the birth of her son to 115 pounds within thirty-seven days after the birth. The obstetrician who attended the appellant’s wife was also unavailable to testify by *356the time of trial, however, because he suffered from severe Alzheimer’s disease.
The evidence presented radically different portrayals of the state of mind of the appellant’s wife at the time of her death. The Commonwealth’s extensive delay in filing charges against the appellant deprived him of the opportunity to present the testimony of witnesses who had an opportunity to observe the wife’s behavior and demeanor after the birth of her child. “Because of the developments in the case at trial, the Commonwealth introducing considerable evidence concerning Mrs. Snyder’s state of mind, and the unavailability of key witnesses close to Mrs. Snyder, we conclude that the Commonwealth’s failure to file these charges sooner resulted in actual prejudice to the Appellant in presenting his defense at trial.” Id. at 603.
We then analyzed whether the Commonwealth’s reasons for postponing the appellant’s arrest were proper. Although the trial court had described the period of time between the wife’s death and the appellant’s arrest as “investigatory delay,” we determined that there was no basis in the record to conclude that the delay was required for further investigation. The appellant did not claim that any of the District Attorneys of Luzerne County intentionally postponed the prosecution to gain a tactical advantage; however, the appellant did assert that renewing an investigation that had been dormant and filing charges after 11 years based on change in the District Attorney’s Office was improper.
We concluded that the appellant was not required to establish that the Commonwealth intentionally delayed the prosecution to gain a tactical advantage over the appellant in order to establish a violation of his due process rights. We held that “the decision to prosecute the Appellant after more than 11 years, with no additional evidence and with no ongoing investigation in the last seven years, is so egregious that it cannot withstand even the most deferential standard of review.” Id. at 605.
We stated that,
*357Whether done intentionally or not, the Commonwealth gained a tremendous strategical advantage against the Appellant due to the passage of time and the loss of critical defense testimony through death and memory loss. This Court expressly disapproves of subjecting defendants to delayed prosecutions in cases in which changing prosecutorial policies are the only reason to revive dormant investigations after the passage of time causes actual prejudice to the defense. We hold that, based on all of the facts of this case, bringing this prosecution after more than eleven years caused actual prejudice to the Appellant and deprived him of due process of law unless there were proper reasons for the delay.
We emphasize that due process violations will occur only in extreme cases, in which no valid reasons justify a defendant’s arrest after an inordinate amount of time without investigation. This Court recognizes that murder prosecutions often come to fruition after many years of investigation. We do not intend to limit the power of the Commonwealth to prosecute a murderer if and when an investigation yields new evidence after many years of inactivity. However, if no additional evidence appears, the delay results in actual prejudice to the defendant, and there are no proper reasons for postponing the defendant’s arrest, the due process clauses of the Constitutions of the United States and Pennsylvania require that the charges be dismissed.
Id. at 605 (emphasis added).
Applying this analysis, the record in this case establishes that the 20 year pre-arrest delay resulted in actual and substantial prejudice to Dr. Scher and that the Commonwealth lacked sufficient and proper reasons for the inordinate delay.3
*358At the hearing, and throughout the course of the proceedings, the Commonwealth took the position that the defense was required to prove that Dr. Scher suffered actual and substantial prejudice because of the passage of time, and that the delay was an intentional device by the prosecution to gain a tactical advantage over the accused. The Commonwealth asserted that neglect and failure to conduct a proper investigation would not be sufficient to warrant dismissal of the charges. R. 1447ag-1449ag.4 The Commonwealth was highly critical of the way in which the investigation into Mr. Dillon’s death was conducted and did not argue that the investigation was handled properly. To the contrary, the prosecutor stated:
We’re not contesting that early on the investigation was not done perfectly, that there was foot dragging, other things could have been done and should have been done that were done much later. We have conceded to that, but that is not the issue.
R. 1456ag.
On March 17, 1997, defense counsel filed an omnibus pretrial motion seeking, inter alia, dismissal of the charges based upon the pre-arrest delay. The trial court conducted an evidentiary hearing on the motion on May 7, 1997. At the evidentiary hearing, defense counsel presented the testimony of the individuals who had served as District Attorney for Susquehanna County during the period of time between the death of Martin Dillon and the arrest of Dr. Scher. The position of District Attorney was a part-time position in that county.
The first witness was Edward Little, Jr., whose initial term *359as District Attorney began in 1968.5 District Attorney Little served three successive terms and left the office at the end of 1979 or early 1980. R. 1439ag-1440ag. He was in office when Martin Dillon died. District Attorney Little did not undertake any prosecution of any individual in connection with the death of Martin Dillon; nor was any arrest made during his tenure. No request was made by District Attorney Little to the Attorney General’s Office for assistance in the investigation or prosecution.
At that time, the District Attorney’s office employed an investigator, Chief County Detective Willard G. Collier. Detective Collier, the only detective employed by the District Attorney’s Office, was assigned to investigate the death of Martin Dillon. Detective Collier died before the arrest of Dr. Scher. He was responsible for gathering and reviewing the evidence in connection with the death.
Based upon his investigation shortly after Mr. Dillon’s death, Detective Collier indicated to District Attorney Little that he believed that the shooting was not accidental and that Dr. Scher may have been responsible. Detective Collier prepared a letter dated June 9, 1976, a week after Mr. Dillon’s death, to reflect the fact that he wanted the investigation to remain open despite the fact that Coroner John Conarton had determined it to be an accidental death.6 The letter was addressed to District Attorney Little, who described the letter as something he and Detective Collier had cooperated in and as “a mutual idea”. R. 1443ag-1444ag.
The June 9, 1976, letter summarized Detective Collier’s initial impressions that the evidence did not support Dr. Scher’s statements on June 2, 1976, as to how the shooting occurred. The letter stated as follows:
1. At about 1200 Hours on June 2, 1976, Subject deceased his Mortal Life by Physical Trauma, namely a Contact Shot-Gun Blast to the Chest.
*3602. Susquehanna County Coroner John Conarton issues a tentative Verdict of Accidental Death: Subsequent conversations indicate that he can and will change this Verdict, if Investigation now being conducted by this and other Investigators Warrant it.
3. Prom personal knowledge of Subject, his Religion, his care-free State of mind at 1530 Hours when he talked to Troopers Fekette and Selinkas in Montrose, Rule out any possibility of deliberate self-destruction.
4. An examination of the Scene, angle of the Wound of Entrance, and information available at present are not satisfactory to this Investigator as being caused by a fall on the weapon.
5. The Physiognomy of one Subject, his partial destruction of Weapon, and his explanation of the incident are not satisfactory to this Investigator.
6. The Investigation has been severely hampered by gossip, Rumors and at least one erroneous Newspaper account. Top City Reporters have been getting unsigned notes Anonymous calls, and information. Through personal friendship it has been possible to get them to let us complete our Investigation.
7. Time is vital at this point: We must have all photographs for intensive examination, Laboratory reports, and further Interviews with persons who may have any knowledge, as well as re-interviewing subjects with information of importance.
8. A Coroners Inquest is not advisable at this time, for the following reasons:
(a) A coroners jury may give a finding of Accidental— hampering the Investigation.
(b) They could Rule Homicide — Criminal negligence — or other, that night [sic] force us to Charge without evidence to get through Magistrates Court.
(c) An Inquest would force any Suspect to get an Attorney — who would certainly advise him to refuse to testify, or talk to any Investigator.
*3619. Interrogation: With all Photos, Lab Reports, Statements, and as last resort a request for Polygraph examination: are the only weapons left to work on a Suspects [sic], (Guilty Knowledge) if any is present.
10. The Coroner will only call an inquest, if requested by you; And I would respectfully request that you allow us to continue this Investigation in the manner we have found effective in the past.
R. 2751ag.
District Attorney Little indicated that Detective Collier had strong feelings that the shooting was not accidental. He also testified that Coroner John Conarton was “hellbent that this was accidental.” R. 1481ag. District Attorney Little, along with the investigating officers (Detective Collier, Trooper Fekette and Trooper Salinkas of the Pennsylvania State Police), did not want Coroner Conarton to release a death certificate noting accidental death because they believed sources of information from the community would dry up if that determination was made. He testified that they had several conferences with Coroner Conarton to prevail upon him to delay the release of the death certificate. He was able to delay the release of the death certificate for 10 days, and explained that Detective Collier’s reference in his letter to the fact that “time was vital” reflected that the delay had been encouraged. R. 1482ag. When the death certificate was issued on June 12, 1976, it reflected that Mr. Dillon’s death was accidental. R. 2758ag-2759ag. Coroner Conarton never revised his determination.7
District Attorney Little testified that he relied on the investigators to continue their investigation and that he believed all of the evidence had been accumulated by the time that he left office. R. 1491ag. He subsequently made the determination that there was insufficient evidence to warrant the prosecution of Dr. Scher. From the time of the shooting *362in 1976 until District Attorney Little left office in 1980, no arrest was made.
Laurence M. Kelly succeeded Little as District Attorney in 1980. District Attorney Kelly served in office for two terms from 1980 to 1988. He testified that Detective Collier was still employed as an investigator during his tenure, and that Detective Collier retired prior to the completion of his two terms. For the 8 years he served in office, the matter was dormant. Not only was there no ongoing investigation of the shooting incident, but District Attorney Kelly had no knowledge even that there was an existing file on the matter.
District Attorney Kelly testified as follows:
Q. When you took over the office of District Attorney, did anyone tell you where the file was concerning the death of Martin Dillon?
A. No.
Q. Did you ever find the file?
A. I never found it nor did I look for it. I had no idea that it was there or if it was there.
Q. From — -just so I understand, Larry, what you are saying, from the date you took office to the date you left, you never looked for the file and you never knew it was there?
A. That’s correct.
Q. Did Collier have any conversation with you about the file?
A. No.
Q. Did you open a new file on the death of Martin — strike that — on the death of Martin Dillon?
A. No.
Q. Did you initiate any investigation concerning the death of Martin Dillon?
A. No.
Q. Did you gather any additional evidence concerning the death of Martin Dillon?
*363A. I did not.
R. 1513ag-1514ag.
District Attorney Kelly further testified that he had not seen the letter dated June 9, 1976, from Detective Collier to former District Attorney Kelly, and did not ever review the evidence that had been collected as a result of the 1976 investigation. He did not conduct any meetings with the Pennsylvania State Police concerning Mr. Dillon’s death nor did he receive any correspondence from the State Police on the matter. District Attorney Little did not receive any request from any law enforcement officer to conduct any scientific examination on the evidence accumulated in the investigation into the death. He was never made aware of any investigation being actively conducted by the State Police or any other law enforcement agency while he was District Attorney. R. 1514ag-1516ag.
In January of 1988, Jeffrey B. Snyder became the District Attorney. He served two concurrent terms from 1988 to 1995. He had previously served as an assistant district attorney under District Attorney Kelly in 1987. As an assistant district attorney, the matter had never been discussed with him and he was not aware of the existence of any file in the District Attorney’s office. R. 1591ag.
A year after District Attorney Snyder was elected, he was contacted by a social acquaintance who was the son-in-law of Lawrence Dillon (Martin Dillon’s father) and was asked to have a meeting with the Dillon family. He agreed to meet with the family. The family requested that he not involve any of the detectives who were part of the District Attorney’s office. The family members expressed their concerns over the investigation undertaken by the Pennsylvania State Police. After the meeting, he indicated that he would review the case, including the initial Pennsylvania State Police investigation. R. 1593ag; 1597ag.
His review of the official file in the District Attorney’s office indicated that it “contained little to no information.” R. 1592ag. District Attorney Snyder arranged meetings with *364Lawrence Dillon and the State Police to address Dillon’s concerns. The State Troopers involved in the investigation, Troopers Salinkas and Fekette, participated in the meetings. District Attorney Snyder examined the original criminal reports, the State Police file and additional materials provided by Lawrence Dillon summarizing his own thoughts. He also made a site visit to the hunting camp. R. 1598ag.
Thirteen years after the investigation ceased, it was agreed that a presentation of the case would be made to a panel of medical experts who were assembling at the University of Pennsylvania in Philadelphia in May 1989. Dr. Isadore Mihalakis, who subsequently testified as a witness for the Commonwealth at trial, made the presentation on behalf of the Commonwealth.8 District Attorney Snyder testified that he was present merely as an observer and described what occurred following the presentation:
By my count there were twenty-nine individuals present in terms of who would vote on this matter, straw poll fashion. And less than half of those individuals indicated that on the known facts that they felt there was a basis for homicide. The remainder voted either for intentional or accidental self-infliction of the gunshot wound. I viewed that as an overwhelming defeat for the prosecution, and any theory of death caused by another.
R. 1601ag; 1617ag. His recollection was that of the 29 who voted, only 12 believed that the manner of death was homicide.
District Attorney Snyder did not file charges against Dr. Scher after those efforts. He testified that the results of the presentation and the variance of opinions expressed by a number of the State Police officers who had been involved in the investigation played heavily in his determination that a successful prosecution could not be mounted in 1989. He identified the initial investigators, Troopers Fekette and Salinkas, as two officers who were undecided under the state of the evidence at that time. R. 1625ag.
*365He testified further that in 1989, no request was made by Dr. Mihalakis for an exhumation of Mr. Dillon’s body to conduct another autopsy. The subject of exhumation was discussed, however, with the State Police:
In fact, I will take you back to that panel presentation in May of 1989, when I approached a number of persons who voted — again, I can’t give you names. I had never met these individuals. I was there as an observer.
I — as I have already indicated, I felt this was a setback as far as any straw poll that had been taken. So I took the initiative to approach several after the presentation and inquire directly of them what more might be done to advance this investigation, and whether an exhumation and additional autopsy would be of any benefit.
I was given no guidance by those individuals as to what might be accomplished. And I was basically led to be [sic] it would be a fishing expedition. And under the state of the evidence at that time — and you have touched on some of it elicited here in my testimony — I didn’t feel there was sufficient basis to come before the Court and request an exhumation.
R. 1628ag.
District Attorney Kelly acknowledged that the Commonwealth had possession of the physical evidence that was collected after the shooting. This evidence included: the clothing worn by Dr. Scher and Mr. Dillon on the date of the shooting; Dr. Scher’s 16-gauge shotgun, Mr. Dillon’s 20-gauge shotgun, ammunition and shells found at the scene of the shooting, shooting glasses and ear protectors found at the scene, clay birds, bird thrower, and sections of a log. R. 1632ag-1634ag. He also admitted that he had discussions with Dr. Grace and Coroner Conarton, and indicated that the State Police had interviewed them again as part of the process of revisiting the investigation. R. 1643ag. The record reflects that none of the interviews were ever recorded or preserved.
District Attorney Snyder was critical of the investigation that had been done. He testified that the investigation was *366“not getting done; not properly.” R. 1737ag. In 1994, eighteen years after Mr. Dillon’s death, two different State Police officers (Troopers Schmidt and Stroud) were assigned to the case. The investigation was taken away from the direct supervision of the barracks originally responsible for the investigation.
After the two troopers were assigned to the case, District Attorney Snyder obtained a court order in 1995 granting permission to exhume Mr. Dillon’s body for the purpose of conducting a second autopsy. The second autopsy was done by Dr. Mihalakis, who had presented the case in 1989 to the panel of medical experts. The second autopsy took place on April 29, 1995. Thereafter, the death certificate was amended to change the manner of death from accident to homicide.
District Attorney Kelly testified that he could not identify any additional physical evidence that the troopers examined that was not examined before they became involved in the case. He further testified that any of the witnesses interviewed by the troopers would have been available to be interviewed in 1976. R. 1716ag.
This record demonstrates that there was no ongoing investigation into the death of Mr. Dillon. The investigation was dormant for most of the 20 years of pre-arrest delay. Indeed, for 8 of those years, the “investigation” was non-existent. Not only did District Attorney Kelly not pursue any investigation from 1980 through 1988, no one had even informed him that a file existed in this case. District Attorney Kelly, the chief law enforcement officer for Susquehanna County, was never advised of this case by his predecessor or any law enforcement agency.
There is no basis to conclude that the pre-arrest delay was required for further investigation. The record establishes that the Commonwealth did not have a proper reason for the inordinate delay. As the Superior Court stated,
The investigation conducted by the Commonwealth was far from proper. In 1996, it had in its possession no evidence or witness that was not available to it in 1976 when the shooting occurred. Moreover, we cannot find, prior to *367the commencement of the most recent investigation in 1994, any instance where the Commonwealth diligently pursued an investigation in this case. We find the Commonwealth’s inactivity regarding this case to be grossly negligent, as it has provided us with no proper reasons for such an egregious prolonged delay.
Commonwealth v. Scher, 732 A.2d 1278, 1287 (Pa.Super.1999) (citation omitted).
As noted previously, the Commonwealth did not attempt to argue before the trial court that the investigation was ongoing or that the unusual pre-arrest delay was proper. The prosecutor was extremely critical of the handling of the investigation, but focused his argument only on the issue of whether the Commonwealth had intentionally delayed prosecution solely to gain a tactical advantage over the accused. The prosecutor did not address circumstances, such as occurred here, where “[w]hether done intentionally or not, the Commonwealth gained a tremendous strategic advantage against the [accused] due to the passage of time and the loss of critical defense testimony through death and memory loss.” Snyder, 713 A.2d at 605.
Although the Commonwealth has now offered additional testing of the physical evidence that had been collected in 1976 as an excuse for the extensive pre-arrest delay, the record establishes that the facilities and experts who conducted the testing were available to the Commonwealth when the investigation began. “Moreover, any new tests performed by the Commonwealth and the Federal Bureau of Investigation failed to reveal any new and/or relevant information that could not have been discovered by testing procedures available to them in 1976.” Scher, 732 A.2d at 1287.
The next question is whether the 20 year pre-arrest delay resulted in actual and substantial prejudice to Dr. Seher. The Superior Court determined that Dr. Seher had suffered actual and concrete prejudice as a result of the pre-arrest delay.9 The Superior Court stated:
*368Initially, we note that there were numerous instances at the preliminary hearings and at trial where witnesses were unable to remember many facts because their memories had waned over the preceding twenty years. Moreover, many key witnesses were deceased at the time of trial.
One of the issues upon which the Commonwealth focused was the distance between the barrel of the gun and Dillon’s chest. The Commonwealth’s expert, Dr. Mihalakis, testified at a pre-trial hearing that the barrel of the gun was approximately three to five feet away from Dillon’s body when the shot was fired. He, therefore, opined that this shooting could not have been an accident or suicide. Dr. Mihalakis based this conclusion on his autopsy finding that there was no blackening or powder found at the wound of entry. Significantly, this was contrary to Dr. Grace’s findings, which were recorded in his autopsy report dated June 3, 1976. In that report, Dr. Grace noted that the area around the penetration was darkened with what were apparent to him as powder burns. We will never know why and how Dr. Grace arrived at his conclusions as he died in 1995 without having had an opportunity to explain his findings.
Detective Collier, the county detective assigned to the case in 1976, was of the opinion that Dillon’s death may not have been an accident. We, however, will never know why he made such a determination or why he did not further *369pursue the investigation as he also died prior to Dr. Scher’s arrest.
Also deceased at the time of trial was John Conarton, who was the Susquehanna County Coroner at the time of Dillon’s death. Coroner Conarton’s signature appeared on Dillon’s initial death certificate, and it was his opinion that the death was accidental. Due to Conarton’s death, Dr. Scher was not able to question Conarton at trial. We will, therefore, never know why Conarton believed Dillon’s death to be accidental.
Whether or not the prolonged delay by the Commonwealth in prosecuting its case was intentional, it caused the Commonwealth to gain a remarkable advantage over Dr. Scher. As stated above, certain important witnesses were deceased and, therefore, unavailable to Dr. Scher in presenting his case. Moreover, numerous witnesses called by both the Commonwealth and Dr. Scher were unable to remember facts relevant to this case. Our appellate courts, along with the United States Supreme Court, have found substantial and actual prejudice where memories of witnesses have dimmed, witnesses have become unavailable, and evidence has been lost due to prosecutorial delay. Marion, supra; Snyder, supra. This prejudice, however, cannot be speculative in nature, it must be actual and concrete. Snyder, supra. See [Commonwealth v.] Sneed, [526 A.2d 749 (1987) ],(where witness died during delay in filing charges defendant is required to show how witnesses would have tended to exculpate him). Presently, we find that Dr. Scher’s case suffered actual and concrete prejudice due to memory loss and the death of important witnesses whose testimony could have explained the contradictions between the findings of the initial investigation conducted in 1976 and those of the more current investigation conducted nearly eighteen years later.
732 A.2d at 1285-86 (emphasis added).
In his brief, Dr. Scher’s counsel has identified categories of the evidence that was lost, destroyed or irretrievably altered during the 20 year delay:
*3701. The wound of entry was lost or destroyed by the Commonwealth, (R.263ag, 502ag, 5747ag, 5920ag, 5956-57ag), and deteriorated over the twenty year delay, (R. '4142-43ag, 4148-49ag), before defendants’ experts could examine its size or shape. (R. 273-80ag).
2. Between 1976 and 1995, the wound track and body of Dillon suffered “extensive autolytie and decompositional changes.” (R. 4148-49ag). The changes were particularly severe around the area of the wound of entry. Id. The body was also washed and embalmed before the first autopsy. (R. 2761ag, 5949ag). These changes affected the size of the wound, and the presence of gunpowder residue in the wound track and on the skin around the wound, indicative of range of fire. (R. 4157ag, 4162ag, 5279ag, 5949ag).
3. Dr. Grace routinely made audio recordings during the many autopsies that he performed. He made a recording in this case. (R. 3762ag). It was never collected by the Commonwealth, and was lost or destroyed between 1976 and 1996. (r. 3762-63ag).
4. The used, unused and discarded ammunition on the ground and in boxes at the incident scene were never collected by the Commonwealth, was lost or destroyed over the decades-long delay and was unavailable at the time of trial. (R. 2824ag, 3761-62ag). The presence of spent number four shells at the scene would have seriously damaged the Commonwealth’s theory of the case. (R. 2885-86ag, 2894ag, 3360-65ag, 6578-79ag).
5. Photographs of the alleged victim and incident scene were taken by game protectors on June 2, 1976. (R. 1638-39ag). They were either lost or destroyed during the twenty year pre-arrest delay. (R. 1638-41ag).
6. After 1976, the ejector was removed from the shotgun that killed Dillon and lost. (R. 4980-90ag, 5150ag). Thus, the gun could not be properly tested (jar/shock tests). (R. 5138ag, 5150ag).
7. During the course of the pre-arrest delay, bloodstains inside the barrel of the shotgun (indicative of close range discharge), (R. 3996-97ag), were destroyed when the gun *371was discharged before proper testing of it could be done. (R. 4993-94ag).
8. Because of the twenty year pre-arrest delay, the defendant could not possibly perform a psychiatric autopsy to ascertain Martin Dillon’s mental condition at the time of his death. (R. 2602-04ag, 2612-15ag, 2625-26ag, 2637ag.)
9. Memories faded during the pre-arrest delay. (R. 1445ag, 1465ag, 1473ag, 1834ag, 1932ag, 1958-59ag, 2010ag, 2286-87ag). Furthermore, the defendant was confronted with witness’s present recollection of events that occurred twenty years ago.
Brief for Appellee at 15-16.
I agree with the Superior Court that the pre-arrest delay resulted in actual and substantial prejudice to Dr. Scher because of the death of important witnesses who could have explained the observations made during the original autopsy and the significance of those findings in determining the manner of death. Dr. Grace was the only physician who examined the body at the time of the incident. He recorded findings from his original autopsy that were inconsistent with the Commonwealth’s theory of how the shooting occurred and the medical testimony offered by the Commonwealth at trial.
Dr. Grace was available to the Commonwealth from 1976 until his death on July 27, 1995. Although three individuals served as District Attorney during this time, two of whom consulted with him on this shooting, no effort was made to obtain a recorded or written statement from Dr. Grace to address the significance of his findings in the autopsy report. Despite the fact that investigators had discounted Dr. Scher’s 1976 explanation of how the shooting occurred, no investigator obtained a statement from Dr. Grace detailing his findings or explaining the observation that he made on June 3, 1976, of darkening around the wound area.
No effort was made to preserve the recollection of the only medical expert who examined the body in 1976 at any time during the next 19 years. Even as the possibility of exhuming the body for examination was considered in 1989 by District *372Attorney Snyder and the State Police, the Commonwealth failed to make such efforts. Nor were any efforts undertaken when the investigation was renewed in 1994.
In fact, the only recording, detailing the autopsy findings made by Dr. Grace was lost by the Commonwealth. Trooper John Fekette, who retired from the State Police in 1989, testified about this loss of evidence, in addition to the loss of other evidence, as follows:
Q. Now, you talked about the autopsy. And as I understand it, you were present at the time of the autopsy?
A. Yes, sir.
Q. Isn’t it true that at the time of the autopsy Dr. Grace made a tape-recording of findings; isn’t that true?
A. Yes, sir.
Q. And isn’t it true that that tape-recording is lost?
A. That’s what I understand.
R. 3762-3763ag.
The prejudicial effect of the pre-arrest delay because of the death of Dr. Grace is undeniable. Although the record reflects that Dr. Scher was prejudiced by the loss of other physical evidence and by the death of several significant witnesses, I find that the prejudice suffered by Dr. Scher because of the death of Dr. Grace in itself is dispositive of the issue of whether Dr. Scher was deprived of his due process rights. For this reason, I will focus the discussion on the devastating impact of the loss of Dr. Grace as a witness.
Dr. Grace may not have been available to testify as a witness at trial, but his qualifications and credibility were under attack by the Commonwealth. The Commonwealth castigated his competence and his autopsy findings. From the Commonwealth’s perspective, this was. imperative because Dr. Grace’s findings could not be explained in a way that would support the Commonwealth’s theory that the shotgun was fired from á distance.
The autopsy report prepared by Dr. Grace on June 3, 1976, set forth the following findings. The highlighted portion *373reflects the crucial findings that the Commonwealth was unwilling to accept and vociferously disputed at trial:
History given of having been involved in a hunting accident yesterday, 6/2/76 about 6 p.m. He is a white male, age about 30 years, being about 5'1" or 5'11" in height and weighing approximately 180 pounds.
In the central portion of the chest, slightly to the left of the sternum and about 3" below the upper portion of the sternum, is a hole in the chest, roughly being oval in character that measures about 1½" in length and roughly 1" in width. It is a penetration hole, apparently the result of a shotgun wound which proceeds in an inferior and a lateral direction toward the lateral portion of the chest. There is a ecchymotic area in the area of the posterior axillary line at about 6" below the axilla, an area of fullness with surrounding eccymosis which is thought possibly to contain the slug from the gun bullet. There is no other evidences of contusions or lacerations found on the body.
The body having been embalmed at the time of this examination, there is moderate post mortem rigidity. There is moderate post mortem lividity in the dependent portions.
The chest was not opened in the usual manner. However, the area of the wound of entry as described was widely excised and the skin was turned back and then the chest, from then on, was opened in the usual manner. The chest plate was then removed. It was observed at this point that the gunshot hole as previously noted on the exterior of the skin that there was no apparent powder burns. However, as the hole was traced through the anterior chest wall in a lateral and a slightly inferior direction as described, the area around the penetration was somewhat darkened with what was apparently powder burns and, surrounding this, of course was a large amount of free and some clotted blood.
The heart was found to be about % to % removed from the force and the impact of this charge. The left ventricle was entirely missing and most of the left auricle was gone. The *374heart was surrounded with a large amount of blood and various portions of shot pellet were found in the heart and beyond. The heart was removed and examined, it being about, as stated, ^ amputated by the force of this charge. A large amount of blood was found in the lower portion of the chest cavity.
The left lung was also involved in the destruction associated with the impact of the charge. The wad was found in the posterior portion of the left chest wall. However, there was no penetration discernible in this area. Numerous shot pellets were found on the posterior chest wall. Also numerous shots had apparently entered and some had permeated through the diaphragm. The right lung was apparently not involved in the injury. Numerous fractures of the left chest wall. There is involvement of the musculature of the same with numerous fractures of ribs and with numerous pellets throughout the entire area.
R. 2761ag. The cause of death was noted as a gunshot wound of the chest.
The Commonwealth’s theory at trial was that Mr. Dillon had been shot by Dr. Scher from a distance. Dr. Grace’s autopsy findings regarding the presence of darkening around the area of the wound that appeared to be powder burns contradicted the Commonwealth’s theory. The presence of darkening around the wound area was consistent, however, with a close range gunshot wound. The autopsy findings supported Dr. Scher’s testimony at trial that the shotgun discharged accidentally, during a struggle for the shotgun. The live testimony of Dr. Grace could have addressed the physical evidence that he observed and the findings in his autopsy report. Dr. Grace’s testimony could have demonstrated that powder bums were visible during the autopsy, demonstrating that the shotgun did not fire from the distance that the Commonwealth’s expert witnesses suggested at trial.
In addition, Dr. Grace could have testified to his observations regarding the size of the entry wound. Dr. Grace was the only expert witness who observed the entry wound before the body was embalmed and buried. It was conceded by the *375Commonwealth’s witnesses that the embalming process and the extensive decomposition and deterioration that occurred in the 19 years while the body was buried had affected their ability to determine the size of the entry wound.
Dr. Grace could have testified also regarding whether or not the entry wound was scalloped.10 His autopsy report did not set forth any finding that scalloping of the wound had been observed. The presence or absence of scalloping is likewise relevant to the range from which a weapon is fired. The absence of scalloping would indicate that the muzzle of the gun was close to the skin surface at the time of discharge. R. 5249ag, 5770ag.
The expert witnesses proffered by the Commonwealth and the defense disagreed as to whether scalloping was absent, but only Dr. Grace had the opportunity to observe the area of the wound in its original state. The embalming process included the sewing of the wound of entry, which altered the original state of the wound. The expert witnesses who testified at trial after examining photographs taken at the autopsy disagreed as to whether the photographs themselves depicted scalloping of the wound. The only factual recitation regarding the condition of the body could have been given by Dr. Grace, based upon his direct observation of the body. His testimony, however, could not be presented to the jury because of the Commonwealth’s unexcused delay in investigating this matter properly and filing charges.
In the absence of Dr. Grace’s testimony on this critical issue, the jury was left with no witness to testify regarding the original state of the wound when Dr. Grace examined the body. Instead, the jury was required to speculate as to whether Dr. Grace was capable of making such an observation, whether in fact he had made such an observation but was *376incapable of understanding its significance, or in fact had not observed scalloping to the detriment of the Commonwealth’s case. Additionally, all of the expert witnesses were made to draw their conclusions from a set of assumed facts and unlike Dr. Grace, they could not provide a foundation of the facts.
For example, Dr. John Shane, Chairman of the Department of Pathology at Lehigh Valley Hospital, testified regarding this matter. Dr. Mihalakis, who also testified for the Commonwealth regarding the matter, was a member of that same department. Dr. Shane had examined the autopsy photographs and concluded that no scalloping was visible. During his testimony regarding the photographs, Dr. Shane discussed the significance of the fact that Dr. Grace’s autopsy report did not refer to the presence of scalloping:
Q. In addition to that, did any physician personally observe that wound on June 3rd, 1976?
A. Yes.
Q. And who was that?
A. That was Dr. Grace.
Q. Did he make any notation in his report concerning a scalloping or non-scalloping of the wound?
[PROSECUTOR]: If your Honor please, the absence of evidence is not evidence. Besides, Dr. Grace was not even a hospital pathologist. He was an ordinary physician.
[DEFENSE COUNSEL]: Judge, is this an objection or a speech?
THE COURT: He had an objection.
[DEFENSE COUNSEL]: I am asking questions and he is objecting.
THE COURT: I am going to overrule the objection. Answer the question.
A. Dr. Grace observed this wound at the time these photographs were taken. These were taken at the time of his autopsy. He did not describe scalloping. Scalloping of a wound margin in terms of a determination of muzzle distance is sophomoric in terms of a physician’s examination of a wound of entry. I mean, it is — it is a very basic thing *377you look for. I believe Dr. Grace was able to tell if there was scalloping or no scalloping if it were present. I mean, it is so sophomoric. He, obviously, in my opinion, would have included it in his report.
[PROSECUTOR]: That is objected to. He didn’t say there was no scalloping. He didn’t say anything one way or the other.
THE COURT: Sustained.
R. 5241-42ag (emphasis added).
The Commonwealth challenged the veracity of Dr. Grace’s autopsy findings and impugned his qualifications. In an attempt to minimize crucial physical findings made during Dr. Grace’s examination of the body that the Commonwealth’s expert witnesses could not otherwise explain, the prosecutor characterized Dr. Grace as a medical witness who lacked the requisite skills to conduct an autopsy. Over strenuous and repeated objections by defense counsel, the trial court permitted the prosecutor to engage in a character assassination of Dr. Grace.
The Commonwealth’s witnesses' harshly criticized Dr. Grace’s qualifications, but not one of the witnesses could testify that they were familiar with Dr. Grace’s abilities from their own personal experiences with him during his medical career. Instead, the Commonwealth’s expert witnesses were permitted to speculate that Dr. Grace was not competent to make the autopsy findings that refuted the Commonwealth’s theory because the Commonwealth’s expert -witnesses’ qualifications were “superior” to Dr. Grace’s qualifications. The record amply demonstrates that Dr. Scher suffered actual and substantial prejudice as a result of the loss of Dr. Grace as a witness. The availability of other expert witnesses to testify on Dr. Scher’s behalf could not dissipate this prejudice because none of those witnesses had observed the body as it appeared during the autopsy.
The Commonwealth’s attack on Dr. Grace went to ridiculous lengths as demonstrated by the following testimony of its witness, Dr. Joseph H. Davis. Dr. Davis, formerly the Chief *378Medical Examiner of Dade County, Florida, testified about Dr. Grace’s autopsy finding “that the area around the penetration was somewhat darkened by what was apparently powder bums.”
Q. Now, did you review Dr. Grace’s report in this case?
A. Yes, I did.
Q. Now, did he make certain comments in that report regarding this matter?
A. Yes.
Q; Now, would you explain to the jury what they were and what signature [sic], if any, you attach to them?
A. In reference to gunpowder soiling, as I recall the autopsy report by Dr. Grace, he used the term — and he’s talking about the tissue under the skin, along the wound pathway — “somewhat darkened,” which then he goes onto [sic] interpret as evidence of gunpowder soil.
Now, my interpretation of that, as a pathologist who describes things and has done it over the years, the description “somewhat darkened” indicates, if I wrote it, that I was not sure because the word somewhat means indeterminate.
[DEFENSE COUNSEL]: Objection, Your Honor. That calls for speculation.
THE COURT: Overruled.
Q. Proceed.
A. Well, I interpret the modification word in there “somewhat” as meaning insecure, not certain, maybe, question.
[DEFENSE COUNSEL]; Objection.
[PROSECUTOR]:
A. That’s the way I interpret—
THE COURT; Overruled.
[PROSECUTOR]:
A. —those words,
*379Q. All right. Now, can you tell us — can you tell us why you interpreted it that way in terms of the definition of that word?
A. Well, that word itself is a word that means indeterminate, uncertain, not certain of what, et cetera. It’s a modifier. And if I use that word, that’s the way I use it. That’s how I understand that word as it’s used in the English language.
Therefore, I would interpret this as indicating that the person who used those words is not of the high degree of certainty as—
R. 6118-19ag (emphasis added).
Over defense counsel’s objection, Dr. Davis was also permitted to testify that a forensic pathologist has training and experience in detecting, with the naked eye, the presence of gunpowder residue, while a general physician does not. R. 6123ag. This overbroad generalization about the relative qualifications of forensic pathologists and physicians to detect gunpowder residue was intended to discredit Dr. Grace’s findings before the jury, without any personal knowledge or evidence of Dr. Grace’s training and experience.
Notably, Dr. Davis did not attempt to explain how the forensic pathologists who testified at trial arrived at diametrically opposed conclusions regarding the presence of gunpowder residue, the absence or presence of scalloping, and the distance away from the body at which the shotgun discharged. Although he opined that these matters were peculiarly within the specialized experience of those trained as forensic pathologists, he proffered no opinion as to why the expertise of so many eminent pathologists left the significant issues unresolved.
The limitations, as well as the importance, of expert witnesses are demonstrated in this case. It is for this reason that I cannot accept the plurality’s reasoning that Dr. Scher did not suffer actual and substantial prejudice because he could present expert witnesses on his behalf. Under the circumstances of this case, the most critical evidence for the *380defense was that obtained by Dr. Grace through his physical observation of the body at the time of the shooting. The loss of this evidence resulted directly from the Commonwealth’s improper pre-arrest delay.11
Dr. Scher was prejudiced in his defense to the charges against him by the loss of Dr. Grace as a witness. Dr. Grace could have testified to his visual observations without speculation as to what the physical examination of the body revealed to him. The findings set forth in his autopsy report would have been the subject of extensive direct and cross-examination. The jury would have had an opportunity to weigh his testimony explaining those findings that were crucial to a determination of whether the shotgun discharged at close range to the body.
Ultimately, even forensic science depends upon the preservation of evidence. The Commonwealth’s delay in filing charges against Dr. Scher deprived him of evidence critical to his defense. As a result, Dr. Scher was deprived of his due process rights under the Pennsylvania and United States Constitutions.
I dissent.
Justice CAPPY joins this dissenting opinion.. The Court of Appeals reversed the dismissal of the charge for the unlicensed dealing in firearms because the respondent had not alleged that Stewart could have provided exculpatory evidence on that charge.
. On remand, the trial court determined that there were valid reasons for the delay and that the delay was proper. In a split decision, the Superior Court affirmed. Commonwealth v. Snyder, 761 A.2d 584 (Pa.Super.2000).
. When the courts have addressed the issue of pre-arrest delay, the first examination is typically whether the passage of time has resulted in actual prejudice to the accused. Since it is the rare instance in which pre-arrest delay has been found to result in actual prejudice, analysis of the prejudice prong of the test under the Due Process Clause will ordinarily be dispositive of the accused’s claim. I have chosen to address Dr. Scher's claim of a due process violation by first reviewing the events that culminated in the 20 year delay because it assists in an *358understanding of how Dr. Scher was prejudiced by the lack of any investigation during a significant portion of that time.
. The pages in the reproduced record filed by the Attorney General’s Office are marked with two different numerical designations. The references to the reproduced record are designated by a page number followed by the letters “ag”. To avoid confusion as to the precise page of the reproduced record filed with this Court, the references in this opinion incorporate the letter designation provided by the Attorney General's Office.
. In his private law practice, District Attorney Little represented Edna Scher in a divorce action filed against her by Dr. Scher. R. 1478ag.
. Coroner John Conarton died on February 28, 1992, before the arrest of Dr. Scher. R. 1467ag, 2748ag.
. A revised certificate of death was signed by Robert A. Barton on December 1, 1995. The revised certificate indicated that the immediate cause of death was a gunshot wound of the chest and the manner of death was described as homicide. R. 2760ag.
. District Attorney Snyder did not select Dr. Mihalakis to make the presentation. The presentation itself was undertaken by the State Police. R. 1616ag.
. Although the Superior Court used the words “actual and concrete”, rather than "actual and substantial” to describe the prejudice suffered *368by Dr. Scher, I would not quarrel with its choice of words. I cannot fathom how those words could be twisted to suggest that the protections' afforded to an accused under the Due Process Clause could be lost by the use of a particular word. Whether one uses the words “actual and concrete”, “actual and substantial”, or "actual” alone (as we recently did in Snyder), the U.S. Supreme Court’s articulation in Marion and Lovasco of this prong of the test requires this Court to determine whether an accused has been hampered in his defense because of the Commonwealth's failure to preserve critical evidence and the observation of witnesses. This “delicate judgment” is made based upon the circumstances of the individual case. No magical words will make this analysis of due process automatic, and the use of different words will not make prejudicial pre-arrest delays less significant under the Pennsylvania and U.S. Constitutions.
. Dr. Michael Baden, who testified as a defense witness, explained the significance of scalloping. Dr. Baden, the medical examiner for the New York State Police, was board certified in the field of anatomic, clinical and forensic pathology. He stated that “[s]calloping, when it’s used to describe a shotgun wound, refers to small semi-circular irregularities along the margin of the entrance wound caused by the gradual dispersion of shot pellets.” R. 5930ag.
. This distinguishes the case before us from circumstances where the loss of the witness or evidence is not occasioned by the Commonwealth’s delay.