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August 11, 1977


The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 Joseph Mangiaracina has petitioned for habeas corpus relief pursuant to 28 U.S.C. § 2254. Although Mangiaracina raises several arguments in his petition, the only issue before the Court is his claim that his Sixth Amendment right to a speedy trial was violated by the Commonwealth's 29 month delay in bringing him to trial. Petitioner's other claims have been denied on the basis of the United States Magistrate's Report and Recommendation, filed on April 14, 1977.

 Mangiaracina, a Bristol Borough police officer, was convicted of falsifying public documents by altering certain forms to show that applicants for drivers' licenses had successfully passed the drivers' examination, when in fact they had failed the test, or not even taken it. Upon conviction, petitioner was sentenced to a term of imprisonment of not less than six months or more than one year, although he is presently free on bail pending the disposition of this petition.

 One preliminary matter must be disposed of before the merits of the petition can be considered. The Commonwealth contends that I acted improperly in permitting an evidentiary hearing, rather than limiting my consideration to a review of the state record. In the Commonwealth's view, the evidence presented at this hearing must be disregarded. However, both the habeas corpus statute and the pertinent Supreme Court decision require a hearing when the material facts were not adequately developed at the state court hearing. 28 U.S.C. § 2254(d)(3); Townsend v. Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). In this case, neither the reasons for the long delay nor the possible prejudice suffered by the petitioner were fully developed at the State court hearing. Therefore, an evidentiary hearing was appropriate. Moreover, even if a hearing was not required in this matter, it could be granted within the discretion of the Court. See Townsend v. Sain, 372 U.S. 293, 318, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). Consequently, I will consider the evidence received during the hearing in this Court, as well as the evidence contained in the State court record.

 Although the right to a speedy trial is a fundamental constitutional right, it is a right which cannot be defined precisely. In Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the Supreme Court held that constitutional speedy trial questions should be resolved by means of a balancing test, and the Court identified four factors which should be considered: 1) length of delay, 2) reason for the delay, 3) the defendant's assertion of his right, and 4) prejudice to the defendant. 407 U.S. at 530. After evaluating these factors in the present case, I have concluded that the petitioner's Sixth Amendment rights were violated, and his petition must be granted.

 The first factor to be considered is the length of the delay. As noted by the Magistrate in his Report and Recommendation, the 29-month delay between Mangiaracina's arrest and his trial is sufficiently long to justify further inquiry into the other factors identified in Barker v. Wingo, supra. See United States v. Dreyer, 533 F.2d 112 (3d Cir. 1976).

 Other portions of the delay, however, must be weighed against the prosecution. The first indictments against Mangiaracina were not returned until May 5, 1972, more than six months after his arrest. The Commonwealth has argued that this delay was caused by the complexity of the case and the need to interview more than 500 witnesses. However, the investigation apparently was completed by the time Mangiaracina was arrested in November, 1971, so no good explanation has been provided for the further delay before indictment. Additional delays were caused by the insufficiency of the original indictments, which were quashed on April 6, 1973. At the same time, several counts of indictments issued in November, 1972 were approved, and the case was then ready for trial. *fn1" As the Magistrate pointed out, pre-indictment delays or delays due to the inadequacy of indictments cannot be attributed to the defendant, since they are caused by the mistake or negligence of the prosecution. While such delays should be weighed less heavily than deliberate delays, they must be counted against the government, since the government has the ultimate responsibility for providing the defendant with a speedy trial. See Barker v. Wingo, supra, 407 U.S. at 531. Thus, most of the delay prior to April, 1973 must be considered, although it does not strongly tip the balance against the Commonwealth.

 The period after April 6, 1973, however, is critical, and the Commonwealth's reasons for this delay generally are inadequate. The only explanation offered for not trying Mangiaracina in April, May or June of 1973 is the following testimony of the assistant district attorney who was handling the case:

"I don't know why I didn't bring it in June, except I was handling -- was immersed in McDonough [a related case] at the time, drawing up new indictments and preparing for the preliminary hearing." (Commonwealth of Pennsylvania v. Mangiaracina, Transcript for April 15, 1974, at 27).

 The Commonwealth contends that this case could not be tried in July or August because the court did not schedule summer sessions. In September, the assistant District Attorney who had been assigned to the case left the district attorney's office. Although an assistant who had previously handled the case was still in the office, a new assistant took over in October. Nevertheless, Mangiaracina was not tried until April 15, 1974. In the meantime, the related McDonough case was tried in February, 1974, even though McDonough had been arrested and indicted after Mangiaracina. The assistant district attorney gave the following explanation for his decision to try McDonough first:

"I initially directed my attention towards the McDonough case because I had been advised by Mr. Cardone that was perhaps the one that I should proceed upon initially since it occurred more recent and the fact may be fresh in the people's minds and so forth." (Commonwealth of Pennsylvania v. Mangiaracina, Transcript for April 15, 1974, at 28.)

 The prosecution's commendable desire to try the McDonough case while the facts were fresh in people's minds only underlines the unfairness of further delaying the older Mangiaracina case. The Commonwealth has offered no reason why Mangiaracina's case could not have been tried before McDonough's, and in view of the long delays that had already occurred in the prosecution of Mangiaracina, his case should have been tried first. In fact, the order of the trials may have been an attempt to gain a tactical advantage ...

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