There can be little doubt that Boelter experienced oppressive pretrial incarceration. He was confined continuously from his arrest on January 8, 1971, until his trial began on February 26, 1973 a period of twenty-five and a half months. During this time, Boelter left the jail only to go to court, shackled at hands and feet. However, we do not find that Boelter's defense was impaired at all by the delay. The only prejudice of this sort asserted by relator was the unavailability of Mr. Flood, the purported alibi witness, at trial. However, because Mr. Flood moved from the Gratz Street address just a month after Boelter's arrest, it is highly unlikely that he could have been found even had Boelter been tried promptly. Moreover, the notes of the detective who interviewed Mr. Flood show that Flood's testimony would probably not have aided the defense.
While prejudice to the defense at trial, the most serious of the three types of prejudice, see Barker at 532, 92 S. Ct., at 2192, is not present here, we note that such prejudice is not required for us to find that relator's speedy trial rights have been violated. See Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973). At our habeas corpus hearing, relator's able counsel made no attempt to demonstrate that substantial prejudice resulted from anxiety and concern attending the lengthy pretrial delay. Therefore, although Boelter must necessarily have suffered some anxiety and concern while awaiting trial, there is no basis in the record for a finding that his anxiety and concern were so substantial as to contribute significantly to the balancing process here. Therefore, we give relator's pretrial incarceration substantial weight; prejudice due to anxiety and concern minimal weight; and prejudice to the defense at trial no weight at all.
5. The balance
In applying the Barker balancing test, we have been most troubled by the fact of relator's extended pretrial incarceration. At our invitation, supplemental briefs were submitted by the parties on this issue. While we decline the District Attorney's invitation to find that the prejudice suffered from pretrial incarceration is no more serious than the prejudice necessarily suffered by an accused who is released on bond while awaiting trial,
we must also reject relator's argument that incarceration for the period of delay involved here amounts to in essence a "per se" speedy trial violation.
The Barker calculus is necessarily imprecise,
and this is an extremely difficult case in which to apply it. Our research and the research of the parties disclose several instances in which violations of the Sixth Amendment right have been found on the basis of facts which seem less compelling than those presented here.
However, there are also many cases in which no speedy trial violations have been found, in spite of greater delay, and/or greater prosecutorial fault.
Indeed, we find a comparison to the facts of Barker v. Wingo itself to be a most instructive example of the proper application of the standards enunciated therein. The delay there was more than twice the delay in Boelter's case, and Barker was incarcerated for the first ten months of that period, yet relief was denied.
We have given substantial consideration to all factors identified as relevant in Barker. We have been greatly aided by the evidence adduced by able counsel at our hearing, and by the arguments presented by them. We weigh the factors as follows:
While the delay involved was significant, the bulk of it must be attributed to Boelter. Were it not for the time chargeable to him, the period of delay would not have been terribly long, given the complexity and importance of the case and the problems necessarily involved in getting it to trial.
The portions of delay not attributable to Boelter were either neutral or nonaggravated in character, due largely to the inability of the court system to efficiently process its staggering case load. Moreover, relator's assertion of his speedy trial right was hardly a forceful one.
Finally, prejudice was either nonexistent or minimal, except with respect to the long pretrial incarceration, though, as we have noted, more than half of that time was the responsibility of the defense.
We have tried to consider these factors in a fair and reasonable light
against the factual background we have described and in light of the case law, which views the drastic remedy of dismissal with great caution. See Barker, 407 U.S. at 522, 92 S. Ct. at 2187. In such aspect, while the question is not free from difficulty, we conclude that, under the facts shown, Boelter's right to a speedy trial was not violated.
III. THE CONFRONTATION CLAIM
A. FINDINGS OF FACT
Relator's confrontation clause claim is based on rulings of the trial court which allegedly prevented his counsel from cross-examining a police witness concerning certain out of court identifications about which the officer had testified on direct examination.
Boelter was arrested on January 8, 1971, four days after the crime. That evening, he and three other suspects Harry Allen, John Clark, and Darrel Jackson were placed in line-ups supervised by police Lieutenant Bernard Margulis at Philadelphia's Police Administration Building. All four suspects were represented at the line-ups by Nino Tinari and his associate, Henry Lunardi. There were four separate line-ups, each containing, in addition to one suspect, five "fill-ins" selected from the individuals available chiefly police officers or employees and those in police custody with the aim of having an each line-up only people who bore a reasonable physical similarity to the prime suspect. Before any witnesses viewed the line-ups, counsel for the suspects had the opportunity to make or suggest changes in composition and arrangement.
Seventeen people who had been present at Dubrow's viewed the line-ups.
Of these, seven identified Boelter in one way or another.
At the first trial, the Commonwealth called six witnesses who identified Boelter in court as one of the robbers. Five Lucille Sachetti, Robert Porecca, Bernard Wagenheim, Joseph Ginsberg, and Audrey DiMeo testified that they had also identified Boelter at the January 8 line-ups; the sixth, Barry Rosenthal, had not identified Boelter at the line-up. The Commonwealth also called Lt. Margulis, who described the line-ups and testified, without objection, to each identification of Boelter made at the line-ups, including those made by witnesses who had not yet testified.
In his cross examination of these witnesses at the first trial Moldovsky attempted to show that some of the line-up identifications were tentative or that the same witnesses had made mistakes at other line-ups. On objection by the prosecutor, Melvin Dildine, the court limited Moldovsky's cross examinations in two respects: he was not permitted to cross-examine Lt. Margulis with respect to mistaken identifications made by William Dubrow, who had never identified Boelter and was not a Commonwealth witness; and his attempted cross-examination of Porecca and Wagenheim on mistakes they had allegedly made at the Sistrunk line-up the night before the Boelter line-up was ruled beyond the scope of the direct examination. However, the court gave Moldovsky leave to call Dubrow, Porecca and Wagenheim as defense witnesses to elicit any relevant information. The record of the first trial shows that the defense did, indeed, call Porecca, Wagenheim, Lt. Margulis, William Dubrow, Max Carson, and Clara Block, and that, through their testimony, he was able to show the jury more information bearing on the reliability of the line-up identifications.
After the first trial ended in a hung jury, Boelter was brought to trial again in July, 1973. Moldovsky's opening statement to the jury showed his expectation that the second trial would proceed substantially as the first one had, and he dwelt at some length on the role of identification testimony and his anticipated attack on it, at one point describing mistaken identity as "the heart of our defense":
Now, Mr. Gelman gave you the names of certain people at Dubrow's. He said Mrs. DiMeo is going to identify Ronald Boelter and she absolutely positively identified Ronald Boelter. Well, ladies and gentlemen, Mrs. DiMeo is one of twenty-eight people who was there at Dubrow's and while Dubrow's has a few floors and while the twenty-eight people were scattered, most of them were on the first floor. While Mrs. DiMeo was at three different places on the first floor when she claims she saw Mr. Boelter, there were many other employees at those three places and we will present a number of people who were in the same position as she and we will ask them is Ronald Boelter one of the robbers.
Now, I don't think anyone of the Dubrow employees is going to stand up and say, "No, he was not there." But you are going to find many who are going to look at him and say, "I don't know, I cannot identify him."