The opinion of the court was delivered by: BECKER
This decision marks the end of this Court's lengthy consideration of the habeas corpus petition filed by relator, Ronald X. Boelter, in 1975. The history of this case, however, begins on January 4, 1971, when a group of eight men, posing as customers, entered Dubrow's furniture store in Philadelphia, singly and in pairs. After all eight were in the store, they pulled guns and announced a robbery. In the course of the robbery, the employees were tied up and terrorized; several were kicked or pistol-whipped. The robbers also poured gasoline and set fires in several places throughout the store; one of these fires was set directly on one of the employees. Three of the employees were shot, one of them fatally.
Four days later, on January 8, 1971, Boelter was arrested in connection with the crime. After a series of delays which will be described later in this opinion, Boelter was brought to trial in February, 1973. A mistrial was declared when the jury was unable to agree on a verdict, and at his second trial in July, 1973, Boelter was convicted of first-degree murder. Relator's post-trial motions, which raised the same eight grounds as are raised in his habeas corpus petition,
were denied, and his conviction and sentence of life imprisonment were affirmed by the Pennsylvania Supreme Court, three members voting to remand for an evidentiary hearing on whether Boelter had been denied a speedy trial. Commonwealth v. Boelter, 463 Pa. 162, 344 A.2d 475 (1975). He then petitioned for federal habeas corpus relief. In a Memorandum and Order issued October 6, 1976, we approved the recommendation of United States Magistrate Edwin E. Naythons that we reject seven of the eight grounds, and appointed counsel to brief and argue on Boelter's behalf his claim that he had been denied the constitutionally guaranteed right to confront adverse witnesses. Subsequently, relator's counsel persuaded us to allow briefing and argument of the speedy trial issue as well. Because an evidentiary hearing was necessary for the proper resolution of these two claims, a three-day hearing was held. For the reasons that follow, we now decide those issues adversely to relator.
II. THE SPEEDY TRIAL CLAIM
On January 8, 1971, four days after the gruesome episode at Dubrow's Furniture Store, relator and several other suspects were arrested by the Philadelphia police. Relator gave a statement to the police in which he alleged that he was at home at the time of the Dubrow's robbery 2:00 p.m. and that several persons, including his mother, his sister, and one Daniel Flood who, relator said was about 40 years old and lived on the third floor of the house in which relator and his family also lived could verify his whereabouts at the critical time.
That evening lineups were held at the Philadelphia Police Administration Building. Relator was represented at the lineup by Nino V. Tinari, Esquire. There were four lineups, each of which contained one suspect and five other persons; each was viewed by a number of witnesses to the Dubrow's incident. Several of the witnesses identified relator, with varying degrees of certainty. See Findings of Fact infra on relator's confrontation claim.
We make no finding as to the exact age or first name of Mr. Flood, because no such finding is necessary. We do find, however, that the Mr. Flood interviewed by the Philadelphia police was the only Mr. Flood then residing at the Gratz Street address, for there is no evidence that there was more than one person by that name living there. We further find that this Mr. Flood, whose account of the critical day's events as given to the police did not corroborate relator's asserted alibi, moved from the Gratz Street house approximately one month after relator's arrest and that neither the district attorney nor the defense counsel were able subsequently to locate him.
Relator's preliminary hearing was originally scheduled for January 13, 1971, but was continued until January 27 at the request of Mr. Tinari. Mr. Tinari at this time was privately retained to represent relator as well as relator's codefendant, Edward Sistrunk. After the preliminary hearing, fee problems developed between Mr. Tinari and relator's family. These fee problems eventually resulted in Mr. Tinari's withdrawal as private counsel from relator's case though not from that of Mr. Sistrunk. However, as is noted below, Mr. Tinari was thereafter appointed by the court to represent Boelter.
The first court listing in relator's case was March 29, 1971, in the homicide calendar room at Philadelphia City Hall. We pause at this point in our chronicle to provide some background in the operations of the Philadelphia Court of Common Pleas circa 1971-72 as they relate to homicide cases. Homicide cases were segregated from all other felony matters and had their own calendar. Approximately six to eight judges were assigned to the Homicide Division, and these judges heard nothing but homicides. The system disposed of about 500 homicide cases in a year, but ran a continual backlog of between 300 and 350 cases. Of these backlogged cases, about 200 were jury cases, the others being pleas or waivers of jury trials. At any one time no more than five homicide judges were available to hear jury trials. One homicide judge was in charge of the calendar room and did not actually conduct trials and two of the eight homicide judges would hear "waiver" cases. All homicide cases were initially listed for hearing before the calendar judge. A listing before the calendar judge was not a trial date, but was a conference designed to determine the status of the case and to attempt to resolve any problems that existed in bringing the case to trial. Thus, relator's March 29 listing was not a trial date.
Homicide trials averaged about three weeks in length, inclusive of pending motions and jury selection, but attorney conflicts, illnesses, etc. made it impossible for any judge to actually average one complete trial every three weeks. There was a general policy to try older cases before newer ones, but the vagaries of courtroom and attorney availability made the policy an unattained goal. These scheduling difficulties meant that the 200 or so cases backed up in the jury pool were commonly backlogged anywhere from one to three years.
From this jury pool of about 200 or more cases, cases would move into the ready pool, when both the defense attorney and the Commonwealth indicated they were ready to proceed. The ready pool usually consisted of between 20 and 30 cases, and ideally (if not really) would consist of the 20 or 30 oldest cases in the jury pool. The ready pool signified to attorneys that the case could come up on two weeks notice. This did not mean that the case would come up in two weeks, but that counsel were to be prepared to go to trial two weeks from notification. As a further refinement, two or three cases out of the ready pool would be backed up on the calendar of each homicide jury trial judge. Thus, at least in theory, an attorney could follow the progress of the one or two cases ahead in the courtroom to which his case was assigned and gauge when his case was likely to come up. Of course, sudden guilty pleas or other surprises, compounded by attorney conflicts, could wreak havoc with the schedule.
At the March 29 calendar listing of relator's case, the case was continued until May 24, 1971. At our habeas corpus hearing, Mr. Tinari testified that this continuance was granted at the request of the Commonwealth and over his objection. Edward Rendell, Esquire, however, now the District Attorney of Philadelphia, and in 1971 and 1972 Assistant District Attorney assigned to the homicide calendar room, testified that Mr. Tinari requested the continuance in order to try to work out his ongoing fee problems with relator's family. We credit Mr. Rendell's testimony, which was supported by that of Edward Attanesio, an employee of the Philadelphia Court of Common Pleas. Mr. Attanesio's job in 1971 and 1972 was to make records of listings in the homicide calendar room to provide a short running history of each case. Mr. Attanesio's records of the March 29, 1971 listing show that the case was continued to May 24 "at request of counsel." Mr. Attanesio testified that "counsel" meant defense counsel; he referred in his records to the District Attorney as "district attorney," not as "counsel." We thus find that the March 29 continuance was at the request of Mr. Tinari.
At the May 24, 1971 listing, also in the homicide calendar room, the case was again continued, this time to July 12. Mr. Tinari again testified that the Commonwealth asked for the delay because it wanted to proceed first against relator's co-defendant Edward Sistrunk, against whom it thought it had a stronger case. Mr. Tinari agreed with that evaluation of the relative strength of the two cases, which was why he asserted that he wanted to try Boelter's case first. Mr. Rendell testified that the Commonwealth did, in fact, want to try Sistrunk first,
but that the particular reason for the May 24 continuance was that Mr. Tinari's fee problems with relator's family had finally reached a critical point. He testified that Mr. Tinari asked the court for permission to withdraw from the case, and that this request was granted. Mr. Rendell further testified that when counsel withdrew, the ordinary practice was to continue the case for several months to allow time for new counsel to be appointed and to become familiarized with the case. Ordinarily, Mr. Rendell stated, the District Attorney would not know the identity of appointed counsel until the next calendar room listing unless that attorney personally notified the district attorney of his appointment.
Mr. Tinari testified that he never formally withdrew from relator's case, but we credit Mr. Rendell's testimony as to the events of May 24.
Moreover, Mr. Attanesio's records again corroborate that testimony, for they indicate that on May 24 "N. Tinari" was "permitted to withdraw," that the calendar room judge administered a pauper's oath to relator, and that new counsel was to be appointed by the court. Additionally, the only calendar room proceeding that was also recorded was the administration of the pauper's oath to relator.
Finally, we have the certificate of appointment showing that on May 28, 1971, Nino Tinari was appointed by the court to represent relator, apparently because of his familiarity with the case. Apparently Mr. Rendell did not discover until the July 12, 1971, calendar listing that Mr. Tinari was still on relator's case, and so he had no reason to accelerate its scheduling. In any event, we find that the continuance of relator's case on May 24, 1971 was due to Mr. Tinari's withdrawal because of fee problems.
On July 12, 1971, relator's case was again continued, this time to October 1, 1971. Mr. Tinari claimed that the continuance was due to the Commonwealth's desire to proceed against Sistrunk first, and that he opposed the delay. Mr. Attanesio's records show that the continuance was because of "new counsel." Mr. Attanesio said that this meant new counsel had not yet been appointed. However, Mr. Tinari was in fact appointed in May. Mr. Rendell did not testify concerning this continuance specifically but his general testimony, which we credit, was that at about this time the decision was made, with the assent of the court, to try Sistrunk first, partly because the Commonwealth felt its case against Sistrunk to be stronger, but also because the lapse in relator's representation (at least as far as the district attorney knew) would require delaying the Boelter case. Perhaps that was the meaning of the "new counsel" notation on Mr. Attanesio's record that new counsel required the delay of relator's case until after his co-defendant's trial from a simple scheduling standpoint. In any event, relator's case was continued until October 1, which would follow the Sistrunk trial, due to take place in September.
On July 22, 1971, Mr. Tinari filed three motions in relator's case: a motion to suppress identifications, a motion for a bill of particulars, and a motion for funds to hire a private investigator. The two motions other than the suppression motion were later dismissed for failure to prosecute when Mr. Tinari failed to appear or file a busy slip when they were called for argument. The suppression motion remained pending until April, 1972, when Mr. Tinari withdrew it for tactical reasons.
On September 22, 1971, when the Sistrunk case was called to trial, the Commonwealth moved for a continuance because the assistant district attorney assigned to the case was forced to take a vacation for health reasons. For the same health reasons, the case was transferred to another assistant district attorney, Edward Levine, who, because of his recent assignment to the case, was not prepared to go to trial. After some strong words from the court, the Sistrunk trial was continued until October 12 to permit Mr. Levine to prepare, with the understanding that the Boelter trial would shortly follow. Pursuant to this understanding, at the October 1 calendar listing in relator's case, the trial was continued to November 1.
The Sistrunk trial took ten days, not including jury selection, and resulted in Sistrunk's conviction on October 22. Obviously, because Mr. Tinari represented both Mr. Sistrunk and relator, relator could not go to trial during jury selection and trial of the Sistrunk case. On November 1, 1971, relator's case was put in the ready pool.
Mr. Tinari testified that from November 1 on he urged Mr. Rendell weekly to bring the Boelter case to trial. He also testified that although the court itself, and not the district attorney, set trial dates, the district attorney had some "vague" input into those decisions. Mr. Rendell's testimony generally corroborates that to some extent scheduling trials and courtrooms was a joint venture of the calendar room judge and the assistant district attorney. Mr. Rendell, however, testified that Mr. Tinari's "weekly" demands did not begin until after the first of the year (1972), and then were "weekly" only in the sense that they were made on the weeks Mr. Tinari happened to be in City Hall. We credit this testimony, which is supported by the state court record. Mr. Rendell further testified, and again we credit his testimony, that when relator's case was put in the ready pool on November 1, 1971, there was simply no chance that it would go to trial in the balance of 1971 for it was the policy of the court not to conduct trials in which there would be a sequestered jury when there was a chance that the trials would run over the Thanksgiving or Christmas holidays. Exclusive of jury selection, the Sistrunk case, which was comparable in scope to relator's, had taken ten days to try. The length of trial time, augmented by jury selection, plus the fact that there was still an outstanding suppression motion that would have to be disposed of before trial,
left little chance that the court's own routine scheduling procedures would permit relator's case to be tried in 1971.
Despite Mr. Tinari's requests to Mr. Rendell, relator's case was not called to trial in the first three months of 1972. This delay was due to scheduling difficulties because of other backed up cases and unavailable courtrooms. The Boelter case was at this time only one year old, and there were other, much older cases also in the ready pool at this time. Because it was the policy of the court to try older cases first whenever possible, available courtrooms went to other cases. Additionally, it appears that Mr. Levine, the assistant district attorney to whom this case was assigned, was on vacation for several weeks during this period. The Boelter case was finally called to trial in April, 1972. The Commonwealth was ready, but Mr. Tinari was conducting two consecutive trials in federal court. Thus, but for conflicts in defense counsel's schedule, relator would have gone to trial in April 1972. Relator's trial was thereupon moved back to May, 1972, to wait for Mr. Tinari.
On May 3, 1972, with trial at last ready to begin, Mr. Tinari informed the court that Mr. Boelter was dissatisfied with his representation because he had not spoken to his client since the night of the lineups some 16 months earlier, despite repeated letters asking Mr. Tinari to come speak to him and to get the trial moving. Mr. Tinari also informed the court that Mr. Boelter claimed to have an alibi defense of which he previously was unaware and the details of which Mr. Boelter would not tell him. This, we note, was despite the fact that relator's statement to the police on the night of the arrest contained the alibi information now considered to be so crucial and that in his petition for allowance of a private investigator Mr. Tinari alleged that he had interviewed Mr. Boelter and begun his investigation.
On the other hand, although relator testified that he had written to Mr. Tinari about 12 times, he apparently never contacted the court about his representation problems and his dissatisfaction with his attorney; the state court records make it clear that May 3, 1972 was the first the court knew of the situation. Mr. Tinari maintained at least until he learned of the alleged alibi that he was prepared to go ahead with the Boelter trial despite not having met with his client since the lineups some 16 months earlier because he had been involved in the Sistrunk and Boelter matters from the beginning, had tried the Sistrunk case, which arose out of the same robbery, and felt that the two cases were essentially the same. Thus, he argued, his preparation for Sistrunk was directly transferable to Boelter. However, Mr. Rendell, aware of the vulnerability on appeal of any conviction that might result were a trial immediately conducted under circumstances where the entire attorney-client contact over 16 months was so sparse and where the defendant was obviously dissatisfied with his representation, urged the court to grant a two-week continuance to allow Mr. Tinari to prepare his case. Understandably outraged at Mr. Tinari's behavior and apparently not eager to impose an unwanted attorney upon the defendant, the court declined to follow Mr. Rendell's suggestion and instead removed Mr. Tinari from the case, fined him $ 1,000,
and referred the matter to the bar association disciplinary board. Thus was relator's case delayed again.
Summing up the 16 months of the Tinari representation, we find that relator and his counsel must bear primary responsibility for the bulk of the time in which the case did not come to trial. During the first six months of the action's pendency, unpreparedness of defense counsel and fee disputes forestalled moving the case forward; the last month of this period saw no trial because of Mr. Tinari's unavailability. Additionally, because Mr. Tinari represented both relator and his co-defendant Sistrunk, Mr. Tinari was, obviously, unavailable while the Sistrunk trial was proceeding. Between jury selection and actual trial, much of October, 1971 was thus lost as far as trying relator goes. Furthermore, the positions of defense counsel and relator necessitated appointment of new counsel and further delay of the case while new counsel became familiar with the matter. Thus, the delay from Mr. Tinari's removal to the first calendar listing following the appointment of new counsel from May 3, 1972 to June 12, 1972 can hardly be charged to the Commonwealth.
Turning to the remaining delay, by far the bulk of it was due to scheduling difficulties created by crowded dockets and the court policy of not scheduling trials with sequestered juries when the Thanksgiving and Christmas holidays drew near. About three weeks was directly attributable to district attorney unpreparedness for the Sistrunk trial, which necessitated moving relator's case back also. This delay may, in turn, have been responsible for putting relator's case into the holiday period, thus triggering another two-month delay.
On May 4, 1972, Joel Moldovsky, Esquire, was appointed by the court to take up relator's representation with the understanding that Mr. Moldovsky would not ask for any continuances. Mr. Moldovsky interviewed relator at prison for 3 1/2 hours on May 6, and on May 10 obtained a trial date for June 12. On May 23, Mr. Moldovsky filed motions for suppression of identifications and other evidence, for a bill of particulars, and for funds to hire a private investigator.
On June 9 the June 12 trial date was continued to July 14.
On July 13 it was continued to September 18. On September 25 it was continued to October 19. From October 19 it was continued to November 15. Mr. Moldovsky claims that on each of these occasions the delay was due to the fact that the Commonwealth was unprepared. This usually manifested itself in Mr. Levine, to whom the Boelter case was assigned, being absent and the District Attorney's office arguing that only Mr. Levine could handle the case. Mr. Rendell testified that sometime in the summer of 1972 Mr. Levine did in fact take a vacation, to which he was eminently entitled because of the volume of courtroom work each assistant district attorney was required to carry. Mr. Rendell also pointed out that because the District Attorney's office was understaffed, an assistant district attorney might well be conducting one trial when another trial was called. This, of course, would result in the assistant being "unavailable" and the Commonwealth being "unprepared."
Mr. Rendell testified that the district attorney's office wanted one trial assistant to follow an important case like relator's through, and so did not have alternates attempt to argue motions or try cases for the unavailable assistant district attorney. Mr. Rendell, however, pointed out that the court generally accorded defense counsel as well as the district attorney the privilege of having one attorney follow a case through, for it was beneficial to neither the Commonwealth, the defendant, nor the court for alternates unfamiliar with the case to argue or try them. Thus, continuances for attorney unavailability were not uncommon.
Mr. Rendell also claims that in September or October of 1972, Mr. Moldovsky had a gall bladder operation and had requested that all his trials be continued for about 6 weeks. Mr. Moldovsky admitted the operation, but denied that it prompted him to request any continuances.
Finally, Mr. Rendell testified that beyond Mr. Levine's vacation and Mr. Moldovsky's gall bladder operation, whatever remaining delay existed was caused by simple overcrowding of the docket. We credit Mr. Rendell's testimony as to the causes for the continuing delay (from June to November) and do not find any deliberate procrastination on the part of the Commonwealth.
The progress of the motions Mr. Moldovsky filed followed a pattern similar to the trial date. The motions got separated from the trial itself and found their own way for a time in motions court.
The motion for allowance of funds for a private investigator was granted on June 13. We note in this regard that Mr. Moldovsky did in fact use the private investigator, but that the approval for such use, billed to the Commonwealth did not come until June 13, the day after the trial listing of June 12. Thus, Mr. Moldovsky could not possibly have been ready to proceed to trial on June 12, but would have required at least until the July 19 calendar listing to have the investigation conducted and the results digested. We further find that the time the motion was pending before the court, from May 23 to June 13, was not unduly long. Mr. Moldovsky and the court records agree that the other motions were continued to July 17 on the motion of the Commonwealth, with the exception of the motion to suppress identifications, which was continued to trial, also on the motion of the Commonwealth. On July 17 the motions were continued to September 14 because the assigned assistant district attorney was ill, making the Commonwealth unprepared. On September 14 the suppression motion was continued to October 19 because the Commonwealth again was unprepared. The court records also show that Mr. Moldovsky was ill, but Moldovsky claims that that obviously was not the reason for the continuance, since he was in court that day. On September 15 there was argument on the discovery petition, which was then continued. On October 19 the hearing on suppression of statements was continued to November 15 by agreement of the parties and reunited with the trial listing in the homicide calendar room.
Mr. Moldovsky contends that the Commonwealth was unprepared at the October 19 hearing date.
Thus, by mid-October the two pending motions and the trial were jointly slated for November 15. The delays since Mr. Moldovsky's entry into the case up to this point seem to have been the result of a combination of defense and prosecution illnesses, vacations, and the bureaucratic snafu caused by calendaring motions in one courtroom with an assistant district attorney and judge who knew nothing about the case while the trial was calendared in another courtroom. Apportionment of responsibility for the delay during this period is mixed, but the Commonwealth must bear more than the relator.
On November 9, Mr. Moldovsky filed a formal petition for speedy trial under the applicable state rules, demanding dismissal or, alternatively, trial no later than December 4. This was the first formal petition and demand for speedy trial filed in this case. On November 15, the slated trial date, further argument was heard on pending motions in motions court, the motions were sent back to the homicide calendar room, and the trial was continued to November 27, "subject to call." On November 20, argument was held on the speedy trial motion and it was held under advisement. On November 22, the court denied the motion to dismiss but ordered that trial commence no later than January 8, 1973, after the Thanksgiving and Christmas holidays.
The case would have gone to trial by January 8, 1973, but Mr. Moldovsky objected to the assignment of the case to Judge Gutowicz, with whom he had had personality conflicts in the past. Fearing possible prejudice to his client, Mr. Moldovsky sought and obtained an agreement that the case would go to trial before Judge McDermott when that judge's current trial ended. At the end of January and beginning of February Mr. Moldovsky was out of town for a week or 10 days.
When it became apparent that Judge McDermott's schedule would not permit him to take the Boelter case, the case was reassigned, without prior notice to Mr. Moldovsky, to Judge Gutowicz for trial on February 5. Because of an ear infection, Mr. Moldovsky moved for a continuance to February 12, and then, in response to the unforeseen and unwelcome switch from Judge McDermott back to Judge Gutowicz, requested and was granted a continuance until February 26. On February 20, a second motion, under state rules, to dismiss for lack of a speedy trial was filed. This speedy trial motion was also denied, and trial commenced on February 26.
An overview of the time that Mr. Moldovsky was counsel for relator shows that of the slightly less than ten months involved, approximately five months of delay are fairly attributable to the defense. One month was due to the removal of Mr. Tinari, relator's prior counsel. Another month or more followed the grant of the motion for allowance of private investigator filed on behalf of relator. Defense counsel was indisposed due to his gall bladder operation for a month and one half in the fall. Finally, defense-induced delays from January 8, 1973, to the start of trial on February 26 resulted from defense counsel's ear infection and his ultimately unsuccessful attempt to get the case transferred to a judge other than one to whom it was originally assigned.
The five months or so of delay that is not attributable to defense activity is properly characterized as due to overcrowded dockets, staffing difficulties, and courtroom scheduling problems. There is no evidence of any intentional stalling for the purpose of gaining a tactical advantage.
From the time of arrest to ultimate conviction at the second trial, Mr. Boelter remained incarcerated. He was transported to each of his court appearances shackled at hands and feet, under armed guard, and accompanied by the blare of sirens. He wrote approximately 12 letters to his first attorney, Nino Tinari, requesting a meeting with him and an early trial date, despite having only a seventh-grade education and limited proficiency in reading and writing. He made no direct communications with the court.
Our discussion of the Sixth Amendment right to a speedy trial must begin with the decision of the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In Barker, the Court adopted a "balancing test, in which the conduct of both the prosecution and the defendant are weighed," and which "necessarily compels courts to approach speedy trial cases on an ad hoc basis." Id., 407 U.S., at 530, 92 S. Ct., at 2192. Four factors were identified as being among those which must be assessed in each speedy trial claim: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. Boelter's claim must now be weighed in that balance.
Length of delay, the first factor, serves primarily as a trigger for further inquiry, for unless there is some unusual delay, there is no need to inquire into the other factors that go into the balance. Id. at 530, 92 S. Ct. at 2191. Although the Court indicated in Barker that delay sufficient to provoke further inquiry would vary with the nature and circumstances of each case, id., and although this case was a complex one that required more preparation and involved more witnesses and pretrial procedures than would the ordinary street crime, there is little question that the 25 1/2 month delay endured by relator is presumptively prejudicial and requires that we carefully weigh the other factors.
Compare, e.g., United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (3d Cir. 1972) (14 month delay sufficient to warrant inquiry); United States v. Diaz, 535 F.2d 130, 132 (1st Cir. 1976) (14 month delay triggers inquiry); with United States v. Wyers, 546 F.2d 599 (5th Cir. 1977) (delays totaling 205 days between arrest and trial were de minimis and insufficient to trigger inquiry). The Court of Appeals for the District of Columbia Circuit has adopted a rule that delays of more than six months "are properly subject to inquiry and require justification," while a lapse of more than a year from arrest to trial endows a speedy trial claim with "prima facie merit." United States v. Jones, 173 U.S. App. D.C. 280, 524 F.2d 834, 849 (D.C.Cir.1975). We therefore proceed to consider the other factors identified in Barker.
In assessing the reasons for the delay,
different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or over-crowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker v. Wingo, supra, 407 U.S., at 531, 92 S. Ct., at 2193 (footnote omitted).
We have already found that relator and his counsel bear primary responsibility for the bulk of the delay during the sixteen months that he was represented by Nino Tinari, Esq. These delays were caused by fee disputes, Tinari's unpreparedness, and Tinari's unavailability. Crowded dockets and scheduling problems due to the policy of avoiding the sequestration of juries over the Thanksgiving or Christmas holidays were responsible for most of the remaining delays during Tinari's tenure as Boelter's counsel, although at least some of the delay was directly attributable to unpreparedness by the prosecution.
After Joel Moldovsky, Esq., had replaced Tinari, another ten months passed before Boelter's first trial. We find that about half of this delay was due to causes such as court congestion and staffing problems in the District Attorney's office. The remaining five months is attributable to the defense, including time spent by Boelter's new lawyer preparing for trial and litigating pretrial motions. The time attributable to the defense also includes about one and one-half months of defense counsel's illness, and one and one-half months of intentional defense delay for strategic purposes because of Moldovsky's desire to avoid trial before Judge Gutowicz. Thus, of the entire 25 1/2 months of delay, well over half is attributable to the defense.
The relator contends that because Tinari was appointed by the state to represent Boelter, the delay caused by Tinari should be weighed against the state rather than against the defense. In effect, relator asks that the state be made to bear the risk of prejudicial error whether that error is made by the prosecution or by appointed defense counsel. We do not think that a "heads I win, tails you lose" rule would be consistent with the Supreme Court's mandate in Barker v. Wingo that the conduct of both sides be weighed. And even if there are some cases in which such a rule of law might be appropriate, the case before us is not one. As we noted above, Boelter originally retained Tinari privately, and Tinari withdrew as retained counsel only because he was unable to reach an acceptable fee arrangement with Boelter's family. Four days later, Tinari was appointed by the court to represent Boelter. Thus, it is clear that Tinari's services were not imposed on an unwilling client. Instead, the state did no more than provide the means by which Boelter could continue to be represented by the lawyer he had chosen but could not pay. Under these circumstances, it makes little sense to weigh the delay caused by relator's appointed counsel against the government. Cf. Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979) (no federal immunity for appointed defense counsel in malpractice suit in view of, inter alia, Congress' attempt to minimize differences between appointed and retained counsel).
Nor is there any evidence that the state acquiesced in delay-causing conduct by defense counsel which the prosecution knew would prejudice the defendant. As the Court noted in Barker v. Wingo, delay can work to the advantage of the defense. 407 U.S. at 521, 92 S. Ct. at 2187. This may be especially true where, as here, the state depends on the testimony of eyewitnesses who may become unavailable or whose memories may fade.
Of the delay for which we have found the Commonwealth responsible, none was due to deliberate attempts by the prosecution to prejudice the defense or gain any tactical advantage by delaying the trial. Nor was any of the delay caused by the kind of valid reasons, such as missing witnesses, which would justify appropriate delay. Instead, the entire period of delay attributable to the Commonwealth was due to "more neutral reasons such as negligence (and) overcrowded courts." This delay, therefore, weighs against the state in the Barker balance, though not as heavily as it would had it been intentional.
3. Defendant's Assertion of His Right
The results of our consideration of this factor weigh in favor of relator, though not nearly so strongly as he contends. Boelter repeatedly wrote Nino Tinari, asking him to get the case moving forward and to come to meet with his client. However, it was not until January, 1972, when the case was a year old, that Tinari made what can only be described as perfunctory efforts to get the prosecution to bring his client's case to trial. Tinari's own unpreparedness during this time was the cause of substantial periods of delay. Relator's right to a speedy trial was formally though quite belatedly asserted by motion on two occasions November 9, 1972, and February 20, 1973. However, it is clear that the state was making a substantial effort to bring Boelter to trial during this last period of the delay, and that the trial in fact would have commenced on January 8, 1973 but for defense counsel's efforts to secure the assignment of a different trial judge to his case.
Prejudice alleged to result from pretrial delay must be assessed "in the light of the interests of defendants which the speedy trial right was designed to protect." Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L. Ed. 2d 101 (1972). Identifying the relevant interests, the Supreme Court observed that the speedy trial right existed: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id.
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.
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
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.
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."
From the twenty-eight (victims in the store), four or five people make identifications in one degree or another and will say I'm absolutely positive. But wait until I get them on cross-examination. One of the things we are going to go into is the hat. You are going to be shocked to hear from one person that the hat that Ronald Boelter wore was a fedora hat with a wide brim, a floppy wide brim with a peak. You are going to hear from another person I expect to show that it was a sailor cap that the robber whom that person was robbed by identifies Ronald Boelter wore, a knit sailor-type cap, a cap that you fold up. You are going to still hear from another person who makes some type of identification that it was not a fedora type of hat and he wasn't bare-headed and it wasn't a sailor cap, but it was an ordinary hat, a businessman's hat. You are going to hear from one lady who made some tentative identification that although she only glanced at him, that he was a tall man, a tall man. That is, the robber, she now comes into court and puts her hand on the Bible and points to Ronald Boelter as being' she says he was the robber she is going to say he was a tall man."
Mrs. DiMeo says that the man whom she now identifies as Ronald Boelter did not wear a hat, that the robber whom she now identifies as Ronald Boelter on the three occasions when she saw that robber at Dubrow's in three parts of the store, one part in the center and then at two different positions in one of the back offices, she says that that robber whom she now comes into court and points out is Ronald Boelter, she says he did not wear a hat. Mr. Gelman will present three or four or five other people of the twenty-eight present who in one degree or another will tell you that Ronald Boelter absolutely for sure is the robber. And you will hear from all of those people that the man whom they think Ronald Boelter resembles, the robber whom they now identify as Ronald Boelter, you will hear from all of those people that he did wear a hat.
Now, something else very strange is going to come out. I promise that I will show you that one of the people who comes into the courtroom and points out Ronald Boelter and says, "He was one of the robbers," that this person only saw one of the robbers, only saw one, has always maintained he only saw one. There were eight robbers but I only saw one. And at the line-up, which took place on Friday, January 8th, 1971, four days after the occurrence, which was January 4th, 1971, he picked out two people.
Again, through the mouth of Lieutenant Margulis, through the documents that he recorded about what each witness saw, I will prove to you that that witness, if Mr. Gelman puts him on the stand to make an identification, that his identification is completely worthiess (sic), that it is mistaken, that he has identified other people, that he doesn't know for sure.
The presentation of the Commonwealth's case began with the testimony of two Dubrow's employees, a number of police officers, a fire marshal, and the medical examiner. Their testimony, which was not seriously challenged by the defense, established the basic facts of the robbery, arson, and murder. However, neither of these employees was able at any time to identify any of the robbers.
The Commonwealth then called Audrey DiMeo. She testified that as she was returning to her office after lunch, she came "face to face" with a man who was standing and examining a lamp. She then went into the office that she shared with Bernard Wagenheim and was immediately thereafter accosted by a man with a gun. Mrs. DiMeo then identified Ronald Boelter as the gunman, repeatedly testifying that there was "no doubt in my mind" that her identification was correct, and at one point saying that she was "Absolutely sure. There could be no mistake about it. I couldn't forget his face no matter how long I live."
Mrs. DiMeo was followed to the stand by Bernard Wagenheim. Wagenheim also identified Boelter and testified that he had no doubt at all about his identification. The cross-examination and subsequent redirect and recross of Wagenheim brought out the fact that before identifying Boelter at the January 8, 1971, lineup as the robber, he had picked out two individuals at two other lineups as resembling or being similar in certain respects to the robber that he had seen. It is undisputed that Wagenheim only saw one of the robbers. At the request of the defense, a photograph of one of the other men whom Wagenheim had identified as being similar to the robber he had seen was shown to the jury so that they could determine the accuracy of Wagenheim's judgment that the other man resembled Boelter.
The Commonwealth then called Lt. Margulis, who had supervised the January 8 lineups. Lt. Margulis described the lineup procedures in considerable detail, and testified that one "fill-in" in the Boelter lineup a police officer Hackett was nearly identical to Boelter in both age and physical appearance, while the other four participants were somewhat younger and presented greater degrees of variance both as to hair length and skin color. Then, without any objection whatsoever from the defense, Lt. Margulis testified concerning the identifications made at each of the four lineups held that evening by each of the six witnesses who had picked out Boelter as either definitely being one of the robbers or as having some resemblance to one. This testimony was inadmissible hearsay, for it was offered to prove the ...