ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons and Weis, Circuit Judges and Whipple, District Judge.*fn* Argued Nov. 6, 1980. Reargued En Banc May 11, 1981. Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
In this habeas corpus appeal, a state prisoner contends that a delay of twenty-five months between his arrest and trial violated his constitutional right to a speedy trial. He also asserts that he was denied his right of confrontation when hearsay evidence about lineup identification was introduced by the prosecution. Finding that most of the pretrial delay was attributable to the defense, and that the absence of objection to the identification testimony was a considered, tactical decision by defendant's counsel, the district court rejected petitioner's challenges. We agree and affirm.
In January, 1971, a group of eight men, singly and in pairs, entered Dubrow's Furniture Store in Philadelphia posing as customers. When all were in place, they pulled out guns and announced a robbery. Store employees were bound and several were kicked or pistol whipped. One was doused with gasoline and set afire. Three were shot, one fatally.
Four days later, petitioner Boelter was arrested and identified in a lineup as one of the gunmen by several Dubrow employees. He was tried twice. The first jury was unable to agree upon a verdict, but the second found him guilty of first degree murder. Boelter's posttrial motions were denied by the Court of Common Pleas and the judgment of sentence was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Boelter, 463 Pa. 162, 344 A.2d 475 (1975).*fn1 Boelter later filed a petition for habeas corpus in the district court. After an evidentiary hearing, the district court, in an extensive opinion, denied the writ. United States ex rel. Boelter v. Cuyler, 486 F. Supp. 1141 (E.D.Pa.1980).*fn2
On appeal the petitioner has raised two issues that were the subject of the evidentiary hearing. They are not related, and we will address each in turn.
Boelter was arrested and jailed on January 8, 1971. He was indicted on February 11, and on March 29, the case was listed for trial. During this period, Boelter was represented by Nino Tinari, Esquire. Because he was unable to reach an agreement with the Boelter family on a fee arrangement, the lawyer withdrew from the case on May 24. A few days later, however, the Philadelphia Common Pleas Court designated him as court appointed counsel, despite the fact that he also represented another of the accused, Edward Sistrunk.
Tinari requested and received several continuances during the time from the initial trial setting until May 3, 1972, when he informed the court that Boelter wished to have other counsel. The defendant complained that his lawyer had not consulted with him in 16 months despite numerous written requests. The Common Pleas Court fined Tinari $1,000 for his conduct, or lack of it, in the case,*fn3 and the district court characterized his behavior as "reprehensible." 486 F. Supp. at 1144 n.5.
During the same period, the prosecutor to whom the case was assigned became ill and the matter was transferred to another assistant district attorney. Further delays resulted from the backlog of older cases and the court's reluctance to schedule jury trials during holiday periods. After Tinari was discharged, the court appointed Joel Moldovsky, an experienced and capable trial lawyer, to represent the defendant.
Between May and November 9, 1972, when Moldovsky filed a speedy trial motion, the parties obtained four more continuances. In ruling on the motion, the state court denied dismissal but ordered the trial to proceed no later than January 8, 1973. Nevertheless, it was again delayed and on February 20, 1973, the defense filed another speedy trial motion. It was denied, but the first trial began on February 26, 1973.
The district court attributed most of the first sixteen months of delay to the defense because of Tinari's unpreparedness, his fee dispute with the Boelter family, and his representation of the other defendant. The prosecution was charged with ...