interpreted, the Pennsylvania Supreme Court, has ruled that the prosecution complied with the requirements of Rule 1100. We must deal with the more amorphous question whether Pennsylvania's allowance for delay in this case was too lenient to comport with the Speedy Trial Clause of the 6th Amendment. Our view of the situation that developed in this case is that Petitioner was at least as responsible for the delay of his trial as was the Commonwealth.
The third factor to be considered in the Barker analysis is the assertion by the accused of his right to speedy trial. We find it significant that Petitioner did not assert this right until September 21, 1978, some 38 days after the date on which the strictest construction of Rule 1100 would have mandated the beginning of trial. This Court would be more receptive to Petitioner's application were there some record that he had asserted this right contemporaneously with the Commonwealth's motion for extension of time to commence trial. The fact that Petitioner did not oppose the Commonwealth's motion persuades this Court of the likelihood that he was totally unconcerned with asserting the right to speedy trial. It was only after the Public Defender realized that the Commonwealth's motion had never been acted upon that the right to speedy trial came to be so dear to Petitioner.
His conduct before that point in appearing for a scheduled trial without counsel and electing not to oppose the Commonwealth's motion for continuance was more suggestive of a desire to delay trial as long as possible. Petitioner simply failed to continually and vigorously assert his right to speedy trial which, had he done so, would have provided considerable evidentiary support for his cause under the terms of United States ex rel. Stukes v. Shovlin, 464 F.2d 1211, 1214 (1972). Our conclusion, therefore, is that Petitioner's assertion of his right came too little and too late to tip this factor of the Barker balance in his favor.
The final factor to be considered is the degree of prejudice to the accused in having his trial delayed. Petitioner's objection to the Magistrate's Report makes much of the fact that "the most important factor which the (Barker) Court discusses is the prejudice to the Defendant with regard to his failure to receive a speedy trial."
Apart from our conviction that Petitioner has not demonstrated from the record that he was unduly prejudiced by the delay in this case, we note that the United States Supreme Court has rejected the notion that the 6th Amendment right to a speedy trial is primarily intended to prevent prejudice to the defense caused by the passage of time. United States v. MacDonald, 456 U.S. 1, 8, 71 L. Ed. 2d 696, 102 S. Ct. 1497 (1981). So, prejudice to the defense is to be accorded no more weight in terms of Barker analysis than any of the factors we have previously considered. That understood, we turn to Petitioner's allegations of prejudice. He alleges herein that his defense was impaired in that he was unable to maintain contact with persons who would have provided him with an alibi. However, it seems to this Court that any such impairment was a result of the fact that Petitioner was ineligible for bail due to the lodging of parole violator detainers against him in the wake of his arrest. His inability to remain in contact with these potential witnesses, then, was less a result of a speedy trial problem than of previous escapades in Petitioner's life.
In summation, mindful of our determination that a fundamental right was implicated in this application, we have endeavored to "engage in a difficult and sensitive balancing process"
as the law requires. We find: a) that the delay between arrest and trial in this case was not of such duration as to state a clear case that a speedy trial violation occurred; b) that said delay was caused substantially by Petitioner's own laxness in securing counsel and in failing to oppose the Commonwealth's motion for an extension of time; and c) that Petitioner failed to vigorously assert his 6th Amendment rights. We find, all factors considered, that Petitioner's 6th Amendment right to a speedy trial was not violated in this case. An appropriate Order shall issue.
AND NOW, this 31st day of January, 1985, IT IS HEREBY ORDERED THAT:
1. Petitioner's application for a writ of habeas corpus on grounds of a violation of his fundamental right to a speedy trial is denied.
2. Judgment in Respondents' favor is hereby entered and the Clerk of Courts is directed to close this case.