Opinion by
A complaint was filed against Charles A. McCloud on March 28, 1967 charging him with the use and sale of narcotics on August 8, 15, and 24, 1966. On April 3, 1967, he was arrested.
Prior to trial, McCloud made a motion to dismiss the indictments contending that the delay from the time of the alleged first sale of narcotics, August 8, 1966, *232 to the day of his arrest, April 3, 1967, was in violation of his constitutional right to a speedy trial under the Sixth Amendment and to due process of law under the Fifth Amendment to the Constitution of the United States, as applied to the states through the Fourteenth Amendment.
The lower court disagreed and McCloud stood trial without a jury. The trial court found him guilty of the charges against him and he has now appealed, contending his motion to dismiss the indictments should have been granted and that the court below failed, to consider sufficiently the constitutional issue raised by him; .
Defendant relies heavily on the opinion of the United States Court of Appeals for the District of Columbia in
Ross v. United States,
All of the cases subsequent to
Boss
clearly interpret that decision as applicable only to its particular fact situation and not controlling where the identification testimony is strong and definite. In
Wilson v. United States,
In the present case, Agent Wilder, who made the purchase from defendant, used his notes only to refresh his memory as to the times of purchase, but his identification testimony was positive and given without the aid of notes: “By The Cotjbt: Q. You could identify him as Charles McCloud? A. Yes, I could. By Mr. Capone: Q. When did you identify McCloud as the man named in the warrant? A. Prior to the *234 start of the investigation, our information was that McCloud was a peddler in the area. He was identified, not only by name, but we also had his photоgraph, pri- or to going on the street before the investigation was initiated against him. Q. From the time you made the last buy, which would be August of 1966, up until you saw McCloud at the magistrate’s hearing — I assume you were present? A. Yes, I was. Q. Did you see him in between that time? A. Yes, I did. Q. On how many oсcasions? A. I would say at least two dozen. Q. Under what circumstances, just walking on the street? Or in prison? A. No, no. He was on the street. Q. Did you have him under surveillance? A. Well, there were other peddlers in this area and there were some occasions I would go tо this location and after making three purchases from McCloud, that was sufficient. And there were times I had to dodge him. In other words, I had to go around to get to some of the other peddlers.”
Defendant McCloud was further identified by Agent Young, one of the two undercover surveillance officers in the investigation. Agent Young testified he witnessed Agent Wilder’s contacts with the defendant, though from his position of surveillance he could not see the actual transfer of the drugs. Agent Bitzer, the other undercover surveillance officеr, was also available for similar identification testimony. Further, and of great importance, is the fact that defendant was also identified by the informant Douglas Martin who was present at the time, of the sales and who had known defendant for over thirty years. It is clear that the identification testimony in this case was in no way weakened by the pre-arrest delay.
Where the identification testimony is so substantial and definite, the conviction has been sustained despite the pre-arrest delay:
United States v. Childs,
415 F. 2d
*235
535 (3d Cir. 1969);
Jordan v. United States,
It is clear, therefore, from a study of the Boss decision and the subsequent cases distinguishing it, that in the determination of the legal consequences of a prearrest delay on an accused’s rights to a speedy trial and to due process, an assessment of the identification testimony and the effect of the delay on such identification are governing factors. In the case now before us there was no danger of misidentification stemming from the pre-arrest delay. The identification testimony was strong and substantial and in no way weakened by the delay in arrest.
The decisions recognize, some expressly, others implicitly, that a proper balance must be struck between defendant’s right to idеntification testimony of probative value and the public’s right to effective police detection and control of the trafficking in narcotics. In Dancy v. United States, supra, the court which handed down the Boss decision clearly noted that, “The police are carrying increasingly heavy responsibilities fоr the protection of the public interest, and they deserve and require greater resources of all kinds” and upheld the defendant’s conviction despite a claim of an unconstitutional pre-arrest delay.
In the instant case, the delay in the arrest was not occasioned merely by police reluctance to terminate the usefulness of a particular undercover agent. Untimely disclosure not only would have terminated the usefulness of Agent Wilder, but also the usefulness of the informant Douglas Martin, whо was involved in twenty *236 other cases. This was a distinction well noted in. United States v. Napue, supra, the Court there stating: “The identity of not only the undercover agent, but also that of the informant, required protection. When the informant was murdered, the need for protection terminated, and the defendant was arrested.” In the case now before us, defendant was quickly charged and arrested as soon as the investigation was completed of the other twenty cases in which Agent Wilder and the informant were involved.
The record reveals no evidence of prejudice such as would outweigh the reasonableness of the delay necessitated by the conduct of an effective investigation; Although defendant first claimed, in the court below, that he was not required to show prejudice, and that it was sufficient merely to show the delay, he did proceed, however, to present testimony that, because, of the passage of time he could not remember what he. was doing on August 8, 15, and 24, the dates of the purchases. He testified, however, with certainty that he was working on those days and. that, “I havе never seen that man (Agent Wilder) before”.. He denied ever selling drugs to anyone in the presence of the informant. Such a record does not support a claim of prejudice. In
Wilson v. United States,
supra, the Court observed that: “Under the Ross rule the reasonablenеss of the police conduct in the particular case is to. be weighed against the possible prejudice to the defendant.
*237 In Dancy v. United States, supra, the District of Columbia Circuit Court, interpreting its own Boss decision, found no necessity to reverse the conviction because “appellant has advanced no peculiarly prejudicial consequences of that delay other than his generаl inability to reconstruct the events of the day of the alleged sale.” The same conclusion was reached in Jordan v. United States, supra.
It is also to be noted that although defendant testified he was at work on the days in question, he made no attempt to reconstruct or account for those days by introducing work records or the like. This failure on the part of the defendant was found to be fatal to the claim of prejudice in the case of United States v. Childs, supra.
■Where the identification testimony is strong, as it was in this case, defendant’s claim of prejudice must be supported by stronger evidence than would be the case where the identification testimony is weak, as it was in the Ross case. Jordan v. United States, supra. 1
In Whitted v. United States, supra, as in the case now before us, “Agent Ooonce . . . testified from memo *238 ry to substantially all the facts with the exception оf the need to refresh his memory as to the exact day and time . . . Agent Westrate corroborated the details of date, time and identification of the appellant.
“Appellant took the witness stand and denied the sale to Coonce. In an apparent attempt to show prejudice because of the pre-arrest delay, he testified that he could not remember the events of the evening in question because of the lapse.of time (eight months by the time of trial). He was sure, however, that he had worked at his regular employment that day. . .”
After an excellent review of the Boss opinion and the facts on which it was based, together with a review of the subsequent cases in which the Boss decision was not followed by the very court which had pronounced it, the Court in Whitted, concluded: “It is evident that aрpellant’s reliance on Eoss is misplaced. Agent Coonce testified from his independent recollection as to the pertinent facts of the incident and he positively identified Whitted. Agent Westrate corroborated the identity and substantial portiоns of the testimony of the incident. There was a good cause for the delay, as the officers were attempting to get evidence against other violators of the narcotics laws.”
We, therefore, affirm the action of the court below in refusing to grant defendant’s motion to dismiss the indictments and in refusing to grant defendant a new trial. The fact that the court below in its opinion did not discuss defendant’s claim of prejudice and merely held the Boss decision to be inapplicable, without further elaboration, doеs not justify a reversal or remand as defendant suggests. Defendant was afforded and availed himself of an opportunity to both claim and prove prejudice at the evidentiary hearing granted him on his petition to dismiss and at his trial. That proof was not legally suffiсient to support a finding of preju *239 dice which would outweigh the reasonableness of the delay occasioned by effective investigation involving not only the investigative agent but an informant as well.
The judgment of sentence is affirmed.
Notes
In that ease tlie Court quoted, from the dissenting opinion of thеn Judge Burger of the United States Court of Appeals for the District of Columbia in
Woody v. United States,
“Ross recognized that there was a crucial need as well as a valid purpose for undercover narcotics investigations and that some purposeful delays between the offense and the arrest were inevitable.”