*1 action the release to the at C.P. No. only pertained injuries personal with the mother’s dealing for a bar to incurred recovery expenses appellants’ care and treatment for the infant medical providing plaintiff.

For all would reasons, ap- foregoing grant in- new trial medical pellants expenses fant permissible element plaintiff damages. Eagen

Mr. Mr. Justice O’Brien join reversal. opinion support Appellants. Commonwealth Ditzler et al., *2 1970. Before C. Bell, J., November Submitted Pomeroy, Roberts Cohen, Eagen, O’Brien, Jones, JJ.

Frederick 8. Bemer, & for Brandt, Wolf Wolf appellants. Com- Attorney, E. District Christianson,

George appellee. monwealth, 1971:

Opinion Eagen, May 13, Mb. Justice posed The but question sole difficult important were appellants is whether appeal trial.1 denied their constitutional The facts are follows:

On G. February Charles appellants, Ditzler Coun- and Leon were indicted Lebanon Ruhl, ty assault charges breach, robbery by force and of a motor all of crimes larceny vehicle, which occurred on 1965. allegedly January 13, Before indictments were Ditzler and returned, Ruhl been taken into the State Ten- custody nessee, convicted on criminal charges [violation 18 USC Dyer Act, of a stolen §2312, transportation *3 in in automobile interstate the Federal Dis- commerce] trict Court sentenced for term imprisonment a of five in the Federal years at Atlanta. Penitentiary

In November petition Ditzler filed Lebanon 1965, Court County requesting trial. Ruhl speedy filed a similar in December of request year. Counsel was appointed to represent them after and, argument, petitions denied were on 6, 1966. February

On March Ditzler 16, and Ruhl petitioned the Court, requesting charges be dismissed lack prosecution. of petition This was denied on April 11, 1967.

The of attorney district Lebanon County secured a writ of ad corpus habeas prosequendam on July 30, 1968. quash Motions indictments were filed on September 11th, subsequently refused. On Septem- 1 argument The case was submitted to us without oral on attorney To date the November 1970. district County Lebanon file with a brief tihs has failed Court. Such irresponsibility part emphatically official condemned. on tbe convicted Ruhl were Ditzler and ber 16, 1968, were dis- motions trial Post jury. indictments by On appeal were imposed. sentences missed opin- affirmed without Superior of the Court a majority dissenting opinion filed a ion. Judge Hoffman Spaulding Montgomery joined. Judge which Judge Supe- 217 Pa. See dissenting opinion. a separate filed A. 2d We alloca- granted rior Ct. tur. to a development

The of the right history that it speedy designed solely indicates was individuals who had been protect formally charged a crime. The first written articulation of the right ap peared wherein it was Magna Charta, written, no “We will sell to we will not or defer to man, deny man any justice either 3And right.”2 though was included Framers the Bill of Rights, Amendment speedy guarantee Sixth held long applicable federal only against and not government the states. However, North Carolina, U.S. 87 S. Ct. 988 the United States Su preme Court ruled that the failure of states to accord a deprivation the right provided by the Sixth Amendment, made obligatory states the Fourteenth Amendment.3

Since the indictments4 the instant case were re turned more than two years before the decision in

2 Magna Charta, 29; quoted C. Coke, Translated in E. England The Second Part of the Institutes of the Laws of [5th 1797]. Ed. E. Brooke *4 3 Pennsylvania provides: §9 Art. of the Constitution “In all prosecutions right criminal the accused hath speedy to ... jury impartial vicinage ,” an . . . but it was prior Klopfer, supra, this, itself, held in did not warrant beyond anything discharge imprisonment from where indict- delayed. Clark, ment or trial was Cf. Commonwealth v. 439 Pa. (1970). 741 266 A. 2d 4 right speedy courts have ruled that Some the to a trial at- prosecution as soon the taches example, initiated. For see

77 the Klopfer question was announced 13, 1967], [March be applied arises as to whether need Klopfer naturally here. In Smith v. 89 Ct. 575 S. Hooey, the Court applied Klopfer retroactively5 since relevant Smith are Hooey the circumstances in similar it substantially presented to those logi herein,6 cally follows that Klopfer also controls the instant case, and we so rule.

With the in foregoing premise we mind, proceed a consideration of the central involved. question States, (D.C. 1965). Hanrahan v. United 348 F. 2d 363 Cir. Other right courts held have the does not arise until there has been States, (9th an arrest. See Lucas v. United F. 2d 500 Cir. 1966). While others have said that the does ont arise until complaint there has an been indictment formal filed. Bruce See States, 1965). (5th question v. United 351 F. 2d Cir. But this need not concern us here. question retroactivity The crucial raised considerations of difference, any, analyzing guaran if what there between the speedy by using op tee of the Amendment alone as Sixth posed viewing through process it the due clause of the Four explained thusly, teenth Amendment. One commentator “The process single prejudice due on clause focuses element of by lapse time, the defendant’s case caused while the provision allows considerations of the other factors which may oppressive, particularly make factors in relevant jurisdiction in case of convicts another [Footnote] 100.” “100 Presumably, process analysis due would not find unreasonable against very where the evidence extended convict permanent nature, strong though anxiety of a even stem- delay severely ming hampers from convict’s rehabilitation against prison privileges him filed causes his a detainer Comment, parole Guaranty to be curtailed.” chances of “Effective Speedy Jurisdictions”, Trial for Convicts Other 77 Yale L.J. defendant, prisoner while a In Smith the Federal Peni- Leavenworth, Kansas, tentiary was indicted 1960 in Texas yet charge Texas, In 1969 he had not of theft. been tried al- Klopfer though many decision in had been announced months Herein, were not the defendants tried for more before. than seven- decision after the filed. teen months

In Smith v. Mr. Justice Hooey, supra, Stewart a at to 377-78, said that the constitutional right pp. to been trial “has essential universally thought justice three demands of criminal protect least basic in the (1) prevent Anglo-American legal system: trial; (2) undue and incarceration oppressive prior to minimize concern anxiety accompanying public that long to limit the accusation; (3) possibilities the of the accused defend impair ability will 116, 120, himself. United States v. Ewell, demands He “these added, S. Ct. (1966).” of an in the case are both aggravated compounded in another jurisdiction.”7 accused imprisoned who is from rather muddled an Smith-Hooey The case is re- the fact that the case standpoint by was analytical not proceedings further to the Texas court “for manded not opinion.” the Court did inconsistent with Thus, petitioner of nine denied years decide whether a delay the court nor did the Justices state give speedy trial, a on how to decide that issue. There very any guidelines three concurrences: Justice stress- separate were Black the set aside judgment the that only fact ing explained may ultimately that result Justice Stewabt already prisoner oppression to one for the in as much reasons partially above, possibility (1) of a concurrent sen- as to already being served lost the trial one tence procedures widely charge postponed because under pending present imprisonment may in- practiced, of his be duration which he must his under serve sentence conditions creased and pendency outstanding greatly of another criminal worsened above, charge, (2) charge. an untried of which even a con- As to depressive fully upon may innocent, as can have effect be vict large person is at since detainers prisoner who have a as (3) above, attempts to rehabilitate. self- effect corrosive disappear, and witnesses can explanatory memories since evidence perspective, man isolated their lose and events fade investigative mitigate efforts to his own these powerless to exert passage of time. effects erosive petitioner trial; of giving the purpose White open leaving remand that he understood the saying must Texas dismiss question the ultimate whether said, who and Justice criminal proceedings, Harlan for- automatically the state inter alia, feited try petitioner. its *6 the United Smith, to and previous

Long “the that Court said consistently States Supreme is It is con of a speedy necessarily relative. right depends circumstances. sistent and delays It preclude It to a rights secures defendant. does of Beavers v. 198 rights justice.” Haubert, the delay U.S. 25 S. Ct. 576 “Whether 77, 87, 573, (1905). . . to an uncon prosecution . amounts completing cir deprivation depends upon stitutional rights cumstances . . . The not be purposeful must oppressive.” Pollard v. United 352 U.S. States, 354, 77 S. (1957). ingre Ct. 486 essential 481, “[T]he speed.” dient is and not mere Smith orderly expedition v. United 79 S. Ct. 997 States, 1, 10, In v. 398 (1959). Florida, U.S. 90 S. Dickey Ct. Burger Chief writing held: “The Court is not theo right speedy retical or abstract but one rooted right hard reality in the need to have . charges promptly exposed . . [T]he to a into criminal right prompt inquiry charges duty and the charging authority fundamental trial.” 90 S. prompt Ct. provide 1569. This [Emphasis Court supplied.] aptly has said that “in . . . determining whether fundamental are rights denied we must look at the substance of things rather ex than mere form.” Commonwealth rel. Smith v. Pat Pa. 187 A. 2d terson, 500, 504, (1963). mentioned With the above principles mind, we record present examined the find have it inade- permit intelligent determination of quate whether to a has been appellants’ vitiated. be further proceedings incumbent It is therefore permit development court facilities held where If for a determination. necessary proper facts must sustained, charges claim then appellants’ v. n. be Cf. Commonwealth 3. Clark, dismissed. supra, But be estab- before the claim must sustained, lished that prej- involved was oppressive udicial. Cf. United States 2d 429 F. Penland,

The order of the Superior Court and the judgments of the court of original are jurisdiction vacated, the record is remanded the trial court for further proceedings consonant with this opinion.

Mr. Justice Cohen took part no the decision of this case.

Concurring Dissenting Opinion Mr. Jus- tice : Roberts

Although concur vacating appellants’ *7 I dissent from the convictions, majority’s mandate di- that recting the record be remanded to determine wheth- er in appellants bringing to trial pre- judicial. In my view, prejudice such is already appar- ent on the record before presently us, would limit the accordingly inquiry upon remand to the ques- tion whether the Commonwealth a made diligent and faith effort to good bring appellants to trial after they demanded, so duty imposed upon the states by virtue United States Spreme Court’s two recent in decisions Smith v. 393 U.S. Hooey, 374, 89 S. Ct. 575 Florida, v. Dickey S. Ct. 1564 (1970).

To date it does that appear appellants’ ability to defend has been impaired. themselves However, of guarantee the Sixth Amendment is also prevent undue and designed oppressive incarceration to to minimize prior anxiety and concern States United accusation. accompanying In 776 86 S. Ct. U.S. Ewell, thoughtfully analyzed the Court Smith v. supra, Hoey, of to the situation pertain they factors as these latter under a lawful sentence: one already prison man already that a might “At first blush it appear in a posi- sentence prison hardly under a is lawful incarcera- tion to from ‘undue and oppressive suffer tion the fact is that prior bring- to trial’. But charge may such a to trial ing person pending oppression result in as much as suffered ultimately bail an untried jailed one who is without upon al- charge. defendant First, possibility receive a sentence ready might at least prison par- may concurrent with the one he is tially serving be forever if pending charge lost of . . . postponed. argued person already

“And while it be might would be less than others be affected likely and concern public accusa- ‘anxiety accompanying that an outstanding there is reason believe tion,’ untried which even a convict of (of charge may, course, be have innocent) can as effect fully depressive upon person who Cf. prisoner upon large. v. North 386 U.S. at Carolina, supra, 221-222, In of opinion 87 S. Ct. at 992-993. the former Di- rector of the Bureau of Federal Prisons, ‘[I]t our their effect prisoner attempts to re- habilitate him that detainers are most corrosive. The strain serve a sentence with having the uncertain taken into prospect being custody another state at the conclusion interferes with the prisoner’s *8 take maximum ability to advantage his institutional and depression His opportunities. anxiety may leave ’ ” him with little inclination toward self-improvement. S. (citations at Ct. at 577-78 378-79, Id. omitted). In the until was not had almost present case, three requests after years appellants’ original I trial. that a length certainly believe this can be characterized as inherently oppressive. Furthermore, almost has three-year delay certainly prejudiced appellants by negating possibility of their state sentences running part least concurrently with portion of unexpired their federal sentences.

In I would light above, appellants’ vacate convictions and remand the record with instructions that unless the Commonwealth establishes either expended diligent effort bringing appellants trial or that such effort could not any event have succeeded, judgments of sentence against appellants should be arrested. would the burden impose of proof on this issue on the Commonwealth “since far more it, than the to know defendant, likely why the delay took place.” Dickey Florida, supra, U.S. at 56, n.22, 90 S. Ct. at n.22 J., concurring). (Brennan, Pomeroy

Mr. joins in the concurring and dissenting opinion. Appellant.

Commonwealth v. Sheid,