concurring-in-part-and-dissenting-in-part">

Concurring and Dissenting Opinion by

Mr. Justice Roberts :

Although I concur in the vacating of appellants’ convictions, I dissent from the majority’s mandate directing that the record be remanded to determine whether the delay in bringing appellants to trial was prejudicial. In my view, such prejudice is already apparent on the record presently before us, and I would accordingly limit the inquiry upon remand to the question whether the Commonwealth made a diligent and good faith effort to bring appellants to trial after they had so demanded, a duty imposed upon the states by virtue of the United States Spreme Court’s two recent decisions in Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575 (1969), and Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564 (1970).

To date it does not appear that appellants’ ability to defend themselves has been impaired. However, the speedy trial guarantee of the Sixth Amendment is also designed to prevent undue and oppressive incarceration prior to trial and to minimize anxiety and concern *81accompanying public accusation. United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1968). In Smith v. Hoey, supra, the Court thoughtfully analyzed these latter factors as they pertain to the situation of one already in prison under a lawful sentence:

“At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial’. But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. . . .

“And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 U.S. at 221-222, 87 S. Ct. at 992-993. In the opinion of the former Director of the Federal Bureau of Prisons, ‘[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement. ’ ” Id. at 378-79, 89 S. Ct. at 577-78 (citations omitted).

*82In the present case, trial was not had until almost three years after appellants’ original requests for speedy trial. I believe that a delay of this length can certainly be characterized as inherently oppressive. Furthermore, this almost three-year delay has certainly prejudiced appellants by negating the possibility of their state sentences running at least in part concurrently with the unexpired portion of their federal sentences.

In light of the above, I would vacate appellants’ convictions and remand the record with instructions that unless the Commonwealth establishes either that it expended a diligent effort in bringing appellants to trial or that such an effort could not in any event have succeeded, the judgments of sentence against appellants should be arrested. I would impose the burden of proof on this issue on the Commonwealth “since it, far more than the defendant, is likely to know why the delay took place.” Dickey v. Florida, supra, 390 U.S. at 56, n.22, 90 S. Ct. at 1578, n.22 (Brennan, J., concurring).

Mr. Justice Pomeroy joins in the concurring and dissenting opinion.

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