Posta was also clearly able to observe relator at the gas station and was able to describe him that evening to the police. (N.T. 58-59)
Aside from the testimony of Donna Reed and Michael Posta two other Commonwealth witnesses, both of whom had known relator prior to the date of the crime, testified that they observed relator and his co-defendant at the Hess gas station with Donna Reed and Michael Posta on June 17, 1967. Both testified that they had no difficulty in recognizing relator. (N.T. 73-88) This Court is satisfied that there is clear and convincing evidence in the record to show that no misidentification occurred in this case as a result of any photographic showing.
Relator makes a further contention concerning his identification which we consider equally without merit. Subsequent to the photographs being shown to Donna Reed and Michael Posta relator was arrested and was individually exhibited to both witnesses in the absence of counsel. Relator argues that such individual confrontation is in violation of the Wade and Gilbert rules. The Wade and Gilbert decisions were handed down by the Supreme Court only six days prior to the stationhouse confrontation in the instant case. We assume, as it is not evident from the record, that the police were unaware of the constitutional rules set forth in these decisions. Although the court in Wade held that a pre-trial line-up after indictment is a critical stage of the prosecution requiring the presence of counsel, the court nevertheless indicated that any compelled pre-trial confrontation must be examined to see if counsel is necessary to protect the accused's right to a fair trial and a meaningful defense. See Wade, supra, 388 U.S. at 226, 227, 87 S. Ct. 1926. Assuming, in this case, that the individual confrontation falls within the Wade decision, the in court identification testimony is not per se inadmissible in this case as the record is quite clear that no testimony concerning the individual stationhouse confrontation was elicited by the prosecution on direct examination. See Gilbert v. California, supra, 388 U.S. at 272-273, 87 S. Ct. 1951. In such circumstances, the per se rule is not justified.
The proper test to be applied in such circumstances is the test announced in Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, namely, '[Whether], granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Wade, supra, 388 U.S. at 241, 87 S. Ct. at 1939.
As we have already set forth at length, this record clearly demonstrates that the in court identifications of all the witnesses were based upon personal observation where there was a clear and unmistakable opportunity to observe the physical characteristics of each of the assailants. As the record clearly does not support relator's position, we must reject his contentions concerning the identification issues he has raised in this petition.
Relator secondly contends that the prosecutor suppressed certain evidence. Suffice it to say that his contention is not only is unsupported by the State record, but is clearly refuted therein and we, therefore, give it no further consideration. Relator's petition for a writ of habeas corpus will be denied.
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