The opinion of the court was delivered by: MASTERSON
The defendant in this case was convicted of bank robbery by a jury after a 12 day trial. Before the trial we held extensive hearings on defendant's motions to suppress various items of evidence. Those motions were denied. Presently before the Court are defendant's motions in arrest of judgment and for a new trial. The defendant asserts the following grounds for relief:
II. The suggestive nature of a statement made prior to the line-up, the suggestive nature of the line-up and the displaying of the recent color photograph of Sanders in the prosecuting attorney's office just prior to trial made the admission into evidence of the line-up identifications and the in-court identifications a violation of due process;
III. The Government improperly obtained a list of defense witnesses and used it to the defendant's prejudice;
IV. The defendant was denied a fair trial by the suppression of evidence by the Government;
V. Defendant's Fifth Amendment privilege against self-incrimination was violated when re-enacted line-up photographs were shown to the jury;
VI. Evidence of post-custodial photographic identifications of defendant in absence of counsel was inadmissible;
VII. The introduction into evidence of a photograph purporting to be that of the defendant was without proper foundation and constituted reversible error;
VIII. The introduction into evidence of a "mug shot" bearing the name of the defendant constituted prejudicial error because it indicated that the defendant had a prior criminal record;
IX. The defendant was denied a fair trial because F.B.I. Agent Culpepper spoke to a prospective witness about his testimony in violation of an Order of the Court;
X. The display of a "Wanted Poster" of defendant, in proximity to the jury, requires a new trial;
XI. The prosecutor's closing argument constituted unfair comment of the defendant's failure to testify and is reversible error.
For the reasons set out below, the defendant's motion must be denied.
I. REPRESENTATION BY COUNSEL AT LINE-UP.
In early May, 1968, the defendant was apprehended in New York City and later was removed to the Detention Center in Philadelphia. On May 16, 1968, which was 12 days prior to the appointment of trial counsel, the defendant was a participant in a line-up in which he was identified by the witnesses as the bank robber. At the line-up, the defendant was represented by an attorney associated with the Public Defender's office. It is the defendant's contention that trial counsel should have been appointed earlier in order to represent the defendant at the line-up and, even if "substitute" counsel (i.e. the Public Defender) were sufficient at this stage, his representation of the defendant at the line-up was so inadequate that both the line-up identification and subsequent in-court identification by the witnesses should not have been admitted into evidence. We disagree.
In United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), where the right to counsel at a line-up was established, the Supreme Court left open "* * * the question whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay." 388 U.S. at 237, 87 S. Ct. at 1938. Further, an accompanying footnote recognizes that "* * * substitute counsel may be justified on the ground that the substitute counsel's presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect's own counsel."
Initially, we should point out that the Public Defender who represented the defendant at the line-up was not a "substitute" counsel in the real sense of Wade since, at the time of the line-up, no other counsel had been previously appointed to represent the defendant. Nor do we find that there was an unreasonable or prejudicial delay in the ultimate appointment of trial counsel to represent the defendant. In any event, we think the important question is whether the representation provided the defendant at the line-up was adequate (a) to safeguard the defendant in an identification process attended with hazards of serious unfairness, to wit, the suggestive manner with which such line-up confrontations can be conducted, and (b) to preserve for the defendant the ability to effectively reconstruct at trial the manner and mode of the line-up. In our view, if these purposes are met then the requirements in Wade are satisfied, whether the representation at the line-up be handled by the accused's own counsel or substitute counsel. See United States v. Kirby, 138 U.S. App. D.C. 340, 427 F.2d 610 (1970).
Testimony at the suppression hearing indicated that the Public Defender was present during the whole time in which the line-up was conducted. Before the witnesses viewed the line-up, the Defender satisfied himself that the line-up was a fair one and, in fact, requested the police to permit the defendant to remove his glasses, which was the feature that most distinguished the defendant from the other line-up participants. This request was granted. (See Notes of Suppression Hearing, hereafter "S.H.", 384). Although having had only limited communication with the defendant, the Public Defender made extensive notes during the line-up and recorded the following information: the height, weight, name and position of the participants in the line-up; the fact that the defendant wore dark brown shoes while the other line-up participants wore black shoes; the method by which the witnesses were permitted to observe the line-up and signify their recognition of any of the participants. (S.H. 102, 104, 107). These notes were relied upon by the Public Defender as a basis for refreshing his recollection at the suppression hearing and it is clear that they could have been produced for the benefit of the defendant for use during the trial, should they have been requested. (See, S.H. 6, 40-1, 376, 447, 455).
On the basis of the Public Defender's notes and testimony, as well as the extensive testimony of the other witnesses at the suppression hearing, we were able to evaluate the manner and mode of the actual line-up and to reenact the line-up in the courtroom. (See Exhibits G-4, 5). From this complete record, we were convinced that the legal representation afforded the defendant by the Public Defender was adequate under Wade to assist in the reconstruction of the actual line-up and to assure a fair line-up in which no unnecessarily suggestive procedures were employed by the police. (S.H. 475-78). Indeed, even if we were to find that the Public Defender did not do all that could have been done, the degree and quality of his representation would in no way alter our ultimate conclusion that the line-up was fair. In either case, it was not prejudicial error to admit the identification testimony into evidence.
Further, we should like to add that the practice of having a Public Defender represent an accused at a line-up, prior to the appointment of trial counsel, is an attempt to accommodate the dictates of Wade with practical necessities. We think the practice, as applied in this case, is a salutary one and in view of the frequency of its use it is hoped that the Court of Appeals will speak authoritatively on its propriety.
II. ADMISSION INTO EVIDENCE OF THE LINE-UP IDENTIFICATIONS AND THE IN-COURT IDENTIFICATIONS.
It is the defendant's contention that the admission into evidence of both the line-up and in-court identifications violated due process because of the existence of the following circumstances:
(a) that prior to the line-up an FBI agent told the witnesses that the man they had identified through ...