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UNITED STATES EX REL. FRANCIS MARINO NO. H 9391 V.

July 12, 1971

UNITED STATES of America ex rel. Francis MARINO No. H 9391,
v.
Alfred T. RUNDLE, Superintendent


Fullam, District Judge.


The opinion of the court was delivered by: FULLAM

FULLAM, District Judge.

 Relator and two co-defendants, Arthur Ashkenase and Salvatore Rispo, were convicted after a non-jury trial on Bills Nos. 261, 363, 364, 365, 366 and 368, Philadelphia County, February Sessions, 1967, charging blackmail and conspiracy. Relator was sentenced to a total of four and one-half to nine years imprisonment. The conviction and sentence were affirmed in the state courts, Commonwealth v. Marino, 213 Pa. Super. 88, 245 A. 2d 868 (1968); Commonwealth v. Marino, 435 Pa. 245, 255 A. 2d 911 (1969), and the United States Supreme Court denied certiorari, 397 U.S. 1077, 90 S. Ct. 1526, 25 L. Ed. 2d 811 (1970).

 In this petition for a writ of habeas corpus, relator contends that his conviction was obtained in violation of his due process rights because it was based upon a pre-trial voice identification, which was unduly suggestive.

 The trial court heard evidence on the identification as part of the Commonwealth's case. As the case was heard without a jury, this procedure was analogous to a suppression hearing where the constitutional validity of a pre-trial identification is heard by the judge. See Clemons v. United States, 133 U.S. App. D.C. 27, 408 F.2d 1230 (1968). The constitutional standard to be applied to the identification is the same whether it be passed upon at a suppression hearing prior to a jury trial or at a non-jury trial.

 At the trial much concern was expressed for the argument then advanced that the identification was the fruit of an illegal arrest, a point not now raised However, a challenge to the whole identification procedure was preserved, and the state appellate courts treated it fully. Therefore, relator has not waived his right to present the issue here. Because full attention was not directed to this issue at trial, an evidentiary hearing in this Court appeared warranted, Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and was held.

 Since the identification occurred on November 11, 1966, prior to the decisions of the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the requirement of those cases that counsel be present at a lineup (assuming the voice identification was equivalent to a lineup) is not applicable to this case. The cited cases apply only to lineups held after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

 The facts surrounding the challenged identification are as follows. Morris Singer owed approximately $3,100 to Arthur Ashkenase. On the afternoon of November 7, 1966, Ashkenase appeared at Singer's clothing store with Salvatore Rispo. They informed Singer that Rispo now owned the debt (which had suddenly become $10,000) and told him to make a telephone call. He was told that a girl would probably answer "the Teamsters" and that he should ask for the "big man." Singer made the call and a man answered who described himself as "the boss." The caller had a short discussion with Singer telling him that he had better get the $10,000 quickly.

 The next day, November 8, Singer received another telephone call from the same person with whom he had spoken on the telephone the previous day. The caller made several statements to the effect that Singer had better pay or he would be killed, and then told Singer that he would accept an installment payment of $4,500 by the end of the week. On the evening of November 10, Singer received another telephone call from the same person, who again described himself as "the boss." Again, a short conversation occurred in which the caller demanded money and Singer begged for more time. A short time later the same evening, the same person called again and told Singer that a meeting would be arranged the following morning.

 The next morning, November 11, Singer received another telephone call from the same person. Singer was directed to go to Lerner's Restaurant at 2nd and Market Streets in Philadelphia, where he would see someone he knew; and was told to sit at that person's table. Singer went to the restaurant with several detectives from the Philadelphia District Attorney's office. There he saw Rispo and sat with him. On a prearranged signal from Singer, the police arrested Rispo. Relator was also arrested, as he was present in the restaurant and had been talking to Rispo just before Singer arrived.

 Relator was taken directly to City Hall and placed in a section of Room 708A, which was separated from the detectives' offices by a partition which did not extend all the way to the ceiling. Sgt. McLellan, one of the detectives who participated in the arrest, brought Mr. Singer to the detectives' office. He testified at trial that they arrived after relator, and that Singer remained on the other side of the partition from relator. *fn1" A detective Roman, who was not involved in the arrest, testified at the hearing before this Court that he was the only person in Room 708A when relator was brought in, and that Singer was brought in later. Relator testified that Singer was in Room 708A when he arrived and that he was led past Singer. He also testified that he was taken to Room 708A "as fast as the red car could get from Second and Market to the District Attorney's office." N.T. 15. Detective Lynch, who participated in the arrest, testified that he rode to City Hall with McLellan and Singer in a separate car, and was in Room 708A when relator arrived. Despite the conflict as to who arrived at Room 708A first, there is no evidence, other than relator's statement that he was led past Singer, that Singer saw anyone taken behind the partition or knew in any way who was there.

 The record shows that Singer was brought to Room 708A for the purpose of identifying a voice, and that he was aware of this purpose.

 Detective Lynch met relator in Room 708A, told him that he had a right to remain silent, and proceeded to fill out an arrest report. General conversation ensued between relator and several detectives, some of which related to trucking and strikes. The detectives did not discuss with relator anything relating to the charges later brought against him. The record is not clear as to how many detectives engaged in conversation with relator at any one time, but it appears that a total of about four spoke with him at various times. However, relator was the main speaker.

 Approximately 15 to 20 minutes after Singer arrived, he recognized one of the voices on the other side of the partition as that of the person known as "the boss," who had been calling him. Detective McLellan testified that he knew that the voice Singer was referring to was that of relator, and that he went to the other side of the partition and brought relator out to the office where Singer was sitting. Relator then spoke and Singer again identified his voice as the one heard over the telephone. At trial, ...


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