belief by the arresting police that petitioner and the other suspect with him were the two persons who had the previous night committed the robbery at a location approximately two and a half blocks from where they were placed in custody. Therefore, I conclude that the arrest was based on probable cause and was constitutionally valid. The photograph taken of petitioner while held in custody upon probable cause did not constitute an illegal search and seizure.
Petitioner cites Commonwealth v. Berrios, 437 Pa. 338, 263 A. 2d 342 (1970) which was cited as controlling in United States ex rel. Richardson v. Rundle, 325 F. Supp. 1262, 1264-1265 (E.D. Pa. 1971). In Berrios, the Pennsylvania Supreme Court condemned an arrest and search and seizure based upon a generalized description of the defendant. The description in Berrios given in connection with a shooting was that of three males, two Negroes in dark clothing, and one Puerto Rican in light clothing, leaving the scene walking east on Ontario Street. About twenty minutes later, police saw a Negro in dark clothing and a Puerto Rican in light clothing walking together in an easterly direction on Ontario Street about three blocks from the shooting. On searching Berrios, the police found a gun for which he was charged with and convicted of carrying a concealed deadly weapon, and carrying a firearm without a license. He was not charged with the shooting. In the present case, the descriptions, in addition to location, number of men involved, color of clothing and race (as in Berrios), the police also had a correct description of ages, heights, weights and type of hair (including an unusual, particularized if not unique hair style as to one suspect). Therefore, the Berrios case is not apposite to the facts presently under consideration. Noteworthy also, although not controlling, the Pennsylvania Supreme Court denied the petition for appeal by Mr. Hollman from the affirmance of his conviction by the State Superior Court, after it had decided Berrios, presumedly determining that the Berrios circumstances were not factually applicable as to Hollman.
Petitioner contends that the pretrial photographic identification was impermissibly suggestive and that the failure to have counsel representing him at the identification violated his constitutional rights, citing United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Wade holds that a suspect has the right to have counsel present at a pretrial line-up; not to frustrate an identification, but to insure that the line-up is fair and not unduly suggestive.
It is well settled that where convictions are based in part on "* * * a pretrial identification by photograph [they] will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1967); citing as similar Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Each case should be decided on its own facts and the procedure used should be evaluated in the light of the totality of the circumstances. United States v. Conway, 415 F.2d 158, 163 (3rd Cir. 1969); citing Simmons, supra.
In this case the evidence on the manner in which the photographic identification was conducted, developed both during the pretrial suppression hearing and the trial, supports the conclusion that the identification was conducted in a reliable manner and with the highest regard for fairness. Petitioner's polaroid photograph was among at least eleven additional polaroid photographs shown to the victim four days after the robbery. The investigating police officer testified that all photographs were of men of the same race, and approximately the same ages, weights and heights as petitioner. The victim was given the photographs and simply asked to look them over to see if he "saw anybody he knew". (Transcript of Trial, p. 9.) While there was testimony that the photographs varied as to the amount of body shown, and as to the size of the photographs (Transcript of Trial, pp. 22 and 23), there was no evidence that the procedures used or the photographs themselves were in any way suggestive. The testimony of the police and the victim was uncontradicted. Thus, there is no basis to find that the police utilized unfairly suggestive identification procedures, and there is no basis to conclude that there was a likelihood of misidentification. The record in this case affirmatively shows to the contrary. See United States v. Hall, 437 F.2d 248 (3rd Cir. 1971).
Petitioner asserts that the pretrial photographic identification was a critical stage in the proceedings against him, and under the rationale of United States v. Wade, supra, and its progeny, the presence of counsel representing him was mandatory. In Wade, the defendant was identified by witnesses at a pretrial line-up without counsel present and, while the line-up identification was not admitted into evidence at trial, the witnesses did make in-court identifications. The Supreme Court in Wade held that:
"[since] it appears that there is grave potential for prejudice, intentional or not, in the pretrial line up, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment line up was a critical stage of the prosecution at which he was 'as much entitled to such aid [of counsel] * * * as at the trial itself.' Powell v. Alabama, 287 U.S. 45, at 57 [53 S. Ct. 55, at 60, 77 L. Ed. 158]." Id. at 236-237, 87 S. Ct. at 1937.