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January 10, 1972

UNITED STATES of America ex rel. August E. SCHARTNER, Jr., Petitioner,
Lewis PIZZO, Warden, Lackawanna County Prison, Scranton, Pennsylvania and Noah L. Alldredge, Warden, United States Penitentiary, Lewisburg, Pennsylvania, Respondents

Muir, District Judge.

The opinion of the court was delivered by: MUIR

On February 26, 1966, two men armed with pistols entered an Acme Market in Harrisburg, Pennsylvania. They forced the manager of the store and the district supervisor for Acme Markets to open the store safe and turn over to them approximately $270.00. On October 10, 1966, a jury returned a verdict of guilty of aggravated robbery against petitioner with respect to this crime. The Superior Court of Pennsylvania affirmed the judgment and a petition for Allowance of Appeal to the Supreme Court of Pennsylvania was denied. In the present habeas corpus action pursuant to 28 U.S.C. § 2241 et seq., petitioner contends that a writ of habeas corpus should be granted or, at the very least, that he should receive a federal evidentiary hearing because certain pre-trial police identification procedures were impermissibly suggestive and because he received ineffective assistance from his counsel. For the reasons stated below, petitioner's request for relief will be denied.

 In petitioner's state court trial, the Commonwealth called the store manager, the district supervisor and one clerk as its identification witnesses. All three Commonwealth identification witnesses testified that they were sure that petitioner Schartner was one of the armed robbers.


 The store manager, Urban J. Halke, Jr., and the district supervisor, Gerald F. Coons, went to City Hall with the police shortly after the robbery to examine some photographs. Neither man could make any identifications. Sometime within the next six days, Halke was shown a single photograph: a "photocopy" of a rogue's gallery photograph of petitioner. This "photocopy" was blurred. Halke told the police that it could be of one of the robbers, but that he wasn't sure. (N.T. 35). Petitioner contends that this procedure violates the standard set forth in Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968):

"[Convictions] based on eyewitness identification at trial following a pretrial identification by photograph 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."

  Since this standard of due process is retroactive, *fn1" it is appropriate to apply it to the photographic identifications here which took place in 1966.

 The portions of 28 U.S.C. § 2254(d) pertinent to determining whether or not this standard of due process was satisfied are set out in the margin. *fn2" In his opinion denying petitioner's (then defendant's) Motion for a New Trial, the state trial judge in this case found that the in-court identifications by the identification witnesses were "based upon their observation of Defendant at the scene of the robbery during its commission." (p. 1194) *fn3" Thus, the state court found that the in-court identifications had an origin independent of the pretrial identification procedures; this finding satisfies the Simmons standard. Under 28 U.S.C. § 2254(d), this finding is presumed to be correct unless petitioner has established facts satisfying any of eight conditions. Petitioner has not contended that conditions (4), (5), or (7) pertain to his case. As noted above, condition (1) was met by the finding in the trial judge's opinion denying petitioner's Motion for a New Trial. For purposes of analysis of conditions (2), (3), (6), and (8), the factors set forth in United States v. Zeiler, 447 F.2d 993, 995 (3d Cir. 1971), as having an important bearing upon the true basis of a witness' in-court identification following an out-of-court photographic identification, are instructive:

"(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification."

 Approaching these factors seriatim: (1) identification witness Halke was shown only one photograph (N.T. 35); there was no testimony concerning what was said to him when he was shown the photograph or where he was when he was shown the picture; (2) Halke testified that the robbers, whose faces were not covered, were in the store about ten minutes, that the robbery occurred about a half hour before closing so that there was normal lighting in the store (see also N.T. 74), that petitioner accompanied him to the safe, that petitioner was the man to whom he gave the money, that he "continually looked at the two men trying to pick out different ways to identify them" (N.T. 27-28); (3) within an hour of the robbery, Halke described the man to whom he gave the money as about five feet nine inches tall, of slender build and dark hair (N.T. 25-26); this description fits petitioner; (4) Halke had not previously identified any other person (N.T. 34); (5) and (6) Halke apparently had not previously identified or failed to identify petitioner; and (7) the photographic identification was within five days of the robbery (N.T. 35). These factors show clearly that petitioner received a full hearing in the state court; the rest of the record shows it was also a fair hearing. The only material fact not adequately developed at the State court hearing is what was said to witness Halke when he was shown Petitioner's photograph. If something suggestive was said to Halke, that would increase the suggestiveness of the already strongly suggestive procedure of showing him just one photograph. However, it is my view that in spite of the real and hypothetical suggestive aspects of the photographic identification here, the record fairly supports the State court's factual determination that the in-court identification was independent of the out-of-court photographic identification. *fn4" Although this court has power to hold a federal evidentiary hearing, it does not appear to be appropriate to do so here because "the state-court trier of fact has after a full hearing reliably found the relevant facts." Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745, 757, 9 L. Ed. 2d 770 (1963). Furthermore, since the relevant factual determination indicates that the Simmons standard was satisfied, a writ of habeas corpus based on a violation of Simmons should not issue.

 Petitioner also objects to the identification testimony of Mrs. Crea Reneker, a clerk at the Acme Market, on the ground that she too was subjected to an impermissibly suggestive pre-trial photographic identification procedure. Mrs. Reneker did not go to City Hall immediately after the robbery as Halke and Coons did, but like Halke, she was shown a blurred photograph of petitioner. She too told the police that it could be one of the robbers. (N.T. 57). Again approaching the Zeiler factors seriatim: (1) Mrs. Reneker was shown only one photograph at her home by a police detective (N.T. 57); (2) she testified that she had "not more than five minutes" to look at the robbers but that she was certain of her identification because the robbers were strangers in the store (she had worked there for six years), because they dressed differently from most of the store's customers, because of the long, triangular, sunken-cheeked face of the man who went to the safe with Mr. Halke (N.T. 51-52) and because she wasn't scared until after the robbers left (N.T. 56); (3) immediately following the robbery she described the man at the safe as young, slender build, long, triangular skinny face with flat cheeks, about five feet nine inches tall (N.T. 46); this description fits petitioner; (4) she made no previous identifications of anyone else (N.T. 56-57); (5) and (6) she did not identify or fail to identify petitioner on a previous occasion (N.T. 56-57); and (7) she was shown the one blurred photocopy of a photograph within five days of the robbery (N.T. 57). Particularly in light of this witness' careful and perceptive on-the-scene description which fits petitioner, it is my view that as was true with witness Halke's identification, the record fairly supports the state court's finding of independent origin, the State-court trier of facts has reliably found the relevant facts, and the Simmons standard was not violated. *fn5" United States v. Fowler, 439 F.2d 133 (9th Cir. 1971), relied on by petitioner, is distinguishable from the case sub judice because there the facts did not demonstrate an independent basis for the in-court identification. In addition, Fowler involved testimony by the identification witness on direct examination as to his pre-trial identification. At petitioner's trial, the out-of-court photographic tentative identifications were brought out on cross-examination. The pressure which the prosecution brought on the witness in Fowler to follow his pre-trial identification was not present here.


 Petitioner concedes, as he must under Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), that since the lineup here occurred before United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), he cannot invoke the holding of that case requiring the exclusion of in-court identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of counsel. However, relying on Stovall, he argues that the conduct of the lineup was so unduly suggestive as to taint fatally the in-court identification of him by the two Commonwealth witnesses who were at the lineup. As discussed above with regard to the photographic identifications, the trial court found that the in-court identifications were based on the witnesses' observation of the Defendant at the time of the robbery.

 Witness Halke testified that six days after the robbery, he was called to City Hall for a lineup identification (N.T. 26). Standing in the hallway with a policeman, he looked through a one-way mirror at four men (N.T. 27) who were all about the same height, had dark hair and were dressed alike (N.T. 35). He was asked if he could identify any of the men as robbers, not whether any of them were the same man as the man in the photograph he had been ...

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