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July 6, 1972

UNITED STATES of America ex rel. Albert Leroy McCOWIN
Mr. E.A. POWELL, Superintendent, State Correctional Institution, Huntingdon, Pa.

Muir, District Judge.

The opinion of the court was delivered by: MUIR

On May 11, 1967, a jury in the Court of Quarter Sessions of York County, Pennsylvania found Albert Leroy McCowin guilty of rape. McCowin has filed in this Court a petition for a writ of habeas corpus. He seeks to have his conviction for rape voided on the grounds that the pre-trial identification proceeding and the trial judge's charge violated his constitutional rights. His petition will be denied.

"In the defendant's argument he raises the issues concerning the identification of the defendant by the victim prior to trial when he was not accompanied by his counsel. We have disposed of this contention in the opinion filed this day in the case of Com. v. Johnson." (Commonwealth v. McCowin, No. 111 January Sessions 1967, Court of Quarter Sessions of York County, January 22, 1968, at p. 2)

 In Johnson, the trial court treated the pre-trial identification procedure as follows:

"The procedure of having a witness identify an accused in the absence of the accused's counsel and at a time when only one person was submitted for identification has been the practice throughout the nation until June 12, 1967, when the United States Supreme Court concluded that this was a denial of constitutional rights in U.S. v. Wade, [388 U.S. 218, 87 S. Ct. 1926] 18 L. Ed. 2d 1149, and Gilbert v. California, [388 U.S. 263, 87 S. Ct. 1951] 18 L. Ed. 2d 1178. However this does not aid the defendant here for this case was tried May 10, 1967 and the identification at the jail antedated the trial. In Stovall v. Denno, [388 U.S. 293, 87 S. Ct. 1967] 18 L. Ed. 2d 1199, the U.S. Supreme Court said 'We hold that Wade and Gilbert affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date.'" (Commonwealth v. Johnson, No. 110 January Sessions, 1967, Court of Quarter Sessions of York County, January 22, 1968 at 2-3)

 Although the trial court relied on Stovall for the proposition that Wade and Gilbert are not to be applied retroactively, it did not refer to the following passage from Stovall which McCowin had quoted in his brief in support of his motions in arrest of judgment and for a new trial:

"We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to counsel claim. Palmer v. Peyton, 359 F.2d 199 (C.A. 4th Cir. 1966). The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it . . . " 388 U.S. at 301-302, 87 S. Ct. at 1972 (citation omitted).

 A "violation of due process of law in the conduct of a confrontation" was one of the claims McCowin presented to the trial court. It appears from the opinions referred to above that the trial Court did not decide this claim. The same claim was presented to the Superior Court of Pennsylvania on appeal and to the Supreme Court of Pennsylvania in McCowin's petition for allowance of appeal nunc pro tunc. The Superior Court affirmed his sentence without opinion and the Supreme Court denied his petition without comment. McCowin has not filed any other post-conviction petitions in the state courts.

  McCowin is entitled to the protection of Stovall. United States ex rel. Trignani v. Russell, 405 F.2d 1119 (3d Cir. 1968). Because the trial, Superior and Supreme Courts each had a meaningful opportunity to rule on McCowin's assertion that the pre-trial confrontation violated his right to due process of law, he has adequately exhausted his state remedies as required by 28 U.S.C. Section 2254(b). "It is not necessary that the highest state court decide the claim on its merits." United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971). Since a state court finding on this issue is absent from the state record, an evidentiary hearing was held in this Court. See United States ex rel. Choice v. Brierley, 460 F.2d 68 (3d Cir. May 19, 1972). The background to and circumstances of the pre-trial confrontation were developed at this hearing.

 On the night of December 8, 1966, Barbara Brunner was walking in front of a gas station on a street well-lighted by street lamps, although otherwise unlit. A man walking towards her accosted her and forcefully caused her to accompany him to his car, which was parked behind the gas station. There he raped her. He did not beat her, and she had ample time to observe him during the slightly more than an hour she was with him. His car was not completely dark. She testified that she got "a good look" at his face then as well as when he first approached her. She also was able to observe him when, after the rape, he drove her a few blocks from the gas station towards her home, passing under street lights most of the way.

 When she arrived home, Miss Brunner was hysterical. She informed her mother that she had been raped, and her mother called the police. Two city detectives came to her home to interview her. At that time, she described her assailant as a light-skinned Negro, about five feet five or six inches tall, of medium build, weighing about 130-140 pounds, wearing dark trousers, a plaid shirt and a beret-like hat.

 Sometime in the next eleven days Miss Brunner was shown "mug shots" by the police. She did not pick out anyone of these in particular, but she did advise the police that one or two of these had parts of their faces similar to the corresponding parts of her assailant's face.

 Eleven days after she was raped, Miss Brunner was asked by the police to come to the York City Hall to see if she could make an identification. The police told her that they thought they "had" her assailant. At City Hall she viewed petitioner McCowin, his parole officer and one or two other people through a one-way mirror. McCowin was dressed in grey trousers, a blue shirt, and a black jacket. (No one had advised him what to wear that evening.) Miss Brunner was directed to look at McCowin in particular. At that time, she unhesitatingly and positively identified him as her attacker. Upon emerging from the room in which she had made her identification through the one-way mirror, she confronted McCowin in person. She ...

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