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September 15, 1972

UNITED STATES of America ex rel. Ronald J. RAKSHYS, Relator,
Erskind DeRAMUS, Superintendent, State Correctional Institution, Post Office Drawer R, Huntingdon, Pa., Respondent

Muir, District Judge.

The opinion of the court was delivered by: MUIR

On January 17, 1968, a jury sitting in the Court of Oyer and Terminer and Quarter Sessions of Luzerne County, Pennsylvania, found petitioner Ronald J. Rakshys guilty of armed robbery. The trial court denied his motion for a new trial and in arrest of judgment. His conviction was affirmed by the Pennsylvania Superior Court per curiam without opinion, allocatur was denied by the Pennsylvania Supreme Court, and certiorari was denied by the Supreme Court of the United States.

 On March 16, 1970, Rakshys filed a petition for post-conviction relief in the Luzerne County Courts. In that petition, he contended, inter alia, that he had been denied the effective assistance of counsel and that the identification testimony of the only eyewitness to the crime emanated from an impermissibly suggestive pre-trial show-up. His post-conviction petition was denied by the original trial judge. The Superior Court of Pennsylvania affirmed this denial, and the Supreme Court of Pennsylvania denied allowance of appeal. The instant petition for a writ of habeas corpus presents the two claims referred to above relating to the effectiveness of counsel and the identification testimony. It is clear that he has exhausted his available state remedies as to these claims. 28 U.S.C. § 2254(b); United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971).

 In its opinion in support of its denial of Rakshys' post-conviction petition, the trial court found that Rakshys was not denied the effective assistance of counsel. I find that Rakshys had a full and fair hearing on this issue and that the state court's finding is adequately supported by the record. Hence, this finding is presumed to be correct. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

 Petitioner's other contention. that he was denied due process of law because of a tainted in-court identification, presents significantly more difficult questions. The trial court rejected this contention and found that the in-court eyewitness identification emanated from a source independent of the pre-trial show-up. *fn1" This independent source was stated to be the witness's business dealings with Rakshys prior to the crime and his observations of him during the course of the crime. Because in my view the material facts necessary to make such a determination "were not adequately developed at the State court hearing," *fn2" and because this inadequacy was not due to any "inexcusable neglect of petitioner," *fn3" an evidentiary hearing on this question was held in this Court. See, e.g., United States ex rel. Choice v. Brierley, 460 F.2d 68 (3d Cir. 1972).

 Robber # 2 said to Sinkiewicz, "Stay where you are or I'll blow your head off." Sinkiewicz retreated into the station building after staring briefly at the face and gun of robber # 2. Once back in the station, Sinkiewicz occasionally over a three to five minute period observed robber # 2 through the glass walls of the station; his view was not obstructed by any posters or advertisements.

 The station was well lighted; robber # 2, who did not leave the car during the robbery, was not obscured by shadows. Grucella and robber #2 were both wearing women's silk stockings over their heads. Grucella's was black; the color of robber #2's stocking was not developed at Rakshys' state trial or the hearings held before this Court. Sinkiewicz did not see the driver of the car at all. The stockings in question had runs in them, and Sinkiewicz testified that he could see the robbers' faces as clearly as if they had not been wearing the masks.

 While Grucella was still rummaging through the cash register, Sinkiewicz escaped out the back door of the station. He called his employer, and his employer called the Hanover Township police. The police arrived at the gas station, to which Sinkiewicz had returned, about 15 minutes after the robbery. Sinkiewicz was extremely agitated. He told the police what had transpired. He further stated that the car used by the robbers was a light blue 1965 Oldsmobile. His only description of the robbers was that the man who came into the station (later found to be Grucella) had a dark complexion and a moustache. According to the police report of this interview, Sinkiewicz "could not give an accurate description of the thieves."

 Sinkiewicz testified that the state police interviewed him two days after the robbery. He believes he gave them a description of both robbers at that time, but does not recall how he described them. The state police, however, have no record of such an interview. According to the state police officer who was in charge of this case, the state police did not become involved until eight days after the robbery. The Hanover Township police officer who was in charge of their investigation testified that the only time members of his force interviewed Sinkiewicz was on the night of the robbery.

 Within a week of the robbery, a stolen car was recovered which fitted the description Sinkiewicz had given of the robbers' car. A latent fingerprint taken from the rear view mirror was found to belong to Charles Grucella. The state police obtained a warrant for his arrest. They then received an anonymous tip as to his whereabouts. The informant stated that Grucella was with two other men and that the trio invariably carried a small case with them whenever they entered or left the house where they were staying. After maintaining a surveillance of this house through the night of April 10, 1967, the state police entered it early in the morning of April 11, 1967. They found a case with guns and stocking masks in a refrigerator. They then arrested Rakshys, Grucella, and the third man present.

 As soon as he walked in this room, and without any prompting by the police, Sinkiewicz recognized Grucella, then Rakshys. He so advised the police, and walked over to where the three men were to take a closer look. He did not identify the third man; he had only seen two of the robbers. Sinkiewicz assumed that the guns and masks belonged to the three men being fingerprinted and photographed, but in his opinion he recognized Grucella and Rakshys because he had had ample opportunity to observe them during the crime and because about twice a week during the previous year they had purchased gasoline at the gas station.

 Sinkiewicz's opinion of the source of his identification testimony may properly be considered in assessing petitioner's claim. Clemons v. United States, 133 U.S. App. D.C. 27, 408 F.2d 1230, 1242 (1968). Sinkiewicz's view that he based his identification in part on having seen Rakshys and Grucella prior to the crime must be evaluated in the following context. He did not advise the police on the night of the robbery that he recognized two of the robbers as customers. It has not been established whether he did so inform them at any time prior to April 11, 1967, when he saw Rakshys and Grucella at the police barracks. In particular, there is, as noted above, a conflict in the testimony as to whether Sinkiewicz spoke at all with any police officers at any time after the night of the robbery but prior to April 11, 1967. Sinkiewicz ...

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