At the hearing held pursuant to the remand, the defendant unexpectedly brought out that the Tomsics, prior to the trial, identified a photograph of the defendant as the culprit, which photograph was shown to them by Agent Backstrum as part of his investigation of the Ohio offenses. The defendant contends that this photographic identification violated the defendant's right to due process.
The government objected to the relevancy of the evidence concerning the photographic identification on the grounds that the defense did not elicit this fact by cross-examination of Mr. Tomsic at the trial; that the evidence at the hearing established that Tomsic made his identification from a source independent of the photograph; and that this issue is beyond the scope of the remand.
The defendant claims that this issue would have been developed at the Wade hearing had the trial judge granted it. The defendant contends that the evidence adduced at the remand hearing shows that this photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, and hence he must be granted a new trial. He cites United States v. Shannon, 424 F.2d 476, 477 (3d Cir. 1970).
We think defendant was entitled to an evidentiary hearing on this issue. Cf. United States ex rel. Choice v. Brierley, 460 F.2d 68, 72 (3d Cir. 1972); United States ex rel. Reed v. Anderson, 461 F.2d 739, 746 (3d Cir. 1972).
In resolving this issue against the defendant, we have considered the pertinent factors set out in United States v. Zeiler, 447 F.2d 993, 995 (3d Cir. 1971), and believe that the government has met its burden of proving that Tomsic was not influenced by the photographic identification and thus was not incompetent to make his in-court identification at the trial.
In this connection we find the following facts concerning the photographic identification:
On February 27, 1969, special agent Backstrum, as part of his investigation of the two Ohio offenses of passing counterfeit $20 bills, displayed to the Tomsics five photographs.
It cannot be doubted that it was proper investigative procedure to use photographic identification to determine if the man in custody in Pittsburgh was the same man being sought in Ohio.
Each photograph in the display contained a full face and profile, commonly called a "mug shot". Included was the defendant's "mug shot" which had been received from Pittsburgh after the defendant had been arrested there for the January 27th offense at the Staircase Bar. In addition to the defendant's "mug shot", the other four were of young men similar in appearance to the defendant. Both Mr. and Mrs. Tomsic identified the "mug shot" of the defendant as being a picture of the man who had passed the $20 counterfeit bill to Mr. Tomsic on January 6th.
On the face of four of the "mug shots" appeared a plate on which are a date, certain data, a number, and "P.D. Youngstown-O". On defendant's "mug shot" appeared "Police Dept. Pittsburgh Pa.", a number and a date "1-28-69". All the photographs were stapled to pink cards on the back of which appeared certain data under the heading "United States Secret Service Treasury Department".
The agent did not direct the attention of the Tomsics to any particular picture. After both had identified the defendant's photograph as being a picture of the culprit, the agent made no comment which could be construed as prejudicial to the defendant.
Defendant argues that the photograph of the defendant is impermissibly suggestive because Mr. Tomsic probably heard that the culprit left the scene in a car bearing a Pennsylvania license plate and, since the defendant's "mug shot" is the only one taken by the Pittsburgh Police Department, Tomsic's attention would inevitably have focused on it and influenced him to select defendant. Beyond that, nothing else was shown that might have caused Tomsic to believe that the agent wanted him to identify the defendant. It is reasonable to assume that any or all of the men in the "mug shots" might have driven cars bearing Pennsylvania license plates into Ohio and been arrested in Youngstown. There was no evidence that at the time Mr. Tomsic identified the defendant's picture, he was aware that the man who passed the counterfeit bill to him used a car bearing a Pennsylvania license plate, nor does it appear that he was concerned with or indeed paid any attention to the printed figures and data on the "mug shot", which matters seem to be entirely innocuous. Tomsic had not been informed that the man arrested in Pittsburgh was suspected of the Ohio offenses, or that he would be summoned to Pittsburgh as a witness.
On the two occasions that Mr. Tomsic identified the defendant prior to his in-court identification at the trial, choices other than the defendant were available to him, and no reason is established by the evidence for his consistent identification of the defendant except that he recognized the defendant as the man who had passed the counterfeit $20 bill in his store.
From the evidence adduced at the hearing we find that Tomsic had an independent source for his in-court identifications of the defendant. He had observed the culprit for three or four minutes and had good reasons to be impressed by and to remember his face. Tomsic's testimony was clear, convincing and unequivocal. The pretrial photographic identification was properly conducted although it would have been better to have shown the photographs to the Tomsics individually. But the fact that Mrs. Tomsic was unable to identify the defendant at the trial and at the remand hearing renders that possible taint harmless. There was no apparent discrepancy in any description given by the Tomsics. There was no previous identification by Mr. Tomsic of some other person, nor did he fail to identify the defendant at the photographic display on February 27, 1969; in the corridor of the Courthouse prior to trial on November 20, 1969; as a witness for the government at the trial; or as a witness at the remand hearing. We do not think that the time lapse of seven weeks since the counterfeit bill was passed and the pictures were shown would necessarily prevent recognition of the culprit. Cf. United States v. Zeiler, supra, 447 F.2d p. 996; United States v. Marson, 408 F.2d 644, 651 (4th Cir. 1968).
Upon consideration of the totality of the circumstances surrounding the photographic identification made by Mr. Tomsic, it is our conclusion that the "mug shot" of the defendant and the manner in which it was exhibited was not impermissibly suggestive and did not give rise to a very substantial likelihood of irreparable in-court misidentification at the trial. We are of the opinion that Mr. Tomsic was competent to make his in-court identification and that a new trial should be denied. Cf. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1967); United States v. Coades, 468 F.2d 1061 (3d Cir. 1972).
An appropriate order will be entered.