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April 30, 1973

UNITED STATES of America ex rel. Timothy CLEMMER
Superintendent MAZURKIEWICZ

Vanartsdalen, District Judge.

The opinion of the court was delivered by: VANARTSDALEN

VANARTSDALEN, District Judge.

 Relator, Timothy Clemmer, seeks a writ of habeas corpus. He was convicted in state court on charges of rape and burglary. After conviction, relator appealed to the Pennsylvania Superior and Supreme Courts without success, and relief under the state Post-Conviction Hearing Act was denied, without hearing, by the Court of Common Pleas and the Superior and Supreme Courts of the Commonwealth of Pennsylvania. This court directed that a hearing be held and two such hearings were held. Briefs and supplemental briefs have been filed by relator and by the Commonwealth and the matter is now ripe for decision.

 Relator makes two basic points, contending that (1) the pretrial identification procedures initiated by the State Police deprived him of his constitutional rights and (2) the actions and inactions of trial counsel deprived him of his right to effective assistance of counsel.

 I. The Pretrial Identification Procedures.

 Relator argues that two distinct methods of identification used by the state police violated his rights: a photo spread and an impromptu lineup.

 Several days after the rape, the victim, Mrs. Geraldine Talucci, was shown a photo spread consisting of eight or nine photos including petitioner's. Having picked out petitioner's picture as that of her assailant, she stated that she wished to see him "live" to make sure she had the correct man before making a definitive statement that he was indeed her attacker. Therefore, two days later, the victim was taken to West Chester State College, where relator was employed as a groundskeeper. The police had arranged for the crew with which relator worked to be assigned to an area outside an office where Mrs. Talucci stood watch with the police. At this time she positively identified relator as the rapist and he was taken into custody.

 a. The photo spread. On October 2, *fn1" five days after the attack, the prosecutrix was shown eight or nine photos. All but one, relator's, were "mug shots" from the files of the state police. The officer who assembled the photos testified that he could not remember whether or not the "mug shots" used were of the type containing a number or other obvious identification indicating prior involvement with the law. (N.T. 72). *fn2" , *fn3" Relator's picture was obtained from his employer. (N.T. 71). The photographs used were chosen purposefully to be "close to the description so that he wouldn't be the only young person in there." (N.T. 72f.). Mrs. Talucci testified that she was shown "eight or ten" photographs approximately and told "to look through them and see if I recognized anybody." (N.T. 233). The witness continued,

The first time I shuffled through them as soon as I saw the picture I said, "That's him."

 (Id.). She went on to say, "I am certain but I would like to see him . . . because I wouldn't want to pin that on somebody I wasn't definite about." (N.T. 234-35). During the conclusion of the direct testimony, the following questions were asked and answers given:

Q. Now, I ask you to try to understand this question.
Was your identification of Mr. Clemmer based upon your recollection of the pictures that had been shown to you or of your picking Mr. Clemmer out at the college lineup?
Do you understand the question?
A. It wasn't based on the pictures. I guess the answer to the actual question would be it was based on the college lineup, but actually it was based on the man who got into my car that night.
Q. Let me ask you if you had not seen the pictures or if you had not gone to the college for a lineup -- OK?
A. Yes.
Q. -- and the same thing took place in court, would you have been able to identify Mr. Clemmer as your assailant?
A. Yes.

 (N.T. 243). Mrs. Talucci did not see the pictures after the photo spread, until the time of trial when she again saw the relator's photograph. (N.T. 247).

 This area of the law has been extensively examined by the Third Circuit in recent cases. The circuit court had held that a photo spread, after arrest, was a "critical stage" in the proceedings and that the accused was entitled to the protection of counsel. United States v. Zeiler, 427 F.2d 1305 (3rd Cir. 1970) (Zeiler I.). Photo spreads were considered again in United States v. Zeiler, 447 F.2d 993 (3rd Cir. 1971) (Zeiler II), and the court held that in-court identifications were admissible only if the government established an origin independent of a photo spread outside the presence of counsel. In United States ex rel. Reed v. Anderson, 461 F.2d 739 (3rd Cir. 1972), the court specifically overruled the "critical stage" holding of Zeiler I; in any event, Zeiler I was to be applied prospectively only from June 5, 1970. United States v. Higgins, 458 F.2d 461, 464 (3rd Cir. 1972). If, however, the photo spread was inherently suggestive, the defendant must be protected against it. See, e. g., Reed v. Anderson, supra, 461 F.2d at 745.

 As the transcript sections quoted above indicate, there was nothing inherently suggestive about the photo spread. The criteria for determining "suggestiveness" were examined in Zeiler II, supra, 447 F.2d at 995:

The following factors, previously mentioned by the Supreme Court in lineup cases, have an equally important bearing in this type of case upon the true basis of each witness' in-court identification: (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.

 The criteria will be examined in the context of the present case.

 1. Manner conducted. Although relator sought unsuccessfully to show that the "mug shots" used were of the type containing an identification number, this cannot be taken as established from the testimony. Nonetheless, and even assuming that they did have such a number, Mrs. Talucci was quite positive in her testimony in stating that she noticed no such numbers or other markings. Moreover, only one picture of the relator was used; the other pictures were selected to generally fit Clemmer's description; no prompting or ...

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