APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (District Court Criminal Action No. 73-310).
Aldisert, Adams and Rosenn, Circuit Judges. Adams, Circuit Judge, concurring.
The major question in this appeal from sentence for bank robbery, 18 U.S.C. § 2113(a) and (d), is whether the trial court improperly admitted identification testimony of a police officer.
A jury found appellant Battles and two co-defendants, Emanuel Daniels and Willie Thomas, guilty of robbing the Noble Manor office of the Pittsburgh National Bank on October 2, 1973. Following the daylight robbery by three individuals wearing ski masks, a regional police alarm sounded to which Pittsburgh Police Sergeant William Armstrong responded. The search focused on a blue Cadillac occupied by three black males. Shortly after 2:00 p.m., the police observed the automobile and a vigorous chase, in which Sergeant Armstrong participated, ensued. Armstrong turned onto Fulton Street and stopped head to head with the fleeing Cadillac, effectively blocking its progress. At this time certain of the car's occupants were shooting at pursuing police. An armed black male emerged from the passenger side of the Cadillac and ran along the sidewalk to the left of Armstrong's police car. As the suspect came abreast, he fired a shot at Armstrong and made good his escape.
On the same day Armstrong was shown an array of police photographs, including front and side views of Battles. He made no identification from the photographs.
Police conducted a lineup on November 13, 1973, and Armstrong identified Battles as the man who emerged from the Cadillac and shot at him. At the subsequent trial, the sole identification testimony implicating Battles with the robbery was that of Sergeant Armstrong. Battles did not testify.
Appellant made a timely motion to suppress Armstrong's identification testimony, alleging, inter alia, that the lineup procedure did not comport with the requirements of United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). The trial court ruled:
Now, as to Mr. Battles, the motion to suppress the identification testimony is denied. * * * I further find that Mr. Battles' rights under the principles set forth in the Wade case were not prejudiced by the failure of his counsel to see the lineup forms on the morning of the lineup. He has had ample opportunity to have seen them since. There is nothing to indicate that they have been changed since then.
I find that the lineup conformed with the criteria set down by the Supreme Court in the Wade case, and it was free of undue suggestiveness.
I further find that the two police officers, Sergeant Armstrong and Sergeant Salerno, have an independent basis for their identification of the Defendant Battles, and that testimony will not be suppressed.*fn1
Appellant advances the contention that the lineup failed to meet the Wade requirements because, although his counsel was physically present in the viewing room, counsel was denied an opportunity to examine the results of the viewing by those witnesses who attended the lineup. His counsel was informed that the results would be made available to him the next day at the preliminary examination.
Appellant urges us to invoke the rule of People v. Williams, 3 Cal. 3d 853, 92 Cal. Rptr. 6, 478 P.2d 942 (1971), in which a conviction was reversed because defense counsel was denied permission to accompany Gomes, an identifying witness at a lineup, outside the viewing room for the purpose of making the identification. The California court held that Williams "was entitled to have his attorney present when Gomes made his identification." 478 P.2d at 945. Because "the prosecution made no showing that the in-court identification by Gomes had an origin independent of the lineup," ibid., its admission into evidence was a violation of Wade. I do not reach the question whether this court would accept the Williams rule because here the trial court made a specific finding that Sergeant Armstrong had a basis for ...