The opinion of the court was delivered by: FOGEL
Relator, David Tyrrell (Tyrrell) has filed his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He has been, and continues to be confined in the State Correctional institution at Graterford (Graterford), where he is serving a sentence of twelve and one-half to twenty-five years, imposed by the Court of Common Pleas for Delaware County, Pennsylvania, after his conviction by a jury on October 9, 1970.
Disposition of this matter calls for an analysis of the ensuing issues which we will discuss.
Tyrrell alleged several bases for the granting of the writ. Some of these were dropped prior to, or at the evidentiary hearing which we held. Two principal contentions remain: (1) matters relating to the alleged constitutional infirmities in relator's identification, and (2) points relative to his allegations that his court-appointed counsel was incompetent, both in his handling of the pretrial proceedings and in the conduct of the trial itself. (See Revised Requests for Findings of Fact and Conclusions of Law in Behalf of Relator, at 2-3). Our review of the state court record which includes the opinion of the state court trial judge on post-trial motions, briefs of the parties (pro se by relator), the per curiam affirmance by the Superior Court of Pennsylvania, and the Pennsylvania Supreme Court's denial of the petition for allowance of appeal, satisfies us that every issue raised in the instant case by petitioner was raised in his direct appeals before the appellate courts of the Commonwealth. Accordingly, we find that petitioner has exhausted State remedies as required by 28 U.S.C. §§ 2254(b). This is true, even though relator failed to invoke collateral State procedures. Brown v. Allen, 344 U.S. 443, 448-49, n.3, 97 L. Ed. 469, 73 S. Ct. 397 (1953); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3d Cir. 1969). Venue lies here; both the situs of the trial was, and the place of his detention is located in the Eastern District.
II. HISTORY OF THESE PROCEEDINGS
Mr. Tyrrell filed his petition pro se, and in forma pauperis. After receipt of the recommendation by the United States Magistrate, we reviewed the file, determined that an evidentiary hearing was required, and appointed counsel to represent relator (Order of November 27, 1974). Time frames for (1) completion or discovery, (2) submissions of briefs, (3) a final pretrial order, and (4) the final pretrial conference were established. The evidentiary hearing was conducted over the course of several days in order to permit relator's counsel to conduct further discovery with respect to matters raised during the course of that hearing. We have reviewed the record of the proceedings before us, the state court records, and all briefs and memoranda submitted by the parties. We conclude, on the basis of the entire record, that relator's petition is without merit; accordingly, the writ of habeas corpus will be denied.
III. FACTS RELATING TO THE CRIMINAL CONDUCT CHARGES
A brief recitation of the incidents which led to the charges is necessary in order to provide the proper perspective for our determination of the factual issues which are critical in reaching an ultimate decision. In the early hours of the morning of December 20, 1969, two men, one black and one white, robbed the Media Motor Lodge, near the intersection of Baltimore Pike and Providence Road in Media, Delaware County, Pennsylvania. While the robbers were inside the Lodge, Corporal George Weaver of the Media Police Department, observed an empty 1958 Chevrolet with its engine running, bearing Pennsylvania license registration OM 1307, at rest in the Lodge parking lot. A radio check was made, without any conclusive results. Thereafter, Corporal Weaver tried to locate the night clerk (who could not be found, since he was bound and gagged in the basement), and checked for signs of illegal entry. As he approached a stairway leading from the carport to a basement entrance to the ballroom, he observed two men, one black and one white, exiting from the door located at the bottom of the stair. The two continued up the stairs, and passed the police officer, without saying a word or responding to his questions. Then the white man wheeled about and shot Weaver once below the left ear. The man who shot Weaver ran to the vehicle, entered it, and headed East on Baltimore Pike, while the other individual fled into the bushes behind the Lodge. Weaver, bleeding but conscious, went to his patrol car, radioed the message that he had been shot, and stated that his assailant had fled East on Baltimore Pike in the same vehicle which had been the subject of his radio inquiry. However, the gravity of his injuries prevented him from pursuing the Chevrolet.
Officers from surrounding communities were dispatched to the Lodge to assist Weaver, and to stake out the area. One of them, Officer Robert West, spotted a vehicle which fit the radioed description, and gave chase. Relator was the driver of that automobile. Officer West stated at the trial that the Chevrolet stopped near an intersection, presumably in response to West's flashers; he left his patrol car and started to walk to the driver's door, when the suspect vehicle began to move. He thereupon fired three rounds from his shotgun into the Chevrolet, which then continued slowly to the left, across Baltimore Pike, and finally came to rest on the apron of a Mobil gas station on the north side of the Pike. Officer West was thereafter joined by other officers, who then approached Tyrrell. Relator grabbed for the revolver of one of the officers, and a short but violent scuffle ensued. Several blows were landed before Mr. Tyrrell was subdued. He was strapped to a stretcher to prevent further resistance, and put in a patrol wagon for the trip to the Media police station. Immediately upon arriving there, Tyrrell was sent to Riddle Memorial Hospital, so that Corporal Weaver, who had been taken there for treatment, could view him. He was identified by Weaver in the one-to-one showing, after which he was returned to the police station. He was later taken back to the hospital, where he was confined for treatment of injuries received in the scuffle with the police.
Some time later, after Weaver left the hospital, but before trial, Chief Bruton of the Media Police showed Weaver several photographs of Tyrrell taken from him on the morning of his arrest. It is undisputed that neither Tyrrell nor his counsel, David Auerbach, Esq., of the Public Defender's Office in Delaware County, were present on that occasion.
Motions to suppress the photographs, the show-up identification, and all of Weaver's identification, including in-court statements, were filed on Tyrrell's behalf. The photographs were suppressed on the basis of the impropriety of the means by which they were obtained, but Corporal Weaver was permitted to testify in court as to his independent identification of Tyrell. A three-day trial before a jury resulted in guilty verdicts on fourteen counts charging, inter alia, burglary, larceny, robbery, aggravated and other assaults upon civilians, assault and battery upon police, and two weapons charges. He was acquitted of assault with intent to kill.
There were two robbers at the Media Motor Lodge, but only Tyrrell was charged and tried. Evidence was presented at the trial which established that one Luther Jones had been picked up near the Motor Lodge at approximately the same time Relator was seized, but had died of a heart attack just after the start of his interrogation by the police.
IV. THE ISSUE OF IDENTIFICATION
Relator contends that the hospital identification was improper under the circumstances, and deprived him of his due process rights, because it was suggestive, conducted in the absence of counsel, post-arrest, and generally improper. We cannot agree.
A. The Controlling Legal Precepts
A trio of Supreme Court cases have established the guidelines which govern lineup and identification procedures. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967); Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). In response to the dangers to the fact-finding process which were generated by highly suggestive lineups, the Court in Wade and Gilbert wrote a prospective per se rule -- a lineup identification at which the accused was present without counsel would not be admitted into evidence. Wade, supra, 388 U.S. at 237. However, while the circumstance of the identification itself would be inadmissable, the witness who actually identified the defendant would in the proper case, be permitted to testify as to the fact of that identity at the trial. The test of propriety was that adopted previously in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), which also dealt with the question of admissibility of potentially tainted evidence. In Wong Sun, the court held that the government must show by clear and convincing evidence that the in-court identification had an independent basis separate and apart from the improper lineup identification. Wade, supra, at 240-41. Among the factors to be considered in coming to a determination are: (1) the witness' prior opportunity to observe the alleged criminal act; (2) the existence of any discrepancy between any pre-lineup description given to police by the witness, and the accused's description; (3) any identification by that witness of another person prior to the lineup; (4) the witness' failure to identify the defendant on a prior occasion; (5) the lapse of time between the alleged act, and the lineup identification; and (6) any other prejudicial factors about the conduct of the lineup identification which are disclosed. Id. at 241. In short, is there an independent basis for the in-court identification?
Stovall presented a somewhat different problem. The case arose on a petition for a writ of habeas corpus. The show-up had occurred prior to the per se rule of Wade-Gilbert. However, there was still an evaluation to be made of the possible improper suggestiveness in the identification proceedings; the Court ruled that consideration was to be based upon traditional due process grounds, Stovall, supra, at 297, and held that under the facts presented, there had not been a due process violation.
One other case is of general importance: Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). The basis for the decision is not of clear precedential value, since only four justices joined in the opinion, but there was an additional concurrence in the result, which restricted the Wade-Gilbert per se rule to post-indictment lineups. Thus there is not a general requirement that counsel be present at preliminary show-ups; such identification procedures are to be viewed in conformity with due process guidelines against the backdrop of the totality of all of the circumstances.
The court in these cases has always tackled the problem in the context of the sixth amendment right to counsel. Counsel is necessary only at critical stages in the adversary process. See, e.g., Wade, supra, at 244-45. Photographic displays do not rise to such a critical level as to require, eo ipso, the presence of counsel, because it is possible to otherwise develop the surrounding circumstances through trial procedures. United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568 (1973); Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). Thus, again, the test for such displays is a due process one which requires a review of the challenged procedures, "in light of the totality of surrounding circumstances". Simmons, supra, at 383.
The recent decision of the Supreme Court in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 44 U.S.L.W. 5313 (1976), should be noted, even though the principles enunciated are inapplicable to the case at bar, because of a sharp difference in the factors present in the two cases. In Stone, the Court held that the Fourth Amendment exclusionary rule is inapplicable to federal habeas corpus review of a state court conviction, absent a showing that the state prisoner was denied the opportunity to fully and fairly litigate his Fourth Amendment claims in the state court trial and on direct review of his conviction. In reaching this conclusion, the Court stated that
Id., at 428 U.S. at 495 n.37, 44 U.S.L.W. at 5321, n.37.
We are concerned in this matter, however, with lineup and identification procedures; a crucial factor in our decision with respect to the validity of the procedures utilized, and the admissibility of a subsequent in-court identification, is the reliability and trustworthiness of that identification. The suppression rule which relator contends should have been applied in his state court trial is not simply a judicially created remedy which excludes evidence obtained by police officers in violation of the Fourteenth Amendment "in the hope that the frequency of future violations will decrease". Id., at 428 U.S. at 492, 44 U.S.L.W. at 5320. To the contrary, unlike the typical Fourth Amendment argument, asserted by way of collateral attack, the claims raised in this case have a direct bearing "on the basic justice of [relator's] incarceration". Id., at 491, n.31, 44 U.S.L.W. at 5321, n.31.
We turn then, to the facts and the circumstances of the identification of relator, in light of these principles.
After Tyrrell was subdued by the police, he was taken in a van to the Media Police Headquarters. He was then taken to Riddle Memorial Hospital, where Corporal Weaver had been sent for treatment. Tyrrell stated that he was unconscious, but that he thinks there was a delay of one-half hour before he was taken to the hospital. (T.P. April 14, 1975, 17-19).
Officer West testified to a delay of five or ten minutes before the order was given to take him to the hospital. (T.P. April 15, 1975, 92). At the State Court trial, the officers involved testified to a very short delay at the station; none stated that the delay was in excess of a few minutes. (N.T., 272, 296, 306). There was no suggestion made that the suspect could have been arraigned, let alone indicted, during such a short period of time at approximately 6:00 A.M. on a Saturday morning. We hold that the show-up was a pre-indictment event, and thus not subject to the per se rule. Kirby, supra. See also Russell v. United States, 133 U.S. App. D.C. 77, 408 F.2d 1280, cert. denied, 395 U.S. 928, 23 L. Ed. 2d 245, 89 S. Ct. 1786 (1969). Accordingly, we will apply due process standards to evaluate the propriety of the early-morning one-on-one showing.
Stovall itself gives us significant guidance in this regard. The witness in that case was the survivor of a murder and attempted murder, and, in fact, was the only person alive who had seen the assailant. She had been seriously wounded with multiple stab wounds during the attack, and was in the hospital recovering from surgery in order to save her life, when the police apprehended a suspect. Flanked by police, he was brought to her hospital room; she identified him then and there. The Court found no due process infirmity on the basis of these facts. It noted particularly that the confrontation was in the hospital, that the hospital was near the jail, that no one knew how long the witness would survive, that she was physically unable to go to the jail, that an immediate identification was necessary to determine whether the investigation should be continued, that the usual lineup format was out of the question, and that the victim was the only person alive who could say that the suspect was not her attacker. Stovall, supra, at 297. The Court did not emphasize, but we note for comparison, that the show-up was the day after surgery, twenty-four hours after the arrest, and three days after the crime. Moreover, the suspect had not yet retained counsel, and the witness was asked directly whether the suspect "'was the man.'" Id. at 295.
Several other "one-on-one" identification cases are noteworthy. In Foster v. California, 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1969), the Supreme Court overturned a state conviction involving identification. The witnesses had seen a highly suggestive lineup (pre- Wade), but had not made any firm identification. Thereafter, each was confronted individually with the accused, but all of them were uncertain as to identification. It was only after a third lineup that solid identification was made. Applying the Stovall "totality of the circumstances" test, it was found wanting.
In contrast, several District of Columbia Circuit cases have upheld immediate "one-on-one" confrontations. Russell v. United States, supra, recognized the possible suggestiveness of the procedure, but held that this factor was outweighed by the reliability of immediate confrontation, coupled with the difficulty of obtaining counsel, and other lineup participants at 5:00 A.M. United States v. Evans, 141 U.S. App. D.C. 321, 438 F.2d 162, cert. denied, 402 U.S. 1010, 29 L. Ed. 2d 432, 91 S. Ct. 2196 (1971), involved a showing thirteen days after the crime, but only minutes after the victim had spotted her assailant on the street, and had called in his description and the place where she had observed him. The court said in essence that good police work required immediate verification by the apprehending officer in order to establish that this person was the correct suspect. But see McRae v. United States, 137 U.S. App. D.C. 80, 420 F.2d 1283 (1969) (identification of suspect in a police car held improper when there was no showing that the victim-witness was in danger of death, or could not attend a normal lineup).
In the instant case, we are confronted with a situation in which a police officer had been shot in the head while investigating a robbery. He was alive and in the hospital; his physical condition, however, was not yet ascertained. (N.S.H. 14, 24-25; T.P. April 15, 1975, 95). It was early morning, approximately 6:00 A.M. on a Saturday. (N.S.H. 12; T.P. April 15, 1975, 92; see also copies of hospital records, which establish that Weaver was brought in at 5:30 A.M.). It would be crucial to know whether the suspect, whose only connection with the crime was Weaver's radioed description of the vehicle, was in fact the assailant, in order to enable the police to decide whether to continue the investigation. Any delay for the purpose of obtaining participants for a regular lineup would have been excessive, particularly given the hour, and the day. It would have been difficult to obtain counsel at that moment, and the officer could not have been expected to be able to attend a lineup in his physical condition. Moreover, the uncertainty of his physical condition was another legitimate factor to be weighed in deciding upon the procedure which was adopted.
Tyrrell testified at the hearing that the exchange at the hospital was as follows:
And when the cop brought me in he says, "We got him. We got him, George. We got the bastard that did it. Take a look." George was laying sort of -- Mr. Weaver was laying on this side and he rolled over and he looked and he said, "Good" and that's all he said.
(T.P. April 14, 1975, 20). However, Officer West gave a very different version. He and the other officer lifted the litter so that Weaver, who could ...