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
Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right, see supra, at 486, and we emphasize the minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding. As Mr. Justice Black recognized in this context, "ordinarily the evidence seized can in no way have been rendered untrustworthy . . . and indeed often . . . alone establishes beyond virtually any shadow of a doubt that the defendant is guilty". Kaufman v. United States, 394 U.S. at 237 [Black, J., dissenting].