The defendant was convicted of bank robbery. In his post trial motions, he alleges that surveillance photographs of the robbery were not properly authenticated, prejudicial identification procedures were followed, he was improperly denied a suppression hearing, and members of the jury may have known of a prior conviction. I conclude that there were no trial or pre-trial errors and that defendant's motions must be denied.
On March 23, 1977, a branch office of the Philadelphia National Bank was robbed by a Negro male who presented a note demanding money to a teller, Mrs. Mary Ann Morell. Also present in the bank were Miss Sheri Webster, the teller whose window was next to that of Mrs. Morell, and Roy M. Freas, Jr., the bank manager. As soon as Mrs. Morell handed him the money, the bank robber ordered her to turn around, facing away from him. She did so and he left the bank. However, while taking the bills from the drawer in which they were kept, Mrs. Morell had caused a bank surveillance camera to be activated.
The next day, having the pictures from this camera, Mrs. Morell and Miss Webster were individually shown photographs of approximately 800 suspects but did not identify the robber as being among the group. Two weeks later, April 7, 1977, this time in a conference room at the bank, they were once again separately shown the surveillance photograph
and then presented with an array of eight sets of photographs of Negro males. Both Mrs. Morell and Miss Webster, as well as Mr. Freas, selected a picture of the defendant as being that of the individual who had robbed the bank. During the trial, all three witnesses identified the defendant as being the robber, related the circumstances under which they had identified his picture, and authenticated numerous bank surveillance photographs which were then received in evidence.
Defendant's first contention is that a proper foundation was not laid for the introduction of the surveillance photographs. Specifically, he argues that the tellers could not testify the photographs were an accurate representation of the scene depicted where they were not facing the camera or not in line with the camera angle, and that "expert" witnesses familiar with the installation and maintenance of the camera should have been called. The Federal Rules of Evidence, No. 901, provide, however, that the requirement for authentication may be satisfied by testimony of a witness with knowledge that a photograph is what it is claimed to be. See also United States v. Hobbs, 403 F.2d 977, 978-79 (6th Cir. 1968).
Mrs. Morell and Miss Webster both testified that these photographs were accurate representations of the robbery scene and participants. Mrs. Morell identified her teller's station, herself, the drive-in window and teller behind her, and the robber. The defendant's argument that she could not say the pictures were accurate because her back is turned in some of them is fatuous. Miss Webster testified she and her station, a customer on whom she was waiting, the drive-in teller, Mrs. Morell, and the man who robbed the bank were all shown in the various photographs.
I am satisfied the bank surveillance photographs were sufficiently authenticated.
Defendant next asserts the identification process was tainted because Mrs. Morell and Miss Webster were shown one of the bank surveillance pictures taken while the robbery was in process before they saw the spread which included defendant's photograph. This procedure, however, was specifically approved in United States v. Irby, 517 F.2d 506, 507 (4th Cir. 1975), cert. denied, sub nom. Smith v. U.S., 424 U.S. 973 (1976) where it is said,
The showing of photographs taken during the course of the bank robbery to witnesses prior to their selecting photographs of defendants Irby and Smith from a photographic lineup was not unduly suggestive since it is not disputed that the first set of photographs accurately depicted the robbery as it occurred. Use of the first set of photographs in this manner served the useful purpose of refreshing the recollection of the witnesses to the end that their subsequent identification from the photographic lineup and an in-court identification of one defendant by one witness were rendered more accurate. Nor were the photographs used in the photographic lineup unduly suggestive.