the photograph display on May 5 had not been involved in the May 3 operation and had no reason to know that Williford was wanted in connection with the May 3 transaction. Nevertheless, I further find that even though the inclusion of defendant was accidental, the May 5 photographic array, consisting of nine photographs of persons arrested that day upon identifications furnished by officers who had made drug purchases that day, was not unduly suggestive. The photos showed at least five men of the same race as the defendant and they were all of medium build. The defendant and two other men had hats on and two others appear to have had mustaches. There was nothing which singled the defendant out. The identification in question was made only two days after the incidents in question by trained police officers who had been in close contact with the defendant during the cocaine purchases.
With regard to denial of the motion to suppress identification evidence, I found that the nine picture array was not prepared with any intention to be suggestive, but that instead the identification of the defendant from that array was fortuitous and unexpected. I further found that the confirmation of identification by Officer Stanford was made without any direction or suggestion by anyone. Both the initial identification by both Officers and the confirmation by Officer Stanford were made only two days after the purchases in question by trained police officers who observed the defendant for a sufficient time and under sufficiently good lighting conditions to make good identification possible. The identifications by Officers Stanford and Sewell clearly met the Manson standards for reliability and denial of the Motion to Suppress identification was correct.
With regard to the sufficiency of the evidence to sustain the verdict of the jury, it is obvious that the identification by the Police Officers was essential to the government's case. The aural and video recordings were, for technical reasons, of poor quality and inconclusive. The defendant stalwartly maintained his innocence and produced testimony of good character, and a witness who attacked the accuracy of the identification.
The principal factors supporting the position that the Police Officer's identification was sufficiently reliable to support the jury's verdict is set out above in the discussion of the Manson test. In addition, I note that all of the circumstances of the identification of the defendant which had been heard by the Court at the suppression hearing were fully developed before the jury, and the defendant's position was forcefully and skillfully presented. The jury was in a position to judge, as fact finders, essentially the same facts which the Court had used in making its legal ruling on the identification evidence and the Court cautioned the jury to consider all of this evidence. The jury obviously chose to believe the testimony of the two officers rather than that of defendant.
I find that sufficient evidence was presented to the jury upon which to base its verdict. Under the standards discussed above, the verdict of the jury must stand.
Accordingly, defendant's Motions must be denied.
An appropriate Order follows.
AND NOW, this 21st day of December, 1989, defendant's Post-Trial Motions are DENIED in their entirety. Sentencing is scheduled for March 5, 1990, at 10:30 A.M. in Philadelphia Courtroom 7A.