DiAngelo v. United States, Civ. A. No. 74-2448.

• Citation: 406 F. Supp. 880
• Decision Date: 06 January 1976
• Docket Number: Civ. A. No. 74-2448.
• Parties: Bartholomew DiANGELO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

406 F. Supp. 880

Bartholomew DiANGELO, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 74-2448.

United States District Court, E. D. Pennsylvania.

January 6, 1976.

Bartholomew DiAngelo, pro se.

William J. McGettigan, Asst. U. S. Atty., Philadelphia, Pa., for respondent.

MEMORANDUM OPINION AND ORDER

EDWARD R. BECKER, District Judge.

Petitioner, Bartholomew DiAngelo, was convicted by a jury in this court of conspiring to rob and of robbing a federally insured bank.¹ We sentenced him to a term of fourteen years' imprisonment to be followed by a term of five years' probation. The Court of Appeals affirmed. United States v. DiAngelo, 493 F.2d 1401 (3d Cir. 1974). DiAngelo now moves pursuant to 28 U.S.C. § 2255 to vacate the conviction and sentence. He first alleges that his constitutional rights were violated because his counsel was not present at the time, prior to trial, when the Assistant United States Attorney showed a witness, who later identified DiAngelo in court, a photographic display which included DiAngelo's picture. Second, DiAngelo claims that he did not receive the effective assistance of counsel guaranteed him by the Sixth Amendment, because counsel failed to move to suppress the above in-court identification and to subpoena two witnesses whose testimony would have attacked the validity of the identification.

Section 2255 requires that we afford DiAngelo a hearing on these issues "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .." Moreover, in Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), the Court warned that the statutory phrase "conclusively show" is to be construed to afford a hearing unless "under no circumstances could the petitioner establish facts warranting relief under Section 2255." We believe that petitioner's identification claim presents one of those instances where the files and records of the case conclusively show that petitioner is entitled to no relief, but we find that we must hold a hearing on the issues raised by DiAngelo's second stated ground.

I. The Identification Issue

The government relied in its case in chief upon the testimony of two eyewitnesses to the robbery. One of those witnesses, Alvin C. Wipplinger, was employed as an assistant branch manager at the bank on the day of the incident. During the trial, Mr. Wipplinger identified DiAngelo as one of the robbers and also testified that he had twice chosen DiAngelo's picture from arrays of photographs shown him by F.B.I. agents.² Petitioner relies on United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), to attack the identification. That case held that such a photographic spread constitutes a "critical stage" of the criminal process and, thus, the defendant is entitled to have counsel present. Unfortunately for petitioner, Zeiler was overruled by United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972) (en banc), and rejected a year later by the Supreme Court in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). The Supreme Court recognized in Ash that even though a photographic spread is not a "critical stage" of the prosecution, a defendant may still move as a matter of due process to suppress a later in-court identification "if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Thus, although the petition clearly raises only the Zeiler counsel point as grounds for relief on the identification issue, we will, out of an excess of caution, also address the due process question.

Trial counsel for petitioner did not request a suppression hearing to obtain a ruling that the out-of-court identifications were impermissibly suggestive. Such a ruling would not only have required suppression of the out-of-court identifications, but also the exclusion of Wipplinger's in-court identification, unless an independent basis for the in-court identification could be established. Simmons, supra; see United States v. Wade, 388 U.S. 218, 241-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In this case, however, even if we were to find that the photo spreads were impermissibly suggestive,³ we would find, based upon Wipplinger's testimony, that his in-court identification was the product, not of any impermissible suggestion, but of an independent source and thus not susceptible to suppression on due process grounds.

The relevant portions of Wipplinger's testimony show that petitioner entered the bank with his accomplice and ordered Wipplinger to stand with hands against the wall. Petitioner was wearing a stocking over his face but, according to Wipplinger, the stocking distorted his features only "slightly." During this period of time, Wipplinger testified that he was approximately six feet away from the petitioner and was able to observe him and his face for "about a half minute or so." Wipplinger made a positive in-court identification of petitioner. As to the earlier photographic identifications, Wipplinger stated that he was shown a display of eight or nine photos by Agent Nolan of the F.B.I. at Wipplinger's office in the bank on March 27. The relevant portion of his testimony regarding this photo display is as follows:

Q. By the Assistant U.S. Attorney Now, in what manner did he Agent Nolan of the F.B.I. display the photos to you? Where exactly did he display the photos?

A. I was at my desk at the time and he just laid the photos in front of me, put all of them down in front of me.

Q. Did he indicate to you in any manner which photograph, if any, you should pick out?

A. No, sir.

Q. And what did you do when you looked at the photographs?

A. I picked out the man that held the gun on me.

Q. The photograph of the same individual who you have identified today?

A. Yes, sir, it is.

Q. And how certain were you at that time that that was the individual?

A. I was sure.

Wipplinger testified that the second photo display, which also consisted of eight or nine photos, took place in the U.S. Attorney's office during the middle of December 1972. Agent Toohey of the F.B.I and the Assistant U.S. Attorney, Mr. Meltzer, showed Wipplinger the photos. The relevant portion of his testimony regarding this photo display is as follows:

Q. Now at that time did anyone indicate to you in any way which photograph you were to pick out, if any?

A. No, sir.

. . . . .

Q. And in what manner were they displayed to you?

A. Just laid out in front of me. Asked me if I could pick out the man involved in the bank robbery. I picked out the picture again of the gentleman sitting there.

Q. The same photograph that you had picked out previously?

A. Yes, sir.

The brief cross examination of the witness did not touch on the identification issue.

United States v. Higgins, 458 F.2d 461 (3d Cir. 1972), set out seven factors to be considered in determining whether an in-court identification is the product of an independent source:

(1) the manner in which the pre-trial identification was conducted;

(2) the witness' prior opportunity to observe the alleged criminal act;

(3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification;

(4) any previous identification by the witness of some other person;

(5) any previous identification of the defendant himself;

(6) failure to identify the defendant on a prior occasion; and

(7) the lapse of time between the alleged act and the out-of-court identification.

458 F.2d at 465. It is not clear from DiAngelo's petition whether he alleges that the first pretrial identification, the second, or both irreparably impaired Wipplinger's ability to make an accurate identification during trial. Despite the occurrence of both previous identifications, we have no doubt that Wipplinger's in-court identification was the product of an independent source as that term is defined in Higgins.

Both times Wipplinger was shown photographs, eight or nine pictures were spread before him without any attempt being made to suggest a particular selection. Contrary to petitioner's contention, the fact that the latter display was made while petitioner was in custody affords him no sustenance in light of Reed and Ash.

Wipplinger's ability to observe the criminal act was clear and unimpeded. He viewed petitioner for thirty seconds, from a distance of approximately six feet. He found the stocking mask only slightly distorting.

No discrepancies between the defendant's actual description and any description given previously by Wipplinger are alleged, and a review of the record indicates that none exist.

Petitioner does not allege that Wipplinger ever identified anyone else as the offender. Additionally, petitioner's case is not strengthened because Wipplinger was shown two photographic displays. Both the Court of Appeals and the Supreme Court have affirmed convictions where witnesses participated in two pretrial photographic line-ups. See, e. g., Simmons, supra, 390 U.S. at 382-86, 88 S.Ct. 967; Higgins, supra, 458 F.2d at 468.

The only factor that could weigh in favor of suppression is petitioner's allegation that approximately two weeks after the incident, Wipplinger was unable to identify petitioner's picture when it was shown to him by two Pennsylvania State Parole Officers. Accepting this allegation as true for the purposes of this ground of the motion, we still believe, given the other circumstances, that Wipplinger's in-court identification was the product of an "independent source." Significantly, the first identification occurred just three days after the incident, when petitioner's visage, in all likelihood, remained in Wipplinger's mind.⁴

We have no doubt then, that the facts point to the conclusion that...