United States v. Savage

• Decision Date: 15 December 1972
• Docket Number: No. 72-1045.,72-1045.
• Citation: 470 F.2d 948
• Parties: UNITED STATES of America, Appellee, v. Tyrone Alexander SAVAGE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

470 F.2d 948 (1972)

UNITED STATES of America, Appellee, v. Tyrone Alexander SAVAGE, Appellant.

No. 72-1045.

United States Court of Appeals, Third Circuit.

Argued October 17, 1972.

Decided December 15, 1972.

Julius E. Fioravanti, Philadelphia, Pa., for appellant.

Jeffrey M. Miller, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before GIBBONS and JAMES ROSEN,^* Circuit Judges and LAYTON, Senior District Judge.

OPINION OF THE COURT

LAYTON, District Judge.

This is an appeal by defendant from his conviction for bank robbery in the United States District Court for the Eastern District of Pennsylvania. Three assignments of error are made. First, the admission over objection of the record of defendant's prior state court conviction for aggravated rape¹ which had been set aside and a new trial granted shortly after a certified copy thereof was obtained for use at this trial; second, the identification of defendant by a bank employee at a "showup" where defendant was unrepresented by counsel; third, insufficiency of the evidence to support the verdict.

A recitation of the basic facts will prove illuminating. On January 20, 1970, in broad daylight, four armed blacks entered the federally insured Central Penn National Bank at Broad and Glenwood Streets in Philadelphia, held up a teller or tellers and fled with about $7500 in cash. An alert management trainee of the bank, who already had a good view of all the robbers, including the defendant, observed their departure in a Pontiac car. His description of the robbers, their car and its license number was immediately phoned to the police, placed on a citywide police broadcast and within minutes of the radio alert, the getaway car, with four blacks inside, was observed by a motorized policeman, its license number verified and chase given. In short order, this car was forced into a telegraph pole, three blacks escaped therefrom and the fourth, this defendant, taken into custody as he backed out of the car holding a sawed-off shotgun in one hand and, in the other, a paper bag containing the stolen cash. Defendant was forthwith taken by several officers to the nearest detective division but, almost simultaneously with their arrival, a telephone call was received directing them to return the defendant to the scene of the crime where, within less than a half hour of the robbery, he was "99 percent" identified by the management trainee who had observed the robbery and flight. At trial, Mrs. Murdock, a teller, testified defendant was "one of the first two men that came in the bank." The management trainee said he was "99% sure he (Savage) seems to be the gentleman with the shotgun" and a bank guard, Mulkern, testified "Mr. Savage was the man with the shotgun." An F.B.I. agent testified defendant orally confessed his part in the robbery to him. A portion of the money (bait money) in defendant's possession when apprehended was positively identified as having been stolen from the bank less than one half hour before.

Defendant's first contention that he was deprived of his 6th Amendment right to counsel at the "show-up" shortly after the event can be readily disposed of. On the scene confrontations shortly following a crime have consistently been upheld by the courts. United States v. Gaines, 450 F.2d 186 (3rd Cir. 1971). Concededly, as defendant argues United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), did hold that a defendant was entitled to counsel at a post-indictment lineup. But the "show-up" here was not a post-indictment confrontation. It happened in the very early stages of a routine, police investigation. There had been no formal charge, preliminary hearing, indictment information or arraignment. Until taken to the bank, defendant had not even been identified as a participant. And even accepting defendant's scarcely credible version of the affair,²Wade would be no authority for his position. In our judgment, the facts here are governed by Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L. Ed.2d 411 (1972). And see United States ex rel. Gomes v. New Jersey, 464 F.2d 686 (3rd Cir. 1972). We can see nothing otherwise "unnecessarily suggestive and conducive to irreparable mistaken identification" about the manner in which the "show-up" was conducted. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Defendant's constitutional rights were not infringed.

Next, defendant argues that his conviction should be reversed because, over objection, a certified copy of the record of his state court conviction for rape was placed before the jury whereas, in fact, his conviction had been set aside just prior to this trial. It is axiomatic that the use of invalid prior convictions is error. Gilday v. Scafati, 428 F.2d 1027 (1st Cir. 1...