*1 Pennsylvania Dead Man’s Statute “incomprehensible.”1 But is not 37(b)(2)(C), standard of Rule as in Rogers,

terpreted for imposition sanction of dismissal. Plaintiff’s

attorney based his actions on an appar

ently legal position mistaken in an effort protect his client’s cause of action

from a defense of contributory negli

gence. poor His judgment seems to compounded by

have been a breakdown

in communications between Philadelphia Wilmington counsel. The record support

does the kind of finding re

quired by Rogers, which any event

was not made.

I would vacate dismiss- complaint and remand for con-

sideration of the alternative sanctions 37(b)(2).

available under Rule of America

UNITED STATES et al. DANIELS "Bubbles”

Emanuel

Appeal BATTLES. of Robert

No. 74-1221. Appeals,

United States

Third Circuit. 10, 1974.

Argued Sept. 30, 1974. Dec.

Decided Berlin,

Ronald A. Pittsburgh, Pa., for appellant. Thornburgh,

Richard L. Atty., U. S. Villanova, James A. Henry Barr, G. Curtin, Kelly Kathleen Asst. Attys., U. S. Pa., Pittsburgh, appellee. ney’s Assuming application Pennsylvania would seem to be foreclosed contention Schweiwer, Statute, 381 Pa. Man’s Dennick v. Dead diversity 28 P.S. §§ 325 to Delaware, case the attor- A.2d tried *2 Appellant made ALDISERT, timely a and RO- ADAMS motion to Before suppress Armstrong’s SENN, Judges. identification testi- Circuit alia, mony, alleging, inter procedure comport did not with the re- OF THE COURT OPINION quirements of Wade, United States v. ALDISERT, Judge. 18 L.Ed.2d The trial court ruled: appeal question in this from major robbery, 18 bank U.S.C. Battles, sentence the motion Now, as to Mr. (d), the trial 2113(a) is whether and § testimo- suppress * * * admitted identification improperly I further find ny is denied. police a officer. testimony of rights under Mr. Battles’ the Wade case principles set forth in and appellant jury A found by the prejudiced failure co-defendants, not Emanuel Daniels and two on forms Thomas, robbing the to see the guilty of No- his counsel Willie lineup. morning He Pittsburgh Na- Manor office ble to have seen ample opportunity 1973. Follow- on October tional Bank nothing to indi- by There is robbery three indi- them since. daylight ing the changed masks, been regional they have po- cate wearing ski viduals Pittsburgh then. to which since alarm sounded lice Armstrong re- Sergeant William Police conformed find on a blue The search focused sponded. by down the Su- criteria set with black occupied by three males. Cadillac and preme in the Wade police p.m., ob- 2:00 Shortly after suggestiveness. of undue was free vigorous automobile served the police the two find that I further Armstrong par- chase, Sergeant in which officers, Armstrong Sergeant and Ser Armstrong turned ticipated, ensued. Salerno, an have geant stopped head to onto Fulton Street of the De their identification basis for Cadillac, fleeing effective- head with Battles, fendant time progress. its ly blocking suppressed.1 will not occupants were car’s certain pursuing police. An armed shooting at Appellant advances contention emerged passenger from male black failed to meet the Wade along ran of the Cadillac and side requirements because, although his coun- Armstrong’s po- the left of sidewalk to sel was physically present viewing abreast, came As lice car. room, counsel was an denied opportunity Armstrong and made he fired a shot to examine the results of the viewing escape. good his those witnesses who attended the lineup. His counsel was informed that re- On day same Armstrong was sults would be made available to him array shown an photographs, day next at the preliminary examination. including front and side views of Battles. Appellant urges us to invoke the rule He made no identification from pho- People Williams, 3 Cal.3d tographs. Cal.Rptr. (1971), P.2d 942 in which on Police conducted Novem- a conviction was reversed because de- Armstrong identified ber fense counsel was denied emerged man Battles as who accompany Gomes, an identifying wit- and shot at him. At the Cadillac ness at outside the viewing trial, subsequent sole identification room for the purpose of making the testimony implicating Battles with the The California court held Sergeant robbery Arm- that Williams “was entitled to have his testify. did strong. Battles attorney present when Gomes made his strong Battles. sole officer to emphasis supplied. appears It 1. S.H. 146-47 Sergeants conceded, however, defendant Arm- Both identified Thomas. to be Cal.Rptr. away Armstrong when feet first teen identification.” prosecution him, Because “the lengths at 945. “two hood automo P.2d saw showing that in-court iden- or three feet probably no two be made biles us”; origin had an inde- that he “within six Gomes tween tification ibid., lineup,” its admis- Armstrong, pendent feet” when he shot seven a violation *3 Armstrong actually into evidence saw him at sion that and question reach I do not he and observed him for point Wade. fired accept the Wil- period thirty this court of seconds.2 whether a total here the trial court rule because liams Further, this ex- record discloses finding Sergeant that specific made change: a basis for his in-court Armstrong had Q. pointing weapon he be- Was independent lineup of the identification your got parallel to vehicle he fore For reasons set forth in a procedure. your vehicle? approaching while concurring opinion, Judges separate Ad- him in his in front of A. He had necessary find it to con- ams and Rosenn him, in I was interested hand. of applicability Williams. sider I him. whether could lineup that defects in teaches Wade N.T. “per in a do not result se rule procedures to that “the factors identifica- We are instructed of courtroom of exclusion [in-] 1939, evaluating in the likelihood tion,” considered S.Ct. be opportu- include will instructs that identification of misidentification view the criminal if the Government “estab- the witness nity of be admissible crime, the witness’ convincing time of the by clear and evidence lishes] attention, accuracy of the of degree in-court identifications were that criminal, prior description of of the upon observations witness’ based certainty of demonstrated identification. the level other than See confrontation, and the Commission, at the v. witness Murphy Waterfront crime length of time between 79 n. S.Ct. U.S. [84 Biggers, 409 Neil 388 U.S. at the confrontation.” L.Ed.2d 678].” 188, 199-200, omitted). (footnote at 1939 challenged Appellant the district Although these finding factors delineate a “to- standards for an inde- court’s tality of circumstances” Sergeant Armstrong’s associated with

pendent basis for procedure a confrontation sug- deemed My independent review gestive, persuaded I am ap- that even if suppression of both the of the record plied Sergeant Armstrong’s observa- hearing and the trial convinces me that pursuit tions made in hot of the bank court’s determination the district robbers, his identification not error. passes this severe test. Accordingly, I trial, describing daylight At Fulton find no error Teitelbaum’s con- incident, Sergeant Armstrong said Street clusion that the in-court identification of person he “concentrated” on the basis of the Cadillac; emerged who “ lineup. taking particular . . .1 note face, did, We have his and that is what I considered the other conten by appellant tions raised I made an and find is how them individual”; to be without merit.3 person was fif- judgment acquittal fendant’s motion for 83, 125, 84, suppression At a 2. N.T. submitting question of identification Armstrong “I saw testified: hearing jury; me,” identification was an to the fired the shot before he face original, exploitation unlawful arrest lighting of an look, condi- good he had Amendment; FBI Fourth violation gunman’s face good, tions concerning Agent gratuitous 50-51.) (S.H. Gleason’s remark masked. covered grounds probation constituted against weight The verdict a mistrial. evidence; denying de- the trial court erred district court will anee of counsel was curtailed and the judgment precepts was invalid under the affirmed. pretrial hearing At a Wade and Gilbert. ADAMS, Judge (concurring): suppress, motion to on defendant’s lineup pro court stated the Court. district concur I However, cedure was also I affirm valid court sergeant of the le found that had a inde only after consideration basis lineup procedure pendent em for his in-court gitimacy since believe such of Battles.5 in this ployed by United analysis required is States an Wade held that where con v. California.2 Wade and Gilbert ducted in violation of a defendant’s Battles and two the trial of Robert right counsel, Sixth Amendment no robbery, ma for bank codefendants *4 testimony by identification witnesses to Battles was regard issue with jor present lineup at the may be introduced position the that identity; Battles took at trial can unless it by shown “clear robbery. participated not had he and convincing evidence that the in- testimony linking only identification The court identifications were upon ob based was that of crime Ser with the Battles servations of the other than Pittsburgh Po Armstrong of geant lineup identification.”6 Gilbert held trial, sergeant At Department. lice that testimony introduction trial of as the unqualifiedly identified the witness had earlier identified who, just robbery, shot at after man an illegal defendant at lineup consti police The offi escaped.3 and then him tutes per se violation of exclusionary he previously had also testified cer principles,7 and that a new trial omitting lineup Battles from conducted selected lineup mention of the identification was robbery bank weeks after six mandated.8 months before three approximately reference to the Accordingly, trial.4 present In the case evidence of the lineup by Armstrong reasonably could lineup presented identification was jury as by taken corrobo been have Thus, Gilbert, trial. lineup under if that recollection, of the officer’s rative derogation had been held in of Battles’ significance therefore of some rights, constitutional allusion at trial to key in the case. of the issue light lineup proceedings would require re- lineup Battles’ attorney versal, re- although, since the quested see to the identifica- sergeant concluded that had an cards persons tion marked present independent Battles, recollection of observe to but request policeman not have preclud- been was denied. that, The defendant claims giving ed from testimony result, right as to effective assist- that derived from unrelated sources. testimony lineup regarding 7. In Wade no 87 18 388 U.S. S.Ct. L.Ed.2d 1149 1. introduced, (1967). case was remanded for a determination whether the witness had 2. independent S.Ct. 18 L.Ed.2d 1178 a basis observations. The Gilbert, testimony situation in where lineup trial, expressly was admitted at distinguished. Wade, accompa- See n. 32 and 82-84, Transcript 89. Trial 3. text, nying 388 U.S. 87 S.Ct. at 1939. (direct examination); (cross- course, Id. 91-92 appellate 8. Of if the court determines examination). jury illegal introduction before a of an lineup identification is harmless error under California, Chapman Transcript (S.H.) Suppression Hearing 146- (1967), reversal not However, required. finding no harmless error appropriate appear in the situation 6. 388 U.S. at 87 S.Ct. at 1939. presented here. Aldisert, man,” I do not believe ness announced “that’s Unlike Armstrong’s lineup court held that did California safeguards adequate against the de- enabling provide him to basis suggestion. to vindicate may improper be used witness fendant if introduction procedure may be divided and Gilbert. lineup violated Wade such phases: into three (1) presentation comprise part of the lineup did Since suspects, (2) recognition by viewers, and evidence, may affirm we prosecutor’s (3) manifestation the viewers of the conviction, turned to a con- Battles’ lack of the identification is- extent on siderable Each in its own fashion is subject sue, we circum- only if conclude abuse.12 here, The claim as in Williams, here did not de- stances is not the circumstances surround of his prive the defendant .constitutional- presentation of the suspects right assistance ly protected unduly suggestive. counsel. Rather, the argument is directed to the support position of his the line In potential for abuse inherent recog principles violated Wade up here nition and voting processes. Gilbert, People cites defendant Williams, post indict In Williams.9 Williams, In contrast however, pres conducted ment attorney where pro- attorney. After the defendant’s ence of hibited attending third, *5 lineup, but the witness had observed manifestation, portion of the identifica- any recognition he manifested before procedure, tion here there are crucial the witness out suspects, police led factual present differences. In the attorney presence side circumstances lineup were oral Cali make carefully controlled to minimize unfair- Supreme proce held such fornia suggestion ness or in presentation out impermissible, pointing dure suspects as well as in the recognition supporting Wade and Gilbert rationale voting phases. Moreover, signifi- all was: cant acts of and voting place attorney’s presence. took any enable an accused to detect [T]o in with unfairness his confrontation Testimony suppression at hearing witness, that he [be sure] that at disclosed and in the suggestion any will be aware of presence attorney: of defendant’s officers, enforcement intentional law seated, Witnesses were isolated from unintentional, the time the wit at or another, one around viewing makes his identification. It is not ness room;13 alone, viewing moment but “procedure which rather whole Before the suspects came on to the suspect] is identified” that counsel [a lineup platform, neither the police per effectively able to reconstruct must be sonnel conducting nor at trial.10 witnesses knew positions suspects attorney was would take or the defendant’s exclud- they Where numbers would wear;14 when the wit- critical scene ed L.Ed.2d 1199 Cal.Rptr. U.S. 18 388 92 9. 3 Cal.3d 478 P.2d 942 (1967). (1971). Cal.Rptr. 944, quoting 10. 92 478 P.2d at (Testimony 13. S.H. 90 of Detective Frank Cu 335, 348, Fowler, 82 People 1 Cal. v. Cal.3d pus, lineup). who conducted the Rptr. 461 P.2d 643 (Sgt. Armstrong); (Detective S.H. Cupus). 188, 93 S.Ct. Biggers, v. Neil 12. See Denno, (1972); Stovall talking No permitted between forth no other grounds reversal, witnesses with officers dur concur in affirming lineup; court. joins ROSENN in In this contrast the oral in concurring opinion. Williams, identifications were made by- marking paper on ballots, record thus exists of identifications;16 Ballots were any marked before com permitted.17

munication was presented appeal on

The issue may, counsel as a

whether right, see of constitutional

matter they giv- at the time are

marked ballots Although lineup officials. en to the America, UNITED STATES of denied attorney was Appellee, ballots, the marked lineup to see although the better course seem attorneys defense see to indicate LAND, ACRES MORE 564.54 OF OR situations, such the ballots LESS, situate IN MONROE AND appear creates error refusal COUNTIES, PIKE COMMON- allega- of constitutional dimension. No PENNSYLVANIA, OF WEALTH irregularities pre- tion is made Pastorini, F. Benedict et al. recognition phases sentation Appeal PENN- SOUTHEASTERN lineup procedure. any suggestion Nor is SYLVANIA SYNOD OF LU- question ballots made that CHURCH IN AMERICA. THERAN altered between time of the *6 following day they when No. 74-1502. to the attorney. made available Appeals, United States Court of facts, particular Third Circuit. Under set of any showing allega- in the absence of Argued Oct. tion of contrivance bad faith on the Decided Dec. part conducting of the witness or those procedures which oc- designated curred here cannot as un- Since the

constitutional. as de- violate

scribed does not the constitution- Supreme

al norms established

Court, Ser-

geant Armstrong, including lineup iden-

tification, properly admitted into

Battles’ trial. agree

Because I with Judge Aldisert’s

conclusion the defendant' set (Sgt. (Detective (Sgt. Armstrong); Armstrong); (De- 15. S.H. 54 73-75 S.H. 90-92 91-92 Cupus). Cupus). tective (Detective Cupus). 16. S.H. 90