The parties agreed at oral argument that the governing statute in this matter is G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3. We assume, without deciding, the correctness of their view, and conclude that it was error to dismiss the complaint because it was apparent from the face of the complaint that the plaintiffs might be entitled to some relief. Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974). See Charbonnier v. Amico, 367 Mass. 146 , 152-153 (1975). Moreover, as there was no need in the circumstances to plead the statute relied on, it was not fatal for the plaintiffs to cite a version of G. L. c. 40A, Section 21, which the parties now agree was inapplicable. Cf. Springfield v. Commonwealth, 349 Mass. 267 , 270 (1965). Accordingly, the judgment appealed from is reversed, and the plaintiffs are granted leave to file an amended complaint in the Superior Court within forty days of the date of the rescript. The defendants may then move or answer according to the rules.
The defendant has failed to sustain his burden of demonstrating that the pretrial procedures identifying the defendant as one of the robbers were suggestive. See Commonwealth v. Schlieff, 5 Mass. App. Ct. 665 , 670 (1977); Commonwealth v. Chase, 372 Mass. 736 , 745 (1977). The trial judge could have found that the selection of the defendant's photograph by one of the victims from an array of eight or ten photographs was free of suggestion on the part of the police. The fact that no more than seven or ten photographs were used did not render the procedure suggestive. See Commonwealth v. Gilday, 367 Mass. 474 , 494-495 (1975); Commonwealth v. Mobley, 369 Mass. 892 , 896-897 (1976). Although that witness knew the defendant's name before selecting his photograph, there was no showing that the fact affected her selection. Compare Commonwealth v. Hogg, 4 Mass. App. Ct. 225 , 228 (1976). Nor did the victims' identification of the defendant at a probable cause hearing in a District Court require a suppression of the in-court identification at trial. Commonwealth v. Wheeler, 3 Mass. App. Ct. 387 , 390-391 (1975), and cases cited. But see Commonwealth v. Evans, 5 Mass. App. Ct. 843 , 844 (1977). (Brown J., concurring). Since neither of the pretrial identifications was suggestive, we need not pass upon the question whether the witnesses' in-court identification at trial had an independent basis, the opportunity of the victims to have observed the defendant at the time of the commission of the crime.
Commonwealth v. Mobley, supra at 897. Commonwealth v. Corgain, 5 Mass. App. Ct. 899 (1977).