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UNITED STATES EX REL. DIXON v. CAVELL

May 10, 1968

UNITED STATES of America ex rel. Leroy DIXON
v.
A. C. CAVELL



The opinion of the court was delivered by: DAVIS

 The relator has filed a Petition for a writ of habeas corpus alleging that his conviction in 1965 pursuant to a trial by jury, was illegal. The Court imposed a sentence of 6 to 12 years imprisonment, on the charge of rape, and associated offenses. *fn1" On appeal, the judgments of sentence were affirmed, Commonwealth v. Dixon, 208 Pa.Super. 736, 221 A.2d 865 (1966). Allocatur was refused by the Pennsylvania Supreme Court.

 The allegations of error will be individually discussed in the following sections.

 PEREMPTORY CHALLENGE.

 It is contended that the action of the District Attorney, in peremptorily challenging all Negro jurors from the panel, resulted in a denial of the relator's Constitutional right to a trial by a representative jury.

 The number of peremptory challenges to which counsel are respectively entitled is carefully governed by statute; 19 P.S.Pa. ยง 811. Since a peremptory challenge by definition, may be exercised by counsel as they, in their discretion see fit, there is no denial of due process if the District Attorney challenged members of the defendant's race. This was specifically decided in Swain v. State of Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965); see also Commonwealth ex rel. Ashmon v. Banmiller, 391 Pa. 141, 137 A.2d 236 (1958) cert. den. 356 U.S. 945, 78 S. Ct. 792, 2 L. Ed. 2d 820 (1958); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963); United States ex rel. Dukes v. Sain, 297 F.2d 799 (7th Cir. 1962) and cases cited therein.

 Nor can it be established that the system of jury selection in effect at the time was discriminatory. *fn2" The jury panels are made up from names placed in a lottery "wheel"; the source of the names are the "voter street lists", from every ward and division. Lists of prospective jurors are open to public inspection a year in advance. From an examination of this system, we conclude that the jury panel was quite representative of the community at large and consistent with Swain v. Alabama, supra, and the other decisions previously cited. *fn3"

 UNFAIRNESS OF TRIAL.

 It is alleged that the "totality of circumstances" demonstrate that the trial was unfair. Specifically, counsel for the relator has asserted the following incidents and circumstances:

 A.

 The Contempt Citation.

 Frequent clashes between the Court and the prosecutor, resulted in a contempt citation against the latter. An examination of the trial transcript substantiates the observation of the trial judge (who later revoked his contempt Order) that:

 
* * * A great deal of this conduct occurred outside the presence of the jury and a substantial portion of it was either initiated or helped by defense counsel themselves. In any event, such conduct infringed upon the dignity of the Court and did not relate to the fairness of the trial as such. *fn4"

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