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COMMONWEALTH v. BANKS (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
BANKS, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas of Dauphin County, Nos. 1771 and 1772 of 1972, in case of Commonwealth of Pennsylvania v. Robert Banks.

COUNSEL

Richard D. Walker, Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Spaeth, J., dissents.

Author: Hoffman

[ 228 Pa. Super. Page 309]

This is an appeal from the denial of post-trial motions following a jury verdict of guilty on three counts of sale of narcotic drugs.

Appellant was charged with the sale of heroin to an undercover agent. At his preliminary hearing, Trooper James A. Gillison testified that he purchased drugs from the appellant on three separate occasions. The Commonwealth produced a Crime Lab Chemist who testified that he analyzed the seized substances and determined that the drugs were, in fact, heroin. A copy of the laboratory report was submitted as evidence of the procedure and results of the examination. Based on this evidence, appellant was indicted and held over for trial.*fn1

[ 228 Pa. Super. Page 310]

Prior to the trial, a jury was impanelled, during which the Commonwealth exercised eight of its peremptory challenges in excluding black jury members. Appellant contends that this arbitrary and systematic exclusion of blacks from the jury constituted a denial of due process. We do not believe that appellant had demonstrated a clear abuse of the prosecution's right to peremptory challenges. As the United States Supreme Court said in Swain v. Alabama, 380 U.S. 202, 227 (1965): "[T]he defendant must, to pose the issue, show the prosecutor's systematic use of peremptory challenges against Negroes over a period of time." (Emphasis added) The exclusion of black jurors from one panel is not such a showing of a "systematic use of peremptory challenges" as to deny the appellant due process of law.

Appellant was found guilty by a jury on all three counts.*fn2

Among appellant's numerous contentions of error (see discussion, supra), appellant submits that certain comments of the district attorney during his closing argument were so prejudicial and totally irrelevant as to prohibit the appellant from receiving a fair trial.

[ 228 Pa. Super. Page 311]

In addition, appellant argues that the trial court erred both in denying appellant's motion for a mistrial following said comments, and in failing to instruct the jury to disregard the comments. During the closing speeches, the district attorney engaged the jury in a brief, and admittedly irrelevant, lecture on the "evils of heroin." In so doing, he brought to the jury's attention the strong ...


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