James M. Keller, Ellwood City, for appellant.
Howard Klebe, Asst. Dist. Atty., New Castle, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring and dissenting opinion, in which Van der Voort, J., concurs in the result. Spaeth, J., concurs in the result of Part II of this opinion.
[ 243 Pa. Super. Page 525]
Appellant herein, William Loccisano, has brought two appeals for review by this Court. The first is from the judgment of sentence at No. 315, 1971 in the court below charging a violation of The Drug, Device and Cosmetic Act*fn1 for possession of a small quantity of marijuana. The second is from the judgment of sentence at No. 688A, 1972 wherein the appellant was convicted of a violation of The Controlled Substance, Drug, Device and Cosmetic Act*fn2 for selling marijuana to a police officer. In his appeal from the judgment at No. 315, 1971, charging possession, appellant maintains that his jury was
[ 243 Pa. Super. Page 526]
not properly selected in that 18 to 21 year olds were systematically excluded. On appeal from the judgment at No. 688A, 1972, charging appellant with sale of marijuana, he contends that the burden of proving his defense of entrapment was improperly allocated. We will review these two appeals separately, first considering No. 315, 1971, the charge of possession.
On March 22, 1971 a search warrant was obtained and a search conducted of appellant's home. The object of the search was to discover marijuana. A small quantity of marijuana, approximated to be less than four grams, was found in the refrigerator and two pipes containing a residue of marijuana were found about the house. Appellant was subsequently indicted for possession of a narcotic drug in violation of The Drug, Device and Cosmetic Act. He was found guilty by a jury on June 1, 1972 and sentenced to serve 30 days imprisonment and pay a fine.
Throughout the proceedings appellant consistently registered his objections to the array of trial jurors contending that electors between the ages of 18 to 21 years were systematically excluded from the jury lists.*fn3
[ 243 Pa. Super. Page 527]
In support of this contention he demonstrated that the jury panel was randomly chosen from the voter registration lists of Lawrence County. The list used to select prospective jurors for the 1972 term of court in which appellant was tried was dated November 3, 1970. Since the minimum voting age in 1970 was 21 years,*fn4 the youngest elector who could have been chosen for appellant's jury panel in 1972 would be about 23 years old.
The selection of juries in Lawrence County, being a county of the 5th class, is provided for by the Act of April 10, 1867, P.L. 62, § 2, 17 P.S. § 942. By the terms of this act, persons to serve as jurors are to be selected "from the whole qualified electors of the respective county." It is appellant's position that at the time of his trial the whole qualified electorate included citizens from the age of 18 upwards, but his jury panel could not include anyone under the age of 23.*fn5
Appellant relies heavily on the recent Supreme Court case of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Supreme Court there held that a male defendant was improperly convicted of aggravated kidnapping, during which he committed rape and robbery at knifepoint, because women were systematically excluded from the jury lists. Although women
[ 243 Pa. Super. Page 528]
in that judicial district represented 53 per cent of those eligible for jury service, state law prohibited selecting a woman who had not previously filed a written statement requesting consideration for jury service. This system effectively eliminated representation on the jury panel of an identifiable segment of the community so large as to comprise over half the local populace. The male defendant in the case was therefore held to have been denied his right to be tried by a jury broadly representative of a cross-section of the community as required by the constitution.
In the present case we cannot conclude that appellant has shown that young voters were excluded from his jury panel with the type of systematic discrimination that was evident in regard to women voters in Taylor v. Louisiana, supra. Here it was shown that the jury wheel was filled in 1971 for the year of 1972. Because the procedure of mailing out notices and receiving responses from prospective jurors takes about eight months, the most recent list of electors available at the time the selection procedure began was that of November 3, 1970. This method of jury selection is followed each year, so each year there will be an identical time gap between the list used and the actual drawing of a jury. We recognize that the consequence of this delay is to create a hiatus during which the youngest, newly registered voters will not be called for jury duty; however some allowance of time must be granted for the administrative process to function and a group of prospective jurors to be assembled.
The Supreme Court recognized the necessity for some time lag in jury selection in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). There the appellant claimed that the 18 to 24 age group had been excluded when the jury wheel was not filled for almost four years. The Court noted that "some play in the joints of the jury-selection process is necessary in
[ 243 Pa. Super. Page 529]
order to accommodate the practical problems of judicial administration. Congress could reasonably adopt procedures which, while designed to assure that 'an impartial jury [is] drawn from a cross-section of the community,' Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), at the same time take into account practical problems in judicial administration. . . . Invariably of course, as time goes on, the jury wheel will be more and more out of date . . . . But if the jury wheel is not discriminatory when completely updated at the time of each refilling, a prohibited 'purposeful discrimination' does not arise near the end of the period simply because the young and other persons have belatedly become eligible for jury service by becoming registered voters." Hamling v. United States, supra at 138, 94 S.Ct. at 2918. Accord, Commonwealth v. Cobbs, 452 Pa. 397, 305 A.2d 25 (1973); Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972).
Some administrative delay must be viewed as inevitable. How long a delay will be permitted in bringing a jury list up to date will necessarily depend on each particular case. In the instant case, appellant has not shown any deliberate discrimination against youthful voters. He has merely demonstrated that a period of two years elapsed before the lists containing the youngest voters following the twenty-sixth amendment became the basis for selection of a jury panel. Viewing these circumstances in light of the authority cited above, we cannot agree that appellant was ...