Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1106 and 1107, February Session, 1974. No. 205 October Term, 1976.
Lewis L. Maltby, Philadelphia, for appellant.
Francis C. Barbieri, Jr., Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion.
[ 246 Pa. Super. Page 522]
Following indictment, appellant was tried before a jury and convicted of rape and burglary. This appeal is from the lower court's judgment of sentence.
Appellant's sole contention relates to the prosecutor's exercise of peremptory challenges. It is argued that these challenges were utilized to exclude blacks from the jury. Unfortunately, appellant's counsel failed to have the race of each juror noted for the record. Thus the record is far from clear on this matter. The lower court, however, has apparently accepted appellant's recollection of the following events. The total jury panel of 79 included 22 blacks. Of those 22, 8 were challenged for cause or otherwise excused. The remaining 14 black prospective jurors were excused when the prosecutor exercised his peremptory challenges. Only once did the Commonwealth utilize a peremptory challenge to exclude a white prospective juror. The ultimate trial jury was composed of 12 white jurors. Based solely upon the foregoing numbers, appellant contends that the prosecutor engaged in a purposeful discrimination against black prospective jurors. These numbers alone, however, do not constitute sufficient evidence to establish a constitutional violation.
[ 246 Pa. Super. Page 523]
In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) the Supreme Court discussed the issue of racial exclusion on juries through the utilization of peremptory challenges. The Court pertinently observed that:
"In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think would establish a rule wholly at odds with the peremptory challenge system as we know it." [Emphasis supplied.]
Id. at 222, 85 S.Ct. at 837. Furthermore, the Court stated this presumption is overcome:
". . . when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, . . ."
Id. at 223, 85 S.Ct. at 837. See also Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975). Thus, the presumption that the prosecutor exercised his peremptory challenges in a proper manner is only overcome where the defendant produces evidence that in case after case the prosecutor, regardless of ...