No. 80-1-93, Appeal from the order of the Court of Common Pleas, Allegheny County, Criminal Division, at CC7501862A, May 2, 1980.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., for appellant.
Leonard Sharon, Claudia C. Sharon, Paul Gettleman, Eleanore Gettleman, Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., files a concurring opinion.
This is an appeal from the order of the Court of Common Pleas of Allegheny County holding the statute authorizing peremptory challenges, Act of October 7, 1976, P.L. 1089, § 1, formerly 19 P.S. § 811a, unconstitutional as applied in
the selection of jurors for appellee's trial.*fn1 The court entered its order after an evidentiary hearing on appellee's motion to prevent the Commonwealth from exercising its peremptory challenges without restriction to strike black prospective jurors. The order was based on the court's finding that peremptory challenges are used by some assistant district attorneys in the District Attorney's Office of Allegheny County to achieve systematic exclusion of blacks from juries in cases involving black defendants and white victims. The lower court certified the order for interlocutory review pursuant to 42 Pa.C.S. § 702(b), and this Court granted the Commonwealth's petition for permission to appeal. We conclude that appellee has not established that the Commonwealth impermissibly exercised its peremptory challenges to strike black prospective jurors in the trial of his case. Therefore, the order of the court of common pleas is vacated and the case remanded for trial.
On April 15, 1980, jury selection began in the trial of appellee, Clifford Futch, a black inmate charged with murder for the death of a white inmate at Western Penitentiary in 1975. The court conducted a general voir dire of the jury panel and then announced that additional questions would be asked of the prospective jurors on an individual basis.
The first venireman to be called was Richard McHenry, a forty-seven year old black man. The court asked him questions concerning his background, including education, employment, military service and family status. The court also asked questions relating to the hardship which jury service might impose and the prospective juror's ability to return "a fair and just verdict" based on the evidence presented and the court's instructions. Mr. McHenry was also asked two further questions:
"Q. Would the race or religion of any person involved in this case prejudice you in any way?
Q. Have you or any member of your immediate family been the victim of any crime of violence?"
He responded "no" to both questions.
Upon conclusion of the court's colloquy, the Commonwealth asked one question: "Do you have any fixed moral or religious scruples against the imposition of the death sentence in a proper case?" This question was also answered in the negative. Defense counsel than conducted a lengthy voir dire, followed by questions from the defendant himself. Mr. McHenry's responses to these questions revealed, inter alia, that he was acquainted with two members of the staff of Western Penitentiary and that he recalled that his wife had mentioned the name "Futch" as having been reported unfavorably in the news media, although he could not recall any details. He testified, however, that his acquaintanceships and the knowledge of unfavorable ...