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decided: December 24, 1981.


No. 387 January Term, 1979, Appeal From the Judgment of the Superior Court at 505 October Term, 1978 Affirming the Judgment of Sentence at March Session, 1977, Nos. 2000-2002 of Philadelphia Court of Common Pleas, Criminal Trial Division.


John W. Packel , Chief, Appeals Div., Asst. Public Defender, Karl Baker, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., James B. Jordan, Philadelphia, for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts and Nix, JJ., filed dissenting opinions.

Author: Flaherty

[ 497 Pa. Page 26]


Appellant Carnell Henderson was charged with a brutal assault and rape that occurred in a center-city Philadelphia parking lot. The assailant attacked his victim from behind as she inserted the key into the door of her car. He grabbed her, then spun her around, choked her with one hand and repeatedly struck her with the other. After opening the door, he knocked his victim across the front seat, entered the car and locked the door. She was then pulled upright, seized by the throat, and beaten again. When she tried to escape, the assailant grabbed her and bit her cheek with such force that the scars were still evident at the time of trial. The assailant then took thirty-five dollars from her purse and forced her into the back seat, where he removed her clothes, and still choking her with one hand, raped her. The victim was unable to return to work for a month and bears a permanent scar on her face.

The victim identified appellant at a lineup on March 10, 1977, soon after his arrest. He was convicted in the Court of Common Pleas of Philadelphia, after jury trial, of rape, robbery, and aggravated assault. Post-verdict motions were denied and appellant was sentenced to fifteen to thirty years

[ 497 Pa. Page 27]

    imprisonment. On direct appeal, the Superior Court affirmed the judgments of sentence in a per curiam order issued May 18, 1979. On August 27, 1979 this Court granted the appellant's petition for allowance of appeal. For the reasons stated below, we affirm.

The first of appellant's four assignments of error is that he was denied due process of law, equal protection of law, and a jury of his peers because of the Commonwealth's alleged systematic and deliberate exclusion by peremptory challenge of all black members of appellant's jury panel. Appellant is black. The venire in this case consisted of thirty-seven persons, five of whom were black. The Commonwealth struck all five black veniremen by use of its peremptory challenges. Appellant objected to the panel because it had so few blacks and moved to form a new panel in which there would be "sufficient blacks so the Commonwealth is not able to systematically exclude all blacks with their strikes." We are asked to rule "that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias . . . violates the right to trial by a jury drawn from a representative cross-section of the community under both Article I, Section 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the Federal Constitution."

We observe at the outset that mere under-representation of any given group on a jury does not constitute unconstitutional discrimination per se. The United States Supreme Court in Swain v. Alabama, stated:

[A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. 313, 322-323, 25 L.Ed. 667, 670-671; Gibson v. Mississippi, 162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075; Thomas v. Texas, 212 U.S. 278, 282, 29 S.Ct. 393 [394], 53 L.Ed. 512, 513; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate

[ 497 Pa. Page 28]

    strength of every identifiable group. "Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible." Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629 [631], 94 L.Ed. 839, 847 (opinion of Mr. Justice Reed, announcing judgment).

380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759 (1965). In the present case, the jurors were chosen from the voter registration rolls. Although there is a bare allegation that Blacks are underrepresented on such rolls, this Court has required that in order to establish that the use of any selection device unconstitutionally fails to reflect a fair cross-section of the community, the challenger must present proof of under-representation. Commonwealth v. Martinez, 475 Pa. 331, 334, 380 A.2d 747, 749 (1977). No proof was submitted. Selection of the larger panel from which the petit jury is selected is, therefore, not at issue in this case.

When reduced to its basic elements, appellant's argument with respect to the jury selection process is that the prosecutor committed constitutional error when he utilized his peremptory challenges to strike black jurors, apparently because he believed that black jurors would tend to be more favorable than white jurors to the black defendant accused of a crime of violence against a white person. This appeal reflects the persistent notion that such prosecutorial use of peremptory challenges is unconstitutional. See Commonwealth v. Futch, 492 Pa. 359, 363-364, 424 A.2d 1231, 1232-1233 (1981); State v. Eames, 365 So.2d 1361, 1367 (La. 1978), Annot., "Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race," 79 ALR3d 14 (1975). The United States Supreme Court has spoken to this issue in Swain v. Alabama :

[Peremptory challenge] is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality,

[ 497 Pa. Page 29]

    occupation or affiliations of people summoned for jury duty . . . . Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.

380 U.S. at 220-221, 85 S.Ct. at 835-836. Put another way, it is not constitutional error for a prosecutor to challenge a black juror for the reason that the prosecutor believes -- validly or invalidity -- that a black venireman because of the facts of the case, is less likely to be impartial than a white venireman. Put still more reductively, the race, creed, national origin, sex or other similar characteristics of a venireman may be proper considerations in exercising peremptory challenges when issues relevant to these qualities are present in the case. The United States Supreme Court has stated:

It is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the case he is trying, the particular defendant involved and the particular crime charged.

Swain v. Alabama, 380 U.S. at 223, 85 S.Ct. at 837.

We emphatically assert that this Court does not subscribe to any theory concerning the likelihood that one racial group will be biased against another in litigation involving members of both groups. In fact, we strongly suspect that all such theories are no more than mere speculation. But what this Court believes about the viability of theories of racial bias is irrelevant to an analysis of the problem of the proper use of peremptory challenges. Peremptory challenges, historically and by definition, are arbitrary and perhaps even irrational challenges to the seating of a juror. They are totally subjective and not subject to scrutiny or examination. As the United States Supreme Court wrote in Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892): "[The peremptory challenge] is, as Blackstone says, an arbitrary and capricious right; and it must be

[ 497 Pa. Page 30]

    exercised with full freedom, or it fails of its full purpose." Cited with approval in Swain v. Alabama, 380 U.S. at 219, 85 S.Ct. at 835. Furthermore, the Court in Swain pointed out that to entertain objections of the nature raised in this case would be to destroy the peremptory nature of the challenge:

To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterward. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

Id. at 221-222, 85 S.Ct. at 836-837.

As the United States Supreme Court has observed in Swain, peremptory challenges were originally available only to the defendant. In this country, however, the view has been that both sides, defense and prosecution alike, should be able to exercise peremptory challenges. The defendant should be able to strike those thought to be biased against him; the prosecution should be able to strike those thought to be prejudiced against it. Swain v. Alabama, 380 U.S. at 220, 242 ff, 85 S.Ct. at 835, 847. But this right to peremptory challenge, though it has been described as "one of the most important of the rights secured to the accused," Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894), is not constitutionally based.

There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by impartial jury is all that is secured.

Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154 (1919). The United States Court of Appeals has pointed out,

     since the right to peremptory challenges is "in the nature of a statutory privilege, . . . [it] may be withheld altogether

[ 497 Pa. Page 31]

    without impairing the constitutional guaranties of 'an impartial jury' and a fair trial." Frazier v. United States, 335 U.S. 497, 505, n. 11 [69 S.Ct. 201, 205, 93 L.Ed. 187] . . . (1948).

United States v. Alessandrello, 637 F.2d 131, 141 n.16 (3rd Cir. 1980).

Two other states, California and Massachusetts, responding to constitutional challenges similar to the challenge raised in the present case, have taken positions different from that adopted by the United States Supreme Court in Swain v. Alabama. We have previously noted these cases and summarized their holdings as follows:

People v. Wheeler, involving seven peremptory challenges exercised against black prospective jurors, set forth the following requirements for a prima facie case of discriminatory use of the peremptory challenge:

"First, . . . [the challenger] should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias."

22 Cal.3d [258] at 280, 148 Cal.Rptr. [890] at 905, 583 P.2d [748] at 764 (Footnote omitted).

Commonwealth v. Soares, involving peremptory challenges exercised against 12 of 13 black prospective jurors, articulated a similar standard. It requires a showing that:

"(1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership."

[377] Mass. [461] at [490], 387 N.E.2d [499] at 517.

Commonwealth v. Futch, 492 Pa. 359, 366 n.6, 424 A.2d 1231, 1234, n.6 (1981). For the reasons that follow, we decline to follow the direction ...

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