No. 595 PITTSBURGH, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 7902130A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion.
[ 321 Pa. Super. Page 249]
This appeal was taken from a judgment of sentence entered on June 12, 1980, in the Court of Common Pleas of Allegheny County, Pennsylvania. Appellant, George A. Green, a/k/a, Richard Green, was tried before a jury on charges of Robbery, Violation of Uniform Firearms Act and Possessing Instruments of Crime. A verdict of guilty was returned on Robbery. Motions for New Trial and in Arrest of Judgment were filed and denied. Appellant was sentenced on the Robbery Bill to a term of incarceration of not less than five years, nor more than twenty years.
The pertinent facts can be summarized briefly. On January 29, 1979, in late afternoon, appellant and his accomplice, Robert Lee Bryant, Jr., entered the Homestead Steelworkers Federal Credit Union Office on Grant Street, in the Borough of Munhall, County of Allegheny, Pennsylvania. While Bryant stood at the front door brandishing a sawed-off shotgun, appellant vaulted over the teller's counter and removed cash and checks from three teller drawers totaling $2,673.08. Appellant and Bryant then ran from the scene. Appellant was not apprehended until two months later.
It is appellant's first contention that the trial court erred in refusing to grant an evidentiary hearing on the prosecutor's alleged use of peremptory challenges to unconstitutionally exclude black jurors. In Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981), the Pennsylvania Supreme Court was called upon to review a lower court's finding of the discriminatory use of peremptory challenges. In Futch, supra, the first venireman was a forty-seven year old black man who, following lengthy voir dire, was struck by the Commonwealth's first exercise of its peremptory challenges. Defense counsel promptly noted for the record the exclusion of a black man, requested dismissal of the panel and demanded a hearing on whether the Allegheny County District Attorney systematically used peremptory challenges to exclude blacks from juries where the defendant is black.
[ 321 Pa. Super. Page 250]
Although the parties agreed in Futch, supra, that peremptory challenges are presumed to be exercised by the Commonwealth in order to compose fair and impartial juries, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), reh. denied 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965), they disagreed as to what burden of proof applied to rebut the presumption. The Commonwealth projected the burden of proof espoused in Swain v. Alabama, supra, i.e., that there must be proof of the prosecutor's systematic use of peremptory challenges to exclude blacks from juries over a considerable period of time. Conversely, the defendant asserted that the less restrictive Wheeler-Soares standard was applicable. Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). The Wheeler-Soares standard requires proof of the discriminatory use of peremptory challenges only in the particular case at issue.
The Futch court refused to establish whether the Swain or Wheeler-Soares standard should apply in Pennsylvania. Instead, it simply held that the defendant failed under both standards to establish a prima facie case of the Allegheny County District Attorney's discriminatory use of peremptory challenges. In so holding, the court noted:
The prosecutor's peremptory challenge of one black prospective juror, the first and only venireman to be questioned on individual voir dire, accompanied by opinion evidence as to the practice of some individual assistant district attorneys in past trials, is insufficient under the standard of either Swain or of Wheeler and Soares to raise the inference of improper use of the peremptory challenge by the Commonwealth. Thus, it must be concluded that the trial court erred in finding that appellee had established a ...