Appeal from the Order of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 961 CD 1981.
Judith A. Calkin, Harrisburg, for appellant.
Todd B. Narvol, Assistant District Attorney, Harrisburg, for Com., appellee.
Cavanaugh, Rowley and Montgomery, JJ.
[ 364 Pa. Super. Page 632]
Appellant was convicted of third degree murder following a jury trial and was sentenced to nine to twenty years imprisonment. A direct appeal was taken to the Superior Court which affirmed the judgment of sentence on December 30, 1983. (No. 291 Harrisburg, 1982). A petition for allowance of appeal to the Pennsylvania Supreme Court was denied on February 21, 1985. (No. 39 M.D. Allocatur 1984). Appellant then filed a petition for Writ of Habeas Corpus in the United States District Court, but the petition was denied. The Third Circuit Court of Appeals denied certification to appeal the District Court's order. Thereafter, appellant filed a Post Conviction Hearing Act petition*fn1 and counsel was appointed. The PCHA petition was denied without a hearing. The instant appeal is from the denial of the PCHA petition. We affirm.
Appellant raises three issues on appeal: 1) whether trial counsel was ineffective for failing to object when the Commonwealth struck all the black veniremen from the jury panel; 2) whether trial counsel was ineffective for failing to object to the Commonwealth's plea of surprise; and 3) whether trial counsel was ineffective for failing to insist that the court make a definitive ruling concerning the admissibility of a testimonial reference to a polygraph. The second and third issues have been adequately discussed and correctly decided by the trial court. Therefore, we do not address them. The first issue raised by appellant, however, is one of first impression in the appellate courts of this Commonwealth.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court re-examined the rule first established in Swain v. Alabama, 380 U.S. 202,
[ 364 Pa. Super. Page 63385]
S.Ct. 824, 13 L.Ed.2d 759 (1965) concerning the evidentiary burden of one who claims that the government's use of peremptory challenges was racially discriminatory. In Swain, the Court held that there was a presumption that the prosecution properly exercised his peremptory challenges, and that to rebut the presumption, the defendant had to prove a pattern in numerous cases of the prosecution's use of peremptory challenges to strike veniremen of a particular race. However, in Batson, the Court changed this rule and held that to make out a prima facie case of intentional discrimination in jury selection, the defendant must establish that he is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant's race. The defendant can then rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so, and thereby establish that the facts and relevant circumstances raise the inference in his case that the prosecutor used the peremptory challenges to discriminate intentionally. Id., at , 106 S.Ct. at 1723, 90 L.Ed.2d at 87. The Supreme Court's ruling in Batson has been held to apply retroactively in Pennsylvania to all cases pending on direct appeal from convictions which were not final when Batson was decided. Commonwealth v. McCormick, 359 Pa. Super. 461, 519 A.2d 442 (1986). Appellant argues that we should extend the retroactivity holding of McCormick to apply even to collateral review of a conviction which was final when Batson was decided.
In Allen v. Hardy, U.S. , 106 S.Ct. 2873, 92 L.Ed.2d 199 (1986) which was decided after Batson but before McCormick, the U.S. Supreme Court held that Batson does not apply retroactively to collateral review of convictions that became final before Batson was announced. In McCormick we did not follow Allen in part because Allen addressed the question of retroactive application of Batson to final convictions whereas McCormick ...