Appeal from the Judgment of Sentence of February 19, 1987 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 85-01-1247, 1250, 1252, 1253, 1257, 1260, 1262, 1265, 1269, 1272, 1273.
Robert M. Lipshutz, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
McEwen, Johnson, and Hoffman, JJ.
[ 373 Pa. Super. Page 598]
This is an appeal from the judgment of sentence for robbery,*fn1 criminal conspiracy,*fn2 possession of instruments of crime,*fn3 bribery,*fn4 and obstruction of the administration of justice.*fn5 Appellant contends that the trial court erred in failing to (1) grant his motion for a new trial on the basis that the prosecution purposely used its peremptory challenges to exclude members of defendant's race from the jury; (2) suppress an impermissible photo array; and (3) order the suspension of departmental procedure so that five police officers could testify as reputation witnesses. For the reasons set forth below, we vacate the judgment of sentence and remand for a new trial.
On August 31, 1984, appellant, a black Philadelphia police officer, was charged with having committed three armed robberies and related offenses. Following denial of pre-trial motions, the venire was empaneled. The trial court conducted voir dire and questioned each potential juror as to his or her occupation, residence, and family status. The prosecutor then exercised his peremptory challenges to strike six potential jurors from the venire, five of whom were black. Subsequently, a jury composed of ten white and two black jurors was selected. On two separate occasions, appellant's counsel objected to the prosecution's peremptory challenges alleging that the prosecution excluded five potential jurors solely because they were black and members of the defendant's race. Appellant's counsel moved to discharge the jury on the ground that appellant's constitutional rights had been violated. The trial court
[ 373 Pa. Super. Page 599]
requested that the prosecutor place his reasons for the peremptory challenges on the record, but the prosecutor refused to do so stating that such action was unnecessary and that there did not exist a prima facie case of systematic exclusion of members of defendant's race. Following the trial, appellant was found guilty and sentenced to an aggregate term of fifteen to thirty years incarceration. Post-trial motions were argued and denied. This appeal followed.
Appellant first contends that the prosecutor improperly used peremptory challenges to strike members of appellant's race from the jury. Appellant argues that the only possible inference that can be drawn from the facts of this case indicates that the prosecutor purposely discriminated against selecting members of defendant's race from sitting as jurors at his trial. Thus, appellant, in support of his argument, urges us to follow the recent United States Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). For the reasons set forth below, we agree with appellant's contention.
It is well-established that "the constitutional standard of fairness requires that a defendant have 'a panel of impartial indifferent jurors.'" Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)). The jury should be composed of a selection of defendant's peers, a cross-section of the community. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880); see also Batson v. Kentucky, supra 476 U.S. at 84-85, 106 S.Ct. at 1716. Although a defendant is not constitutionally entitled to a jury composed in whole or part of persons of his or her own race, Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975), the Equal Protection Clause requires that the jury selection process be free from any taint of discriminatory purpose, Strauder v. West Virginia, supra 100 U.S. at 305. More than a century ago, the Supreme Court held that the purpose of selecting an impartial jury was to safeguard a defendant's fourteenth amendment right to "protection of life and liberty against race or color prejudice." Id. at 309.
[ 373 Pa. Super. Page 600]
The decision in Strauder laid the foundation for the Supreme Court's unrelenting efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. Batson v. Kentucky, supra 476 U.S. at 84-85, 106 S.Ct. at 1716. In Batson, the Supreme Court, expressly overruling its decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), upheld the constitutional limitations on a prosecutor's use of peremptory challenges to purposely exclude members of a defendant's race from participating as jurors and ruled that the discriminatory use of peremptory challenges in the jury selection process against a member of a cognizable racial ...