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decided: August 10, 1988.


Appeal from the Judgment of Sentence Order by the Court of Common Pleas of Philadelphia, entered February 18, 1986 at Nos. 3288, 3289, 3291, 3293 June Term 1982 Criminal Division.


William A. Fitzpatrick, Philadelphia, for appellant.

Ronald Eisenberg, Chief, Appeals Div., Gaele McLaughlin Barthold, Deputy Dist. Atty., Harriet R. Brumberg, Philadelphia, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Flaherty, J., files a concurring opinion. Nix, C.j., files a dissenting opinion. Stout, J., did not participate in the consideration or decision of this matter.

Author: Mcdermott

[ 519 Pa. Page 241]


Appellant, Donald Hardcastle, appeals from the judgment of sentence of death imposed by the Court of Common Pleas of Philadelphia.

The basic facts of this case are as follows. On May 23, 1982, Joseph Gregg, age 60, and Ernestine Dennis, age 57, were found dead in Mr. Gregg's home at 2122 West Stewart Street in Philadelphia. Joseph Gregg had been stabbed thirty-three times, Ernestine Dennis had been stabbed thirty-four times, and Joseph Gregg's house had been set on fire. Testimony of several neighbors placed appellant, Donald Hardcastle, at or near the scene at the time of the stabbings and fire. A warrant was issued for appellant's arrest and on May 25, 1982, Donald Hardcastle surrendered to the Philadelphia Police.

Appellant was charged by information with arson, burglary, and two counts of murder. Appellant was tried and a jury convicted him of two counts of murder in the first degree; two counts of arson, i.e., arson related to the person, and arson related to the structured property; and burglary.

Appellant filed post-trial motions. A court en banc granted appellant's motion for a new trial ruling that appellant was deprived of a jury truly representative of the community resulting from the Commonwealth's impermissible use of peremptory challenges. The Commonwealth appealed and the Superior Court reversed the decision of the trial court, holding that under 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), appellant had not made out his case. Appellant filed a petition for allowance of appeal, we granted allocatur and, after consideration of the parties briefs and oral arguments, dismissed the appeal as having been improvidently granted.

The case was remanded to the trial court for sentencing. Appellant received the following sentence: death for the

[ 519 Pa. Page 242]

    murder of Joseph Gregg; death for the murder of Ernestine Dennis; 2 1/2 to 5 years for arson; 2 1/2 to 5 years for burglary. Appellant appeals from the judgments of sentence, raising several issues for our consideration.

Appellant first contends that the Commonwealth improperly used its peremptory challenges, thereby depriving him of a jury representative of the community. The Commonwealth had twenty peremptory challenges available and exercised twelve challenges against twelve of the fourteen black persons interviewed. Appellant contends that the Commonwealth's use of peremptory challenges was violative of his constitutional rights.

The peremptory challenge is deeply rooted in the common law. It is, as Blackstone has stated, "an arbitrary and capricious species of challenge; a provision full of that tenderness and humanity to prisoners for which English laws are justly famous." 4 W. Blackstone Commentaries 353. The peremptory challenge was adopted by the colonies, who made it available to both the defense and prosecution, and it then became ingrained in our legal process.

The peremptory challenge was exercised free of judicial review until the United States Supreme Court decided Swain, supra. Swain applied equal protection standards to the prosecutor's use of the challenge, but placed the burden on a defendant to prove that the prosecutor systematically and consistently excluded a racial group from jury selection. Id. 380 U.S. at 233, 85 S.Ct. at 842-843.

The Swain standard was widely criticized as inadequate, and several jurisdictions went beyond Swain and granted a defendant further protections based on state constitutional grounds.*fn1 Ultimately, in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) the United States Supreme Court reconsidered Swain, and overruled it.

[ 519 Pa. Page 243]

In its stead the U.S. Supreme Court held that a defendant need only show that the prosecution improperly exercised its peremptory challenges in each specific case. However, Batson, placed the burden on the defendant to make a prima facie showing that:

1) he is a member of a cognizable racial group; and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race;

2) the peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate; and

3) the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account their race.

Once the defendant meets this burden the state must come forward with a neutral explanation for challenging minority jurors. The court emphasized that:

     the prosecutors explanation need not rise to the level justifying exercise of a challenge for cause (citations omitted) [b]ut the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendants race on the assumption -- or his intuitive judgment -- that they would be partial to the defendant because of their shared race.

Id. 476 U.S. at 97, 106 S.Ct. at 1723. The Court further stated that "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances" id. 476 U.S. at 96, 106 S.Ct. at 1722-1723. (emphasis added).*fn2

The case before us presents a difficult problem for review. Since the Supreme Court's decision in Batson postdates appellant's judgment of sentence, the defense did not object to the prosecutor's use of peremptory challenges at

[ 519 Pa. Page 244]

    the time of voir dire, the prosecution did not rebut the objection, and the trial court did not rule on the issue. Defense counsel did, however, preserve the issue by making a motion for a mistrial, subsequent to voir dire and prior to trial, based on the prosecutor's impermissible use of the challenges.*fn3 Because the issue was preserved appellant is entitled to the protections granted by Batson. See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). Therefore, we must make a post hoc evaluation of the record, examining each of the Commonwealth's fourteen peremptory challenges to determine whether appellant has made out a prima facie case of improper use.

The first challenged juror, when questioned by the Commonwealth, indicated that a member of his family had been the victim of violent crime. His sister had been raped approximately six or seven years prior to appellant's trial.

The second challenged juror, when questioned by the defense, indicated that she heard about the underlying case through the media at the time of the killings.

The third challenged juror was questioned at length by the Commonwealth and defense. Her testimony indicated that she worked for the Commonwealth of Pennsylvania for twenty-five years, taking care of delinquent children. She further testified to her educational background and family history. The questioning gave the Commonwealth attorney ample opportunity to observe responses and demeanor.

The fourth challenged juror testified that her sister and nephew had both been arrested on drug related charges. Her sister went to trial on the charges. Furthermore, her father had been the victim of a crime.

The fifth challenged juror initially testified that she would not follow the judge's instructions if she felt that something else was better law; although after further questioning she did indicate that she would follow the law as defined by the judge.

[ 519 Pa. Page 245]

The sixth challenged juror testified that her brother went to jail for robbery four years ago and that she attended her brother's trial.

The seventh challenged juror testified that he was a case-worker for the Commonwealth of Pennsylvania, and that his brother was killed as the victim of violent crime.

The eighth challenged juror testified that she was a registered nurse, that she had six children, and that her son was previously convicted of rape.

The ninth challenged juror testified that she was twenty years old, a high school graduate, and unemployed. She resided with her mother and had never served on a jury prior to this case.

The tenth challenged juror testified that he was a thirty-five year old single bartender living in south Philadelphia. When asked if there was a reason whether he could not return a verdict of death, even in a proper case, the juror stated "No . . ., I wouldn't go against my word, you know, whatever I thought was right." He then ...

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