Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, as of Information Nos. 1357-1358, January Sessions, 1982.
Marilyn J. Gelb, Philadelphia, for appellant.
Karl Baker, Philadelphia, for Amicus-Nat. Conf. of Blk. Lawyers.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, Marianne E. Cox, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.
Nix, C.j., and Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., did not participate in the consideration or decision of this case. Nix, C.j., did not participate in the decision of this case.
We review the judgment of sentence of death imposed on Mumia Abu-Jamal, found guilty of first degree murder in the December 1981 shooting death of Philadelphia police officer Daniel Faulkner.
The evidence presented at trial established that at approximately 3:55 a.m. on December 9, 1981, Officer Faulkner made a routine car stop on Locust Street between Twelfth and Thirteenth Streets in Center City Philadelphia. The car was driven by the appellant's brother, William Cook. After making the stop, Officer Faulkner called for assistance on his police radio, requesting a police wagon to transport a prisoner. While Faulkner was trying to handcuff Cook, the appellant ran from across the street and shot the officer
once in the back. Faulkner was able to fire one shot, which wounded the appellant, but after Faulkner had fallen to the ground the appellant shot him four more times at close range, once through the center of the face. The appellant was found slumped against the curb in front of Cook's car and taken into custody by police officers who arrived on the scene within thirty to forty-five seconds. The officers had been in the area and were turning onto Locust Street from Twelfth Street in response to Faulkner's radio request. They were flagged down by a cab driver who had witnessed the shooting while stopped at the intersection of Thirteenth and Locust. Two other pedestrians also witnessed the incident and identified the appellant as the perpetrator, both at the scene and during the trial.
On the foregoing summary we have no doubt as to the sufficiency of the evidence to support the verdict of first degree murder, a point the appellant does not contest. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).
The appellant first argues that he is entitled to a new trial on account of several errors occurring during jury selection. Principal among these arguments is the contention that the prosecution systematically excluded jurors by race through the use of peremptory challenges, violating rights of equal protection and trial by impartial jury secured by the Fourteenth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. The appellant relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as setting the standard for reviewing claims of improper use of peremptories, and cites to portions of the record that, he argues, meet that standard. The appellant notes that he is black and the victim was white. He states that the prosecutor used eleven peremptory challenges to remove blacks from the jury, with the result that the original panel consisted of ten whites and two blacks. Furthermore, one of
the black jurors was replaced before the start of the trial by an alternate, who was white, resulting in a greater racial imbalance. The appellant argues that he has proffered sufficient evidence to raise an inference that the prosecutor used his peremptory challenges because of race. Accordingly, the case should be remanded for an evidentiary hearing to determine whether the Commonwealth can overcome the presumption of discriminatory use of challenges.
In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), in ruling on the question of the retroactive application of Batson, the U.S. Supreme Court held broadly that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." The Commonwealth properly observes, however, that even where retroactive application is required, it is only appropriate where the issue has been preserved. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); see also, Shea v. Louisiana, 470 U.S. 51, 58, n. 4, 105 S.Ct. 1065, 1070, n. 4, 84 L.Ed.2d 38 (1985) (Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) retroactively applicable to cases on direct review, "subject, of course, to established principles of waiver, harmless error, and the like.") The Commonwealth then argues that the appellant made no claim, either during voir dire or post-trial, that the prosecutor used his peremptory challenges for an impermissible purpose. In further demonstration that any challenge to the racial composition of the jury was waived, the Commonwealth notes that the appellant made only an incomplete record of the relevant information, and here attempts to rely on defense counsel's affidavit, filed four years after the fact and obviously dehors the record, to establish his claim.
There can be no doubt that under the longstanding teaching of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), the appellant has waived any claim that the prosecutor engaged in discriminatory use of peremptory
challenges to obtain an unrepresentative jury. Not only did he fail to advance the issue in any form resembling that adopted by the Supreme Court in Batson, he made no attempt even to frame the issue under the then prevailing rules of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
We have, at times, indicated that because of the extreme, indeed irreversible, nature of the death penalty, it may be appropriate to relax application of the waiver rule and address the merits of arguments raised for the first time in the direct appeal to this Court. Commonwealth v. Zettlemoyer; Commonwealth v. Holcomb, 508 Pa. 425, 434, n. 6, 498 A.2d 833, 837, n. 6 (1985) (Plurality). In other capital cases, however, we have held that certain issues were waived for failure to raise them before the trial court. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984). In light of this, the Commonwealth has argued in the alternative -- waived or not, the appellant's claim of improper use of peremptories is without merit. In this regard, the Commonwealth disputes the representations made by the appellant as to the race of several prospective jurors, peremptorily excused, whose race does not appear of record. The Commonwealth also argues that the mere invocation of a disparity in the numbers of blacks and whites who sat on the jury is inadequate and unreliable as an indicator of whether a prima facie case has been made out. It is noted that in at least one instance the appellant used a peremptory challenge to strike a black venireperson deemed acceptable by the Commonwealth, and the record clearly indicates that the Commonwealth had no responsibility for the circumstances that required replacement of a black juror with a white alternate juror. Finally, the Commonwealth presents non-racial reasons, apparent on the face of the record, to justify the use of a peremptory challenge against each of the prospective jurors isolated by the appellant.
In Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), a pre- Batson case where the appellant had preserved a claim that the prosecutor impermissibly discriminated by race in the use of peremptories, we determined that to give the appellant the protections provided by Batson, it was sufficient for this Court to engage in a post hoc review of the record.
Applying the "standards" set out in Batson, 476 U.S. at 95-98, 106 S.Ct. at 1722-3 for assessing whether a prima facie case exists, vacuous though they may be, we do not hesitate to conclude that no such case is made out here. That the appellant is a member of a cognizable racial group and that the prosecutor used peremptory challenges to remove some members of the appellant's race are facts so obvious to anyone even marginally acquainted with this case as to cause embarrassment at the need to set them out in writing. They are, nevertheless, two of the three "elements" necessary to establish a prima facie case. According to Batson, these facts, when taken with "any other relevant circumstances", must raise an inference that the prosecutor used his peremptory challenges to exclude venirepersons on account of their race. Examples of such "relevant circumstances" that might support or refute such an inference are a "pattern" (or not) of strikes against black jurors, and the prosecutor's questions and comments during voir dire.
We agree with the Commonwealth that mere disparity of number in the racial make-up of the jury, though relevant, is inadequate to establish a prima facie case. The ultimate composition of the jury is affected not only by the prosecutor's use of peremptories, but by the defendant's use of such, by challenges for cause (more acute in capital cases because of the Witherspoon inquiry), and by jurors' inability to serve for personal reasons. The Commonwealth cites at least one instance where the appellant removed a black juror already passed as acceptable by the Commonwealth; it cannot be determined whether any of the venire, who were dismissed when it was the appellant's turn to
first pass on their acceptability, were black and might have been acceptable to the Commonwealth. Moreover, we find no "pattern" in the use of peremptories. The Commonwealth used fifteen of the twenty available challenges. The record reflects that eight of these venirepersons were black. Had the appellant not peremptorily challenged the black venireperson acceptable to the Commonwealth, the first two jurors seated would have been black. We also note our agreement with the Commonwealth's argument that the replacement of the first juror chosen, a black woman, with an alternate, a white man, was entirely beyond the Commonwealth's control, and the resulting disparity in numbers of blacks and whites on the jury is no basis for an inference of purposeful discrimination. Finally, we have examined the prosecutor's questions and comments during voir dire, along with those of the appellant and his counsel, and find not a trace of support for an inference that the use of peremptories was racially motivated.
The appellant also argues that the court erred in denying his challenge for cause as to the first alternate juror chosen from the venire, Edward Courchain. According to the appellant, Courchain's responses when questioned, first by the prosecutor and then by defense counsel, demonstrated his inability to be fair, to dismiss preconceived notions about the case, and to follow the instructions of the court.
The transcript indicates that Courchain was questioned at great length about these matters and at times gave answers that warranted doubts about his ability to serve. The Commonwealth argues that the transcript demonstrates that Courchain had misunderstood the questions put to him, and that when they were properly rephrased he evidenced the ability to be impartial and follow the court's instructions based on the evidence produced in court. The trial judge, who was present to hear Courchain's responses and observe his demeanor, agreed with the Commonwealth.
A trial court's decision to deny a challenge for cause is reversible only for palpable abuse of discretion. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). Here,
the court applied the proper standard for determining the juror's ability to serve, and there was more than sufficient record testimony to support the conclusion that the standard was met.
The appellant argues in the alternative that if the challenge for cause was properly denied, he ought to have been allowed to exercise a peremptory challenge to remove Courchain. Of necessity, he gilds this argument with a claim that trial counsel was ineffective, because the denial of a peremptory challenge was not asserted as error in post-trial motions.
The appellant argues that he had only used nineteen peremptory challenges before Courchain was examined, and that the court therefore erred in ruling that he had none remaining to use against Courchain. The Commonwealth rebuts this argument by noting that Courchain was examined after the original panel of twelve jurors had been seated. The appellant had exercised eighteen of his allotted twenty peremptory challenges during the selection of the panel of twelve, and had used another to remove a venireperson prior to Courchain being questioned as a potential alternate. Pennsylvania Rule of Criminal Procedure 1108(b) explicitly negates the appellant's inference that peremptory challenges not used in selecting the jury may be "carried over" for use in the selection of alternates. ("All peremptory challenges remaining unexercised after the selection of the principal twelve jurors shall be considered exhausted . . . .") The rule clearly separates the peremptories for use in the selection of alternates from those available for selection of the principal jury, and so the appellant's argument in this regard must fail.*fn1
The third error in the voir dire proceedings that the appellant identifies is the trial court's decision to assume, for a time, the questioning of prospective jurors. The appellant had been granted permission to represent himself, and back-up counsel had been appointed. After the first two days of voir dire, however, the trial court determined that the appellant's questioning was unnecessarily lengthy and often improper. The judge also observed that many of the venirepersons were "visibly shaken and uncomfortable". Concerned that a fair and impartial jury might not be possible to achieve by such laborious and disquieting procedures, the court took upon itself the task of posing all questions to the prospective jurors. This procedure was used for only half a day, however, because the appellant consented to allow back-up counsel to conduct voir dire questioning thereafter.
The appellant argues very broadly that the court's decision to undertake the voir dire questioning violated his Sixth Amendment right to self-representation, his Fourteenth Amendment due process rights, and the similar rights guaranteed by Article I, Section 9 of the Pennsylvania Constitution. He claims that the court's decision was based merely on expediency, which, he asserts, ought not outweigh his constitutional right to represent himself.
The right of self-representation is not, as the appellant would have it, an absolute right for a defendant to proceed as he sees fit. A defendant appearing pro se is subject to the same rules of procedure as is a counseled defendant; he has no greater right to be heard than he would have if he were represented by an attorney.
Rule of Criminal Procedure 1106(d) provides that "[t]he judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself [sic] conduct the examination." (Emphasis added.) It is apparent that the manner in which voir dire will be conducted is left to the discretion of the trial judge; discretionary rulings will be reversed only where the record indicates an abuse of the discretion given. The appellant argues only in the most general of terms that once he had been permitted to conduct the questioning himself, it was error for the court to change the procedure. The court, however, amply documented its reasons for acting as it did, and we find no error in that decision. There being no requirement, constitutional or otherwise, that the parties, through counsel or pro se, be permitted to engage in voir dire questioning, the court's decision cannot be said to have deprived the appellant of any aspect of his rights of self-representation and due process.
The appellant also claims he was deprived of meaningful ability to present a defense, in violation of his due process rights, by failure of the court to afford adequate investigative resources. According to the appellant, the court's allowance for investigators was insufficient to enable him to contact two witnesses.
We will not dwell on this argument beyond noting that our review of the record confirms the Commonwealth's assertions that the allowance for investigative resources was more than what is represented in the appellant's brief; that there is no indication that other requests were made, or would have been denied had they been made; that the witnesses alluded to were not unavailable to the appellant for lack of funds but merely because the appellant chose not to pursue their testimony until it was too late; and that there is no indication that these witnesses would have offered testimony helpful to the appellant.
The appellant identifies two flaws in the proceedings to determine his guilt that he argues ...