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filed: July 12, 1989.


Appeal from the judgment of sentence September 3, 1987 in the Court of Common Pleas of Philadelphia County, Criminal, No. 86-09-1957.


Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellant.

Maxine Stotland, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Cirillo, President Judge, files a concurring opinion in which Brosky, J., joined. McEwen, J., files a dissenting opinion in which Johnson, J., joined. Del Sole, J., joins opinion by Beck, J. Montemuro, J., joins opinion by Beck, J. Tamilia, J., files a concurring opinion. Popovich, J., joins opinion by Beck, J., except as to subsection IV(A) and files a Concurring Statement.

Author: Beck

[ 386 Pa. Super. Page 36]

The issue is whether the prosecutor at appellant's trial for robbery violated the equal protection clause of the federal constitution by using peremptory challenges to exclude members of the appellant's race from the trial jury. Appellant contends that under the legal standard articulated by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the prosecutor failed to rebut a prima facie showing that the Commonwealth's peremptory challenges had been used for a racially discriminatory purpose. We conclude that appellant's claim is without merit and we affirm his judgment of sentence.


This is an appeal by Edward Jackson from a judgment of sentence imposed by the Court of Common Pleas of Philadelphia County. Appellant is a black man who was arrested in connection with an armed robbery. He was charged with robbery, possession of an instrument of crime, and conspiracy. He invoked his right to trial by jury.

During voir dire, the prosecution and the defense were each permitted seven peremptory challenges. The prosecutor

[ 386 Pa. Super. Page 37]

    used all seven of his challenges to remove black prospective jurors. Immediately after the prosecution's seventh strike, defense counsel objected on the grounds that the prosecutor had violated his client's right to the equal protection of the law by challenging jurors in a racially discriminatory manner. The court denied counsel's motion to impanel a new jury and voir dire resumed. The final petit jury consisted of nine white jurors, one oriental juror, and two black jurors, as well as one white alternate and one black alternate.

At trial, the Commonwealth called three witnesses to the stand. Rodney Harmon, a black man, testified that the appellant and an accomplice had held him up at gun point on July 21, 1986 at the intersection of 49th Street and Fairmount Avenue in Philadelphia. Benjamin Walton, a black police sergeant, testified that he observed the appellant walking with a short black man at a location near the crime scene, and that he apprehended appellant while the other man escaped. Leslie Byrd, another black police officer, testified that he brought Mr. Harmon to the location where the appellant had been detained, and that Mr. Harmon identified the appellant as his attacker. The defense attempted to cast doubt on the reliability of Mr. Harmon's identification. On January 12, 1987, the jury returned a verdict of not guilty on the conspiracy charge and of guilty on the robbery and possession of an instrument of crime charges.

Appellant filed timely post-verdict motions in which he again asserted that the prosecutor had practiced racial discrimination during the jury selection process. After scheduling a post-trial hearing on the equal protection claim, the court denied the motions. On September 3, 1987, appellant received a total sentence of five to ten years imprisonment.

Appellant filed a timely appeal from his judgment of sentence in which he again raised the equal protection issue, and the case was certified for en banc review. After careful consideration, we affirm.

[ 386 Pa. Super. Page 38]


The ultimate goal of the jury selection process is to ensure that the defendant is tried by a fair and impartial jury of his peers. In order to further this goal, two methods have been devised to eliminate unsuitable jurors -- the challenge for cause and the peremptory challenge. The Commonwealth and defense counsel may make an unlimited number of challenges for cause. Challenges for cause, however, are only granted where: 1) a prospective juror's conduct or responses during voir dire demonstrate a likelihood of prejudice; or 2) the prospective juror has such a close familial, financial, or situational relationship with parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice. Commonwealth v. Berrigan, 369 Pa. Super. 145, 158, 535 A.2d 91, 98 (1987) (en banc). Both the Commonwealth and defense counsel are also permitted a limited number of peremptory challenges.*fn1 The primary function of the peremptory challenge is to allow parties to strike prospective jurors who they have good reason to believe might be biased but who are not so

[ 386 Pa. Super. Page 39]

    clearly and obviously partial that they could otherwise be excluded from the panel. See Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1888).

Many legal scholars have contended that the right to peremptory challenges is among the most important safeguards of the fairness of a criminal trial. See Swain v. Alabama, 380 U.S. 202, 218-221, 85 S.Ct. 824, 834-36, 13 L.Ed.2d 759 (1965). Unfortunately, however, the availability of these challenges creates a danger that an element of racial discrimination will be introduced into criminal proceedings. For example, a prosecutor might choose to strike a prospective juror solely because she is black and the defendant is also black. This conduct denies both the prospective juror and the defendant the equal protection of the law guaranteed by the fourteenth amendment. See Batson v. Kentucky, 476 U.S. at 85-89, 106 S.Ct. at 1716-19. The prospective juror is disadvantaged on the basis of race because she is denied the same opportunity as a white person to participate in the criminal justice system as a finder of fact. The defendant is disadvantaged on the basis of race because she is denied the same opportunity as a white person to be tried by a jury from which members of her own racial group have not been purposefully excluded. Cf. Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880) ("It is not easy to comprehend how it can be said that while every white man is entitled to a jury selected . . . without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former.")

During the past quarter century, appellate courts have struggled with the problem of how to preserve the right to peremptory challenges while at the same time minimizing the potential for racial discrimination. In Swain v. Alabama, supra, the United States Supreme Court first recognized that the racially motivated use of peremptory challenges could rise to the level of a constitutional violation. Yet, the Swain Court's principal concern was to ensure that the prosecution's jury selection practices would not be unduly restricted. The Court emphasized that "the presumption

[ 386 Pa. Super. Page 40]

    in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury" 380 U.S. at 222, 85 S.Ct. at 837. The Court further held that this presumption could only be overcome by evidence that the prosecutor systematically excluded members of a particular racial group from juries "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be . . . ." 380 U.S. at 223, 85 S.Ct. at 837. This evidentiary standard was extensively criticized since it imposed a virtually insurmountable burden of proof on defendants and prevented courts from remedying nearly all of the equal protection violations which occurred during the voir dire process. See, e.g., Commonwealth v. Martin, 461 Pa. 289, 298-300, 336 A.2d 290, 294-96 (1975) (Nix, J., dissenting).

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court reconsidered the Swain decision, and developed a new procedure for evaluating challenges to the prosecutions' use of peremptory strikes. Under Batson, a defendant may rely exclusively on the facts of his own case when proving a constitutional violation. In order to prevail, the defendant must initially establish a prima facie case of discrimination.

To establish such a case, the defendant first must show that 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. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these 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 of their race. This combination of factors in the empaneling of the petit jury, as in selection of the venire, raises the necessary inference of discrimination.

[ 386 Pa. Super. Page 41476]

U.S. at 96-97, 106 S.Ct. at 1723 (citations omitted). See also Teague v. Lane, U.S. , 109 S.Ct. 1060, 103 L.Ed.2d 334, 345 (1989).

Thus, a prima facie case of discrimination has three elements: 1) the defendant's membership in a cognizable racial group; 2) the prosecutor's use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of race. See Commonwealth v. Abu-Jamal, 555 A.2d 846, 850 (Pa.1989).*fn2

If a defendant makes a prima facie showing of discrimination, the burden then shifts to the prosecution to justify his decision to strike minority jurors. "The prosecutor must therefore articulate a neutral explanation related to the particular case to be tried." Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (footnote omitted). The trial judge must then make the ultimate determination of whether the defendant has established purposeful discrimination. Id.

In the instant case, the trial judge ruled that appellant Jackson had presented a prima facie case under Batson. The court then concluded that the prosecution had successfully rebutted this prima facie case by providing a neutral explanation for its pattern of strikes. Appellant contends that the prosecutor did not provide an adequate neutral explanation. On the other hand, the Commonwealth asserts in its brief as appellee that the prosecutor's neutral explanation was legally sufficient. The Commonwealth also notes that as an appellate court we have the power to affirm a judgment of sentence where the trial court reached a correct result for the wrong reason. See Commonwealth v. Allem, 367 Pa. Super. 173, 178, 532 A.2d 845, 848 (1987). The Commonwealth therefore urges that we uphold the

[ 386 Pa. Super. Page 42]

    conviction on the ground that appellant failed to establish a prima facie case of discrimination without reaching the neutral explanation issue.

We shall first consider whether the trial court erred by finding a prima facie case. We will then proceed to address the adequacy of the prosecutor's explanation for his peremptory challenges.


The trial court stated in its opinion:

We have reached the conclusion, after a study of this record, that the defendant, who is a member of the black race, has established that the action of the prosecution in peremptorily challenging seven potential jurors, all of whom were black, has made out a prima facie case of purposeful discrimination in the selection of the jury panel.

Trial Court Op. at 3. The Commonwealth contends that the trial court committed an error of law by reaching this conclusion. We do not agree.

Batson sets forth two clear preconditions for a finding of a prima facie case: the defendant's membership in a cognizable racial group, and the exclusion of other members of that racial group from the jury. Beyond this, Batson allows trial judges a fair degree of latitude in assessing whether a prima facie case has been established. The Batson Court explained:

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in a particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the

[ 386 Pa. Super. Page 43]

    prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.

476 U.S. at 96-97, 106 S.Ct. at 1723.

Thus, the precise question before us is whether the trial court abused its discretion under Batson by finding a prima facie case. We cannot say that the court abused its discretion, especially since the prosecutor exercised all seven of his peremptory challenges against blacks. A jurist could reasonably conclude that this pattern of challenges raises a sufficient inference of discrimination to justify shifting the burden of proof to the prosecution. Accordingly, the trial court's finding should not be disturbed.

In reaching this conclusion, we do not adopt a per se rule that any particular number of strikes against minority venirepersons must invariably give rise to a prima facie case. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (rejecting per se rule); United States v. Clemons, 843 F.2d 741 (3d Cir.1988), cert. denied, U.S. , 109 S.Ct. 97, 102 L.Ed.2d 73 (1988) (similar reasoning). We recognize that in some instances, courts have found that notwithstanding a significant number of strikes against black venirepersons, no prima facie case had been established under the totality of the circumstances. See, e.g., United States v. Sangineto-Miranda, supra (no prima facie case where all peremptory challenges used against blacks); Commonwealth v. Abu-Jamal, supra, at 850 (no prima facie case where prosecutor who was afforded twenty peremptory challenges struck eight blacks and seven whites); Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988) (no prima facie case where prosecutor who was afforded twenty peremptory challenges struck twelve blacks and two whites). In these cases, an appellate court denied relief under Batson after the trial court had first held that there was no prima facie case or after the trial court had failed to address the issue.*fn3 The Commonwealth

[ 386 Pa. Super. Page 44]

    has not alerted us to any appellate decision which has overturned an explicit trial court finding of a prima facie case. Moreover, we are not persuaded that such a disposition is appropriate in the case sub judice.

The Commonwealth argues that the appellant could not satisfy his initial burden of proving a prima facie case for two reasons. First, the appellant is a black man who was arrested by black police officers and accused of committing a crime against another black man. Second, two blacks served on the jury which convicted appellant of this crime. The Commonwealth's view is that one may not infer that the prosecutor engaged in racial discrimination in light of: 1) the common racial background of the defendant and the prosecution witnesses; and 2) the racial integration of the petit jury. We shall consider the impact of each of these factors on the analysis of a Batson claim.


We agree with the Commonwealth that the potential for misuse of peremptory challenges is greatest when a defendant is accused of attacking an individual of a different race. In such a case, the prosecutor has a special incentive to select jurors who are of the same racial background as the victim. For example, if a black man stands accused of killing a white man, a white juror may be likely to identify with the victim. Accordingly, a trial judge

[ 386 Pa. Super. Page 45]

    should examine the use of peremptory challenges with particular care whenever the trial involves an element of interracial conflict.

This does not mean, however, that the absence of interracial conflict guarantees that peremptory challenges will be exercised for proper reasons. In Swain v. Alabama, the United States Supreme Court recognized the problem of "the prosecutor in a county [who], in case after case, and whoever the defendant or the victim may be, is responsible for the removal of Negroes . . . ." 380 U.S. at 223, 85 S.Ct. at 837. See also Batson, 476 U.S. at 103-04, 106 S.Ct. at 1726-27 (Marshall, J., concurring) (citing statistics on systematic exclusion of blacks from juries). One motive for such conduct is the underlying belief that a white juror would be more likely than a black juror to assume that blacks frequently commit crimes and that any black who is accused of a crime is probably guilty. Another motive for consistently striking blacks is the concern reflected in a training manual prepared by the Dallas County District Attorney's Office: "You are not looking for any member of a minority group which may subject him to oppression -- they almost always empathize with the accused." Acker, Exercising Peremptory Challenges After Batson, 24 Criminal Law Bulletin 187, 203 n. 67 (1988) (quoting Texas Observer, May 11, 1973 at 65). Whatever the motive, the exclusion of black venirepersons solely on account of race is a violation of the equal protection clause that trial courts must be prepared to remedy.

We conclude that even where the defendant and the victim are both black, some prosecutors may attempt to minimize the number of blacks who are selected as jurors. Thus, the fact that a defendant is a member of the same racial group as the Commonwealth's witnesses is in no way inconsistent with a finding of a prima facie case.


We next consider the significance of the ultimate racial configuration of the petit jury. In the instant case,

[ 386 Pa. Super. Page 46]

    the record indicates that two black jurors were selected before the assistant district attorney had exhausted all of his peremptory challenges. The fact that the prosecutor did not take advantage of his opportunity to strike these jurors is evidence that he did not discriminate on the basis of race. See United States v. Sangineto-Miranda, 859 F.2d at 1522 ("If there are minority members on the jury but the [prosecution] did not use all its peremptory challenges, that would be a factor tending to refute discrimination.") This evidence, however, is not conclusive.

There are several reasons why a prosecutor may permit one or two blacks to sit on a jury, but may use her peremptory challenges to discriminate against the remaining blacks in the venire pool. First, the prosecutor may try to deflect criticism of a discriminatory jury selection strategy by allowing token minority representation on the jury. Alternatively, the prosecutor may strive to eliminate nearly all black venirepersons, but may make an exception in favor of a subgroup of black venirepersons who are viewed as sympathetic to the Commonwealth, e.g., black police officers, or black senior citizens who have been victims of violent crimes. Furthermore, in urban areas where the total number of blacks in the venire pool may far exceed the number of peremptory strikes, it is sometimes impossible to exclude every black who is reached on voir dire. In such a situation, the biased prosecutor may initially tolerate a few black jurors but might then try to limit the overall black presence on the jury.

In United States v. Clemons, the Third Circuit recently noted:

Striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks . . . . Similarly, we doubt the significance of including a single black on a panel if, at the same time, the government used most of its peremptory challenges . . . to strike blacks with backgrounds similar to the white jurors ultimately selected . . . .

[ 386 Pa. Super. Page 47]

In view of the various jury selection practices and the unique racial makeup of each judicial district, we are unwilling to depart from Batson 's reliance on the trial judge's expertise in assessing a prima facie case. Although it may be easier to establish a prima facie case when all blacks are excluded from a jury, or when one or two blacks are excluded from a panel in a district with a low black population, we cannot say the conclusion is automatic . . . . Nor can we conclude that the inclusion of blacks on the jury bars a prima facie case, especially where other facts and circumstances may constitute an inference of prosecutorial discrimination in the selection process.

843 F.2d at 747-48 (footnote and citations omitted) (emphasis supplied). We agree. Cf. Commonwealth v. Dinwiddie, 373 Pa. Super. 596, 542 A.2d 102 (1988) (affirming finding of prima facie case where two blacks served on jury).


In summary, we find that the race of the victim, the race of the prosecution witnesses and the race of the petit jurors are relevant factors which a trial judge is free to consider when evaluating a Batson claim. Indeed, in the case sub judice, the trial judge relied in part on these factors when he concluded that appellant's prima facie case had been successfully rebutted. See n. 9, infra. Relief under Batson, however, is not limited to instances in which a black defendant is accused of attacking a white victim or is tried by an all white jury. Any per se rule that would limit a finding of a prima facie case to such circumstances would insulate a significant number of potential equal protection clause violations from judicial review.

[ 386 Pa. Super. Page 48]

We are aware that some prior panels of this court have stressed that the victim was black or that the jury included some blacks when affirming trial court decisions that denied a Batson challenge. See Commonwealth v. Monroe, 373 Pa. Super. 618, 542 A.2d 113 (1988); Commonwealth v. Page 48} Long, 367 Pa. Super. 190, 532 A.2d 853 (1987); Commonwealth v. McKendrick, 356 Pa. Super. 64, 514 A.2d 144 (1986). The result in those cases is not contrary to the result we reach today. The instant case is distinguished by the fact that the trial judge made an explicit finding that the defendant had made a prima facie showing of discrimination. As Justice Houston of the Alabama Supreme Court noted when discussing an appeal with a similar fact pattern to that of the case sub judice:

In this case the defendant was black, the victim was black, and the "eye witness" whose testimony was the foundation stone of the state's case was black; and the state did not peremptorily challenge all blacks . . . . This is where the trial court must use its discretion in determining, after considering all relevant circumstances, whether the state's use of peremptory challenges created a "prima facie case of discrimination against black jurors." Batson, 476 U.S., at 97, 106 S.Ct. at 1728. The trial court's decision must not be reversed unless it is clearly erroneous.

Ex parte Branch, 526 So.2d 609, 633 (1987) (Houston, J., dissenting).*fn4

A trial court should consider the totality of the circumstances when evaluating a Batson challenge.*fn5 The

[ 386 Pa. Super. Page 49]

    court should be alert to the possibility of Batson violations whenever the prosecution has repeatedly stricken members of the defendant's racial group. Invidious manipulation of the petit jury may occur in a variety of factual contexts. Moreover, over the long run, the failure to adequately investigate plausible claims of racial discrimination would have negative consequences for society as a whole. As the United States Supreme Court stated in Batson:

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in our system of justice.

476 U.S. at 87, 106 S.Ct. at 1718. On the other hand, public confidence in our system of justice is enhanced when prosecutors are afforded an opportunity to demonstrate that racial considerations played ...

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