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filed: December 1, 1989.


Appeal from the Judgment of Sentence October 4, 1988, in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 87-11-2426, 2430, 2431.


Burton A. Rose, Philadelphia, for appellant.

Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Cirillo, President Judge, and Rowley and Montemuro, JJ. Cirillo, President Judge, files a concurring and dissenting opinion.

Author: Rowley

[ 390 Pa. Super. Page 436]

This is a direct appeal from the judgment of sentence following appellant's conviction on charges of Conspiracy, Involuntary Deviate Sexual Intercourse and Possession of a Controlled Substance With Intent to Deliver. Appellant, represented by new counsel on appeal, is black and was tried by an all-white jury. Thus, this Court once again is called upon to apply criteria set forth by the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Only the briefest summary of the facts is necessary. At the invitation of appellant's co-defendant Eric Alston, 19-year-old

[ 390 Pa. Super. Page 437]

Patricia M. came from Washington D.C. to Philadelphia with a friend for a weekend visit. During the course of the weekend Patricia and her friend were physically and sexually assaulted by appellant and his co-defendant. Both of the perpetrators and both of the victims are black.

Appellant raises three issues on appeal. First, appellant argues that he was denied his right to trial by a fair and impartial jury because the Commonwealth used five of its eight peremptory challenges to strike the remaining five black venirepersons from the panel*fn1 and failed to provide valid, neutral reasons as required by Batson v. Kentucky, supra. The Commonwealth, which adamantly denies any racial bias in selection of the jury, argues that it was not required to state reasons for the peremptory challenges because the trial court at no point found that a prima facie case of discrimination had been established by appellant. Thus, we are called upon to determine whether the trial court erred in failing to hold that a prima facie case of discriminatory selection had been established by appellant. Because we so find, the case must be remanded for a hearing before the trial court to enable the prosecutor to present reasons for his challenges and a determination by the trial court whether the reasons given are racially neutral.


Our scope of review was set forth in the recent case of Commonwealth v. Jackson, 386 Pa. Super. 29, 562 A.2d 338 (1989) (en banc) (plurality): "[A]n appellate court will reverse a trial court's finding of no discrimination [in the jury selection process] only if that finding is clearly erroneous." Id., 386 Pa. Superior Ct. at 53, 562 A.2d at 350.

A prima facie case of racially discriminatory jury selection has three elements: 1) the defendant's membership in a cognizable racial group; 2) the prosecutor's use of peremptory

[ 390 Pa. Super. Page 438]

    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. Commonwealth v. Jackson, supra, citing Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Batson, supra held that once the trial court determines that defendant has made a prima facie showing of discrimination, the burden shifts to the Commonwealth to justify its decision to strike minority jurors.

In determining whether a prima facie case of discriminatory selection has been established by a criminal defendant, obviously it is the third element, the inference that the peremptory strikes were racially motivated, which is the most difficult to establish.*fn2 In Jackson, supra, the trial court ruled that the defendant had presented a prima facie case of discriminatory selection where the prosecutor used all seven of his peremptory challenges to strike black venirepersons from the jury and the ultimate composition of the petit jury was 9 whites, 1 Asian and 2 blacks. In the case at bar, the prosecutor used five of his eight peremptory challenges to exclude black venirepersons, resulting in an all-white jury. Upon conclusion of the selection process in the case at bar, defense counsel moved for a mistrial on the basis of discriminatory selection.


Batson indicates that once a defendant presents argument on the three elements, the trial court should consider "all relevant circumstances" and make a determination whether a prima facie case has been established. Only when the court determines that a prima facie case has been made out is the Commonwealth required to set forth its reasons for exercising the strikes.

This procedure was not followed in the case at bar. After appellant's counsel moved for a mistrial and stated for the record the facts which he felt raised an inference

[ 390 Pa. Super. Page 439]

    that the prosecutor had purposefully excluded blacks, N.T. at 41-43, the prosecutor immediately inquired, "May I respond to that?" N.T. at 43. Without deciding whether a prima facie case had been established, the trial court gave the prosecutor an opportunity to speak. The prosecutor proceeded to respond to what he considered to have been a personal attack accusing him of being racist. Id. In addition, he responded that this was not a racial case because the complainants were black and not white,*fn3 and he charged that defense counsel had used all of their strikes on the white members of the jury. Without comment, the court denied the motion for mistrial and exceptions were taken.

We hold, under the circumstances of this case, that denial of the motion for mistrial was the functional equivalent of a finding by the trial court that appellant had not established a prima facie case.*fn4 Additionally, we hold that the court erred in not holding that a prima facie case had been established.


In deciding whether the trial court erred, we first review factors which a trial court should consider. Judge Beck, writing for the plurality in ...

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