Commonwealth v. McIntosh , 266 Pa. Super. 425 ( 1979 )

HESTER, Judge:

This is an appeal from the judgment of sentence of the Court of Common Pleas of Monroe County. Appellant was convicted of criminal conspiracy and unlawful possession with intent to deliver and unlawful delivery of a controlled substance (heroin). He was subsequently sentenced to a term of IV2 to 3 years imprisonment.

Appellant basically contends that the method of selection of potential jurors in Monroe County systematically excludes blacks and therefore his conviction by an all-white jury selected from an all-white panel of potential jurors violated his Sixth Amendment right to be tried by an impartial jury.

A criminal defendant is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him or the rolls from which the potential jurors are selected. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However, a defendant is entitled to demand that members of his race not be purposefully or deliberately excluded. Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976).

Monroe County selected potential jurors from the voter registration rolls.¹ Appellant did not prove below nor does he make any showing here that the selection of potential jurors in Monroe County from the voter rolls systematically excluded blacks.

The precise issue raised here was recently discussed by our Supreme Court in Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977):

“This case is therefore governed by our recent decision in Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976). There appellant challenged an array of jurors chosen solely from voter registration lists on the theory that such a method of selection resulted in systematic racial discrimination. We found, however, that appellant had not shown that “the list itself reflects discriminatory practices.” Id., 465 Pa. at 480, 350 A.2d at 866. Similarly, although the motivation of those who chose to use voter lists was not relevant to appellant’s claim of unrepresentativeness, appellant here was at least required to show the extent to which the voter list reflected exclusion of the poor. This he has not done and accordingly his claim must fail.” (Id., 475 Pa. at 334-335, 380 A.2d 749).

In the absence of any proof that the voter rolls of Monroe County systematically excluded blacks, we must deny appellant’s claim.

Judgment of sentence affirmed.

HOFFMAN, J., filed a concurring opinion.

1 . We note that the percentage of blacks in Monroe County was approximately 1.160%.