Pennsylvania v. Jones

OPINION

McDERMOTT, Justice.

On June 5, 1986, the appellee, D’Angelo Jones and co-defendant, Kevin Chapman, were arrested by an officer of the Hermitage Police Department after information was received from a patron of the Shenango shopping mall that two men had been observed stealing an automobile from the shopping mall parking area. Both men were subsequently charged by criminal complaint with Theft by Unlawful Taking¹ and Criminal Conspiracy². Prior to appellee's trial on the above stated charges counsel for the prosecution exercised one of her peremptory challenges to strike the sole black member from the jury venire. The challenge was contested by counsel for the defense on the basis of the United States Supreme Court’s ruling in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court sustained the challenge after counsel for the prosecution stated her reasons on the record for the challenge. The appellee was then tried and was found guilty of all charges. He subsequently filed timely post-trial motions in the nature of a motion for a new trial and in arrest of judgment. The trial court dismissed his motion in arrest of judgment, in which a Rule 1100 violation was alleged, but granted him a new trial pursuant to his assignment of error as to the striking of the prospective juror. Both the Commonwealth and the appellee filed Notices of Appeal to the Superior Court which consolidated the appeals and then affirmed as to both of the trial court’s orders. 374 Pa.Super. 493, 543 A.2d 579. We then granted the Commonwealth’s petition for allocatur to determine whether or not the lower courts had properly relied upon Batson v. Kentucky, supra, in deciding to grant the appellee a new trial. The issue before us is not a complaint that the Commonwealth indulges in invidious collection of prospective jurors. The complaint is that selection of jurors for the appellee’s trial, i.e., the petit jury, called from the general venire for his immediate trial, were excluded by purposeful discrimination by the use of peremptory challenge. Batson has réduced the issue to the closer question of whether the use of peremptory challenges in an individual case to purposely remove prospective jurors for reasons of race represents a constitutional violation of equal protection. Batson holds that the Commonwealth cannot do indirectly what it cannot do directly, which is to say, that in selection of a petit jury they cannot achieve a prejudice denied them in the general collection of jurors.

Batson has altered the proofs required under Swain³ to bring such complaint to a sharper focus. The Swain standard was addressed in essence to the larger question of whether the Commonwealth systematically and consistently excluded a racial group from jury service. The burden of proof of such exclusion required the defendant to prove more than was generally possible. Batson centers its attention directly to the immediate scene of trial in which one may complain that in “his case” discrimination is afoot by the use of peremptory challenge. Batson does not prohibit the use of peremptory challenge, nor does it require that an accused receive trial from any given proportion of members of his racial origin. It provides for inquiry into the use of peremptory challenges not their abolition. Within the limit of the numbers of peremptory challenges allowed at trial, their use has been sanctioned by long experience as a source in the balance of fairness.

The burden is on the defendant to present a prima facie case⁴ that peremptory challenges are being employed to purposely exclude members of his race from jury service in his case. To do so, Batson arms the defendant with the presumption that peremptory challenges may permit “those to discriminate that are of a mind to discriminate” and that the defendant, being a member of a “cognizable racial group”, which group the prosecutor has removed by peremptory challenge, raises a prima facie case of purposeful discrimination. When a defendant has satisfied this burden the state is then required to forward a neutral explanation for its decision to challenge the juror. As the court in Batson noted:

The prosecutor’s 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 defendant’s 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 record here reveals that prior to trial the appellee elected to pursue the defense of alibi as evidenced by the fact that a Notice of Alibi was filed. The alleged witness was a woman by the name of Michelle Ferguson whom both the appellee and the co-defendant maintained they were visiting, at her home, at the operative time. During the selection of the jury panel, counsel for the prosecution discovered that one of the prospective jurors, Mary Savage, lived in close proximity to Ms. Ferguson. This together with the fact that Mrs. Savage has ten children living with her prompted counsel for the prosecution to exercise one of her peremptory challenges. When defense counsel objected the following exchange occurred at side bar:

THE COURT: I think there are additional reasons, and one of the 'primary considerations, Mrs. Savage has how many children?

MRS. BARR: Ten children between the ages of 17 and 29 which would be in the area of Mr. Chapman, Mr. Jones and Michelle Ferguson.

THE COURT: I think that’s an adequate reason.

MR. DILL: But if she doesn’t know the people.

THE COURT: How does she know her children don’t?

MR. DILL: So what if her children do, it’s whether she knows them. If her children — Your Honor, if her children know him, but she doesn’t know if they know them, what difference does it make?

THE COURT: If she doesn’t, what’s to stop her from this evening; I’m sure the Court cautions people not to discuss the cases at home.

MR. DILL: I think it’s — you can’t specifically dismiss a person because they live in Farrel. '

MRS. BARR: I think the Court is well aware there are cases where you even ask a person if they vaguely know someone and the next day they come in and say they know someone. I don’t feel I can take that risk considering the circumstances.

THE COURT: We’ll permit the strike. We certainly recognize your objection.

(N.T. pp. 16-17).

The prosecution was concerned that the prospective juror’s proximity to an important defense witness, the number of her children in the immediate neighborhood, the possibility of coincidental or deliberate transfer of information or knowledge to her or her children might create an undue burden on the juror. Against these concerns defense counsel advanced the argument that yet another juror residing in the same locale was not challenged, and that he, being white, should have been excluded by peremptory challenge as well, which he was not. This failure is alleged by the appellee to demonstrate that the Commonwealth’s motives were therefore of the type which the Supreme Court sought to eliminate by its holding in Batson.

Were these two jurors possessed of such similar characteristics that all that separated them was their race, we would indeed be compelled to agree with this position. There was, however, a trait other than race which distinguished the two. That trait is parenthood. Without the benefit of children this mutually agreed upon juror, Mr. Kaufman, would not be subject to the same network of possible intrusive information as would Mrs. Savage, a parent of ten. When the trial judge initially evaluated the Commonwealth’s exercise of peremptory challenges he found no indicia of deliberate racial prejudice. It was when he re-evaluated his decision and presumed that race was the only articulable reason for the challenge, that he fell into error. As our review reveals, here there were reasons beyond race which occasioned the challenge and therefore the rule in Batson remains inviolate.

Accordingly, the order of the Superior Court is reversed and the matter is remanded to the trial court for sentencing.

ZAPPALA, J., files a dissenting opinion in which NIX, C.J., and CAPPY, J., join.

1 . 18 Pa.C.S.A. § 3921(a).

2 . 18 Pa.C.S.A. § 903(a)(1).

3 . Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

4 . As the court in Batson noted, a defendant in order to present a prima facie case must demonstrate 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 of their race.