Com. v. Edwards, D.

J-S17003-17
2018 Pa. Super. 9
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DERRICK EDWARDS
Appellant No. 436 EDA 2015
Appeal from the Judgment of Sentence imposed January 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: CP-51-CR-0002611-2013; CP-51-CR-0002614-
2013; CP-51-CR-0002617-2013; CP-51-CR-0002815-2013; CP-51-CR-
0002820-2013; CP-51-CR-0002853-2013; CP-51-CR-0002862-2013; CP-
51-CR-0002864-2013
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
DISSENTING OPINION BY STABILE, J.: FILED JANUARY 19, 2018
The Majority concludes the Commonwealth’s peremptory strike of Juror
67 was racially motivated and violated Batson.1 Consequently, the Majority
would vacate Appellant’s judgment of sentence and remand for a new trial.
Because I disagree with the learned Majority’s analysis of the Batson test, its
rejection of the trial court’s factual determinations, and find other of our
precedent persuasive, I respectfully dissent.2
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1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
The Majority explained that it addressed only three of the issues raised by
Appellant and, because it found a Batson violation warranting a new trial,
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In Commonwealth v. Harris, 817 A.2d 1033 (Pa. 2002), our Supreme
Court recognized:
Batson set forth a three-part test for examining a criminal
defendant’s claim that a prosecutor exercised peremptory
challenges in a racially discriminatory manner: first, the defendant
must make a prima facie showing that the circumstances give rise
to an inference that the prosecutor struck one or more prospective
jurors on account of race; second, if the prima facie showing is
made, the burden shifts to the prosecutor to articulate a race-
neutral explanation for striking the juror(s) at issue; and third, the
trial court must then make the ultimate determination of whether
the defense has carried its burden of proving purposeful
discrimination.
Id. at 1042 (citations omitted).3
In the context of peremptory challenges, Pennsylvania law further
requires the defendant, in his or her prima facie case, to make a record
specifically identifying a) the race or gender of all venirepersons in the jury
pools, b) the race or gender of all venirepersons remaining after challenges
for cause, c) the race or gender of those removed by the prosecutor,  and d)
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declined to address the remaining issues. Majority Opinion at 6 n. 11.
Because the Majority vacates the judgment of sentence and remands for a
new trial based on Batson, I likewise decline to address Appellant’s remaining
issues and express no opinion as to the merit of those issues.
3
Harris is one of the few cases since 2000 in which our Supreme Court
considered a Batson challenge on direct appeal. Others include
Commonwealth v. Towles, 106 A.3d 591 (Pa. 2014), involving challenges
based on race and gender, and Commonwealth v. Sanchez, 36 A.3d 24 (Pa.
2011), which will be discussed infra. The vast majority of the Batson cases
decided by our Supreme Court in recent years involved appeals from the
denial of a PCRA petition. See, e.g., Commonwealth v. Watkins, 108 A.3d
692 (Pa. 2014) (Majority Opinion at 10); Commonwealth v. Roney, 79 A.3d
595 (Pa. 2013), infra.
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the race or gender of the jurors who served and the race or gender of jurors
acceptable to the Commonwealth who were stricken by the defense.
Commonwealth v. Hill, 727 A.2d 578, 582 (Pa. Super. 1999) (citing
Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993)). After such a record
is established, the trial court must consider the totality of the circumstances
to determine whether the defendant has made a prima facie case of purposeful
discrimination. Id. (citing Commonwealth v. Thomas, 717 A.2d 468, 475
(1998) and Commonwealth v. Rico, 711 A.2d 990 (1998)).
In conducting its analysis, the Majority expressed its agreement with
the trial court that Appellant satisfied the first prong of Batson by
“establish[ing] a prima facie case of purposeful discrimination.” Majority
Opinion at 14. However, my review reveals that the trial court did not make
any such determination either on the record or in its Rule 1925(a) opinion.
During voir dire proceedings, out of the presence of the jury, Appellant’s
counsel indicated he was “questioning” four strikes made by the prosecution.
Notes of Testimony (“N.T.”), Voir Dire Proceedings, 10/28/14, at 88.
Discussion first centered on the fact the court crier listed the race and gender
of potential jurors on the strike list. The trial court then stated:
Trial Court: I’m trying to make a record here. And is number—
are these jurors all white jurors?
Appellant’s Counsel: They are all African American jurors.
Trial Court: These jurors are all African American jurors.
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Id. at 92-93. The trial court proceeded to inquire into the strikes and found
them to be race neutral. Defense counsel did nothing to establish a proper
and complete record on the prima facie prong of the Batson test and the
additional prima facie criteria required under Pennsylvania law. Likewise,
other than setting out the three-pronged test in its Rule 1925(a) opinion, the
trial court did not discuss the prima facie showing prong of Batson, instead
commenting, “While counsel for Appellant challenged the Commonwealth’s
striking of four African-American venirepersons, this [c]ourt inquired into the
strikes and found them to be race-neutral.” Trial Court Rule 1925(a) Opinion,
2/24/16, at 18-19. I find no support in the record for the Majority’s statement
that the trial court determined Appellant satisfied the first prong of Batson.4
As this Court explained in Commonwealth. v. Thompson, 106 A.3d 742 (Pa.
Super. 2014):
The requirements for a prima facie Batson showing are well
settled.
Generally, in order . . . to satisfy the first requirement of
demonstrating a prima facie Batson claim, the movant
must establish that he or she is a member of a cognizable
racial group, that the opposing party exercised peremptory
challenges to remove from the venire members of his or her
race, and that other relevant circumstances combine to
raise an inference that the opposing party removed the
jurors for racial reasons. Whether the movant has carried
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4
I do find some inconsistency in the Majority concluding Appellant established
a prima facie case of purposeful discrimination as evidenced by the trial court's
words and actions, Majority Opinion at 14-15, while at the same time
dismissing the trial court's words and actions wherein it found no
discriminatory intent under the third prong of Batson. See, infra.
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this threshold burden of establishing a prima facie case
should be determined in light of all the relevant
circumstances.
Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142
(2009).
A showing that a number of strikes were used against
venirepersons of one race will not, without more, create the
inference necessary to establish a prima facie Batson claim.
Rather, our Supreme Court has continually recognized that a
moving party must preserve a “full and complete record of the
asserted Batson violation, as it would otherwise be impossible to
conduct meaningful appellate review of the motivations of
prosecutors in individual cases without such a record.”
Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 909
(2004) (citation omitted), cert. denied, Fletcher v.
Pennsylvania, 547 U.S. 1041, 126 S. Ct. 1617, 164 L. Ed. 2d 336
(2006). “This full and complete record requirement necessitates
that the movant make a record identifying the race of
venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but stricken
by the defense, and the racial composition of the final jury.” Id.
at 910 (citation, footnote, and internal quotation marks omitted).
When a movant fails to make such a record, we cannot review the
trial court’s determination that a movant failed to establish a
prima facie case under Batson. Id. at 909–910, citing
Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039
(1999).
Id. at 751-52 (some quotations, citations and brackets omitted). See also
Hill, supra.
With respect to Fletcher’s “full and complete record” requirement as
detailed in Hill, it is only because the court clerk recorded the race of the
venirepersons on the Strike List that there was any record of the race and
gender of the jury pool, of those remaining, of those stricken by the
Commonwealth, of jurors who served, and of those acceptable to the
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Commonwealth who were stricken by the defense. Strike List, 10/28/14.
Clearly, Appellant did not make the required record. Further, the trial court
did not make any determination that Appellant established a prima facie
showing to satisfy the first prong of Batson. Therefore, there is no
determination for this Court to review concerning the first prong.
Regardless, the trial court’s failure to consider the prima facie showing
prong of the Batson test does not present an impediment to this Court’s
review under Batson. Our Supreme Court addressed a similar situation in
Sanchez, where the trial court likewise did not address the first prong of the
Batson test either in court or in its Rule 1925(a) opinion, instead focusing on
the second prong, i.e., whether the Commonwealth’s explanation of its
peremptory strike was race-neutral. Although the Commonwealth challenged
the finding of a prima facie showing in Sanchez, the Supreme Court
announced it would not decide the issue of whether the appellant met his
prima facie burden. Citing Harris and Commonwealth v. Edwards, 903
A.2d 1139, 1154 n. 16 (Pa. 2006), the Court recognized that the United States
Supreme Court has suggested that, under these circumstances, “we may turn
directly ‘to the question of whether the appellant had carried his burden of
proving that the prosecution had struck the juror based on race.’” Sanchez,
36 A.3d at 45 (quoting Edwards, 903 A.2d at 1154 n. 16, in turn quoting
Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality)). The
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Sanchez Court proceeded to consider the second and third prongs of the test.
I likewise shall proceed to the second and third prongs.
The second prong of the Batson test requires the prosecution to
articulate a race-neutral explanation for striking the jurors. See Harris, 817
A.2d at 1043. I agree with the Majority’s analysis and conclusion that the
Commonwealth did proffer race-neutral explanations for striking the four
venirepersons in question. See Majority Opinion at 15-16. As our Supreme
Court explained in Harris, at issue is the facial validity of the prosecutor’s
explanation and, absent inherent discriminatory intent in the explanation, the
reasons offered will be deemed race neutral. Harris, 817 A.2d at 1043. The
trial court accepted the prosecutor’s explanations as race neutral. The
Majority agrees and I concur in that conclusion.
The third prong of Batson requires that the trial court determine
whether the defense has carried its burden of proving the Commonwealth
engaged in purposeful discrimination. See Harris, 817 A.2d at 1042. It is
well established that the evaluation of a prosecutor’s intent for striking a juror
is a credibility matter that lies “peculiarly within the trial judge’s province.”
Hernandez, 500 U.S. at 365 (citations omitted). Indeed, the Majority
acknowledged:
[A] trial court’s decision on the ultimate question of discriminatory
intent represents a finding of fact of the sort accorded great
deference on appeal and will not be overturned unless clearly
erroneous. Such great deference is necessary because a
reviewing court, which analyzes only the transcripts from voir dire,
is not as well positioned as the trial court is to make credibility
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determinations. Moreover, there will seldom be much evidence
on the decisive question of whether the race-neutral explanation
for a peremptory challenge should be believed; the best evidence
often will be the demeanor of the prosecutor who exercises the
challenge.
Majority Opinion at 17 (quoting Commonwealth v. Williams, 980 A.2d 510,
531 (Pa. 2009) (internal quotation marks and citations omitted)). As our
Supreme Court observed, “Such great deference is appropriate and warranted
because the trial court, having viewed the demeanor and heard the tone of
voice of the attorney exercising the challenge, is uniquely positioned to make
credibility determinations.” Roney, 79 A.3d at 619 (citing Williams, 980
A.2d at 531). See also Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016)
(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (“in absence of
exceptional circumstances, ‘we defer to state court factual findings unless we
conclude they are clearly erroneous.’”)); Hernandez, 500 U.S. at 366 (“in
the absence of exceptional circumstances, we [should] defer to the [trial
court’s] factual findings.”).
Despite such clear directives, the Majority does not do justice to the
above standards. Indeed, the Majority ignores the deference owed to the trial
court’s decision on discriminatory intent and instead makes its own findings
based on a cold record, reweighing the relevant circumstances to overturn the
trial court’s finding regarding Juror 67.
Contrary to the trial judge who observed the voir dire process, the
Majority determined that three factors were strongly indicative of the
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prosecution’s discriminatory intent: first, potential jurors were identified by
race and gender on the peremptory strike sheet [(“Strike Sheet”); second,
statistics established that the Commonwealth struck a disproportionate
number of African Americans; and third, the Commonwealth’s explanation for
striking Juror 67 was “wholly underpersuasive.” Majority Opinion at 19. With
due respect, I find this to be error by the Majority.
Regarding the peremptory Strike Sheet, it is undisputed it provided the
race and gender of potential jurors. However, the Majority overlooks—or at
the very least, minimizes—the fact that the Commonwealth had no
involvement in the preparation of the Strike Sheet or placement of any
notations regarding race or gender. Indeed, it is clear, and acknowledged by
the Majority, that the notations are attributable solely to the trial court’s staff.
Id. at 4. I do not understand how the Majority can impute discriminatory
intent to the Commonwealth from the content of this document when the
Commonwealth had no say or involvement in its drafting. Further, while the
Majority finds the trial court staff’s practice of notating the race and gender
on the Strike Sheet ill-advised and inappropriate, but acknowledges that the
inclusion of race and gender on the sheet is not discriminatory per se, id. at
12-13, the Majority fails to explain how—or even if—the Commonwealth
misused the information. I too fail to see how this information was misused,
or for that matter ill-advised, especially when Appellant was required to
include this information in the record as a part of his prima facia showing, and
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this information discloses no more than what plainly can be observed of the
venire panel during jury selection. As previously stated, had it not been for
the trial court staff’s notations on the Strike Sheet, the prima facia information
required under Hill would be completely absent from the record in this case.
Respectfully, I find the Majority’s designation of the Strike Sheet as indicative
of discriminatory intent as unfounded.
Regarding the second ground, the Majority offers statistics to establish
that the Commonwealth struck a disproportionate number of African
Americans. As the Majority acknowledged, statistics alone are not dispositive
of the matter.
As our Supreme Court recognized in Roney,
[The] citation of statistics does not prove purposeful
discrimination in jury selection cases. In [Commonwealth v.
Ligons, 971 A.2d 1125, 1244 (Pa. 2009)], we held as follows:
“While it is clear that the prosecutor peremptorily struck more
African-Americans than Caucasians, this fact, in and of itself, is
insufficient to demonstrate purposeful discrimination when
considering the totality of the circumstances.”
79 A.3d at 622. In its discussion of deference owed to the trial court’s
decision on discriminatory intent, the Court in Roney explained:
[G]reat deference is appropriate and warranted because the trial
court, having viewed the demeanor and heard the tone of voice of
the attorney exercising the challenge, is uniquely positioned to
make credibility determinations. Although the demeanor of the
attorney exercising the peremptory challenge is often the best
evidence as to the question of discriminatory intent, the trial court
should consider the totality of the circumstances before making
its ruling. Other relevant evidence as to the ultimate question of
whether the prosecutor exercised purposeful discrimination and
acted with discriminatory intent includes the following: the final
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composition of the jury, the race or gender sensitivity of the case,
and any questionable remarks made by the prosecutor during jury
selection. See Williams, supra at 532; Commonwealth v.
Ligons, 601 Pa. 103, 971 A.2d 1125, 1144 (2009);
[Commonwealth v. Cook, 952 A.2d 594, 608 (Pa. 2008);
Commonwealth v. Spotz, 896 A.2d 1191, 1212-14 (Pa. 2006)].
Id. at 619 (some citations omitted).5
The Majority recognized that statistics alone are not sufficient to prove
discriminatory intent but can be considered in the totality of circumstances to
determine whether the Commonwealth exercised its strikes in a discriminatory
manner. Id. at 20 (citing Ligons, 971 A.2d at 1144).6 Here, the Majority
notes that thirty potential jurors were considered by the parties, thirteen of
whom were African American, fourteen of whom were Caucasian, and three of
whom were “Other,” i.e., neither African American nor Caucasian. Majority
Opinion at 19-20. Seven of the Commonwealth’s peremptory strikes were
used on African Americans and one was used on a person considered “Other.”
The Commonwealth did not strike any Caucasians. Id. at 20.
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5
While information is available here concerning the final composition of the
jury, see infra, there is no suggestion in the record of any particular racial
sensitivity of the case, nor is there any reference to questionable remarks
made by the prosecutor during jury selection.
6
The Majority certainly will contend that there are two other bases for its
conclusions, namely, the Strike Sheet and the explanation for striking Juror
67. In the end, however, the statistical ground is the only one that could
conceivably lend support to the Majority’s conclusions because it would be
improper to penalize the Commonwealth for something it did not do or, as
noted below, to substitute our judgment for that of the trial court simply
because we do not like the outcome.
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The Majority determined, “The statistics in this case are startling. Unlike
many cases addressed by our Supreme Court, in this case the Commonwealth
exercised all eight of its peremptory strikes on racial minorities and seven of
those eight on African-Americans.” Id. The Majority concluded:
Although the Commonwealth could not completely purge the jury
in this case of African-Americans because of the number of
African-American members of the venire, the Commonwealth
greatly reduced the number of African-Americans on the jury in
this case by exercising all of its peremptory strikes and using
seven of those eight strikes on African-Americans. These
probabilities, combined with the identification of the potential
jurors’ races and genders on the peremptory strike sheet and the
proffered, but highly implausible, race-neutral explanation for
striking Juror 67, cause us to conclude that Appellant met his
burden in demonstrating that the Commonwealth struck Juror 67
with discriminatory intent.
Id. at 21.
I take issue with the Majority’s conclusions on several levels. Most
important, as is common, reliance upon statistics can be misleading. Here,
the Majority’s conclusion that “the probability of striking no Caucasians and
striking at least 7 of 13 African-Americans by random chance is extremely
small,” Majority Opinion at 20, completely omits the reasons for which these
potential jurors were stricken, thus leaving a false impression as to why these
strikes were exercised. While the Commonwealth did strike seven African
Americans, Appellant did not assert Batson challenges with regard to three
of the African Americans or the “Other” venireperson. Appellant used his
peremptory strikes on one African American, six Caucasians, and one “Other.”
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As a result, the jury ultimately empaneled included five African Americans,
seven Caucasians, and one “Other.” See Strike List 10/28/14.
As important, a review of the Strike List reveals that the Commonwealth
accepted six of the first eight African Americans on the panel. This is
particularly telling and compelling in light of the fact the venirepersons were
brought into the courtroom for voir dire in two groups, the first comprised of
fifty prospective jurors and the second comprised of forty. After the trial court
conducted group voir dire for the first fifty, asking whether the prospective
jurors knew any of the parties, witnesses, etc., the trial court reduced that
group of fifty to nineteen. N.T., Voir Dire Proceedings, 10/28/14, at 10-18.
From that first group of fifty, only the nineteen remaining venirepersons have
their race and gender indicated on the Strike List.
Voir dire continued for the nineteen prospective jurors. Of the nineteen,
four Caucasians, one African American, and one “Other” are noted as stricken
by the trial court, leaving thirteen in that first group. Four of the thirteen were
Caucasian, eight were Afircan American, and one was “Other.” The
Commonwealth struck two African Americans while Appellant struck three
Caucasians, one African American, and one “Other.” See Strike List,
10/28/14, at 1-2 (unnumbered). I note that both the African American and
the “Other” stricken by Appellant were acceptable to the Commonwealth. Id.
The remaining six from the first group who were ultimately seated on the jury
included five African Americans and one Caucasian. Id. These “statistics”
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belie the Majority’s suggestion that the Commonwealth was attempting to
“purge the jury” (Majority Opinion at 21) of African Americans and highlights
once again the impropriety of this Court attempting to substitute its judgment
for that of the trial court.
Further, I disagree with the Majority’s conclusion that “Appellant met
his burden in demonstrating that the Commonwealth struck Juror 67 with
discriminatory intent.” Majority Opinion at 20. When questioned, the
Commonwealth offered the following explanation for striking Juror 67:
[W]hen she was being questioned by Your Honor, she was leaning
back, seemed a little cavalier, had her arm resting on the back
and while we were conducting voir dire in the back, she was sitting
there with her arms crossed and her head kind of nodded, seemed
guarded and again as if she didn’t want to be here, so I didn’t
think she would be a fair and competent juror.
N.T., Voir Dire Proceedings, 10/28/14, at 94. The trial judge then stated,
“Okay. Those are also neutral reasons for the Commonwealth exercising those
strikes. Batson challenge is denied.” Id. Appellant’s counsel responded,
“Thank you.” Id. Appellant did not mention Juror 67 in his brief, except in
the quoted excerpt from the voir dire proceedings. Appellant further does not
present any argument with respect to the race-neutral explanation offered by
the Commonwealth regarding Juror 67 and does not present any statistics
whatsoever regarding the composition of the venire or the jury empaneled.
As the record reflects, once the Commonwealth disclosed its reasons for
striking Juror 67, the trial court did not hesitate to grant the strike. Appellant’s
counsel did not object and the trial court seemingly did not find it necessary
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to add its own explanation on the record for granting the strike. It would
appear, therefore, the trial court agreed with the Commonwealth’s description
of Juror 67’s attitude, body language, and demeanor. It is not for this Court
to speculate otherwise.
The argument Appellant advances in support of his Batson challenge
includes testimony quoted from the voir dire proceedings, case law analyzing
Batson, and a request that this Court view the prosecutor’s reasons for
striking African American jurors in light of Foster, supra.7 Appellant’s Brief
at 13-15. In essence, Appellant’s entire “argument” consists of one phrase,
i.e., that the Commonwealth “systematically attempt[ed] to strike African-
American jurors, even the African-Americans with neutral answers on their
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7
I note that Foster is distinguishable from Appellant’s case in several
respects. In Foster, the challenge centered on two African-American jurors.
The prosecution offered facially race-neutral bases for striking them.
However, documents from the prosecution’s files revealed that both were on
a “Definite NO’s” list. The Supreme Court also concluded that reasons offered
by the prosecution for striking the two jurors applied as well to otherwise-
similar Caucasian panelists who were permitted to serve. Further, the reasons
for striking one of the jurors shifted over time. The Court held that the record
belied the prosecutor’s assertions and found the strikes were motivated in
substantial part by discriminatory intent. Foster, 136 S. Ct. at 1748-1754.
Viewing Appellant’s case in light of Foster, as he requests, would not provide
any basis for disturbing the trial court’s determinations regarding the jurors
at the center of Appellant’s Batson challenge, including Juror 67.
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Juror Information Questionnaire, . . . to empanel a jury that would, in theory,
find against Appellant who was an African-American.” Appellant’s Brief at 12.8
By contrast, the Majority’s detailed analysis of statistical information
alone spans three pages of its opinion. In undertaking this analysis, it appears
the Majority acted as Appellant’s counsel articulating a cogent argument,
complete with statistical information not even mentioned by Appellant. This
is not our role. See, e.g., Commonwealth v. Morales, 80 A.3d 1177, 1179
(Pa. 2013) (per curiam) (citing MacGregor v. Mediq, Inc., 576 A.2d 1123,
1128 (Pa. 1990) (improper for court to act as an advocate)); see also
Commonwealth v. Walls, 391 A.2d 1064, 1066 (Pa. 1978) (Manderino, J.,
dissenting) (neither trial court not appellate court should act as advocate).
Further, the Majority, substituting its judgment for that of the trial
court, finds that the Commonwealth’s explanation for striking Juror 67 is
“wholly unpersuasive,” the third factor it cites as evidencing discriminatory
intent. Majority Opinion at 19. If the explanation was credible, the Majority
suggests, essentially there would be no jurors to select for jury duty because
only a few (if any) want to sit on a jury. The trial court acknowledged that
much, and the Majority eagerly noted it. See id. at 21-22. Thus, according
to the Majority, while the trial court erroneously concluded the Commonwealth
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8
Although Appellant’s argument on the Batson challenge covers slightly more
than three pages of his brief, the argument consists merely of citations and
quotations with analysis of the cited cases rather than argument supporting
of a finding of discriminatory intent under the facts of this case.
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did not engage in discriminatory conduct, the trial court was correct in finding
that people generally do not want to serve on a jury. Again, it is not our role
to choose what to believe. Our role is to determine whether the credibility
determination was clearly erroneous, not to make the credibility determination
itself. I do note however, that the Majority, in finding discriminatory intent,
dismisses all of the Commonwealth’s observations regarding Juror 67’s
demeanor in light of the trial court inviting potential jurors to sit back and
relax. Majority Opinion at 22. However, there is no indication or even any
suggestion that all or other jurors were so blatantly bothered with being there
as Juror 67.
This Court discussed and rejected a substantially similar Batson
challenge to demeanor in Commonwealth v. Jackson, 562 A.2d 338 (Pa.
Super. 1989) (en banc), a case I find instructive with respect to Juror 67. In
Jackson, the following exchange took place between the prosecutor and the
trial court:
Prosecutor: I exercised a peremptory challenge on one person
who, it was basically what you would call body language. I can
recall it was individual questioning of the jurors. They would come
and sit in the jury box[.] I believe he had dark glasses on, and
he was kind of sitting with his arm draped over, and I just got
very negative feelings during my questioning of this individual.
And even during [defense counsel’s] questioning of him. Call it
body language, if you will.
Trial Court: You are indicating, for the record, you are slumped
to the left side with your arm draped over the railing of the
witness-box.
Prosecutor: Correct.
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Id. at 351.
The trial court accepted the prosecution’s explanation as race neutral.
This Court did not disturb that ruling on appeal. In announcing the judgment
of the Court, Judge Beck explained:
Appellant contends that a prosecutor’s impression of a prospective
juror’s demeanor is not a proper reason for exercising a
peremptory challenge. We do not agree. The manner in which a
venireperson dresses, his facial expressions, his tone of voice, and
his posture all provide relevant information concerning his attitude
toward the court system and his ability to serve as a fair and
impartial juror. Both district attorneys and defense counsel
routinely base their trial selection strategy in part on such physical
cues. In this case, the prosecutor noted for the record those
aspects of [the juror’s] conduct which called into question his
willingness to be serious and attentive throughout the trial. We
find that the prosecutor’s explanation for striking [the juror] was
legally sufficient. Cf. United States v. Garrison,, 849 F.2d 103,
106 (4th Cir. 1988), cert. denied, 488 U.S. 996, 109 S. Ct. 566,
102 L. Ed. 2d 591 (1988) (prosecutor may strike individual
perceived as inattentive); United States v. Forbes, 816 F.2d
1006, 1009 (5th Cir. 1987) (prosecutor may strike individual
perceived as hostile).
We recognize that a reference to a prospective juror’s “body
language” may mask a decision to exercise a peremptory
challenge solely on the basis of race. A trial judge should not
uncritically accept this or any other proffered explanation for a
peremptory challenge. Instead, the judge should assess each
proffered explanation in light of her independent recollection of
the demeanor and responses of the venire panel members. As an
appellate court, we must ordinarily defer to the trial court’s
evaluation since the trial judge had a direct opportunity to observe
the voir dire process. Accordingly, we will accept the prosecutor’s
statement as an accurate summary of his reasons for striking this
particular prospective juror.
Id. See also Commonwealth v. Smulsky, 609 A.2d 843, 846 (Pa. Super.
1992) (trial court did not abuse its discretion by denying objection
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Commonwealth’s peremptory exclusion of juror thought to be disingenuous
and detached from the outside world).
The similarities between the demeanor descriptions in Jackson and
here are striking. As Judge Beck aptly noted regarding the importance of
demeanor in Jackson, dress, facial expressions, and posture all provide
relevant information.9 One must recognize that voir dire many times provides
precious little time and opportunity for counsel to assess the whole of a
potential juror. Counsel nonetheless must quickly arrive at an educated
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9
Although I clearly acknowledge that the quoted excerpts from Jackson are
from Judge Beck’s opinion announcing the judgment of the Court, the Majority
reiterates that Jackson is not binding on this Court. Majority Opinion at 23
n. 21. While I do not dispute the lack of binding authority, I maintain that
Jackson is instructive and provides a proper framework for addressing the
issue of juror demeanor as a basis for exercising peremptory strikes. Likewise,
while also not binding on this Court, courts from other jurisdictions have
employed a similar analysis. For example, in Green v. Travis, 414 F.3d 288
(2d Cir. 2005), the Second Circuit noted:
[T]he unfavorable demeanor of a venireperson has been held to
be a race-neutral explanation for a peremptory challenge. See,
e.g., McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir.
1996) (noting that peremptory challenges “may legitimately be
based not only on answers given by the prospective juror to
questions posed on voir dire, but also on the prosecutor's
observations of the prospective juror”); Brown v. Kelly, 973 F.2d
116, 121 121 (2d Cir. 1992) (“An impression of the conduct and
demeanor of a prospective juror during the voir dire may provide
a legitimate basis for the exercise of a peremptory challenge.”
Id. at 300. Similarly, the Fifth Circuit has routinely found demeanor to be a
race-neutral justification. See United States v. Thompson, 735 F.3d 291,
297 n. 14 (5th Cir. 2013), and cases cited therein.
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judgment as to each potential juror’s ability to focus, understand, follow
instructions, and act impartially and without bias when considering the
evidence to be presented during trial. In this case, there were thirty potential
jurors in the venire panel after group voir dire. While experts might spend
countless hours studying selection factors, that luxury, except in rare cases,
is not afforded counsel during the voir dire process. Therefore, small but
significant clues that might provide insight into a potential juror take on
heightened importance in jury selection. Demeanor may be an important clue
providing insight into a potential juror. I believe the Commonwealth engaged
in just such an exercise in assessing Juror 67, just as in Jackson.10
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10
The Majority suggests that Jackson did not address the third step of
Batson except with respect to vernirepersons challenged due to familiarity
with the location of the crime. Majority Opinion at 25. The Majority’s reading
of Jackson intimates that both the trial court and this Court considered only
that single aspect of the Batson challenge while leaving challenges based on
demeanor unresolved. I respectfully disagree. Initially, the Court stated:
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.
Jackson, 562 A.2d at 544 (emphasis added). After conducting its analysis,
the Court concluded by indicating:
In summary, the trial judge found that appellant established a
prima facie case of discrimination. This finding was not an abuse
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In dismissing reliance upon Jackson, the Majority finds instructive, as
binding precedent, the Supreme Court of the United States’ decision in
Snyder v. Louisiana, 552 U.S. 472 (2008), to emphasize the importance of
the record demonstrating that the trial court in fact witnessed the alleged
demeanor relied upon by a prosecutor to strike a juror, something it finds
lacking in this case. Majority Opinion at p. 23-24. The Majority finds my
argument therefore flawed, because I cite nothing in the record to indicate
the trial court observed Juror 67 and found that this juror’s demeanor credibly
exhibited the basis for the strike attributed to her by the Commonwealth. Id.
at 24. I certainly take no issue with the Majority pointing out any omission to
acknowledge binding precedent, except in this instance, where the proposition
for which the Majority cites Snyder was expressly rejected by the United
States Supreme Court in Thaler v. Haynes, 559 U.S. 43 (2010) (per curiam).
In Thaler, the Court dismissed the misconception that Snyder established
that a judge must reject a demeanor-based explanation for a peremptory
challenge unless the judge personally observed and recalled the aspect of the
juror’s demeanor on which the explanation was based. The Court stated:
____________________________________________
of discretion. The trial judge also found that the
Commonwealth rebutted this prima facie case of
discrimination. This finding was also not an abuse of discretion.
Therefore, appellant’s Batson challenge is not meritorious.
Id. at 354 (emphasis added).
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This case presents the question whether any decision of this Court
“clearly establishes” that a judge, in ruling on an objection to a
peremptory challenge under Batson v. Kentucky, 476 U.S. 79
(1986), must reject a demeanor-based explanation for the
challenge unless the judge personally observed and recalls the
aspect of the prospective juror’s demeanor on which the
explanation is based. The Court of Appeals appears to have
concluded that either Batson itself or Snyder v. Louisiana, 552
U.S. 472 (2008), clearly established such a rule, but the Court of
Appeals read far too much into those decisions, and its holding, if
allowed to stand, would have important implications. We
therefore grant the petition for certiorari, grant respondent’s
motion to proceed in forma pauperis, and reverse the judgment
of the Court of Appeals.
Id. at 44. Further:
In holding that respondent is entitled to a new trial, the Court of
Appeals cited two decisions of this Court, Batson and Snyder,
but neither of these cases held that a demeanor-based
explanation for a peremptory challenge must be rejected unless
the judge personally observed and recalls the relevant aspect of
the prospective juror’s demeanor.
The Court of Appeals appears to have concluded that Batson
supports its decision because Batson requires a judge ruling on
an objection to a peremptory challenge to “ ‘undertake “a sensitive
inquiry into such circumstantial and direct evidence of intent as
may be available.” ’ ” 561 F. 3d. at 540 (quoting Batson, 476
U.S. at 93, in turn quoting Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 266 (1977)). This
general requirement, however, did not clearly establish the rule
on which the Court of Appeals’ decision rests. Batson noted the
need for a judge ruling on an objection to a peremptory challenge
to “tak[e] into account all possible explanatory factors in the
particular case,” 476 U.S. at 95 (internal quotation marks
omitted). See also Miller-El v. Dretke, 545 U.S. 231, 239
(2005); Johnson v. California, 545 U.S. 162, 170 (2005).
Thus, where the explanation for a peremptory challenge is based
on a prospective juror’s demeanor, the judge should take into
account, among other things, any observations of the juror that
the judge was able to make during the voir dire. But Batson
plainly did not go further and hold that a demeanor-based
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explanation must be rejected if the judge did not observe or
cannot recall the juror’s demeanor.
Nor did we establish such a rule in Snyder. In that case, the
judge who presided over the voir dire also ruled on the Batson
objections, and thus we had no occasion to consider how Batson
applies when different judges preside over these two stages of the
jury selection process. Snyder, 552 U.S. at 475–478. The part
of Snyder on which the Court of Appeals relied concerned a very
different problem. The prosecutor in that case asserted that he
had exercised a peremptory challenge for two reasons, one of
which was based on demeanor (i.e., that the juror had appeared
to be nervous), and the trial judge overruled the Batson objection
without explanation. 552 U.S. at 478–479. We concluded that
the record refuted the explanation that was not based on
demeanor and, in light of the particular circumstances of the case,
we held that the peremptory challenge could not be sustained on
the demeanor-based ground, which might not have figured in the
trial judge’s unexplained ruling. Id. at 479–486. Nothing in this
analysis supports the blanket rule on which the decision below
appears to rest.
The opinion in Snyder did note that when the explanation for a
peremptory challenge “invoke[s] a juror’s demeanor,” the trial
judge’s “first hand observations” are of great importance. Id. at
477. And in explaining why we could not assume that the trial
judge had credited the claim that the juror was nervous, we noted
that, because the peremptory challenge was not exercised until
some time after the juror was questioned, the trial judge might
not have recalled the juror’s demeanor. Id. at 479. These
observations do not suggest that, in the absence of a personal
recollection of the juror’s demeanor, the judge could not have
accepted the prosecutor’s explanation. Indeed, Snyder quoted
the observation in Hernandez v. New York, 500 U.S. 352, 365
(1991) (plurality opinion), that the best evidence of the intent of
the attorney exercising a strike is often that attorney’s demeanor.
See 552 U.S. at 477.
Id. at 47-49 (footnote omitted).
Here, there is no suggestion that the trial judge in the case before us
was unable to make firsthand observations of the jurors’ demeanors, and in
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particular Juror 67, or the demeanor of the attorney exercising the peremptory
strikes, bolstering the deference due the trial court’s findings. The trial court
was present for and actually conducted voir dire. Upon conclusion of the jury
selection process, the trial court addressed Appellant’s Batson challenges and
determined the Commonwealth presented race neutral reasons for exercising
those strikes. N.T., Voir Dire Proceedings, 10/28/14, at 90-94. There is
nothing in the record to suggest that the trial court did not have the
opportunity to observe Juror 67. Importantly, as reflected in the above
excerpt, Thaler clarified that it is not imperative that the trial judge personally
observe and recall the juror’s demeanor in order to accept the prosecutor’s
explanation.
Given the record and our standard of review, I conclude that Appellant
failed to meet his burden of proving the Commonwealth engaged in purposeful
discrimination in striking Juror 67. Further, recognizing the trial court had the
opportunity to observe the voir dire process whereas we are limited to a review
of a cold record, and further recognizing the deference due the trial court’s
evaluation, I find no basis for disturbing the trial court’s denial of Appellant’s
Batson challenge. Therefore, I dissent.
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