Commonwealth v. Estes

BENDER, J.:

¶ 1 Richard Hassain Estes (Appellant), a/k/a Hassaim Estes, appeals from the judgment of sentence imposed as a result of a conviction, before a jury, of third degree murder.¹ Appellant raises three issues on appeal, one involving the jury selection system and two involving the effectiveness of trial counsel. After argument, review of the briefs and record, we affirm.

¶ 2 Appellant raises two issues alleging ineffective assistance of trial counsel. While there are certain circumstances when allegations of ineffectiveness of trial counsel can be considered on direct appeal, see Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), this is not such a case. Here, the claims of ineffectiveness of trial counsel have not been developed on the record. Testimony has not been taken and, accordingly, neither we nor the trial court has heard from trial counsel concerning these claims of ineffective assistance of counsel. Accordingly, the general rule announced in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), should be followed and Appellant’s claims of ineffective assistance of trial counsel must wait until collateral review.

¶ 3 Appellant further raises an issue involving the jury selection system which is set forth as follows:

MR. ESTES WAS DENIED A FAIR TRIAL BY A JURY SELECTION SYSTEM WHICH, BASED UPON THE METHODS USED TO SELECT JURORS, RESULTED IN A JURY POOL THAT FAILED TO ADEQUATELY REPRESENT THE RACIAL, GENDER AND AGE COMPOSITION OF ALLEGHENY COUNTY.

Appellant’s Brief at 13. Appellant claims that methods used by Allegheny County to create jury pools systematically excludes non-caucasian individuals, males, and persons between the ages of 25 and 45, so as to create a disproportionate population of middle-aged to elderly Caucasian females in the jury pool. The premise implied in Appellant’s challenge is that juries comprised of high concentrations of middle aged or elderly Caucasian females are more prone to convict African-American male defendants. Due to our disposition of this issue, we do not address the extremely subtle and difficult question of what type of juror favors a certain type of defendant. As any trial lawyer knows these questions lack firm answers.

¶ 4 Appellant cites Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), for the proposition that the Sixth Amendment to the United States Constitution provides for a trial by a jury of one’s peers drawn from a source fairly representative of the community and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), for the standard used to establish a prima facie violation of the fair cross section requirement. While Appellant shows a persistent underrepresen-tation of certain groups in Allegheny County jury pools, he fails to address requirements set forth in Pennsylvania Supreme Court cases which mandate showing more than evidence that certain groups are underrepresented prior to finding discriminatory jury pooling practices.

¶ 5 Our Supreme Court has recently summarized the requirements for a challenge to the array of prospective jurors on the ground that such array does not reflect a fair cross section of the community. In the case of Commonwealth v. Johnson, 576 Pa. 23, 838 A.2d 663 (2003), the court stated:

The Commonwealth notes that Appellant does not have the right to demand that specific numbers of minorities sit on the jury panel which judges him. See Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. Craver, 547 Pa. 17, 27-28, 688 A.2d 691, 696 (1997) (“ ‘Defendants are not entitled to a jury of any particular composition, but the jury wheels, , pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.’” (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975) (emphasis in original))).

To establish a prima facie violation of the requirement that a jury array fairly represent the community, Johnson must show that:

(1) the group allegedly excluded is a distinctive group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation of the number of such people in the community; and (3) this underrepre-sentation is due to systematic exclusion of the group in the jury selection process. “Systematic” means caused by or inherent in the system by which juries were selected. Craver, 547 Pa. at 28, 688 A.2d at 696 (citing Duren v. Missouri, 439 U.S. 357, 364, 366-67, 99 S.Ct. 664, 668-70, 58 L.Ed.2d 579 (1979)). Proof is required of an actual discriminatory practice in the jury selection process, not merely underrep-resentation of one particular group. See id. at 27-28, 688 A.2d at 696. The defendant bears the initial burden of presenting prima facie evidence of discrimination in the jury selection process. See Jones, 452 Pa. at 312, 304 A.2d at 692.

This Court has rejected various criminal defendant’s attacks, on the basis that African-Americans were underrepresented, to the racial composition of a jury panel drawn from voter registrations lists. See Commonwealth v. Bridges, 563 Pa. 1, 18, 757 A.2d 859, 868 (2000); Commonwealth v. Henry, 524 Pa. 135, 144, 569 A.2d 929, 933 (1990). More recently, the reasoning and holdings of those cases have been extended to approve the usage of driver’s license lists for purposes of jury selection. See Commonwealth v. Johnson, 572 Pa. 283, 305, 815 A.2d 563, 575 (2002) (plurality) (“Absent some showing that driver’s license selection procedures are inherently biased, [the defendant] has failed to distinguish jury pool lists derived from voter registration records from those derived from driver’s license registration lists”); accord Commonwealth v. Cameron, 445 Pa.Super. 165, 175-76, 664 A.2d 1364, 1369 (1995).

Id. at 682. (footnote omitted).

¶ 6 In an effort to establish a pattern of discriminatory practice in constructing jury pools, Appellant offered prior to trial, the testimony of John F. Earns, Ph.D., to show that certain groups are underrepresented in the Allegheny County jury pool. The trial court in its opinion summarized the testimony of Dr. Earns and explained the actions the trial court took to help Appellant with the problem of underrepre-sentation:

Prior to trial, the defense called Dr. John F. Earns, a respected lawyer and sociologist on the faculty of the University of Pittsburgh. Dr. Earns testified that he engaged the firm of Gentile-Meinert and Associates to collect demographic data concerning the persons called for jury duty in the Criminal Division of this court during the months of May through September 2001. He compared that data to the reports of the U.S. Census Bureau for the year 2000. He concluded that the African-American population of Allegheny County is 11.19 percent, but only 4.7 percent of the jury pool is African-American. He found less significant deviations with respect to gender and age. Finally, Dr. Earns pointed out that the jury pool excludes those persons between the ages of zero and 18 years of age whereas the census data includes those persons. For this reason, the court found that the study, while troubling, was incomplete.

The court denied the defendant’s motion to dismiss the charges against him, and his motion to postpone the trial until the system can be corrected. However, at the defendant’s request, the court directed that all African-Americans present for jury service be interviewed for service on his jury. As a result of the court’s intervention, one African-American served as a principal juror on the defendant’s jury and another served as an alternate.

Trial Court Opinion, 9/18/02, at 3.

¶ 7 While it is true that Dr. Karn’s testimony shows underrepresentation of certain groups, such underrepresentation alone does not show “an actual discriminatory practice in the jury selection process _” Johnson, 838 A.2d at 682. Appellant offered no evidence of a calculated discriminatory practice. Appellant in fact offered no testimony whatsoever concerning the Allegheny County jury selection process. He further fails to make an argument as to what discriminatory .practice might be causing the systematic exclusion. The mere showing of underrepresentation, absent an actual discriminatory practice in the jury selection process, causes Appellant’s constitutional claim to fail. Johnson, supra.

¶ 8 The above conclusion is compelled by the law set forth by our Supreme Court in Johnson, supra, and other cases dealing with this issue. We note, as did the trial court that underrepresentation of African-Americans in our jury pools is a serious problem which must be corrected. We are not unmindful of steps that are being taken in Allegheny County to attempt to correct this problem.

¶ 9 Joseph M. James, President Judge of the Court of Common Pleas of Allegheny County, has this month issued the following order:

ORDER OF COURT

AND NOW, to-wit, this 1st day of March, 2004, it appearing to the court that:

1. The pool of qualified jurors in Allegheny County is currently 13,498;

2. Despite direction by the court, the Jury Commission has been unable to meet the requirements established by the court that 150,000 questionnaires be mailed to randomly selected citizens of Allegheny County to comprise the 2004 qualified juror pool;

3. As of the date of the Order, just 35,000 questionnaires of the total 150,-000 have been mailed;

4. Despite direct instruction to mail follow-up questionnaires to potential jurors who have failed to return the initial questionnaire, none have been mailed in the year 2004;

5. The failure to adequately increase the size of the pool and to aggressively follow-up on those failing to respond to questionnaires may, in the future, jeopardize the randomness of the selection process and the racial diversity required in proportion to the existing population; and;

6. If no remedial action is taken, the future pool of qualified jurors may exclude identifiable groups of the minority population.

¶ 10 Therefore, it is ORDERED that:

1. The Jury Commission is hereby directed to mail a total of 65,000 questionnaires on or before June 30, 2004;

2. The District Court Administrator of Allegheny County is hereby directed to outsource the mailing of 50,000 questionnaires on or before March 31, 2004;

3. In addition to the 150,000 questionnaires that will be sent to persons selected randomly from lists of licensed drivers and qualified electors, the District Court Administrator is hereby directed to complete a supplemental draw of jurors amounting to 10% or 15,000 citizens, to be drawn at random from Allegheny County Municipalities and City of Pittsburgh Wards that contain a minority population of 10.8% or larger. This shall be completed on or before March 31, 2004;

4. The Jury Commission is hereby directed to immediately initiate the procedures adopted by the court to respond to all potential jurors that fail to answer the request to complete the questionnaire;

5. Beginning immediately, the District Court Administrator is hereby directed to supplement each daily jury array by an additional 10% from those Allegheny County Municipalities and City of Pittsburgh Wards that contain a minority population of 10.8% or larger. Each additional draw shall be done at random from the pool of qualified jurors; and

6. At the end of this six-month trial period, the court will analyze the resulting composition of jury pools.

¶ 11 Given the above Order and other steps being taken to improve racial diversity of jury pools, it is hoped that the current issues being raised by Appellant will not be a problem in the future. We are certain that, if the problem is not corrected, the criminal defense bar will again bring this issue to the attention of the trial courts, as did Appellant’s counsel in the instant case.

¶ 12 Judgment of sentence affirmed.

¶ 13 Judge JOHNSON files a concurring opinion.

1 . 18 Pa.C.S. § 2501.