Com. v. Spain, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
KHIRI KASHIER SPAIN
Appellant No. 1309 MDA 2020
Appeal from the Judgment of Sentence entered August 26, 2020
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0003029-2019
BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2021
Appellant, Khiri Kashier Spain (“Spain” or “Appellant”), appeals from the
judgment of sentence entered in the Court of Common Pleas of Berks County
on August 26, 2020, following Appellant’s convictions of persons not to
possess firearms, receiving stolen property, and firearms not to be carried
without a license.1 Appellant contends that the evidence was not sufficient to
support his convictions, that the verdicts were against the weight of the
evidence, and that he is entitled to a new trial based on a Batson2 violation.
Upon review, we affirm.
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1 18 Pa.C.S.A. §§ 6105(a)(1), 3925(a) and 6106(a)(1), respectively. We note
that Appellant was also convicted of resisting arrest, 18 Pa.C.S.A. § 5104, but
has not raised a challenge to that conviction.
2 Batson v. Kentucky, 476 U.S. 79 (1986).
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The trial court summarized the relevant facts as follows:
On November 1, 2018, deputies from the Berks County
Sheriff’s Office were on duty when they observed Spain walking in
the 800 block of Penn Street, Reading, Berks County,
Pennsylvania. They made contact with Spain and asked for his
name. He provided them with the name of Tyler. Spain handed
over his backpack and gave the deputies permission to open it to
retrieve his identification. During the encounter, one of the
deputies attempted to handcuff Spain but Spain swung his arms
to break away from the deputy and fled.[3] The deputies deployed
their taser with no effect. Spain continued to run but, after a
struggle, was caught and taken into custody. During the struggle,
Spain was observed reaching down towards his legs and
waistband. Spain was wearing athletic pants. One of the deputies
drew his firearm and commanded Spain to show his hands due to
his fear that Spain may be reaching for a weapon. Spain’s right
shoe came off during the altercation revealing that he had socks
on. Spain continued to run until a bystander intervened and
assisted in his apprehension.
After Spain was taken into custody, Spain was observed
leaning over as if he was tired and trying to shield his body from
the deputies. A brief pat-down of Spain’s waist was performed
and he was placed in the rear passenger seat of the deputies’ SUV.
Spain’s legs and underwear were not checked. Nothing was
discovered on Spain during the pat-down. Spain’s hands were
handcuffed behind his back while in the SUV. Two of the deputies
retraced the route they followed while chasing Spain. Spain’s
backpack was never located.
The deputies transported Spain in the SUV and dropped him
off at central processing to be booked before travelling in the same
SUV to a separate location to execute a warrant. As they arrived
at this location, the deputy operating the SUV slammed on the
SUV’s brakes to allow the deputies to exit the SUV and make
contact with another individual. When they re-entered the SUV,
the deputies observed a pink handgun sticking out from
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3Spain, who testified at trial, claimed he lied about his name and ran because
he knew there was a warrant for him and he did not want to go to jail,
especially in light of the fact his girlfriend would soon be giving birth to their
son. Notes of Testimony (“N.T.”), Trial, 7/8/20, at 338, 347-49.
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underneath the seat Spain was seated in. Between a half-hour to
an hour and a half elapsed between the time Spain was placed in
the SUV and the discovery of the pink handgun. Nobody else was
transported in the SUV during that time.
After the firearm was recovered, law enforcement learned
that it was owned by Gerald and Amanda Shaeffer and had been
reported stolen. The serial number on the firearm was partially
obliterated. Also, law enforcement discovered that Spain did not
have a license to carry a firearm.
A DNA sample was obtained from Spain and the firearm was
swabbed twice for DNA. The DNA swabs both showed that Spain’s
DNA was present on the firearm. On the first DNA swab, Spain
was one of three DNA contributors. Spain contributed more DNA
than the other two individuals. Spain was the only DNA
contributor on the second swab of the firearm.
Trial Court Opinion, 11/10/20, at 2-4 (references to notes of testimony
omitted).
At the conclusion of trial, the jury returned guilty verdicts indicated
above.4 On August 26, 2020, the trial court sentenced Spain to a cumulative
sentence of six to 12 years in prison to be served concurrently with a sentence
imposed in a separate action. The trial court denied Spain’s post-sentence
motions on September 9, 2020. This timely appeal followed. Both Spain and
the trial court complied with Pa.R.A.P. 1925.
Spain presents three issues for our consideration.
[1.] Whether the Commonwealth presented evidence that was
legally insufficient to support an inference that Appellant ever
possessed or received a stolen firearm, where the only inculpatory
circumstance was his DNA’s [sic] being found on a handgun—
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4In addition, the jury found Spain not guilty of aggravated assault and simple
assault. 18 Pa.C.S.A. §§ 2702(a)(3) and 2701(a)(1), respectively.
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along with the DNA of at least two other people—which did not
rule out the equally likely possibility, consistent with Appellant’s
innocence, that this was owing merely to an accidental DNA-
transfer or –drop that occurred at some point during his time in
custody in the passenger-seat directly under which the gun was
eventually found; and where no evidence at all was present to
show that Appellant had guilty knowledge of the gun’s [sic] being
stolen over four weeks earlier?
[2.] Whether Appellant’s convictions were against the weight of
the evidence, where, inter alia, none of the officers involved in his
pursuit and arrest ever saw, heard, felt or otherwise perceived the
presence of a gun on Appellant at any time; and it would have
been practically impossible for Appellant to manage to secrete a
gun beneath a the seat of a police-car, while handcuffed and
tightly secured, without attracting the notice of the guarding
officer seated right next to him?
[3.] Whether the Commonwealth committed an unconstitutional
Batson violation by peremptorily striking the only black member
from a panel of at least forty-eight potential jurors, and failing to
offer a valid, non-pretextual, racially neutral explanation therefor,
as it did not apply the same supposedly disqualifying criteria to
similarly situated white jurors?
Appellant’s Brief at 13-14.
In his first issue, Spain challenges the sufficiency of evidence supporting
his convictions. Specifically, he contends the Commonwealth failed to present
sufficient evidence to establish that he ever possessed a firearm and,
therefore, all his convictions fall. Appellant’s Brief at 24.5
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5 Although Spain contends all his convictions must fail because evidence did
not establish he possessed a firearm, he does not offer any argument with
respect to the elements of either persons not to possess or firearms not to be
carried without a license. Regarding persons not to possess, pursuant to 18
Pa.C.S.A. § 6105(a)(1), a person who has been convicted of offenses
enumerated in Section 6105(b) is not permitted to possess or obtain a license
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In Commonwealth v. Newton, 994 A.2d 1127 (Pa. Super. 2010), this
Court reiterated:
Our standard of review in a sufficiency of the evidence challenge
is to determine if the Commonwealth established beyond a
reasonable doubt each of the elements of the offense, considering
all the evidence admitted at trial, and drawing all reasonable
inferences therefrom in favor of the Commonwealth as the
verdict-winner. The trier of fact bears the responsibility of
assessing the credibility of the witnesses and weighing the
evidence presented. In doing so, the trier of fact is free to believe
all, part, or none of the evidence.
Id. at 1131 (quoting Commonwealth v. Pruitt, 951 A.2d. 307, 318 (Pa.
2008) (citations omitted), cert. denied, 556 U.S. 1131 (2009)).
With respect to receiving stolen property, in Commonwealth v.
Galvin, 985 A.2d 783 (Pa. 2009), our Supreme Court explained:
Receiving stolen property is established by proving that the
accused “intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or believing
that it has probably been stolen, unless the property is received,
retained, or disposed of with intent to restore it to the owner.”
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to possess a firearm in the Commonwealth. At Appellant’s trial,
uncontroverted evidence established that Appellant was convicted in 2015 of
robbery and escape. N.T., Trial, 7/8/20, at 416. Both robbery (18 Pa.C.S.A.
§ 3701) and escape (18 Pa.C.S.A. § 5121) are among the offenses
enumerated in Section 6105(b). With respect to firearms not to be carried
without a license, uncontroverted trial testimony confirmed Spain did not have
a license to carry a firearm, id. at 115, establishing a violation of 18 Pa.C.S.A.
§ 6106(a).
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Id. at 792 (quoting 18 Pa.C.S.A. § 3925(a)). “Illegal possession of a firearm
may be established by constructive possession.” Commonwealth v.
McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation omitted).
Concerning constructive possession, this Court has held:
When contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. The fact that another person may also have control
and access does not eliminate the defendant’s constructive
possession . . .. As with any other element of a crime, constructive
possession may be proven by circumstantial evidence. The
requisite knowledge and intent may be inferred from the totality
of the circumstances.
McClellan, 178 A.3d at 878 (quoting Commonwealth v. Haskins, 677 A.2d
328, 330 (Pa. Super. 1996), appeal denied, 692 A.2d 563 (Pa. 1997) (citations
omitted)). “Constructive possession is an inference arising from a set of facts
that possession of the contraband was more likely than not.” McClellan, 178
A.3d at 878 (citation omitted).
In the context of the case before us, the Commonwealth had the burden
of establishing that Spain constructively possessed the handgun and “knew
the firearm in question was stolen, or believed that it had probably been
stolen. A person ‘knows’ the goods are stolen if he is ‘aware’ of that fact.”
Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en
banc) (citing 18 Pa.C.S.A. § 302(b)(2)(i)).
Spain suggests that the presence of his DNA on the handgun does not
support an inference of possession and that circumstances must corroborate
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constructive possession. Appellant’s Brief at 36. “Constructive possession is
an inference arising from a set of facts”—not just one equivocal fact—“that
possession of the contraband was more likely than not.” Id. (quoting
McClellan, 178 A.3d at 878).
The trial court concluded the evidence established Spain’s constructive
possession of the firearm, noting:
Spain was wearing socks and athletic pants when he was
encountered by the deputies. During Spain’s struggle with the
deputies, Spain was observed reaching down towards his legs and
waistband which raised concern that Spain was reaching for a
weapon. After Spain was taken into custody, he was observed
attempting to shield his body from the deputies. The jury could
have inferred that Spain’s actions were consistent with his
possession of a firearm. The pat-down of Spain was brief and did
not include a check of his legs or underwear where a weapon could
have been hidden. He was also wearing socks which could have
concealed a firearm. After Spain was placed into the deputies’
SUV and transported to central processing, the deputies
discovered a firearm beneath the seat where Spain had been
sitting. Nobody else was transported other than Spain. Lastly,
Spain’s DNA was present on the firearm. Therefore, when viewing
the evidence in the light most favorable to the Commonwealth as
the verdict winner, the jury could have determined that Spain was
in constructive possession of the firearm when they rendered a
guilty verdict on persons not to possess[,] receiving stolen
property and firearms not to be carried with a license.
Trial Court Opinion, 11/10/20, at 6-7.6 Based on our review of the evidence,
we agree with the trial court’s conclusion regarding constructive possession.
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6 Spain consistently ignores the fact the evidence is to be viewed in the light
favorable to the Commonwealth as verdict winner. For instance, focusing on
the presence of Spain’s DNA on the handgun—and ignoring it was the sole
DNA on one of the two swabs—Spain posits an “equally reasonable” inference
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Spain also contests an inference of “guilty knowledge,” especially with
respect to evidence that the gun was “recently stolen.” Appellant’s Brief at
38-40. Our Courts have discussed an accused’s knowledge that property is
stolen in the context of “guilty knowledge.” For instance, in Newton, we
explained:
Guilty knowledge (like all culpable mental states) may be proved
by circumstantial evidence. Often, intent cannot be proven
directly but must be inferred from examination of the facts and
circumstances of the case. When examining the totality of the
circumstances to determine if there is sufficient evidence from
which a jury could infer the requisite mens rea, we must, as with
any sufficiency analysis, examine all record evidence and all
reasonable inferences therefrom. In conducting our assessment,
we stress again that we must view the evidence in the light most
favorable to the Commonwealth as the verdict winner. The trier
of fact, while passing upon the credibility of witnesses and the
weight of the proof, is free to believe all, part, or none of the
evidence.
Newton, 994 A.2d at 1132 (citations and internal quotation marks omitted).
Further:
Circumstantial evidence of guilty knowledge may include, inter
alia, the place or manner of possession, alterations to the property
indicative of theft, the defendant’s conduct or statements at the
time of arrest (including attempts to flee apprehension), a false
explanation for the possession, the location of the theft in
comparison to where the defendant gained possession, the value
of the property compared to the price paid for it, or any other
evidence connecting the defendant to the crime.
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is that “some errant bit of DNA that Appellant was shedding made it on to the
gun directly beneath him.” Appellant’s Brief at 35. “[T]he Commonwealth’s
experts did not rule out the substantial possibility that some pedal skin-cell,
some strand of hair, some serous droplet, fell on to an object placed in such
intimate proximity to his person under such cramped conditions.” Id.-8-
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Robinson, 128 A.3d at 268 (citation omitted). “Proof that the goods were
recently stolen, however, may provide the jury with sufficient circumstantial
evidence to support an inference of guilty knowledge, since the ‘circumstances
of possession as presented by the Commonwealth’ (the recency of the theft)
suggest ‘an explanation for the possession’ (that the accused was the thief).”
Id. at 267 (citation omitted).
“‘Recent’ is a relative term. Whether possession is recent, and how
recent it is, are normally questions of fact for the trier of fact.”
Commonwealth v. Williams, 362 A.2d 244, 249 (Pa. 1976) (citations
omitted). In Robinson, this Court noted that we have upheld convictions
when the Commonwealth establishes the recency of the theft. Robinson,
128 A.3d at 268 (citing Commonwealth v. Hogan, 468 A.2d 493, 498 (Pa.
Super. 1983) (en banc) (“We cannot say that as a matter of law a period of
four weeks was so great as to render impermissible the inference of guilty
knowledge[.]”)).
The evidence and reasonable inferences therefrom, viewed in a light
most favorable to the Commonwealth as verdict winner, establish that the
deputies saw Spain walking down the street and recognized him as having an
outstanding warrant. The deputies stopped Spain, who gave a false name and
fled from those deputies. Following Spain’s capture, the deputies conducted
a limited pat-down but observed suspicious movements on Spain’s part. Spain
was placed in the deputies’ SUV and was transported to Central Processing.
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Shortly thereafter, the deputies attempted to execute a warrant on another
individual. When they spotted the individual, the deputy driving the SUV made
a hard stop. When the deputies returned to the vehicle, they observed a pink
handgun protruding from under the seat where Spain sat while being
transported. The gun had been reported as stolen one month earlier. Part of
the serial number on the handgun was obliterated. Two DNA swabs revealed
Spain’s DNA was present on the gun. One swab reflected he was the main
contributor from among three contributors. He was the sole contributor of
DNA on the second swab. Considering all the evidence and reasonable
inferences therefrom, viewed in the light most favorable to the Commonwealth
as verdict winner, we find the evidence—both direct and circumstantial—was
sufficient to establish all elements of receiving stolen property beyond a
reasonable doubt. Spain’s first issue fails.
In his second issue, Spain challenges the weight of the evidence. Our
Supreme Court has instructed:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744
A.2d 745, 751–52 (2000); Commonwealth v. Brown, 538 Pa.
410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be
granted because of a mere conflict in the testimony or because
the judge on the same facts would have arrived at a different
conclusion. Widmer, 560 Pa. at 319–20, 744 A.2d at 752.
Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 320, 744 A.2d at 752 (citation
omitted).
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Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). “A motion for
new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that there is sufficient evidence to sustain the verdict.”
Widmer, 744 A.2d at 751. “[A]n appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.” Commonwealth
v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citation omitted).
Here, the trial court looked to the evidence and concluded:
[T]he verdict was not contrary to the evidence as the jury was
presented with a case upon which to convict Spain. The jury
evaluated the evidence, determined the credibility of the
witnesses and, when assessing the weight of the evidence,
believed the evidence presented by the prosecution and rendered
a guilty verdict. Therefore, the verdicts were consistent with the
evidence presented and did not shock anyone’s sense of justice.
Trial Court Opinion, 11/10/20, at 8.
Based on our review, we cannot say the trial court “palpably abused its
discretion in ruling on the weight claim.” Therefore, we shall not disturb its
findings. Spain’s second issue fails.
In his third issue, Spain argues that the Commonwealth engaged in
purposeful discrimination by removing the only person of color from the jury
panel, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). “A Batson
claim presents mixed questions of law and fact. Therefore, our standard of
review is whether the trial court’s legal conclusions are correct and whether
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its factual findings are clearly erroneous.” Commonwealth v. Edwards, 177
A.3d 963, 970 (Pa. Super. 2018) (citation and internal quotation omitted). As
this Court explained in Edwards:
When a defendant makes a Batson challenge during jury
selection:
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 971 (quoting Commonwealth v. Watkins, 108 A.3d 692, 708 (Pa.
2014) (citation omitted)).
Here, Spain, who is black, contends race was the basis for the
prosecutor’s use of a peremptory strike on the only venireperson who self-
identified on the jury questionnaire as black or African-American (“juror
number 27”). We first consider whether Spain made a prima facie showing
that supports an inference the prosecutor struck juror number 27 based on
race. Our Supreme Court has instructed:
To establish a prima facie case of purposeful discrimination . . .
the defendant must show that he is a member of a cognizable
racial group, that the prosecutor exercised a peremptory
challenge or challenges to remove from the venire members of
the defendant’s race;[fn] and that other relevant circumstances
combine to raise an inference that the prosecutor removed the
juror(s) for racial reasons.
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[fn]In a case decided after Batson, the Supreme Court held that, while
racial identity between the excluded juror(s) and the defendant might
help to establish a Batson violation, it was not a necessary requirement.
Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 113 L.Ed.2d 411(1991).
Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (citing Batson, 476
U.S. at 96) (internal alterations omitted).7
While an inference of discrimination may arise from a pattern of strikes
against minorities or the prosecutor’s questioning and statements during voir
dire, see Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004), “[t]he use
of a peremptory challenge on a single person of color without more is
insufficient to establish a Batson violation.” Commonwealth v. Simmons,
662 A.2d 621, 631 (Pa. 1995).
Here, the trial court found no prima facie case of purposeful
discrimination with respect to juror number 27. Nevertheless, for the sake of
making a complete record, the trial court also considered the second and third
prongs of the Batson analysis.
The second prong of the Batson test, involving the prosecution’s
obligation to come forward with a race-neutral explanation of the
challenges once a prima facie case is proven, does not demand an
explanation that is persuasive, or even plausible. Rather, the
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7 In decisions post-dating Cook, our Supreme Court has continued to
acknowledge that Powers extended the rule in Batson to cases involving a
lack of racial identity between a defendant and venirepersons. See, e.g.,
Commonwealth v. Williams, 86 A.3d 771, 783 (Pa. 2014);
Commonwealth v. Ligons, 971 A.2d 1125, 1142 n. 14 (Pa. 2009) (plurality).
However, because Spain is contending the prosecutor exercised a peremptory
challenge to remove a venireperson of his race, Powers is not implicated in
the instant case.
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issue at that stage is the facial validity of the prosecutor’s
explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race
neutral.
If a race-neutral explanation is tendered, the trial court must then
proceed to the third prong of the test[.] . . . It is at this stage that
the persuasiveness of the facially-neutral explanation proffered by
the Commonwealth is relevant.
Commonwealth v. Towles, 106 A.3d 591, 601 (Pa. 2014) (quoting
Commonwealth v. Harris, 817 A.2d 1033, 1043 (Pa. 2002) (internal
citations and quotations omitted) (emphasis in original)).
Regarding the second prong, the prosecutor advised the trial court the
peremptory strike was not exercised for racial reasons. Rather, the
Commonwealth was trying to impanel jurors older than Spain and jurors
without children. Juror number 27 was 28 years old, two years younger than
Spain. She had two young children. As the trial court noted, in a prison phone
conversation with his girlfriend, Spain asked his girlfriend to bring their young
child to court so the jurors could see the child. “The Commonwealth was
concerned that juror number 27 and other individuals with children would be
more sympathetic to Spain because he has a young child.” Trial Court
Opinion, 11/10/20, at 11 (references to notes of testimony omitted).
After the Commonwealth tendered its race-neutral explanation, the trial
court proceeded to the third prong of the test, weighing the persuasiveness of
the facially-neutral explanation. The court determined there were no other
circumstances to suggest the Commonwealth removed juror number 27 for
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racial reasons. With only one minority juror on the panel, no “pattern of
strikes against minorities” could be established. Id. Moreover, there were no
questions or statements made by the Commonwealth during voir dire to
support a finding that the Commonwealth struck juror number 27 for racial
reasons. Id.As our Supreme Court directed in Towles:
Great deference must be given to the trial court’s finding as to an
absence of discriminatory intent in peremptory challenges, and
this finding will not be overturned unless clearly erroneous. Such
deference is warranted because the trial court is in the position to
make credibility determinations when viewing the demeanor of
the prosecutor exercising the peremptory challenges.
Id., 106 A.3d at 602 (citations omitted).
Again, the trial court determined that Spain failed to establish a prima
facie case of purposeful discrimination with respect to juror number 27.
Further, the court reviewed the Commonwealth’s use of its remaining
peremptory challenges and determined no Batson violation occurred. Trial
Court Opinion, 11/10/20, at 11. Having reviewed the record and the relevant
legal principles, we conclude the trial court’s findings are supported by the
record and are free of legal error. Therefore, Spain has failed to prove the
trial court erred in denying his Batson claim. Spain’s third issue does not
afford him any basis for relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/07/2021
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