947 A.2d 714 (Pa. 2008), Commonwealth v. Marshall

Citation:947 A.2d 714
Party Name:COMMONWEALTH of Pennsylvania, Appellee v. Jerome MARSHALL, Appellant.
Case Date:May 20, 2008
Court:Supreme Court of Pennsylvania

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947 A.2d 714 (Pa. 2008)

COMMONWEALTH of Pennsylvania, Appellee


Jerome MARSHALL, Appellant.

Supreme Court of Pennsylvania

May 20, 2008

Submitted Feb. 12, 2008.

Appeal from the Order entered on August 7, 2006, in the Court of Common Pleas, Criminal Division of Philadelphia County dismissing PCRA relief at No. 1721-1732.

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[Copyrighted Material Omitted]

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Matthew C. Lawry, Esq., Defender Association of Philadelphia, Philadelphia, for Jerome Marshall.

Hugh J. Burns, Esq., Philadelphia District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.



McCAFFERY, Justice.

In this capital case, Jerome Marshall (Appellant) appeals from the order of the Court of Common Pleas of Philadelphia County dismissing without a hearing his second petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 Appellant contends that newly discovered evidence supports his claim of racial discrimination in the seating of a jury during his trial and penalty hearing, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Following careful review, we affirm.

The relevant early history of the instant case has been previously summarized by this Court as follows:

On August 29, 1984, Appellant was convicted by a jury of the first-degree murders of Sharon Saunders (a/k/a Sharon Ballard), Myndi McKoy and Karima Saunders. Following a penalty hearing, the jury returned verdicts of death against Appellant in connection with the murders of Myndi McKoy and Karima Saunders and a verdict of life imprisonment in connection with the murder of Sharon Saunders. On direct appeal, this Court affirmed the judgments of sentence imposed for the murders of Myndi McKoy and Sharon Saunders. Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). However, the Court vacated the sentence of death imposed for the murder of Karima Saunders and remanded the matter to the Court of Common Pleas for a new penalty hearing. Id. at 575, 568 A.2d at 599. On remand, a jury was impaneled for the sole purpose of fixing Appellant's sentence for the first-degree murder of Karima Saunders. Following a penalty hearing, the jury returned a verdict of death, and Appellant filed a direct appeal to this Court. Upon review, this Court affirmed the sentence of death. Commonwealth v. Marshall, 537 Pa. 336, 643 A.2d 1070 (1994).

On November 16, 1996, Appellant filed a pro se petition pursuant to the PCRA. [Following appointment of counsel, the filing of an amended PCRA petition, and the PCRA court's issuance of notice of

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its intention to dismiss the petition without a hearing, the] PCRA court [] dismissed Appellant's PCRA petition by order dated March 13, 1998.

Commonwealth v. Marshall, 571 Pa. 289, 812 A.2d 539, 542-43 (2002).

On December 18, 2002, this Court affirmed the PCRA court's order, noting that Appellant had waived many of his numerous claims of error by failing to raise them on direct appeal. Id. at 543 (citing 42 Pa.C.S. § 9544(b) for the proposition that "[a]n issue raised in a PCRA petition is deemed waived if the petitioner could have raised the issue but failed to do so before trial, at trial, on direct appeal or in a prior state post-conviction proceeding"). Among the issues held to be waived were the following: Appellant's claims that (1) the Commonwealth had used its peremptory strikes to discriminate against women, African-Americans and Jews; and (2) the trial court improperly had excluded prospective jurors in violation of Appellant's rights to an impartial jury and fair trial. Id.

In May 2003, Appellant filed a petition in federal district court for habeas corpus relief, claiming, inter alia, that the prosecutor at his trial, Roger King, had violated Batson by discriminating against African-Americans and women in his peremptory jury challenges. See Marshall v. Beard, 2004 WL 1925141 *3-*4, No. Civ.A. 03-3308 (E.D. Pa., 2004). Appellant sought discovery encompassing notes, documents, memoranda, and reports related to jury selection in his trial or related to general policies and practices regarding jury selection in the Philadelphia District Attorney's Office. The District Court noted that this Court, on PCRA appeal, had concluded that Appellant's Batson claim was waived. See id. However, because this Court had sometimes applied a relaxed waiver rule in capital cases at the time Appellant's issues were held to be waived, the District Court determined that our finding of waiver did not bar federal habeas review of Appellant's case. Id. at *4 (citing Marshall, 812 A.2d at 543). The District Court granted Appellant's discovery motion in part, ordering the Commonwealth to provide Appellant with any notes regarding race or gender and jury selection from his 1984 trial and/or 1990 penalty retrial. Id. at *5. 2

On January 27, 2006, Appellant filed a second, counseled PCRA petition, alleging that newly-discovered evidence demonstrated a policy of racial discrimination in jury selection within the Philadelphia District Attorney's office, which directly contravened the holdings of the United States Supreme Court in Batson, as well as in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled by Batson, supra. 3 The newly-discovered evidence on which Appellant relied was a copy of notes taken during a 1990 lecture regarding jury selection that was given to Philadelphia prosecutors by Bruce Sagel, who was then an Assistant District Attorney in the Philadelphia District Attorney's Office. The notes were taken by Gavin Lentz, a former Philadelphia Assistant District Attorney, who had attended Mr. Sagel's lecture. Based on these notes, Appellant sought to have his convictions and sentences vacated under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections

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1, 6, 9, 10, 13, and 26 of the Pennsylvania Constitution.

In Appellant's view, the notes constituted evidence of a "culture of discrimination" within the Philadelphia District Attorney's office, whereby the prosecutors deliberately sought to exclude African-Americans from serving on a jury and to use improper means to avoid a Batson challenge. (Appellant's Brief at 15). To reinforce his interpretation of the notes, Appellant invoked a videotape of a training seminar on jury selection, which had been given in 1987 by Jack McMahon, who was then a Philadelphia Assistant District Attorney. In the tape, Mr. McMahon explicitly advocated the use of discriminatory practices during jury selection. See Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 730-731 & n.12 (2000) (providing excerpts of the videotaped transcript and condemning the practices described therein as "flout[ing] constitutional principles in a highly flagrant manner"). Appellant argued that similarity between the McMahon videotape and the Sagel lecture, as reflected in Mr. Lentz's notes, revealed a culture of racial discrimination in the jury selection process and disregard for the Batson holding, which was manifest throughout the Philadelphia District Attorney's Office.

Although Mr. Sagel had delivered the lecture at issue in 1990, Appellant contended that he had been unable to obtain a copy of Mr. Lentz's notes, or even to learn the identity of the author of the notes, until November...

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