Com. v. Abu-Jamal

• Citation: 521 Pa. 188,555 A.2d 846
• Decision Date: 06 March 1989
• Docket Number: ABU-JAMAL
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mumia, a/k/a Wesley Cook, Appellant.
• Court: United States State Supreme Court of Pennsylvania

Page 846

555 A.2d 846

521 Pa. 188

COMMONWEALTH of Pennsylvania, Appellee, v. Mumia ABU-JAMAL, a/k/a Wesley Cook, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 19, 1988.

Decided March 6, 1989.

[521 Pa. 193] Marilyn J. Gelb, Philadelphia, for appellant.

Karl Baker, Philadelphia, for Amicus-Nat. Conf. of Blk. Lawyers.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Philadelphia, Marianne E. Cox, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.

Before NIX, C.J., and FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

ZAPPALA, Justice.

We review the judgment of sentence of death imposed on Mumia Abu-Jamal, found guilty of first degree murder in the December 1981 shooting death of Philadelphia police officer Daniel Faulkner.

The evidence presented at trial established that at approximately 3:55 a.m. on December 9, 1981, Officer Faulkner made a routine car stop on Locust Street between Twelfth and Thirteenth Streets in Center City Philadelphia. The car was driven by the appellant's brother, William Cook. After making the stop, Officer Faulkner called for assistance on his police radio, requesting a police wagon to transport a prisoner. While Faulkner was trying to handcuff Cook, the appellant ran from across the street and shot the officer once in the back. Faulkner was able to fire one shot, which wounded the appellant, but after Faulkner had fallen to the ground the appellant shot him four more times at close range, once through the center of the face. The appellant was found slumped against the curb in front of Cook's car and taken into custody by police officers who arrived on the scene within thirty to forty-five seconds. The officers had been in the area and were turning onto Locust Street from Twelfth Street in response to Faulkner's radio request. They were flagged down by a cab driver who had witnessed the shooting while stopped at the intersection of Thirteenth and Locust. Two other pedestrians also witnessed the incident and identified the appellant as the perpetrator, both at the scene and during the trial.

On the foregoing summary we have no doubt as to the sufficiency of the evidence to support the verdict of first degree murder, a point the appellant does not contest. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).

I.

The appellant first argues that he is entitled to a new trial on account of several errors occurring during jury selection. Principal among these arguments is the contention that the prosecution systematically excluded jurors by race through the use of peremptory challenges, violating rights of equal protection and trial by impartial jury secured by the Fourteenth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. The appellant relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), as setting the standard for reviewing claims of improper use of peremptories, and cites to portions of the record that, he argues, meet that standard. The appellant notes that he is black and the victim was white. He states that the prosecutor used eleven peremptory challenges to remove blacks from the jury, with the result that the original panel consisted of ten whites and two blacks. Furthermore, one of the black jurors was replaced before the start of the trial by an alternate, who was white, resulting in a greater racial imbalance. The appellant argues that he has proffered sufficient evidence to raise an inference that the prosecutor used his peremptory challenges because of race. Accordingly, the case should be remanded for an evidentiary hearing to determine whether the Commonwealth can overcome the presumption of discriminatory use of challenges.

In Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), in ruling on the question of the retroactive application of Batson, the U.S. Supreme Court held broadly that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." The Commonwealth properly observes, however, that even where retroactive application is required, it is only appropriate where the issue has been preserved. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); see also, Shea v. Louisiana, 470 U.S. 51, 58, n. 4, 105 S.Ct. 1065, 1070, n. 4, 84 L.Ed.2d 38 (1985) (Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) retroactively applicable to cases on direct review, "subject, of course, to established principles of waiver, harmless error, and the like.") The Commonwealth then argues that the appellant made no claim, either during voir dire or post-trial, that the prosecutor used his peremptory challenges for an impermissible purpose. In further demonstration that any challenge to the racial composition of the jury was waived, the Commonwealth notes that the appellant made only an incomplete record of the relevant information, and here attempts to rely on defense counsel's affidavit, filed four years after the fact and obviously dehors the record, to establish his claim.

There can be no doubt that under the longstanding teaching of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), the appellant has waived any claim that the prosecutor engaged in discriminatory use of peremptory challenges to obtain an unrepresentative jury. Not only did he fail to advance the issue in any form resembling that adopted by the Supreme Court in Batson, he made no attempt even to frame the issue under the then prevailing rules of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

We have, at times, indicated that because of the extreme, indeed irreversible, nature of the death penalty, it may be appropriate to relax application of the waiver rule and address the merits of arguments raised for the first time in the direct appeal to this Court. Commonwealth v. Zettlemoyer; Commonwealth v. Holcomb, 508 Pa. 425, 434, n. 6, 498 A.2d 833, 837, n. 6 (1985) (Plurality). In other capital cases, however, we have held that certain issues were waived for failure to raise them before the trial court. Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984). In light of this, the Commonwealth has argued in the alternative--waived or not, the appellant's claim of improper use of peremptories is without merit. In this regard, the Commonwealth disputes the representations made by the appellant as to the race of several prospective jurors, peremptorily excused, whose race does not appear of record. The Commonwealth also argues that the mere invocation of a disparity in the numbers of blacks and whites who sat on the jury is inadequate and unreliable as an indicator of whether a prima facie case has been made out. It is noted that in at least one instance the appellant used a peremptory challenge to strike a black venireperson deemed acceptable by the Commonwealth, and the record clearly indicates that the Commonwealth had no responsibility for the circumstances that required replacement of a black juror with a white alternate juror. Finally, the Commonwealth presents non-racial reasons, apparent on the face of the record, to justify the use of a peremptory challenge against each of the prospective jurors isolated by the appellant.

In Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988), a pre-Batson case where the appellant had preserved a claim that the prosecutor impermissibly discriminated by race in the use of peremptories, we determined that to give the appellant the protections provided by Batson, it was sufficient for this Court to engage in a post hoc review of the record.

Applying the "standards" set out in Batson, 476 U.S. at 95-98, 106 S.Ct. at 1722-3 for assessing whether a prima facie case exists, vacuous though they may be, we do not hesitate to conclude that no such case is made out here. That the appellant is a member of a cognizable racial group and that the prosecutor used peremptory challenges to remove some members of the appellant's race are facts so obvious to anyone even marginally acquainted with this case as to cause embarrassment at the need to set them out in writing. They are, nevertheless, two of the three "elements" necessary to establish a prima facie case. According to Batson, these facts, when taken with "any other relevant circumstances", must raise an inference that the prosecutor used his peremptory challenges to exclude venirepersons on account of their race. Examples of such "relevant circumstances" that might support or refute such an inference are a "pattern" (or not) of strikes against black jurors, and the prosecutor's questions and comments during voir dire.

We agree with the Commonwealth that mere disparity of number in the racial make-up of the jury, though relevant, is inadequate to establish a prima facie case. The ultimate composition of the jury is affected not only by the prosecutor's use of peremptories, but by the defendant's use of such, by challenges for cause (more acute in capital cases because of the Witherspoon inquiry), and by jurors' inability to serve for personal reasons. The Commonwealth cites at least one instance where the appellant removed a black juror already passed as acceptable by the Commonwealth; it cannot be determined whether any of the venire, who were dismissed when it was the appellant's turn to first pass on their acceptability, were black and might have been acceptable to the Commonwealth. Moreover, we find no "pattern" in the use of peremptories. The Commonwealth used fifteen of the twenty available challenges. The record reflects that eight of these venirepersons were black. Had the appellant not peremptorily challenged...