Com. v. Cook, 407 CAP.

• Citation: 952 A.2d 594
• Decision Date: 24 July 2008
• Docket Number: No. 407 CAP.,407 CAP.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert COOK, Appellant.
• Court: United States State Supreme Court of Pennsylvania

952 A.2d 594

COMMONWEALTH of Pennsylvania, Appellee v. Robert COOK, Appellant.

No. 407 CAP.

Supreme Court of Pennsylvania.

Submitted October 5, 2006.

Decided July 24, 2008.

Jules Epstein, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for Robert Cook.

David R. Crowley, Centre County Public Defender's Office, for Pa. Assoc. of Criminal Defense Lawyers.

Amy Zapp, PA Office of Atty. Gen., Hugh J. Burns, Jr., Philadelphia District Attorney's Office, for Com.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.

The instant matter is before this Court on appellant's appeal from that part of the order of the Court of Common Pleas of Philadelphia County denying him a new trial pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm the order below.

On November 15, 1988, a jury sitting before the Honorable Robert A. Latrone convicted appellant of first-degree murder, criminal conspiracy to commit murder, possessing an instrument of crime, and robbery. The convictions arose from the stabbing death of Alvin Tyler, from whom appellant had conspired with two cohorts to steal drug money and a videocassette recorder.¹ Subsequently, the same jury found three aggravating circumstances and no mitigating circumstances and, accordingly, sentenced appellant to death.² See 42 Pa.C.S. § 9711(c)(1)(iv) ("[T]he verdict must be a sentence of death if the jury finds at least one aggravating circumstance ... and no mitigating circumstance. ..."). On May 20, 1996, this Court affirmed appellant's convictions and judgment of sentence on direct appeal. Commonwealth v. Cook, 544 Pa. 361, 676 A.2d 639 (1996). The United States Supreme Court denied appellant's petition for a writ of certiorari on February 18, 1997. Cook v. Pennsylvania, 519 U.S. 1119, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997).³

On October 27, 1997, appellant filed a timely pro se PCRA petition. Following the appointment of PCRA counsel, an amended petition was filed on March 11 1999. The amended petition raised twenty-six claims for relief, including one alleging that "the Commonwealth exercised its peremptory jury strikes in both racially and sexually discriminatory manners." Amended PCRA Petition at 43 (emphasis omitted). In forwarding this claim, appellant noted that, in April of 1997, the Office of the District Attorney of Philadelphia released a videotaped training session on jury selection that Assistant District Attorney Jack McMahon had given to fellow assistant district attorneys in 1987.⁴ Appellant alleged in his petition that, on the videotape, Attorney McMahon describes various racial and gender stereotypes and suggests them as reasons for making peremptory challenges.⁵

After the Commonwealth filed a motion to dismiss the petition, on July 26, 2000, the PCRA court, per the Honorable Carolyn E. Temin, granted an evidentiary hearing on the following issues: (1) whether trial counsel was ineffective for failing to secure an expert medical witness to testify as to the victim's time of death; (2) whether trial counsel was ineffective for failing to develop and present mitigating evidence; and (3) whether the prosecutor committed misconduct by, inter alia, exhibiting racial bias in jury selection. With one exception,⁶ the PCRA court denied relief as to all issues raised by appellant in his PCRA petition.

Following several days of hearings held in December of 2002, the PCRA court denied appellant's petition on January 17, 2003. After granting appellant's motion for reconsideration, however, the PCRA court vacated its order denying the petition. The court granted appellant a new penalty hearing on March 13, 2003 and issued its Pa.R.A.P.1925(a) opinion on June 12, 2003. The Commonwealth appealed from the grant of a new penalty hearing but later discontinued that appeal. Appellant's timely appeal from the denial of a new trial follows. In review of the PCRA court's decision to deny a new trial, our standard of review is limited to examining whether the court's findings of fact are supported by the record and whether its legal conclusions are free of error. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1071 n. 6 (2006).

I. Batson Claim

Appellant first claims that Attorney McMahon, who was the trial prosecutor in this case, exercised peremptory challenges at appellant's trial based upon impermissible considerations of race and gender in violation of Batson v. Kentucky, 476 U.S 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and its progeny. In forwarding his Batson claim, appellant makes a number of distinct arguments that require separate discussion. Appellant first argues that McMahon violated Batson and its progeny in three ways, namely: (1) by failing to provide a race-neutral reason for striking three particular black venirepersons; (2) by giving pretextual reasons for striking two other black venirepersons; and (3) by striking black mothers from the venire but neither white mothers nor black women with no children. In addition, appellant challenges two evidentiary rulings that the PCRA court made at the hearings it held on his Batson claim. In particular, appellant claims that the court erred in excluding: (1) comments that Philadelphia District Attorney Lynne Abraham made about the McMahon videotape at a news conference held at the time of its release; and (2) statistical evidence of McMahon's jury selection practices in other cases.

In Batson, the U.S. Supreme Court held that "the Equal Protection Clause forbids [a] prosecutor to challenge potential jurors solely on account of their race." Id. at 89, 106 S.Ct. 1712. We explained the framework for analyzing a Batson claim in our direct appeal opinion in Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033 (2002):

[F]irst, 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. Batson, 476 U.S. at 97, 106 S.Ct. 1712.

To establish a prima facie case of purposeful discrimination ... the defendant [must] show that he [i]s 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;[⁷] and that other relevant circumstances combine [ ] to raise an inference that the prosecutor removed the juror(s) for racial reasons. Batson, 476 U.S. at 96, 106 S.Ct. 1712....

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." Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Rather, the 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.'" Id. [(quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion))].

If a race-neutral explanation is tendered, the trial court must then proceed to the third prong of the test, i.e., the ultimate determination of whether the opponent of the strike has carried his burden of proving purposeful discrimination. Purkett, 514 U.S. at 768, 115 S.Ct. 1769. It is at this stage that the persuasiveness of the facially-neutral explanation proffered by the Commonwealth is relevant. Id.

Harris, 817 A.2d at 1042-43 (footnotes and some citations omitted).

"`[T]he 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." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality)); accord Wilson v. Beard, 426 F.3d 653, 668 (3d Cir.2005). 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 determinations." Miller-El, 537 U.S. at 339, 123 S.Ct. 1029. "There will seldom be much evidence bearing on" the "decisive question" of "whether counsel's race-neutral explanation for a peremptory challenge should be believed." Id. (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). "[T]he best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province." Id. (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. 1859) (internal quotation marks omitted); accord Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1076 (2006) (noting that "Batson contemplated a central role for the trial judge ... in assessing the credibility of the neutral reasons for peremptory strikes proffered by the lawyer who exercised them"); Commonwealth v. (Aaron) Jones, 542 Pa.464, 668 A.2d 491, 520 (1995); Riley v. Taylor, 277 F.3d 261, 278 (3d Cir.2001) (noting that a trial judge's findings as to discriminatory intent are generally owed "even greater deference because only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said") (internal quotation marks omitted); United States...