Com. v. Garrett

• Decision Date: 25 March 1997
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Calvin GARRETT, Appellant.
• Court: Pennsylvania Superior Court

Page 912

689 A.2d 912

456 Pa.Super. 60

COMMONWEALTH of Pennsylvania, Appellee, v. Calvin GARRETT, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 20, 1996.

Filed Jan. 23, 1997.

Reargument Denied March 25, 1997.

Vladimir Zdrok, Philadelphia, for appellant.

Teresa E. Kibelstis, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before McEWEN, P.J., and POPOVICH and HOFFMAN, JJ.

POPOVICH, Judge.

In this appeal, appellant contends that the Constitution does not prohibit a criminal defendant from discriminating on the basis of race in the exercise of his peremptory challenges. We disagree with this contention, and, therefore, we affirm.

The record discloses the following pertinent facts and procedural history: On December 10, 1993, appellant, who was black, was convicted on the charges of robbery, aggravated assault, and criminal conspiracy. On direct appeal, this Court reversed the judgment of sentence and remanded for a new trial because the trial court failed to give a "no adverse inference" instruction. Commonwealth v. Garrett, 445 Pa.Super. 648, 665 A.2d 1299 (1995).

On November 6, 1995, jury selection began for appellant's second trial. The prosecution and the defense were each permitted seven peremptory challenges. The first round of voir dire consisted of twelve venirepersons. Four of these venirepersons (one, four, ten and eleven) were white. Defense counsel used peremptory challenges to remove venirepersons one, four and ten. At this point, the prosecutor objected to defense counsel's challenge to venireperson ten and stated that she believed that defense counsel was exercising his peremptory challenges to exclude white venirepersons from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ¹ The trial court determined that the Commonwealth established a prima facie case of racial discrimination and directed defense counsel to state his reasons for the peremptory challenges. Defense counsel so complied. The trial court then permitted the peremptory challenges to stand but indicated that defense counsel was "getting into dangerous ground." N.T. 11/6/1995 p. 79. Immediately thereafter, defense counsel used a peremptory challenge to remove venireperson eleven. The prosecutor renewed her Batson challenge. Defense counsel stated his reasons for striking potential juror eleven, and the trial court permitted the peremptory challenge to stand.

A second set of potential jurors was then seated for voir dire. Defense counsel used a peremptory challenge to remove venireperson sixteen, who was white. The prosecutor renewed her Batson challenge. The trial court instructed defense counsel to explain the basis for removing potential juror sixteen. Defense counsel stated that he felt that the juror was not being candid with the court and that he did not like the juror's demeanor. The trial court stated that "there was really no 'honest to goodness' justification or no legal reason" for striking the juror. N.T. 11/6/1995 pp. 110-114. However, the trial court informed defense counsel that counsel would be given some leeway and that the trial court would not overturn the challenge as to venireperson sixteen at that point. Defense counsel then used a peremptory challenge to remove venireperson eighteen, who was white. Again, the prosecutor renewed her Batson challenge, and the trial court instructed defense counsel to state his reasons for excluding the potential juror. Defense counsel stated that he exercised a peremptory challenge against juror eighteen because the juror had been robbed by two black males and would be biased in the present case because the defendant was black.

After defense counsel offered his reason for striking juror eighteen, the prosecutor renewed her challenge as to the striking of juror sixteen. Defense counsel was given another opportunity to explain the reasons for striking juror sixteen. Defense counsel indicated that he just "didn't like the man" and that his client did not like the juror's answers. Defense counsel then offered to "take the next white juror." N.T. 11/6/1995 p. 116. The trial court determined that defense counsel's earlier explanation as to the removal of juror sixteen was pretextual and found that defense counsel improperly struck juror sixteen on the basis of race. The trial court then informed defense counsel that he could either accept juror sixteen or the whole panel would be dismissed, with costs charged to the defendant. Juror sixteen was then reinstated. The final petit jury consisted of four white jurors, eight black jurors, as well as two white alternates. Defense counsel used six of his seven peremptory challenges. He used five of his challenges to remove prospective white jurors and one of his challenges to remove a prospective black juror. Following his second trial, appellant was convicted again of robbery, aggravated assault, and criminal conspiracy. He was sentenced to seven to twenty years incarceration. This appeal followed.

Appellant's first contention is that Batson is inapplicable to this case because the Constitution does not prohibit a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. ² We disagree.

For more than a century, the United States Supreme Court has consistently and repeatedly held that racial discrimination by the prosecutor in jury selection offends the Equal Protection Clause. See, e.g., Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Batson, supra. In Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the Supreme Court extended its holding and determined that the Constitution also prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. Clearly, appellant's contention to the contrary is meritless, and, therefore, the trial court did not err in finding that Batson and its progeny were applicable to this case.

Appellant also contends that Batson and its progeny are inapplicable because there was no "racial animus or controversy" in this case. The essence of appellant's argument is that racial discrimination in the selection of jurors is a concern only if the defendant and the victims are of different races. Therefore, since he and the victims were of the same race in this case, appellant argues that the trial court was precluded from engaging in a Batson analysis. We disagree. ³

In Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (plurality Opinion by Beck, J.), the prosecutor argued that it could not be found that he engaged in racial discrimination since the defendant and the prosecutor's witnesses (including the victim) were of the same race. The Honorable Phyllis W. Beck indicated that while "the potential for misuse of peremptory challenges is greatest when a defendant is accused of attacking an individual of a different race, ... this does not mean that the absence of interracial conflict guarantees that peremptory challenges will be exercised for proper reasons." Jackson, 562 A.2d at 345 (citations omitted). Judge Beck then expressly stated that "the fact that a defendant is a member of the same racial group as the Commonwealth's witnesses, including the victim, is in no way inconsistent with a finding of a prima facie case [of discrimination]." Id. at 346.

That sound reasoning in Jackson was accepted by a panel of this Court in Commonwealth v. Stern, 393 Pa.Super. 152, 573 A.2d 1132 (1990). In Stern, we held that "the fact that the defendant and the victims are of the same race does not preclude an attempt to establish a prima facie case." Id. 573 A.2d at 1136 n. 4. Rather, the race of the defendant and the race of the victims are factors to be considered in determining whether a prima facie case under Batson has been established. Stern, supra. See Commonwealth v. Weaver, 390 Pa.Super. 434, 568 A.2d 1252 (1989) (defendant and victim were both black; this Court found that a prima facie case of discrimination was established). Clearly, appellant's contention that the trial court was precluded from applying Batson to this case because he and the victims were of the same race is meritless.

Having determined that the principles enunciated under Batson and its progeny are applicable, we must determine whether the trial court erred in finding that defense counsel's peremptory challenge as to juror sixteen violated the Constitution. In deciding this issue, we must use a three-part analysis. First, the party objecting to the peremptory challenge must make a prima facie showing that the proponent of the peremptory challenge seeks to exclude a prospective juror based on race. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Second, if a prima facie showing has been made, the burden shifts to the proponent to articulate a race-neutral explanation for excluding the juror in question. Id. Third, if the proponent demonstrates a race-neutral explanation, then the trial court must determine whether the objecting party has proved that the peremptory challenge is based on purposeful racial discrimination. Id.

In regard to the first prong of the aforementioned test, appellant does not dispute that the prosecutor made a prima facie showing of intentional discrimination. We find that it is unnecessary to determine whether the prosecutor established a prima facie showing of discrimination since defense counsel offered an explanation for his peremptory challenge. "Once the [proponent of the challenge] has offered an explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the [party objecting] made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866. ⁴

In regard to the second and third steps of the aforementioned test, appe...