Com. v. Martin

• Decision Date: 17 April 1975
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory MARTIN, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 290

336 A.2d 290

461 Pa. 289

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory MARTIN, Appellant (two cases).

Supreme Court of Pennsylvania.

April 17, 1975.

[461 Pa. 291] Berle M. Schiller, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Assistant Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

Gregory Martin was convicted by a jury of murder in the first degree, two charges of aggravated robbery, conspiracy, carrying a concealed deadly weapon and unlawfully carrying a firearm without a license. After a denial of post trial motions, a sentence of life imprisonment was imposed on the murder conviction. A prison sentence of ten to twenty years was imposed on each of the robbery convictions; these sentences to run concurrently with the life imprisonment sentence. Sentence was suspended on the other convictions. An appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. An appeal from the judgments of sentence imposed on the robbery convictions was filed in the Superior Court and later certified here. The appeals were consolidated for argument and disposition.

The sufficiency of the evidence to sustain the convictions is not challenged, nonetheless we have examined the record and are completely satisfied the evidence was more than adequate. From the Commonwealth's testimony, which remained uncontradicted throughout the trial, the jury could find these facts.

On January 4, 1971 about 10:30 p.m., Arthur Hopkins left a bar at 20th and York Streets in Philadelphia intending to visit his mother. Accompanied by Edmund Perry, he proceeded to his automobile which was parked nearby. As Hopkins started to unlock the door of the vehicle, four men, including the appellant, Martin, approached with guns drawn. The gunmen threatened to kill them both unless they cooperated. Hopkins and Perry were ordered to enter Hopkins' car. Three of the four gunmen joined them. The fourth followed closely behind in another car. The two vehicles traveled to 19th and Cumberland Streets. The captives were then ushered through an alley into a house through the back entrance. In the kitchen, Hopkins and Perry were searched and ordered to sit on the floor. The abductors took from Hopkins $400 in cash and his eyeglasses. Perry was also robbed of some monies. Their hands were then tied behind their backs and they were blindfolded. They were then led out the front door of the house and forced into the back seat of Hopkins' car where they were joined by Martin. He ordered them to bend over on the rear seat. In the meantime, Hopkins' blindfold became partially dislodged and he was able to observe a rifle or sawed-off shotgun in the hands of a front seat passenger. He was also able to see through the rear view mirror the same car following that had followed them before. After driving awhile the car stopped. The captives were led into a house having a small passageway and ordered to kneel. It was pitch dark. A match was lit and a loud noise went off. Edward Perry was fatally shot in the head by a shotgun. He fell against Hopkins. Hopkins began to struggle, but he was pushed back to the floor and a second shot was fired. He yelled that he was struck albeit he was not. A third shot went off narrowly missing Hopkins' head. At that time, he played dead. His would-be killers fled. After waiting a few minutes, Hopkins managed to free himself. He found assistance and reported the crime to the police.

While not questioning the sufficiency of the evidence, Martin maintains he was denied a fair trial because of certain conduct pursued by the assistant district attorney at trial. Initially, he complains of this officer's opening statement to the jury. It is urged it contained 'many knowing false, misleading or inadmissible assertions' which so inflamed and prejudiced the jury against Martin that a fair trial was impossible. ¹

One such alleged statement was that the evidence would show the killing was a 'planned assassination for hire' by 'hit men or professional assassins, killers and terrorists.' This was strong language, but in most part a legitimate inference to be drawn from the testimony. The brutal nature of the killing, and the systematic and cold execution thereof bespeaks of a gangland-type killing. It is true the trial evidence failed to show the killing was 'for hire' and, hence, the assistant district attorney should not have so indicated in his opening, ² but this inadvertence, in itself, could not have given rise to the prejudice Martin asserts. And, as we have said previously, language of the prosecuting officer in the opening statement which will justify a reversal must be such that its unavoidable effect is to so prejudice the jury against the accused, as to prevent the finding of a true verdict. See Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726 (1970). It should also be noted that in more than one instance instantly the trial judge cautioned the jury that statements of counsel were not evidence and that the jury and only the jury was to determine the facts. Under all of the circumstances, we find the complaint under discussion to be without sufficient merit to require a retrial. Cf. Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973); Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968); and, Commonwealth v. Cannon, 386 Pa. 62, 123 A.2d 675 (1956). Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973), relied upon by Martin is distinguishable. There the Commonwealth introduced testimony which was inadmissible, as well as prejudicial, and referred to this testimony not only in the opening statement, but repeatedly throughout the trial.

We have examined the other statements made by the assistant district attorney during his opening of which complaint is made and discern nothing which constitutes reversible error. ³ This assignment of error is, therefore, overruled.

The only other remaining assignment of error properly before us concerns the prosecutor's exercise of peremptory challenges. ⁴ It is urged these challenges were used to exclude blacks from sitting on the jury. The record discloses the Commonwealth exercised fourteen peremptory challenges. Eight were utilized to excuse black persons and six were utilized to exclude white persons. Martin exercised seventeen challenges. All were white persons. No black person was either a jury member or an alternate. ⁵

In past decisions, we have recognized that:

'It is a violation of due process to exclude jurors by reason of their race. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), and Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939). The burden of proving the existence of a purposeful discrimination is on the party who asserts it; however, if a prima facie case is established, then the burden shifts to the prosecution. Whitus v. Georgia, supra.'

Commonwealth v. Darden, 441 Pa. 41, 51, 271 A.2d 257, 262 (1970). While an individual 'has no right to demand that members of his race be on the jury which tries him, however, he does have a right to require a state not to deliberately and systematically exclude members of his race from the jury panels and from the juries ultimately drawn from those panels, consequently, he must prove Systematic exclusion, thereby demonstrating a violation of the Equal Protection Clause. Moreover, a defendant may not demand proportionate numbers of his race on the jury which tries him, or on the panel from which the jury is selected, but he does have a right to a jury drawn from a panel which represents a cross-section of the community. The defendant has the initial burden of demonstrating a prima facie case of discrimination, then the burden shifts to the Commonwealth to rebut the evidence, if the Commonwealth fails, the selection system does not meet the requisite constitutional standards and the defendant is entitled to another jury, selected under a system which complies with the constitutional mandate.' (Emphasis supplied.) Commonwealth v. Jones, 452 Pa. 299, 311--312, 304 A.2d 684, 691--692 (1973).

In addition, the Supreme Court of the United States in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), addressed the issue of a prosecutor's conduct in exercising peremptory challenges. The Court stated that:

'In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the cast at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.' (Emphasis supplied.)

Id. at 222, 85 S.Ct. at 837. This presumption, however, is overcome--

'when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that...