Com. v. Tourscher

• Citation: 682 A.2d 1275,453 Pa.Super. 1
• Parties: , 65 USLW 2208 COMMONWEALTH of Pennsylvania, Appellee, v. Mark TOURSCHER, Appellant.
• Decision Date: 21 October 1996
• Court: Superior Court of Pennsylvania

Page 1275

682 A.2d 1275

453 Pa.Super. 1, 65 USLW 2208

COMMONWEALTH of Pennsylvania, Appellee, v. Mark TOURSCHER, Appellant.

Superior Court of Pennsylvania.

Submitted June 17, 1996.

Filed Aug. 23, 1996.

Reargument Denied Oct. 21, 1996.

Mark D. Tourscher, pro se, appellant.

Michael J. Barrasse, District Attorney, Scranton, for Commonwealth, appellee.

Before KELLY, POPOVICH and HESTER, JJ.

POPOVICH, Judge:

Herein, among the issues with which we are presented is the unusual question of whether the prosecution may strike prospective jurors solely on the basis of gender in an effort to insure a fair and impartial jury for the defendant. After careful review, we conclude that appellant's constitutional rights under J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), were violated, despite the prosecution's apparently noble reasoning behind the use of its peremptory challenges. Accordingly, we find that appellant is entitled to a new trial.

On appeal from the judgment of sentence entered in the Court of Common Pleas of Lackawanna County following appellant's conviction on the charges of burglary, criminal trespass, recklessly endangering another person, simple assault and terroristic threats, appellant contends: 1) The trial court erred in proceeding with his trial where his double jeopardy claim was pending before the Superior Court of Pennsylvania; 2) The trial court erred in denying his petition for writ of habeas corpus based on double jeopardy; 3) The prosecutor's exercise of peremptory challenges to exclude venirepersons on the basis of gender denied him a fair and impartial jury as is required under the Fourteenth Amendment Equal Protection Clause; and 4) The prosecutor's exercise of peremptory challenges to exclude venirepersons on the basis of gender denied him a fair and impartial jury as is required under the Sixth Amendment. ¹

The record discloses the following pertinent facts and procedural history: On December 14, 1994, appellant and his wife were at the Scranton Job Center seeking employment. While engaged in their job search, they had a disagreement. Following the disagreement, appellant's wife left the Job Center with another man. Upon returning home, appellant received a telephone call from his wife indicating that they "needed a break in their relationship" and that she wanted him to leave their marital residence. Appellant agreed to do so. Later that evening, appellant returned to his residence. His wife refused to allow him to enter the house. Therefore, appellant entered the house through an open window. He and his wife then engaged in a verbal and physical altercation.

On December 15, 1994, appellant was arrested. Following a jury trial, he was convicted on the charges of burglary, criminal trespass, recklessly endangering another person, simple assault and terroristic threats. This appeal followed.

Appellant's first contention is that the trial court did not have jurisdiction to commence his trial on September 19, 1995, because his appeal from the trial court's September 8, 1995 order denying his petition to dismiss for double jeopardy was pending in this Court at the start of his trial. Although this Court subsequently quashed appellant's appeal as interlocutory, he argues that his trial should have been continued pending the outcome of his appeal. Pennsylvania Rule of Appellate Procedure 1701(b)(6) provides that the trial court is not precluded from proceeding to trial when a defendant has appealed a nonappealable interlocutory order. Accordingly, the trial court did not err in proceeding with appellant's trial prior to the outcome of his appeal to this Court. See Commonwealth v. Cameron, 445 Pa.Super. 165, 664 A.2d 1364 (1995) (trial court was not precluded from proceeding with trial pending appeal of ruling on defendant's motion to suppress and Commonwealth's motion to quash).

Appellant's next contention is that the trial court improperly denied his petition for writ of habeas corpus based on double jeopardy. The guarantee against double jeopardy "has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second conviction for the same offense after conviction. And, it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

Moreover, "[a]s an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of 'attachment of jeopardy.' In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn." Serfass v. United States, 420 U.S. 377, 387-388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975) (citations omitted).

Here, jeopardy attached on September 19, 1995, when the jury was empaneled and sworn. Appellant neither disputes this fact nor alleges that he was prosecuted or convicted a second time for the same offense. Rather, he contends that the conditions of his pre-trial detention violated the third category of double jeopardy protection, that is, the conditions of his pre-trial detention were in fact "punishment" which barred the Commonwealth from proceeding to trial under the doctrine of double jeopardy. We disagree.

The United States Supreme Court has stated that:

The final component of double jeopardy--protection against cumulative punishments--is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are 'multiple' is essentially one of legislative intent. [In addition,] the Clause's third protection ensures that ... a defendant receives credit for time already served.

Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984) (citations omitted).

Here, appellant neither alleges nor does the record indicate that the sentencing court sentenced him beyond the limits established by the legislature. See Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989) (holding that in context of multiple punishment, purpose of double jeopardy clause is to ensure that sentencing courts do not exceed limits prescribed by legislative branch). In addition, appellant has not demonstrated that the trial court failed to credit him for time already served during his pre-trial detention when it sentenced him on his convictions. Finally, we find no support for appellant's claim that the conditions of his pre-trial detention were such that they were a separate criminal "punishment" making them subject to the prohibitions of the double jeopardy clause. "Historically, internal prison discipline and conditions have not been viewed as criminal punishment for double jeopardy purposes." Commonwealth v. Brooks, 330 Pa.Super. 355, 479 A.2d 589, 592 (1984). Accordingly, we find this argument to be meritless.

Appellant's next contention is that the Commonwealth violated his equal protection rights by improperly exercising its peremptory challenges to exclude six female venirepersons from the jury panel. ² The facts supporting his contention are most unusual, if not unique. Here, the prosecutor systematically excluded women from the jury panel without objection by appellant. At the end of voir dire and prior to the empaneling of the jury, without being asked to do so, the prosecutor voluntarily stated the following: "Your Honor, if I may place on the record that during the peremptory challenges, I struck Juror No. 26, ... who is an Afro-American female. I'd like to put on the record that from prosecuting domestic cases I find that women are a lot tougher on domestic cases and generally all my [peremptory] strikes were women." N.T. 9/19/1995 p. 104. ³ At this point, appellant's counsel objected and indicated that the prosecutor was required to provide sex-neutral reasons for her peremptory challenges. Following a sidebar discussion, the trial judge indicated that appellant's trial would continue with the jury which was selected. Appellant contends that this was error. We agree.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from challenging potential jurors solely on account of their race. In J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), the Supreme Court extended its holding in Batson to include instances where peremptory challenges are made solely on the basis of gender. Specifically, the Court held that "intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where ... the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women." J.E.B., 511 U.S. at 130, 114 S.Ct. at 1422. The Supreme Court then stated that as with race-based claims, a three-step process for evaluating gender-based claims must be employed to determine whether a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. J.E.B., supra.

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of [gender]. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a [gender]-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

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