Commonwealth v. Jones
| Docket Number | 2530 EDA 2022,J-S26021-23 |
| Decision Date | 26 October 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. DUANE JONES, Appellant |
| Court | Pennsylvania Superior Court |
Duane Jones appeals from the order dismissing his first, timely petition filed under the Post Conviction Relief Act (PCRA) 42 Pa.C.S.A. §§ 9541-9546. He argues that his trial counsel was ineffective for failing to challenge the prosecutor's strike of a prospective juror under Batson v. Kentucky, 476 U.S. 79 (1986). We affirm.
Jones was charged with rape and other crimes in August of 2015. His case proceeded to jury selection on December 4 and 5, 2017. Jury selection included individual voir dire of all prospective jurors who had not been disqualified based on their responses to the jury questionnaire.[1] At individual voir dire, the Commonwealth exercised four peremptory challenges, striking prospective jurors 5, 24, and 30 on the first day and prospective juror 6 on the second day ("PJ5," "PJ24," "PJ30," and "PJ6," respectively).
Trial followed jury selection. The jury returned a guilty verdict on December 8, 2017. On April 27, 2018, Jones was sentenced to an aggregate term of 6 to 12 years of confinement followed by 4 years of probation.
Jones filed post-sentence motions, which the trial court denied. Jones timely appealed, this Court affirmed, and our Supreme Court denied discretionary review. Commonwealth v. Jones, 226 A.3d 664 (table), No. 2803 EDA 2018 (Pa. Super. Jan. 31, 2020) (non-precedential decision), allocatur denied, 662 Pa. 29, No. 82 EAL 2020 (Pa. Sept. 1, 2020).
On July 26, 2021, Jones filed a timely, counseled PCRA petition, his first. In his petition, Jones alleged, inter alia, that his trial counsel was ineffective for "fail[ing] to object to the exclusion of juror(s) by the Commonwealth, solely based on race." PCRA Petition, 7/26/21, at 6, 8-9 (capitalization omitted). He averred: "Here, [Jones] is African-American and the prosecutor struck four African-American prospective jurors," "Two African-American jurors were accepted by the Commonwealth," and "The Commonwealth struck zero white jurors." Id. at 8-9. Jones attached documentation from jury selection, including the judge's daily list of jurors, the jurors' questionnaires, and his trial counsel's notes from jury selection.
The Commonwealth responded that Jones' claims were meritless. It attached handwritten notes from the prosecutor's file from jury selection.
The PCRA court[2] held an evidentiary hearing on Jones' petition on June 2, 2022. The trial prosecutor testified. Because the prosecutor had only a general recollection of a trial from five years earlier, PCRA counsel refreshed the prosecutor's recollection with her own handwritten notes. The notes included an abbreviation for each prospective juror's race, sex, and age range. The prosecutor gave the following reasons for her peremptory strikes:
N.T., 6/2/22, at 13-15, 18-19, 21, 24-27.
Jones' trial counsel also testified at the evidentiary hearing. He stated that, now reviewing his notes, "it appears that Black jurors were being struck." Id. at 41. He explained that the reason he did not object was because he had not realized it while it was happening. Id. at 44.
The PCRA court denied Jones' petition by order on September 12, 2022. It entered findings of fact and conclusions of law on September 19, 2022 ("PCRA Court Opinion").
Jones timely appealed. The PCRA court did not order Jones to file a concise statement of matters complained of on appeal. In compliance with Pennsylvania Rule of Appellate Procedure 1925(a), the PCRA court prepared a letter referring to its previous Opinion.
Jones presents one issue for review: "Whether Appellant, Duane Jones, is entitled to a new trial under the [PCRA] due to the deficient and prejudicial performance by trial counsel, specifically whether trial counsel was ineffective in failing to object under Batson v. Kentucky in light of the Commonwealth's racially discriminatory peremptory strikes." Jones' Brief at 4.
With respect to the underlying Batson claim, Jones argues that the trial prosecutor engaged in actual, purposeful discrimination based on race. He provides four factors in support of this showing. First, the prosecutor "engaged in a pattern of striking Black or Brown[3] potential jurors." Id. at 18-19. Second, the prosecutor noted the race of each prospective juror who was brought in for individual voir dire. Id. at 19-20. Third, most of the prosecutor's explanations for exercising strikes were unsupported by the record and implausible. Id. at 20-22. The voir dire transcripts did not show PJ5 having a rapport with defense counsel or PJ24 acting strangely or joking. Fourth, the prosecutor's explanation for striking PJ6 is suspicious because prospective juror 34 from the first day (listed as "W/F" in defense counsel's notes and "W/F/Y" in the prosecutor's) also answered "no" to every question on the jury questionnaire yet was accepted as juror 10 for trial. Id. at 22- 26. Therefore, Jones argues that the totality of the circumstances show that the prosecutor struck at least one prospective juror-PJ6-with discriminatory intent. Id. at 26-27.
For the claim of ineffective assistance of counsel, Jones argues that the underlying Batson claim is meritorious and that that his trial counsel had no strategic basis for failing to object. Id. at 27-28. As to prejudice, Jones contends that because a Batson violation is a "structural error," it inevitably undermines confidence in the outcome of trial. Id. at 28-29. Therefore, he reasons that he can meet his burden by showing that the prosecutor struck at least one potential juror with discriminatory intent. Id. at 29-30. Jones thus contends that he has proven that his trial counsel was ineffective for failing to raise a Batson challenge, and the PCRA court erred in denying relief.
The Commonwealth responds that the record supports the race-neutral reasons the trial prosecutor gave for its strikes. Commonwealth's Brief at 12- 14. Specifically, the Commonwealth emphasizes that the prosecutor's strike of PJ6 was due to his "no" answers on the jury questionnaire and his old age- the prosecutor would not have had the same concerns with the younger prospective juror who also answered that she had not been a crime victim. Id. at 14-15. Because the prosecutor's explanations are plausible, the Commonwealth argues that the PCRA court properly found that Jones did not prove actual, purposeful discrimination. Id. at 15.
Jones replies that he sufficiently established the racial statistics needed for a prima facie showing of discrimination. Jones' Reply Brief at 3-5. He reiterates that because the trial prosecutor admitted to having no independent memory of striking PJ5, her subsequent explanation was speculative because it was not supported by her notes or the voir dire transcript. Id. at 5-8. As to PJ6, Jones emphasizes that the prosecutor did not question this prospective juror about his experience with crime or past victimization; furthermore, PJ6 answered all of the questions asked of him. Id. at 8-9. Jones adds that the record contradicts the Commonwealth's characterization of PJ6 as elderly because he had one two-year-old child. Id. at 9. Jones thus concludes that the prosecutor's race-neutral reason for striking PJ6 was pretextual and that he has proven actual, purposeful discrimination based on race. Id. at 10.
This Court's standard of review for an order denying PCRA relief "is limited to whether the record supports the PCRA court's factual determinations and whether its decision is free of legal error." Commonwealth v. Carrera, 289 A.3d 1127, 1131 n.6 (Pa. Super. 2023) (citing Commonwealth v. Lopez, 249 A.3d 993, 998 (Pa. 2021)). We grant "great deference to the factual findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Washington, 269 A.3d 1255, 1262 (Pa. Super. 2022) (citing Commonwealth v. Howard, 249 A.3d 1229 (Pa. Super. 2021)). This case implicates two legal claims: ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668 (1984), and the use of peremptory strikes of prospective jurors based on race, see Batson, 476 U.S. at 82.
Pennsylvania law requires a PCRA petitioner who claims that his attorney was ineffective to establish each part of a three-part test:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987); see also Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 2015). If a claim fails under any required element of the Strickland/Pierce test, the court...
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