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                                   2018 PA Super 9

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    DERRICK EDWARDS

                             Appellant                 No. 436 EDA 2015


        Appeal from the Judgment of Sentence imposed January 9, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at Nos: CP-51-CR-0002611-2013; CP-51-CR-0002614-
     2013; CP-51-CR-0002617-2013; CP-51-CR-0002815-2013; CP-51-CR-
    0002820-2013; CP-51-CR-0002853-2013; CP-51-CR-0002862-2013; CP-
                              51-CR-0002864-2013


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

DISSENTING OPINION BY STABILE, J.:                   FILED JANUARY 19, 2018

       The Majority concludes the Commonwealth’s peremptory strike of Juror

67 was racially motivated and violated Batson.1 Consequently, the Majority

would vacate Appellant’s judgment of sentence and remand for a new trial.

Because I disagree with the learned Majority’s analysis of the Batson test, its

rejection of the trial court’s factual determinations, and find other of our

precedent persuasive, I respectfully dissent.2

____________________________________________


1
    Batson v. Kentucky, 476 U.S. 79 (1986).

2
 The Majority explained that it addressed only three of the issues raised by
Appellant and, because it found a Batson violation warranting a new trial,
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       In Commonwealth v. Harris, 817 A.2d 1033 (Pa. 2002), our Supreme

Court recognized:

       Batson set forth a three-part test for examining a criminal
       defendant’s claim that a prosecutor exercised peremptory
       challenges in a racially discriminatory manner: first, 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.

Id. at 1042 (citations omitted).3

       In the context of peremptory challenges, Pennsylvania law further

requires the defendant, in his or her prima facie case, to make a record

specifically identifying a) the race or gender of all venirepersons in the jury

pools, b) the race or gender of all venirepersons remaining after challenges

for cause, c) the race or gender of those removed by the prosecutor,  and d)


____________________________________________


declined to address the remaining issues. Majority Opinion at 6 n. 11.
Because the Majority vacates the judgment of sentence and remands for a
new trial based on Batson, I likewise decline to address Appellant’s remaining
issues and express no opinion as to the merit of those issues.

3
  Harris is one of the few cases since 2000 in which our Supreme Court
considered a Batson challenge on direct appeal.              Others include
Commonwealth v. Towles, 106 A.3d 591 (Pa. 2014), involving challenges
based on race and gender, and Commonwealth v. Sanchez, 36 A.3d 24 (Pa.
2011), which will be discussed infra. The vast majority of the Batson cases
decided by our Supreme Court in recent years involved appeals from the
denial of a PCRA petition. See, e.g., Commonwealth v. Watkins, 108 A.3d
692 (Pa. 2014) (Majority Opinion at 10); Commonwealth v. Roney, 79 A.3d
595 (Pa. 2013), infra.

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the race or gender of the jurors who served and the race or gender of jurors

acceptable to the Commonwealth who were stricken by the defense.

Commonwealth v. Hill, 727 A.2d 578, 582 (Pa. Super. 1999) (citing

Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993)). After such a record

is established, the trial court must consider the totality of the circumstances

to determine whether the defendant has made a prima facie case of purposeful

discrimination. Id. (citing Commonwealth v. Thomas, 717 A.2d 468, 475

(1998) and Commonwealth v. Rico, 711 A.2d 990 (1998)).

      In conducting its analysis, the Majority expressed its agreement with

the trial court that Appellant satisfied the first prong of Batson by

“establish[ing] a prima facie case of purposeful discrimination.”      Majority

Opinion at 14. However, my review reveals that the trial court did not make

any such determination either on the record or in its Rule 1925(a) opinion.

      During voir dire proceedings, out of the presence of the jury, Appellant’s

counsel indicated he was “questioning” four strikes made by the prosecution.

Notes of Testimony (“N.T.”), Voir Dire Proceedings, 10/28/14, at 88.

Discussion first centered on the fact the court crier listed the race and gender

of potential jurors on the strike list. The trial court then stated:


      Trial Court: I’m trying to make a record here. And is number—
      are these jurors all white jurors?

      Appellant’s Counsel: They are all African American jurors.

      Trial Court: These jurors are all African American jurors.



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Id. at 92-93. The trial court proceeded to inquire into the strikes and found

them to be race neutral. Defense counsel did nothing to establish a proper

and complete record on the prima facie prong of the Batson test and the

additional prima facie criteria required under Pennsylvania law.       Likewise,

other than setting out the three-pronged test in its Rule 1925(a) opinion, the

trial court did not discuss the prima facie showing prong of Batson, instead

commenting, “While counsel for Appellant challenged the Commonwealth’s

striking of four African-American venirepersons, this [c]ourt inquired into the

strikes and found them to be race-neutral.” Trial Court Rule 1925(a) Opinion,

2/24/16, at 18-19. I find no support in the record for the Majority’s statement

that the trial court determined Appellant satisfied the first prong of Batson.4

As this Court explained in Commonwealth. v. Thompson, 106 A.3d 742 (Pa.

Super. 2014):

       The requirements for a prima facie Batson showing are well
       settled.

          Generally, in order . . . to satisfy the first requirement of
          demonstrating a prima facie Batson claim, the movant
          must establish that he or she is a member of a cognizable
          racial group, that the opposing party exercised peremptory
          challenges to remove from the venire members of his or her
          race, and that other relevant circumstances combine to
          raise an inference that the opposing party removed the
          jurors for racial reasons. Whether the movant has carried
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4
 I do find some inconsistency in the Majority concluding Appellant established
a prima facie case of purposeful discrimination as evidenced by the trial court's
words and actions, Majority Opinion at 14-15, while at the same time
dismissing the trial court's words and actions wherein it found no
discriminatory intent under the third prong of Batson. See, infra.

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        this threshold burden of establishing a prima facie case
        should be determined in light of all the relevant
        circumstances.

     Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142
     (2009).

            A showing that a number of strikes were used against
     venirepersons of one race will not, without more, create the
     inference necessary to establish a prima facie Batson claim.
     Rather, our Supreme Court has continually recognized that a
     moving party must preserve a “full and complete record of the
     asserted Batson violation, as it would otherwise be impossible to
     conduct meaningful appellate review of the motivations of
     prosecutors in individual cases without such a record.”
     Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 909
     (2004)     (citation  omitted),    cert.   denied,  Fletcher    v.
     Pennsylvania, 547 U.S. 1041, 126 S.Ct. 1617, 164 L.Ed.2d 336
     (2006). “This full and complete record requirement necessitates
     that the movant make a record identifying the race of
     venirepersons stricken by the Commonwealth, the race of
     prospective jurors acceptable to the Commonwealth but stricken
     by the defense, and the racial composition of the final jury.” Id.
     at 910 (citation, footnote, and internal quotation marks omitted).
     When a movant fails to make such a record, we cannot review the
     trial court’s determination that a movant failed to establish a
     prima facie case under Batson.            Id. at 909–910, citing
     Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039
     (1999).

Id. at 751-52 (some quotations, citations and brackets omitted). See also

Hill, supra.

     With respect to Fletcher’s “full and complete record” requirement as

detailed in Hill, it is only because the court clerk recorded the race of the

venirepersons on the Strike List that there was any record of the race and

gender of the jury pool, of those remaining, of those stricken by the

Commonwealth, of jurors who served, and of those acceptable to the

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Commonwealth who were stricken by the defense.          Strike List, 10/28/14.

Clearly, Appellant did not make the required record. Further, the trial court

did not make any determination that Appellant established a prima facie

showing to satisfy the first prong of Batson.         Therefore, there is no

determination for this Court to review concerning the first prong.

      Regardless, the trial court’s failure to consider the prima facie showing

prong of the Batson test does not present an impediment to this Court’s

review under Batson. Our Supreme Court addressed a similar situation in

Sanchez, where the trial court likewise did not address the first prong of the

Batson test either in court or in its Rule 1925(a) opinion, instead focusing on

the second prong, i.e., whether the Commonwealth’s explanation of its

peremptory strike was race-neutral. Although the Commonwealth challenged

the finding of a prima facie showing in Sanchez, the Supreme Court

announced it would not decide the issue of whether the appellant met his

prima facie burden. Citing Harris and Commonwealth v. Edwards, 903

A.2d 1139, 1154 n. 16 (Pa. 2006), the Court recognized that the United States

Supreme Court has suggested that, under these circumstances, “we may turn

directly ‘to the question of whether the appellant had carried his burden of

proving that the prosecution had struck the juror based on race.’” Sanchez,

36 A.3d at 45 (quoting Edwards, 903 A.2d at 1154 n. 16, in turn quoting

Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality)).              The




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Sanchez Court proceeded to consider the second and third prongs of the test.

I likewise shall proceed to the second and third prongs.

      The second prong of the Batson test requires the prosecution to

articulate a race-neutral explanation for striking the jurors. See Harris, 817

A.2d at 1043. I agree with the Majority’s analysis and conclusion that the

Commonwealth did proffer race-neutral explanations for striking the four

venirepersons in question. See Majority Opinion at 15-16. As our Supreme

Court explained in Harris, at issue is the facial validity of the prosecutor’s

explanation and, absent inherent discriminatory intent in the explanation, the

reasons offered will be deemed race neutral. Harris, 817 A.2d at 1043. The

trial court accepted the prosecutor’s explanations as race neutral.           The

Majority agrees and I concur in that conclusion.

      The third prong of Batson requires that the trial court determine

whether the defense has carried its burden of proving the Commonwealth

engaged in purposeful discrimination. See Harris, 817 A.2d at 1042. It is

well established that the evaluation of a prosecutor’s intent for striking a juror

is a credibility matter that lies “peculiarly within the trial judge’s province.”

Hernandez, 500 U.S. at 365 (citations omitted).            Indeed, the Majority

acknowledged:

      [A] 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.      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

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      determinations. Moreover, there will seldom be much evidence
      on the decisive question of whether the race-neutral explanation
      for a peremptory challenge should be believed; the best evidence
      often will be the demeanor of the prosecutor who exercises the
      challenge.

Majority Opinion at 17 (quoting Commonwealth v. Williams, 980 A.2d 510,

531 (Pa. 2009) (internal quotation marks and citations omitted)).      As our

Supreme Court observed, “Such great deference is appropriate and warranted

because the trial court, having viewed the demeanor and heard the tone of

voice of the attorney exercising the challenge, is uniquely positioned to make

credibility determinations.”    Roney, 79 A.3d at 619 (citing Williams, 980

A.2d at 531). See also Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016)

(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (“in absence of

exceptional circumstances, ‘we defer to state court factual findings unless we

conclude they are clearly erroneous.’”)); Hernandez, 500 U.S. at 366 (“in

the absence of exceptional circumstances, we [should] defer to the [trial

court’s] factual findings.”).

      Despite such clear directives, the Majority does not do justice to the

above standards. Indeed, the Majority ignores the deference owed to the trial

court’s decision on discriminatory intent and instead makes its own findings

based on a cold record, reweighing the relevant circumstances to overturn the

trial court’s finding regarding Juror 67.

      Contrary to the trial judge who observed the voir dire process, the

Majority determined that three factors were strongly indicative of the


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prosecution’s discriminatory intent: first, potential jurors were identified by

race and gender on the peremptory strike sheet [(“Strike Sheet”); second,

statistics established that the Commonwealth struck a disproportionate

number of African Americans; and third, the Commonwealth’s explanation for

striking Juror 67 was “wholly underpersuasive.” Majority Opinion at 19. With

due respect, I find this to be error by the Majority.

      Regarding the peremptory Strike Sheet, it is undisputed it provided the

race and gender of potential jurors. However, the Majority overlooks—or at

the very least, minimizes—the fact that the Commonwealth had no

involvement in the preparation of the Strike Sheet or placement of any

notations regarding race or gender. Indeed, it is clear, and acknowledged by

the Majority, that the notations are attributable solely to the trial court’s staff.

Id. at 4. I do not understand how the Majority can impute discriminatory

intent to the Commonwealth from the content of this document when the

Commonwealth had no say or involvement in its drafting. Further, while the

Majority finds the trial court staff’s practice of notating the race and gender

on the Strike Sheet ill-advised and inappropriate, but acknowledges that the

inclusion of race and gender on the sheet is not discriminatory per se, id. at

12-13, the Majority fails to explain how—or even if—the Commonwealth

misused the information. I too fail to see how this information was misused,

or for that matter ill-advised, especially when Appellant was required to

include this information in the record as a part of his prima facia showing, and


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this information discloses no more than what plainly can be observed of the

venire panel during jury selection. As previously stated, had it not been for

the trial court staff’s notations on the Strike Sheet, the prima facia information

required under Hill would be completely absent from the record in this case.

Respectfully, I find the Majority’s designation of the Strike Sheet as indicative

of discriminatory intent as unfounded.

      Regarding the second ground, the Majority offers statistics to establish

that the Commonwealth struck a disproportionate number of African

Americans. As the Majority acknowledged, statistics alone are not dispositive

of the matter.

      As our Supreme Court recognized in Roney,

      [The] citation of statistics does not prove purposeful
      discrimination in jury selection cases. In [Commonwealth v.
      Ligons, 971 A.2d 1125, 1244 (Pa. 2009)], we held as follows:
      “While it is clear that the prosecutor peremptorily struck more
      African-Americans than Caucasians, this fact, in and of itself, is
      insufficient to demonstrate purposeful discrimination when
      considering the totality of the circumstances.”

79 A.3d at 622.      In its discussion of deference owed to the trial court’s

decision on discriminatory intent, the Court in Roney explained:

      [G]reat deference is appropriate and warranted because the trial
      court, having viewed the demeanor and heard the tone of voice of
      the attorney exercising the challenge, is uniquely positioned to
      make credibility determinations. Although the demeanor of the
      attorney exercising the peremptory challenge is often the best
      evidence as to the question of discriminatory intent, the trial court
      should consider the totality of the circumstances before making
      its ruling. Other relevant evidence as to the ultimate question of
      whether the prosecutor exercised purposeful discrimination and
      acted with discriminatory intent includes the following: the final

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       composition of the jury, the race or gender sensitivity of the case,
       and any questionable remarks made by the prosecutor during jury
       selection. See Williams, supra at 532; Commonwealth v.
       Ligons, 601 Pa. 103, 971 A.2d 1125, 1144 (2009);
       [Commonwealth v. Cook, 952 A.2d 594, 608 (Pa. 2008);
       Commonwealth v. Spotz, 896 A.2d 1191, 1212-14 (Pa. 2006)].

Id. at 619 (some citations omitted).5

       The Majority recognized that statistics alone are not sufficient to prove

discriminatory intent but can be considered in the totality of circumstances to

determine whether the Commonwealth exercised its strikes in a discriminatory

manner. Id. at 20 (citing Ligons, 971 A.2d at 1144).6 Here, the Majority

notes that thirty potential jurors were considered by the parties, thirteen of

whom were African American, fourteen of whom were Caucasian, and three of

whom were “Other,” i.e., neither African American nor Caucasian. Majority

Opinion at 19-20. Seven of the Commonwealth’s peremptory strikes were

used on African Americans and one was used on a person considered “Other.”

The Commonwealth did not strike any Caucasians. Id. at 20.


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5
  While information is available here concerning the final composition of the
jury, see infra, there is no suggestion in the record of any particular racial
sensitivity of the case, nor is there any reference to questionable remarks
made by the prosecutor during jury selection.

6
  The Majority certainly will contend that there are two other bases for its
conclusions, namely, the Strike Sheet and the explanation for striking Juror
67. In the end, however, the statistical ground is the only one that could
conceivably lend support to the Majority’s conclusions because it would be
improper to penalize the Commonwealth for something it did not do or, as
noted below, to substitute our judgment for that of the trial court simply
because we do not like the outcome.


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      The Majority determined, “The statistics in this case are startling. Unlike

many cases addressed by our Supreme Court, in this case the Commonwealth

exercised all eight of its peremptory strikes on racial minorities and seven of

those eight on African-Americans.” Id. The Majority concluded:

      Although the Commonwealth could not completely purge the jury
      in this case of African-Americans because of the number of
      African-American members of the venire, the Commonwealth
      greatly reduced the number of African-Americans on the jury in
      this case by exercising all of its peremptory strikes and using
      seven of those eight strikes on African-Americans.        These
      probabilities, combined with the identification of the potential
      jurors’ races and genders on the peremptory strike sheet and the
      proffered, but highly implausible, race-neutral explanation for
      striking Juror 67, cause us to conclude that Appellant met his
      burden in demonstrating that the Commonwealth struck Juror 67
      with discriminatory intent.

Id. at 21.

      I take issue with the Majority’s conclusions on several levels.       Most

important, as is common, reliance upon statistics can be misleading. Here,

the Majority’s conclusion that “the probability of striking no Caucasians and

striking at least 7 of 13 African-Americans by random chance is extremely

small,” Majority Opinion at 20, completely omits the reasons for which these

potential jurors were stricken, thus leaving a false impression as to why these

strikes were exercised.   While the Commonwealth did strike seven African

Americans, Appellant did not assert Batson challenges with regard to three

of the African Americans or the “Other” venireperson.        Appellant used his

peremptory strikes on one African American, six Caucasians, and one “Other.”




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As a result, the jury ultimately empaneled included five African Americans,

seven Caucasians, and one “Other.” See Strike List 10/28/14.

      As important, a review of the Strike List reveals that the Commonwealth

accepted six of the first eight African Americans on the panel.            This is

particularly telling and compelling in light of the fact the venirepersons were

brought into the courtroom for voir dire in two groups, the first comprised of

fifty prospective jurors and the second comprised of forty. After the trial court

conducted group voir dire for the first fifty, asking whether the prospective

jurors knew any of the parties, witnesses, etc., the trial court reduced that

group of fifty to nineteen. N.T., Voir Dire Proceedings, 10/28/14, at 10-18.

From that first group of fifty, only the nineteen remaining venirepersons have

their race and gender indicated on the Strike List.

      Voir dire continued for the nineteen prospective jurors. Of the nineteen,

four Caucasians, one African American, and one “Other” are noted as stricken

by the trial court, leaving thirteen in that first group. Four of the thirteen were

Caucasian, eight were Afircan American, and one was “Other.”                   The

Commonwealth struck two African Americans while Appellant struck three

Caucasians, one African American, and one “Other.”              See Strike List,

10/28/14, at 1-2 (unnumbered). I note that both the African American and

the “Other” stricken by Appellant were acceptable to the Commonwealth. Id.

The remaining six from the first group who were ultimately seated on the jury

included five African Americans and one Caucasian. Id. These “statistics”


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belie the Majority’s suggestion that the Commonwealth was attempting to

“purge the jury” (Majority Opinion at 21) of African Americans and highlights

once again the impropriety of this Court attempting to substitute its judgment

for that of the trial court.

      Further, I disagree with the Majority’s conclusion that “Appellant met

his burden in demonstrating that the Commonwealth struck Juror 67 with

discriminatory intent.”        Majority Opinion at 20.    When questioned, the

Commonwealth offered the following explanation for striking Juror 67:

      [W]hen she was being questioned by Your Honor, she was leaning
      back, seemed a little cavalier, had her arm resting on the back
      and while we were conducting voir dire in the back, she was sitting
      there with her arms crossed and her head kind of nodded, seemed
      guarded and again as if she didn’t want to be here, so I didn’t
      think she would be a fair and competent juror.

N.T., Voir Dire Proceedings, 10/28/14, at 94. The trial judge then stated,

“Okay. Those are also neutral reasons for the Commonwealth exercising those

strikes. Batson challenge is denied.” Id. Appellant’s counsel responded,

“Thank you.” Id. Appellant did not mention Juror 67 in his brief, except in

the quoted excerpt from the voir dire proceedings. Appellant further does not

present any argument with respect to the race-neutral explanation offered by

the Commonwealth regarding Juror 67 and does not present any statistics

whatsoever regarding the composition of the venire or the jury empaneled.

      As the record reflects, once the Commonwealth disclosed its reasons for

striking Juror 67, the trial court did not hesitate to grant the strike. Appellant’s

counsel did not object and the trial court seemingly did not find it necessary

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to add its own explanation on the record for granting the strike. It would

appear, therefore, the trial court agreed with the Commonwealth’s description

of Juror 67’s attitude, body language, and demeanor. It is not for this Court

to speculate otherwise.

       The argument Appellant advances in support of his Batson challenge

includes testimony quoted from the voir dire proceedings, case law analyzing

Batson, and a request that this Court view the prosecutor’s reasons for

striking African American jurors in light of Foster, supra.7 Appellant’s Brief

at 13-15. In essence, Appellant’s entire “argument” consists of one phrase,

i.e., that the Commonwealth “systematically attempt[ed] to strike African-

American jurors, even the African-Americans with neutral answers on their




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7
  I note that Foster is distinguishable from Appellant’s case in several
respects. In Foster, the challenge centered on two African-American jurors.
The prosecution offered facially race-neutral bases for striking them.
However, documents from the prosecution’s files revealed that both were on
a “Definite NO’s” list. The Supreme Court also concluded that reasons offered
by the prosecution for striking the two jurors applied as well to otherwise-
similar Caucasian panelists who were permitted to serve. Further, the reasons
for striking one of the jurors shifted over time. The Court held that the record
belied the prosecutor’s assertions and found the strikes were motivated in
substantial part by discriminatory intent. Foster, 136 S.Ct. at 1748-1754.
Viewing Appellant’s case in light of Foster, as he requests, would not provide
any basis for disturbing the trial court’s determinations regarding the jurors
at the center of Appellant’s Batson challenge, including Juror 67.




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Juror Information Questionnaire, . . . to empanel a jury that would, in theory,

find against Appellant who was an African-American.” Appellant’s Brief at 12.8

       By contrast, the Majority’s detailed analysis of statistical information

alone spans three pages of its opinion. In undertaking this analysis, it appears

the Majority acted as Appellant’s counsel articulating a cogent argument,

complete with statistical information not even mentioned by Appellant. This

is not our role. See, e.g., Commonwealth v. Morales, 80 A.3d 1177, 1179

(Pa. 2013) (per curiam) (citing MacGregor v. Mediq, Inc., 576 A.2d 1123,

1128 (Pa. 1990) (improper for court to act as an advocate)); see also

Commonwealth v. Walls, 391 A.2d 1064, 1066 (Pa. 1978) (Manderino, J.,

dissenting) (neither trial court not appellate court should act as advocate).

       Further, the Majority, substituting its judgment for that of the trial

court, finds that the Commonwealth’s explanation for striking Juror 67 is

“wholly unpersuasive,” the third factor it cites as evidencing discriminatory

intent. Majority Opinion at 19. If the explanation was credible, the Majority

suggests, essentially there would be no jurors to select for jury duty because

only a few (if any) want to sit on a jury. The trial court acknowledged that

much, and the Majority eagerly noted it. See id. at 21-22. Thus, according

to the Majority, while the trial court erroneously concluded the Commonwealth


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8
 Although Appellant’s argument on the Batson challenge covers slightly more
than three pages of his brief, the argument consists merely of citations and
quotations with analysis of the cited cases rather than argument supporting
of a finding of discriminatory intent under the facts of this case.

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did not engage in discriminatory conduct, the trial court was correct in finding

that people generally do not want to serve on a jury. Again, it is not our role

to choose what to believe. Our role is to determine whether the credibility

determination was clearly erroneous, not to make the credibility determination

itself. I do note however, that the Majority, in finding discriminatory intent,

dismisses all of the Commonwealth’s observations regarding Juror 67’s

demeanor in light of the trial court inviting potential jurors to sit back and

relax. Majority Opinion at 22. However, there is no indication or even any

suggestion that all or other jurors were so blatantly bothered with being there

as Juror 67.

      This Court discussed and rejected a substantially similar Batson

challenge to demeanor in Commonwealth v. Jackson, 562 A.2d 338 (Pa.

Super. 1989) (en banc), a case I find instructive with respect to Juror 67. In

Jackson, the following exchange took place between the prosecutor and the

trial court:

      Prosecutor: I exercised a peremptory challenge on one person
      who, it was basically what you would call body language. I can
      recall it was individual questioning of the jurors. They would come
      and sit in the jury box[.] I believe he had dark glasses on, and
      he was kind of sitting with his arm draped over, and I just got
      very negative feelings during my questioning of this individual.
      And even during [defense counsel’s] questioning of him. Call it
      body language, if you will.

      Trial Court: You are indicating, for the record, you are slumped
      to the left side with your arm draped over the railing of the
      witness-box.

      Prosecutor: Correct.

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Id. at 351.

     The trial court accepted the prosecution’s explanation as race neutral.

This Court did not disturb that ruling on appeal. In announcing the judgment

of the Court, Judge Beck explained:

     Appellant contends that a prosecutor’s impression of a prospective
     juror’s demeanor is not a proper reason for exercising a
     peremptory challenge. We do not agree. The manner in which a
     venireperson dresses, his facial expressions, his tone of voice, and
     his posture all provide relevant information concerning his attitude
     toward the court system and his ability to serve as a fair and
     impartial juror. Both district attorneys and defense counsel
     routinely base their trial selection strategy in part on such physical
     cues. In this case, the prosecutor noted for the record those
     aspects of [the juror’s] conduct which called into question his
     willingness to be serious and attentive throughout the trial. We
     find that the prosecutor’s explanation for striking [the juror] was
     legally sufficient. Cf. United States v. Garrison,, 849 F.2d 103,
     106 (4th Cir. 1988), cert. denied, 488 U.S. 996, 109 S.Ct. 566,
     102 L.Ed.2d 591 (1988) (prosecutor may strike individual
     perceived as inattentive); United States v. Forbes, 816 F.2d
     1006, 1009 (5th Cir. 1987) (prosecutor may strike individual
     perceived as hostile).

     We recognize that a reference to a prospective juror’s “body
     language” may mask a decision to exercise a peremptory
     challenge solely on the basis of race. A trial judge should not
     uncritically accept this or any other proffered explanation for a
     peremptory challenge. Instead, the judge should assess each
     proffered explanation in light of her independent recollection of
     the demeanor and responses of the venire panel members. As an
     appellate court, we must ordinarily defer to the trial court’s
     evaluation since the trial judge had a direct opportunity to observe
     the voir dire process. Accordingly, we will accept the prosecutor’s
     statement as an accurate summary of his reasons for striking this
     particular prospective juror.

Id. See also Commonwealth v. Smulsky, 609 A.2d 843, 846 (Pa. Super.

1992) (trial court did not abuse its discretion by denying objection

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Commonwealth’s peremptory exclusion of juror thought to be disingenuous

and detached from the outside world).

       The similarities between the demeanor descriptions in Jackson and

here are striking.     As Judge Beck aptly noted regarding the importance of

demeanor in Jackson, dress, facial expressions, and posture all provide

relevant information.9 One must recognize that voir dire many times provides

precious little time and opportunity for counsel to assess the whole of a

potential juror.     Counsel nonetheless must quickly arrive at an educated

____________________________________________


9
  Although I clearly acknowledge that the quoted excerpts from Jackson are
from Judge Beck’s opinion announcing the judgment of the Court, the Majority
reiterates that Jackson is not binding on this Court. Majority Opinion at 23
n. 21. While I do not dispute the lack of binding authority, I maintain that
Jackson is instructive and provides a proper framework for addressing the
issue of juror demeanor as a basis for exercising peremptory strikes. Likewise,
while also not binding on this Court, courts from other jurisdictions have
employed a similar analysis. For example, in Green v. Travis, 414 F.3d 288
(2d Cir. 2005), the Second Circuit noted:

       [T]he unfavorable demeanor of a venireperson has been held to
       be a race-neutral explanation for a peremptory challenge. See,
       e.g., McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir.
       1996) (noting that peremptory challenges “may legitimately be
       based not only on answers given by the prospective juror to
       questions posed on voir dire, but also on the prosecutor's
       observations of the prospective juror”); Brown v. Kelly, 973 F.2d
       116, 121 121 (2d Cir. 1992) (“An impression of the conduct and
       demeanor of a prospective juror during the voir dire may provide
       a legitimate basis for the exercise of a peremptory challenge.”

Id. at 300. Similarly, the Fifth Circuit has routinely found demeanor to be a
race-neutral justification. See United States v. Thompson, 735 F.3d 291,
297 n. 14 (5th Cir. 2013), and cases cited therein.




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J-S17003-17


judgment as to each potential juror’s ability to focus, understand, follow

instructions, and act impartially and without bias when considering the

evidence to be presented during trial. In this case, there were thirty potential

jurors in the venire panel after group voir dire. While experts might spend

countless hours studying selection factors, that luxury, except in rare cases,

is not afforded counsel during the voir dire process.     Therefore, small but

significant clues that might provide insight into a potential juror take on

heightened importance in jury selection. Demeanor may be an important clue

providing insight into a potential juror. I believe the Commonwealth engaged

in just such an exercise in assessing Juror 67, just as in Jackson.10

____________________________________________


10
   The Majority suggests that Jackson did not address the third step of
Batson except with respect to vernirepersons challenged due to familiarity
with the location of the crime. Majority Opinion at 25. The Majority’s reading
of Jackson intimates that both the trial court and this Court considered only
that single aspect of the Batson challenge while leaving challenges based on
demeanor unresolved. I respectfully disagree. Initially, the Court stated:

       If a defendant makes a prima facie showing of discrimination, the
       burden then shifts to the prosecution to justify his decision to
       strike minority jurors. “The prosecutor must therefore articulate
       a neutral explanation related to the particular case to be tried.”
       Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (footnote omitted).
       The trial judge must then make the ultimate determination
       of whether the defendant has established purposeful
       discrimination. Id.

Jackson, 562 A.2d at 544 (emphasis added). After conducting its analysis,
the Court concluded by indicating:

       In summary, the trial judge found that appellant established a
       prima facie case of discrimination. This finding was not an abuse



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J-S17003-17


       In dismissing reliance upon Jackson, the Majority finds instructive, as

binding precedent, the Supreme Court of the United States’ decision in

Snyder v. Louisiana, 552 U.S. 472 (2008), to emphasize the importance of

the record demonstrating that the trial court in fact witnessed the alleged

demeanor relied upon by a prosecutor to strike a juror, something it finds

lacking in this case. Majority Opinion at p. 23-24.    The Majority finds my

argument therefore flawed, because I cite nothing in the record to indicate

the trial court observed Juror 67 and found that this juror’s demeanor credibly

exhibited the basis for the strike attributed to her by the Commonwealth. Id.

at 24. I certainly take no issue with the Majority pointing out any omission to

acknowledge binding precedent, except in this instance, where the proposition

for which the Majority cites Snyder was expressly rejected by the United

States Supreme Court in Thaler v. Haynes, 559 U.S. 43 (2010) (per curiam).

In Thaler, the Court dismissed the misconception that Snyder established

that a judge must reject a demeanor-based explanation for a peremptory

challenge unless the judge personally observed and recalled the aspect of the

juror’s demeanor on which the explanation was based. The Court stated:



____________________________________________


       of discretion.    The trial judge also found that the
       Commonwealth rebutted this prima facie case of
       discrimination. This finding was also not an abuse of discretion.
       Therefore, appellant’s Batson challenge is not meritorious.

Id. at 354 (emphasis added).


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J-S17003-17


      This case presents the question whether any decision of this Court
     “clearly establishes” that a judge, in ruling on an objection to a
     peremptory challenge under Batson v. Kentucky, 476 U. S. 79
     (1986), must reject a demeanor-based explanation for the
     challenge unless the judge personally observed and recalls the
     aspect of the prospective juror’s demeanor on which the
     explanation is based. The Court of Appeals appears to have
     concluded that either Batson itself or Snyder v. Louisiana, 552
     U. S. 472 (2008), clearly established such a rule, but the Court of
     Appeals read far too much into those decisions, and its holding, if
     allowed to stand, would have important implications.            We
     therefore grant the petition for certiorari, grant respondent’s
     motion to proceed in forma pauperis, and reverse the judgment
     of the Court of Appeals.

Id. at 44. Further:

     In holding that respondent is entitled to a new trial, the Court of
     Appeals cited two decisions of this Court, Batson and Snyder,
     but neither of these cases held that a demeanor-based
     explanation for a peremptory challenge must be rejected unless
     the judge personally observed and recalls the relevant aspect of
     the prospective juror’s demeanor.

     The Court of Appeals appears to have concluded that Batson
     supports its decision because Batson requires a judge ruling on
     an objection to a peremptory challenge to “ ‘undertake “a sensitive
     inquiry into such circumstantial and direct evidence of intent as
     may be available.” ’ ” 561 F. 3d. at 540 (quoting Batson, 476
     U. S. at 93, in turn quoting Arlington Heights v. Metropolitan
     Housing Development Corp., 429 U. S. 252, 266 (1977)). This
     general requirement, however, did not clearly establish the rule
     on which the Court of Appeals’ decision rests. Batson noted the
     need for a judge ruling on an objection to a peremptory challenge
     to “tak[e] into account all possible explanatory factors in the
     particular case,” 476 U. S. at 95 (internal quotation marks
     omitted). See also Miller-El v. Dretke, 545 U. S. 231, 239
     (2005); Johnson v. California, 545 U. S. 162, 170 (2005).
     Thus, where the explanation for a peremptory challenge is based
     on a prospective juror’s demeanor, the judge should take into
     account, among other things, any observations of the juror that
     the judge was able to make during the voir dire. But Batson
     plainly did not go further and hold that a demeanor-based



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J-S17003-17


     explanation must be rejected if the judge did not observe or
     cannot recall the juror’s demeanor.

     Nor did we establish such a rule in Snyder. In that case, the
     judge who presided over the voir dire also ruled on the Batson
     objections, and thus we had no occasion to consider how Batson
     applies when different judges preside over these two stages of the
     jury selection process. Snyder, 552 U. S. at 475–478. The part
     of Snyder on which the Court of Appeals relied concerned a very
     different problem. The prosecutor in that case asserted that he
     had exercised a peremptory challenge for two reasons, one of
     which was based on demeanor (i.e., that the juror had appeared
     to be nervous), and the trial judge overruled the Batson objection
     without explanation. 552 U. S. at 478–479. We concluded that
     the record refuted the explanation that was not based on
     demeanor and, in light of the particular circumstances of the case,
     we held that the peremptory challenge could not be sustained on
     the demeanor-based ground, which might not have figured in the
     trial judge’s unexplained ruling. Id. at 479–486. Nothing in this
     analysis supports the blanket rule on which the decision below
     appears to rest.

     The opinion in Snyder did note that when the explanation for a
     peremptory challenge “invoke[s] a juror’s demeanor,” the trial
     judge’s “first hand observations” are of great importance. Id. at
     477. And in explaining why we could not assume that the trial
     judge had credited the claim that the juror was nervous, we noted
     that, because the peremptory challenge was not exercised until
     some time after the juror was questioned, the trial judge might
     not have recalled the juror’s demeanor. Id. at 479. These
     observations do not suggest that, in the absence of a personal
     recollection of the juror’s demeanor, the judge could not have
     accepted the prosecutor’s explanation. Indeed, Snyder quoted
     the observation in Hernandez v. New York, 500 U. S. 352, 365
     (1991) (plurality opinion), that the best evidence of the intent of
     the attorney exercising a strike is often that attorney’s demeanor.
     See 552 U. S. at 477.

Id. at 47-49 (footnote omitted).

     Here, there is no suggestion that the trial judge in the case before us

was unable to make firsthand observations of the jurors’ demeanors, and in



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J-S17003-17


particular Juror 67, or the demeanor of the attorney exercising the peremptory

strikes, bolstering the deference due the trial court’s findings. The trial court

was present for and actually conducted voir dire. Upon conclusion of the jury

selection process, the trial court addressed Appellant’s Batson challenges and

determined the Commonwealth presented race neutral reasons for exercising

those strikes.   N.T., Voir Dire Proceedings, 10/28/14, at 90-94.         There is

nothing in the record to suggest that the trial court did not have the

opportunity to observe Juror 67.       Importantly, as reflected in the above

excerpt, Thaler clarified that it is not imperative that the trial judge personally

observe and recall the juror’s demeanor in order to accept the prosecutor’s

explanation.

      Given the record and our standard of review, I conclude that Appellant

failed to meet his burden of proving the Commonwealth engaged in purposeful

discrimination in striking Juror 67. Further, recognizing the trial court had the

opportunity to observe the voir dire process whereas we are limited to a review

of a cold record, and further recognizing the deference due the trial court’s

evaluation, I find no basis for disturbing the trial court’s denial of Appellant’s

Batson challenge. Therefore, I dissent.




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