J-S17003-17

                              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 of January 9, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): 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.

OPINION BY OLSON, J.:                           FILED JANUARY 19, 2018

     Appellant, Derrick Edwards, appeals from the judgment of sentence

entered on January 9, 2015. On appeal, Appellant raises several objections,

including, inter alia, challenges to the sufficiency of the evidence and

allegations that the Commonwealth harbored racial animus in the use of its

peremptory strikes. Although we hold that listing the races and genders of

prospective jurors on a peremptory strike sheet, while ill-advised, does not

per se violate the Equal Protection Clause of the Fourteenth Amendment as

interpreted by Batson v. Kentucky, 476 U.S. 79 (1986), we conclude that,
J-S17003-17


under the totality of circumstances, Appellant demonstrated a Batson

violation by showing that the Commonwealth struck at least one juror with

discriminatory intent.    Accordingly, we vacate Appellant’s judgment of

sentence and remand for a new trial.

      The factual background of this case is as follows. At approximately 5:50

a.m. on September 18, 2012, Appellant and Rasheed Thomas (“Thomas”)

robbed Keith Crawford (“Crawford”) at gunpoint. Approximately five minutes

later, Appellant and Thomas approached Kevin Cunningham (“Cunningham”)

as he waited at a bus stop. Appellant put a firearm in Cunningham’s face and

said, “You know what this is.” When Cunningham did not lie down on the

ground, Appellant pushed him to the ground and struck him twice in the back

of the head with the firearm. Appellant and Thomas took Cunningham’s cash,

a set of barber clippers, a Bible, an engagement ring, and a cellular telephone.

      At approximately 2:00 a.m. on October 1, 2012, two African-American

males approached Whitney Coates (“Coates”). One of the males pointed a

firearm at her face and said “You know what it is.” Coates gave the assailants

her cellular telephone. Approximately 30 minutes later, Appellant and Thomas

attempted to rob Donald Coke (“Coke”) at gunpoint. When Coke resisted,

Appellant shot him twice in the left arm. Appellant and Thomas then fled in

an SUV driven by Henry Bayard (“Bayard”). The SUV belonged to Bayard’s

mother.




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      Approximately 15 minutes later, Appellant and Bayard robbed Duquan

Crump (“Crump”) at gunpoint.      They fled the scene with Crump’s wallet,

cellular telephone, and watch. Approximately 15 minutes later, Appellant and

Thomas robbed Shanice Jones (“Jones”) at gunpoint. They fled with Jones’

wallet and cellular telephone. Approximately 15 minutes later, two African-

American males approached Hector De Jesus (“De Jesus”). One of the males

pointed a firearm at him and ordered him to hand over his belongings. The

assailants took $150.00, an iPod touch, a wallet, and a backpack containing

clothes and a taser.

      Approximately 45 minutes later, an African-American male exited a

vehicle and pointed a firearm at Jonas Floyd (“Floyd”).      Another African-

American male then exited the vehicle. The assailants took Floyd’s tote bag,

headphones, cellular telephone, wallet, keys, and United States currency.

Shortly after this robbery, police located Appellant, Thomas, and Bayard inside

the SUV that belonged to Bayard’s mother. In addition to the firearms used

in the robberies, police recovered a significant amount of the goods stolen

from the eight victims listed above.

      The relevant procedural history of this case is as follows. On November

2, 2012, the police charged Appellant via eight criminal complaints with

various offenses relating to the robberies described above.     A preliminary

hearing was held on February 26, 2013. At the conclusion of that hearing,

Appellant was held for court on all charges.        On March 6, 2013, the



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Commonwealth charged Appellant via eight criminal informations with

essentially the same crimes as those charged in the criminal complaints.

      On October 13 and 14, 2014, Appellant moved to quash the criminal

informations. In those motions to quash, Appellant argued that the evidence

presented at the preliminary hearing was insufficient to make out prima facie

cases against him. On October 27, 2014, the trial court denied the motions

to quash.

      Jury selection began on October 28, 2014.      Prior to jury selection,

Appellant asked the trial court how it conducted voir dire.   The trial court

responded that it would ask prospective jurors questions and the attorneys

would not be permitted to make inquiries. Appellant did not object to this

procedure.    The trial court’s staff placed the race and gender of each

prospective juror on the juror strike sheet prior to handing the sheet to

counsel. Appellant objected to this process and the trial court overruled the

objection.   Once the parties exercised their respective peremptory strikes,

Appellant, pursuant to Batson, objected to the Commonwealth striking four

prospective African-American jurors.1   The trial court determined that the




1
  With its eight peremptory challenges, the Commonwealth struck seven
prospective African-American jurors.         Appellant objected to the
Commonwealth striking four of the seven prospective jurors. It is unclear why
Appellant did not challenge the Commonwealth’s peremptory strikes of the
other three prospective African-American jurors.



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Commonwealth exercised its strikes in a non-prejudicial manner and overruled

Appellant’s objection.

        Appellant’s trial commenced on October 29, 2014.2 At trial, Thomas

appeared as a witness for the prosecution but he refused to identify his co-

conspirators.     The Commonwealth, therefore, sought permission to read

Thomas’ confession into the record. Appellant objected and the trial court

overruled that objection.        The Commonwealth also presented an audio

recording of Appellant from prison. Appellant objected to the admission of the

recording and the trial court overruled that objection.

        On November 4, 2014, the jury found Appellant guilty of eight counts of

robbery,3 eight counts of conspiracy to commit robbery,4 eight counts of

carrying a firearm without a license,5 eight counts of carrying a firearm on the

streets of Philadelphia,6 eight counts of possessing an instrument of crime,7




2
   On September 22, 2014, Thomas pled guilty to multiple counts each of
robbery, conspiracy to commit robbery, and carrying a firearm without a
license. Thus, he did not go to trial as Appellant’s co-defendant.

3
    18 Pa.C.S.A. § 3701(a)(1)(ii).

4
    18 Pa.C.S.A. §§ 903, 3701.

5
    18 Pa.C.S.A. § 6106(a)(1).

6
    18 Pa.C.S.A. § 6108.

7
    18 Pa.C.S.A. § 907(a).




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attempted     murder,8    aggravated    assault,9   and   conspiracy    to   commit

aggravated assault.10

        Over six weeks later, on December 22, 2014, Appellant moved for a

mistrial. In that motion, based upon the statements of two American Sign

Language interpreters present during jury deliberations, Appellant averred

that jurors conducted research about the case during deliberations. The trial

court denied the motion that same day. On January 9, 2015, the trial court

sentenced Appellant to an aggregate term of 22 to 44 years’ imprisonment.

This timely appeal followed.

        On April 6, 2015, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal (“concise statement”).             See

Pa.R.A.P. 1925(b). Appellant failed to file a timely concise statement and, on

October 7, 2015, this Court remanded this case to the trial court to permit

Appellant to file a nunc pro tunc concise statement. On October 28, 2015,

Appellant filed his concise statement. On February 24, 2016, the trial court

issued its Rule 1925(a) opinion. This case is now ripe for disposition.

        Appellant raises several issues for our review, inter alia:11



8
    18 Pa.C.S.A. § 901, 2502.

9
    18 Pa.C.S.A. § 2702(a)(1).

10
     18 Pa.C.S.A. §§ 903, 2702.

11
   We address Appellant’s first two issues because he would be entitled to
discharge if we granted relief on those claims. We address Appellant’s third



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     1. Did the trial court commit an error of law and/or abuse its discretion
        in failing to issue a judgment of acquittal[?]

     2. Did the trial court commit an error of law and/or abuse its discretion
        in failing to quash the return of the magistrate’s transcript . . .
        where the Commonwealth failed to present material witnesses at a
        preliminary hearing or supplement a devoid record prior to trial?

     3. Did the trial court commit an error of law and/or abuse its discretion
        in denying Appellant’s Batson [] motion by denoting on its jury
        sheet the race and gender of each potential juror and allowing the
        prosecution to strike jurors on the basis of race?

Appellant’s Brief at 5-6 (certain capitalization omitted).12

         In his first issue Appellant argues that the evidence presented at trial as

to four of the robberies was insufficient.        “The determination of whether

sufficient evidence exists to support the verdict is a question of law;

accordingly, our standard of review is de novo and our scope of review is

plenary.”      Commonwealth v. Johnson, 160 A.3d 127, 136 (Pa. 2017)

(citation omitted).     In assessing Appellant’s sufficiency challenge, we must

determine “whether viewing all the evidence admitted at trial in the light most

favorable to the [Commonwealth], there is sufficient evidence to enable the



issue because we conclude that he is entitled to relief on that claim. As we
remand for a new trial, we decline to address Appellant’s remaining issues
which would only entitle him, at most, to a new trial. See Drew v. Work, 95
A.3d 324, 338 (Pa. Super. 2014) (citation omitted).

Our dissenting colleague similarly declines to address Appellant’s remaining
issues because of our disposition of this appeal. Thus, he merely states that
he would reach a different conclusion on Appellant’s Batson claim. See
Dissenting Opinion, post at 1-2 n.1.

12
     We have re-numbered the issues for ease of disposition.



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fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Grays, 167 A.3d 793, 806 (Pa. Super. 2017) (citation

omitted). “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. . . . [T]he finder of fact while

passing upon the credibility of witnesses and the weight of the evidence

produced, is free to believe all, part[,] or none of the evidence.”

Commonwealth v. Waugaman, 167 A.3d 153, 155–156 (Pa. Super. 2017)

(citation omitted).

      Appellant contends that the evidence was insufficient to convict him of

crimes related to the Jones, Crump, and Crawford robberies because those

three victims failed to appear and did not testify at trial. Appellant concedes,

however, that the property stolen from these three victims was found in the

SUV occupied by Appellant, Thomas, and Bayard. See Appellant’s Brief at 20.

Moreover, as noted above, Thomas’ confession was read to the jury at trial.13

See N.T., 10/28/14, at 28-77.         In that confession, Thomas implicated

Appellant in the robberies of Jones, Crump, and Crawford.              Moreover,

Appellant stipulated at trial that he did not possess a valid license to carry

firearms at the time the robberies occurred. N.T., 11/3/14, at 40. Combined,

this stipulation, Thomas’ confession, and the recovery of items taken during


13
  We explicitly decline to opine upon whether the trial court properly admitted
Thomas’ confession into evidence because, when considering the sufficiency
of the evidence, we must consider both properly and improperly admitted
evidence. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010),
appeal denied, 29 A.2d 796 (Pa. 2011).


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the robberies from the SUV occupied by Appellant constituted sufficient

evidence for the jury to conclude that Appellant committed those three

robberies and offenses related to those incidents.

      Appellant also argues that the evidence was insufficient to convict him

of robbing Coke because Coke did not testify at trial. Once again, however,

Thomas implicated Appellant in Coke’s robbery. Furthermore, Coke’s robbery

followed    the   same   modus   operandi   of   the   other   robberies.   See

Commonwealth v. Cullen, 489 A.2d 929, 936 (Pa. Super. 1985) (modus

operandi of serial robber can be used to prove identity).         Combined, the

stipulation that Appellant did not possess a valid license to carry firearms,

Thomas’ statement, and the similarity of the robberies in this case provided

sufficient evidence to convict Appellant of robbing Coke and the related

offenses.

      In his second issue, Appellant argues that the trial court erred in denying

his motions to quash because there was insufficient evidence presented at the

preliminary hearing to hold him for trial. This issue is moot. “If events occur

to eliminate the claim or controversy at any stage in the process, the [issue]

becomes moot.” In re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (citation

omitted). Our Supreme Court has held that “once a defendant has gone to

trial and has been found guilty of the crime or crimes charged, any defect in

the preliminary hearing is rendered immaterial.”           Commonwealth v.




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Sanchez, 82 A.3d 943, 984 (Pa. 2013) (citation omitted).             Accordingly,

Appellant’s second issue is moot.

      In his third issue, Appellant argues that the jury selection process in this

case violated Batson. First, he contends that the trial court violated Batson

as a matter of law by listing the races and genders of potential jurors on the

peremptory strike sheet.14        Second, he argues that the Commonwealth

violated Batson by striking four African-American members of the venire. “A

Batson claim presents mixed questions of law and fact.” Riley v. Taylor,

277 F.3d 261, 277 (3d Cir. 2001) (en banc). Therefore, our standard of review

is whether the trial court’s legal conclusions are correct and whether its factual

findings are clearly erroneous.

      “In Batson, the [Supreme Court of the United States] held that a

prosecutor’s challenge to potential jurors solely on the basis of race violates

the   Equal   Protection   Clause     of   the   United   States   Constitution.”

Commonwealth v. Reid, 99 A.3d 470, 484 (Pa. 2014) (citation omitted).

When a defendant makes a Batson challenge during jury selection:

      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


14
   As noted above, the trial court’s staff placed the races and genders of
potential jurors on the strike list. The trial court was unware of its tipstaff’s
practice. Nonetheless, for simplicity, we refer to the trial court when
discussing its tipstaff’s actions.


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      determination of whether the defense has carried its burden of
      proving purposeful discrimination.

Commonwealth v. Watkins, 108 A.3d 692, 708 (Pa. 2014) (citation

omitted).

      Initially, we consider whether Appellant properly preserved his Batson

claim for appellate review. Cf. Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

The Commonwealth argues that Appellant “waived this claim by failing to set

forth the race of: all the impaneled jurors, all of the venirepersons the

Commonwealth     struck,   and   all   the      venirepersons   acceptable   to   the

Commonwealth whom he struck.”           Commonwealth’s Brief at 17-18, citing

Commonwealth v. Thompson, 106 A.3d 742, 752 (Pa. 2014); see

Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993).15                         The

Commonwealth fails to acknowledge, however, that this information was




15
   In Spence, our Supreme Court held that the objecting party must include
the following information in its objection in order to preserve a Batson claim:
the race of the stricken prospective juror(s), the race of prospective juror(s)
acceptable to the striking party but stricken by the objecting party, and the
racial composition of the jury seated for trial. Spence, 627 A.2d at 1182;
see Thompson, 106 A.3d at 752. The United States Court of Appeals for the
Third Circuit has held that the requirements set forth in Spence are an
unreasonable application of federal law. See Holloway v. Horn, 355 F.3d
707, 728–729 (3d Cir. 2004). Nonetheless, our Supreme Court has refused
to modify these requirements. See Commonwealth v. Fletcher, 861 A.2d
898, 910 n.15 (Pa. 2004). We, of course, are “duty-bound to effectuate [our
Supreme] Court’s decisional law.” Walnut St. Assocs., Inc. v. Brokerage
Concepts, Inc., 20 A.3d 468, 480 (Pa. 2011) (citations omitted).




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included on the peremptory strike sheet used by the parties. As noted above,

the peremptory strike sheet included the race and gender of every prospective

juror. It also included codes indicating which party (if either) objected to a

juror and whether that objection was for cause or was a peremptory strike.

Finally, it specifies the racial composition of the jury seated for trial. Appellant

cited the peremptory strike sheet when making his Batson challenge.

Therefore, Appellant’s failure to repeat orally the information during his

Batson challenge did not waive his Batson claim.16

      Turning to the merits of Appellant’s Batson claim, we first address his

argument that listing the races and genders of prospective jurors on the

peremptory strike sheet violated Batson as a matter of law. Although we find

the trial court’s practice both ill-advised and inappropriate, there are

compelling grounds for refusing to adopt a per se rule that precludes this

practice under Batson.       First, there is no precedent for such a holding.

Appellant is unable to cite a single case from any jurisdiction which holds that

this practice is a per se violation of Batson.

      Second, adoption of a per se rule runs counter to the rationale of

Batson, and that of several cases interpreting and applying the decision, all


16
   Neither the Commonwealth nor our learned colleague in his dissent cite to
any additional information required by Spence that the trial court would have
gained if Appellant repeated orally the information contained on the strike
sheet.    Instead, the dissent and the Commonwealth place the form of the
information over the substance. Cf. Commonwealth v. Farrow, 168 A.3d
207, 219 (Pa. Super. 2017) (This Court’s intent is not to “elevate form over
substance.”).


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of which have encouraged courts to consider all relevant factors. Batson,

476 U.S. at 96 (“[T]he defendant must show that these facts and any other

relevant circumstances raise an inference that the prosecutor used that

practice to exclude the veniremen from the petit jury on account of their

race.”); see Carrillo v. Texas, 2007 WL 2052070, *3 (Tex. App. July 19,

2007) (“[T]he Batson decision is one of fact, not of per se rules of law.”);

Louisiana v. Duncan, 802 So.2d 533, 550 (La. 2001) (internal quotation

marks and citation omitted) (“[A]ttempts to fashion absolute, per se rules are

inconsistent with Batson in which the [Supreme Court of the United States]

instructed trial courts to consider all relevant circumstances.”); United

States v. Grandison, 885 F.2d 143, 147 (4th Cir. 1989), quoting United

States v. Sanqineto–Miranda, 859 F.2d 1501, 1521 (6th Cir. 1988) (“The

Supreme Court’s mandate in Batson to consider all the facts and

circumstances means that we cannot lay down clear rules[.]”); see also

Miller-El v. Dretke, 545 U.S. 231, 247 n.6 (2005) (“A per se rule that a

defendant cannot win a Batson claim unless there is an exactly identical white

juror [unaffected by the challenged practice] would leave Batson inoperable;

potential jurors are not products of a set of cookie cutters.”). Accordingly,

although we do not countenance the practice, we hold that listing the races

and genders of potential jurors on the peremptory strike sheet did not violate

Batson as a matter of law.




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      Having determined that listing the race and gender of prospective jurors

does not constitute a per se Batson violation, we turn to a specific analysis

of Appellant’s Batson claim. As noted above, the first step in the Batson

analysis is determining whether Appellant made “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[.]” Watkins, 108 A.3d at 708

(citation omitted). As our Supreme Court has explained:

      To establish a prima facie case of purposeful discrimination[,] the
      defendant must show that he is a member of a cognizable racial
      group, that the prosecutor exercised a peremptory challenge or
      challenges to remove from the venire members of the defendant’s
      race; and that other relevant circumstances combine to raise an
      inference that the prosecutor removed the juror(s) for racial
      reasons.

Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008) (internal alterations,

ellipsis, footnote, and citation omitted).

      We agree with the trial court’s conclusion that Appellant established a

prima facie case of purposeful discrimination.17 Appellant is African-American



17
   Our learned colleague disagrees with our characterization of the trial court’s
conclusion that the first prong of the Batson test was met. According to our
dissenting colleague, the trial court never found that Appellant established a
prima facie case of purposeful discrimination. Although the trial court did not
use the magic words “prima facie case of purposeful discrimination,” it is
evident by the trial court’s words and actions that it made this finding. The
trial court considered whether the second step of the Batson test was met
which it would not have done had it found that Appellant failed to establish
the first step. Moreover, as our dissenting colleague notes, even if the trial
court failed to make this finding, “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.” Dissenting Opinion, post at 6 (internal



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and the Commonwealth struck seven African-American prospective jurors.

Furthermore, although listing the races and gender of prospective jurors on

the peremptory strike sheet did not qualify as a per se Batson violation, it is

a relevant circumstance that raised an inference that the prosecutor struck

the jurors based on their race. Therefore, we agree with the trial court that

Appellant established a prima facie case of purposeful discrimination.

      The second step in the Batson analysis is the determination of whether

the Commonwealth provided race-neutral explanations for striking the

prospective jurors.   Watkins, 108 A.3d at 708 (citation omitted).       As our

Supreme Court explained:

      The second prong of the Batson test, involving the prosecution’s
      obligation to come forward with a race-neutral explanation of the
      challenges once a prima facie case is proven, does not demand an
      explanation that is persuasive, or even plausible. Rather, the
      issue at that stage is the facial validity of the prosecutor’s
      explanation. Unless a discriminatory intent is inherent in the
      prosecutor’s explanation, the reason offered will be deemed race
      neutral.

Commonwealth v. Harris, 817 A.2d 1033, 1043 (Pa. 2002) (internal

quotation marks and citations omitted).

      Here again, we agree with the trial court’s conclusion that the

Commonwealth proffered race-neutral explanations for striking the four

African-American jurors in question. The Commonwealth stated that it struck

Jurors 56 and 57 because they were talking to each other and joking



quotation marks omitted), quoting Commonwealth v. Sanchez, 36 A.3d 24,
45 (Pa. 2011).


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throughout the voir dire process. N.T., 10/28/14, at 93. The Commonwealth

also stated that Juror 56 was nodding and making faces while the trial court

discussed the credibility of police officers. Id. The Commonwealth stated that

it struck Juror 61 because she didn’t identify the neighborhood in which she

lived on the juror questionnaire and her ex-husband was a police officer. Id.

Finally, the Commonwealth stated that it struck Juror 67 because:

      when she was being questioned by [the trial court] 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.

Id. at 94. All of these reasons are facially acceptable. Accordingly, we agree

with the trial court that the Commonwealth offered race-neutral reasons for

striking the four African-Americans in question.

      The third step in a Batson analysis involves determining if the defense

carried its burden of proving purposeful discrimination. Watkins, 108 A.3d

at 708 (citation omitted). “It is at this stage that the persuasiveness of the

facially-neutral explanation proffered by the Commonwealth is relevant.”

Commonwealth v. Towles, 106 A.3d 591, 601 (Pa. 2014) (citation

omitted).18



18
  The Commonwealth cites Cook and Commonwealth v. Washington, 927
A.2d 586 (Pa. 2007), for the proposition that a Batson claim fails whenever
the prosecution states race-neutral reasons for disputed peremptory
challenges, even if the proffered explanation lacks persuasive force or
plausibility.  See Commonwealth’s Brief at 18.            In essence, the



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      In this case, the trial court did not make an explicit determination during

voir dire that Appellant failed to prove purposeful discrimination. See N.T.,

10/28/14, at 94.    The trial court’s denial of Appellant’s Batson challenge,

along with the reasoning in its Rule 1925(a) opinion, see Trial Court Opinion,

2/24/16, at 19, indicates that the trial court implicitly found that Appellant

failed to prove purposeful discrimination. As our Supreme Court explained, 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
      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.

Commonwealth v. Williams, 980 A.2d 510, 531 (Pa. 2009) (internal

quotation marks and citation omitted).



Commonwealth argues that the defense cannot prevail where the
Commonwealth satisfies the second step of the Batson inquiry.               This
argument is inconsistent with prevailing jurisprudence. Every case from the
Supreme Court of the United States and our Supreme Court interpreting
Batson requires the trial court to proceed to the third step of the Batson
inquiry if the defendant demonstrates a prima facie case of discrimination and
the prosecutor provides a race-neutral explanation. E.g., Miller-El, 545 U.S.
at 239-240; Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“The
prosecutor’s proffered explanation . . . is race neutral and satisfies the
prosecution’s step two burden of articulating a nondiscriminatory reason for
the strike. . . . Thus, the inquiry properly proceeded to step three, where the
state court found that the prosecutor was not motivated by discriminatory
intent.”); Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) (citation
omitted) (“If a race-neutral explanation is tendered, the trial court must then
proceed to the third prong of the test[.]”); Cook, 952 A.2d at 611.


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      Although we must exercise great deference in reviewing the trial court’s

factual finding with respect to discriminatory intent, we do not function as a

rubber stamp. Cf. Foster v. Chatman, 136 S.Ct. 1737, 1747-1755 (2016)

(even under Antiterrorism and Effective Death Penalty Act of 1996’s

(“AEDPA’s”) double deferential standard of review, the trial court’s factual

finding with respect to discriminatory intent was clearly erroneous);

Commonwealth v. Monahan, 860 A.2d 180, 185 (Pa. Super. 2004), appeal

denied, 878 A.2d 863 (Pa. 2005) (In the context of a discretionary aspects of

sentencing claim, in which we employ a highly deferential standard of review,

we do not act as a rubber stamp.). In this case, the evidence establishes that

the Commonwealth struck Juror 67 with discriminatory intent; therefore, we

conclude that the trial court’s factual finding was clearly erroneous.19




19
  In this case, Appellant did not attempt to rebut the Commonwealth’s race-
neutral explanations. He also did not withdraw his Batson challenge.
Instead, Appellant believed that the reasons offered by the Commonwealth
were so unpersuasive that he did not need to offer argument as to why the
race-neutral explanations were pretextual.       As the Supreme Court of
Mississippi explained, a defendant

      is not procedurally barred from contesting the [prosecutor’s]
      strikes of [] jurors for whom he did not provide rebuttal during the
      Batson hearing. Although the defendant may provide rebuttal,
      Batson does not require the opponent of a peremptory strike to
      rebut the [other party’s] proffered race-neutral basis. Under
      Batson’s three-step procedure, once the [prosecutor] has
      presented race-neutral reasons to rebut the defendant’s prima
      facie case, the trial court should determine whether the defendant
      has established purposeful discrimination.




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      We find three factors strongly indicative of discriminatory intent in this

case; first, as noted above, the identification of the race and gender of the

potential jurors on the peremptory strike sheet.20 Although this was not a per

se Batson violation, when combined with the other factors listed below it

supports an inference of racial discrimination. Second, the probability of the

Commonwealth striking such a disproportionate number of African-Americans

by chance is extremely low.        Finally, the Commonwealth’s race-neutral

explanation for striking Juror 67 was wholly underpersuasive in that the

Commonwealth relied on her supposedly inattentive posture to conclude that

she would not discharge her duties as a juror in a fair and impartial manner.

      During the peremptory strike process, 30 potential jurors were

considered by the parties.    Of those 30, 13 were African-American.         The

Commonwealth used seven of its eight peremptory strikes on African-



Corrothers v. Mississippi, 148 So.3d 278, 345–346 (Miss. 2014) (emphasis
in original), citing Batson, 476 U.S. at 97-98; see Colorado v.
O’Shaughnessy, 275 P.3d 687, 694 (Colo. App. 2010), aff'd, 269 P.3d 1233
(Colo. 2012) (citations omitted). Moreover, the Commonwealth does not cite,
nor are we aware of, any decisions from our Supreme Court or this Court
requiring such rebuttal. Cf. Missouri v. Jones, 471 S.W.3d 331, 334 (Mo.
App. 2015) (Missouri requires such rebuttal in order to make a Batson
challenge). We decline to adopt such a requirement in this case.

20
  The dissent asserts that the Commonwealth is not responsible for the trial
court’s actions in placing the race and gender of each prospective juror on the
preemptory strike sheet. Although this is accurate, we note that when
Appellant objected to having this information noted on the strike sheet, the
Commonwealth objected to Appellant’s objection. See N.T., 10/28/14, at 91.
Moreover, the trial court’s listing of the potential jurors’ races and genders on
the strike sheet is a part of the totality of the circumstances that we must
evaluate when reviewing the trial court’s Batson ruling.


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J-S17003-17


Americans.     An additional 14 potential jurors were Caucasian.                   The

Commonwealth did not strike any of the Caucasian potential jurors. Finally,

three of the potential jurors were neither Caucasian nor African-American.

The Commonwealth exercised its last peremptory strike on one of those three

individuals.

      It does not take a statistician to understand that the probability of

striking no Caucasians and striking at least 7 of 13 African-Americans by

random chance is extremely small. Statistics alone are insufficient to prove

discriminatory intent. Commonwealth v. Johnson, 139 A.3d 1257, 1282–

1283 (Pa. 2016) (citations omitted). Statistics can be used, however, when

considering    the   totality   of   the     circumstances   to   determine   if   the

Commonwealth exercised its peremptory strikes in a discriminatory manner.

See Commonwealth v. Ligons, 971 A.2d 1125, 1144 (Pa. 2009).

      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.     See Pa.R.Crim.P. 633, 634 (setting forth the number of

peremptory strikes that the Commonwealth may exercise); cf. Johnson, 139

A.3d at 1281-1283 (Commonwealth struck seven African-Americans and

seven non-African-Americans and did not exercise all of its peremptory

challenges); Commonwealth v. Roney, 79 A.3d 595, 620-621 (Pa. 2013)

(Commonwealth struck four Caucasians); Commonwealth v. Hutchinson,



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J-S17003-17


25 A.3d 277, 287 (Pa. 2011) (Commonwealth struck eight Caucasians);

Ligons, 971 A.2d at 1143-1144 (Commonwealth struck two Caucasians and

did not exercise eight or nine of its peremptory strikes21).                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.

         Finally, the most important factor when considering the totality of the

circumstances is the race explanation offered by the Commonwealth.                   We

focus on the Commonwealth’s race-neutral explanation for striking Juror 67,

which is reproduced in full supra. Essentially, the Commonwealth stated that

it struck Juror 67 because she did not seem pleased to be called to jury duty.

Although, as noted above, this was a facially race-neutral explanation, this

same rationale could be used to strike almost every potential juror in almost


21
   At one point, our Supreme Court referenced the Commonwealth not using
eight of its preemptory strikes while at another point our Supreme Court
referenced the Commonwealth not using nine of its preemptory strikes.


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J-S17003-17


every case tried throughout Pennsylvania. Few (if any) citizens are thrilled

when they receive a jury summons in the mail. Instead, they begrudgingly

arrive at the courthouse to fulfill their civic duty (or avoid being arrested).

The trial court acknowledged this reality twice during the jury selection

process in this case. N.T., 10/28/14, at 5, 52.

      The Commonwealth also stated that Juror 67 was leaning back in her

chair with her arms crossed during the voir dire process. This, however, was

encouraged by the trial court at the beginning of jury selection. Id. at 4 (“So

sit back and relax”). There is no assertion that she was disruptive, that she

ignored the trial court’s instructions, or that she exhibited outward or palpable

disinclination to discharge her duties as an impartial factfinder.

      We find instructive the Supreme Court of the United States’ decision in

Snyder v. Louisiana, 552 U.S. 472 (2008).          In Snyder, the prosecutor

struck a prospective African-American juror because he appeared nervous and

because of concerns regarding his student teaching position. The trial court

contacted his college dean and alleviated any concerns regarding his student

teaching duties.    Nonetheless, the trial court overruled the defendant’s

Batson challenge and the state appellate courts affirmed.            Justice Alito,

writing for a seven-member majority, concluded that the trial court’s factual

finding on discriminatory intent was clearly erroneous.        Id. at 484-485.

Instead, considering the totality of the circumstances, the majority found the

prosecution’s explanation for striking the prospective juror highly implausible



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J-S17003-17


and, therefore, pretextual. See id.; see also      Miller–El, 537 U.S. at 339,

quoting Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (At the third

“stage, implausible or fantastic justifications may (and probably will) be found

to be pretexts for purposeful discrimination.”); Commonwealth v. Garrett,

689 A.2d 912, 917 (Pa. Super. 1997), appeal denied, 701 A.2d 575 (Pa. 1997)

(citation omitted) (“An explanation which at first blush appears to be clear,

specific and legitimate may be exposed as a pretext for racial discrimination

when considered in the light of the entire voir dire proceeding.”);

Commonwealth v. Jackson, 562 A.2d 338, 350 (Pa. Super. 1989) (en banc)

(Beck, J. opinion announcing the judgment of the court), appeal denied, 578

A.2d 926 (Pa. 1990) (citation omitted) (same).22

      In both Snyder and the case at bar the trial court did not make an

explicit factual finding that it witnessed the alleged demeanor relied upon by




22
    Judges Del Sole and Montemuro joined Judge Beck’s opinion. Judge
Popovich joined the relevant portions discussed in this decision (and that of
our dissenting colleague). President Judge Cirillo filed a concurring opinion in
which Judge Brosky joined. That concurring opinion stated that, “I therefore
concur only in the conclusion that appellant has failed to show an equal
protection violation and in the affirmance of the judgment of sentence.”
Jackson, 562 A.2d at 358 (Cirillo, J. concurring). Judge Tamilia filed a
concurring opinion in which he stated that, “I concur in the result[.]” Id. at
358 (Tamilia, J. concurring). Judge McEwen filed a dissenting opinion which
Judge Johnson joined. Thus, only four of the nine members of the en banc
panel in Jackson joined the relevant portions of Judge Beck’s opinion. Hence,
it is only an opinion announcing the judgment of the court. Such an opinion
is not binding upon this panel. See Commonwealth v. Gorbea-Lespier, 66
A.3d 382, 387 n.5 (Pa. Super. 2013), appeal denied, 77 A.3d 1259 (Pa. 2013)
(citations omitted).



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J-S17003-17


the prosecutor to strike the juror. See Snyder, 552 U.S. at 477 (“[T]he trial

court must evaluate not only whether the prosecutor’s demeanor belies a

discriminatory intent, but also whether the juror’s demeanor can credibly be

said to have exhibited the basis for the strike attributed to the juror by the

prosecutor.”);23 see also N.T., 10/28/14, at 94; Trial Court Opinion, 2/24/16,

at 19.   Moreover, in both Snyder and the case at bar the race-neutral


23
   Our dissenting colleague argues that the Supreme Court of the United
States rejected our reading of Snyder in Thaler v. Haynes, 559 U.S. 43
(2010) (per curiam). See Dissenting Opinion, post at 22-25. Our reading
of Snyder, however, is consistent with Thaler. In Thaler, the Court
explained that the failure of the Snyder trial court to note any personal
recollection of the prospective juror’s demeanor was only one factor it
considered when determining that the trial court’s factual finding was
unsupported by the record. See Thaler, 559 U.S. at 48-49. Unlike Snyder,
which was on direct review, Thaler was a habeas corpus proceeding. Hence,
the Supreme Court of the United States rejected the United States Court of
Appeals for the Fifth Circuit’s interpretation of Snyder as a per se rule
requiring such recollection in order for a federal court to apply AEDPA
deference to a state court decision. See id. at 49; see also Colorado v.
Beauvais, 393 P.3d 509, 518 (Colo. 2017) (explaining that Thaler rejected
the Fifth Circuit’s “broad characterization of Snyder as creating an express
credibility finding requirement” while noting that “express credibility findings
significantly aid effective appellate review”); cf. Michigan v. Tennille, 888
N.W.2d 278, 289-291 (Mich. App. 2016) (holding that under Snyder and
Thaler an appellate court must examine the totality of the circumstances
when determining if a trial court’s factual finding is supported by the record in
absence of an explicit finding regarding a demeanor-based explanation from
the prosecution).

We have likewise explicitly rejected per se rules in the Batson context. See
supra at 12-13. As we have emphasized throughout this Opinion, it is not
one factor that leads us to the conclusion that the trial court’s factual finding
is unsupported by the record. Instead, it is the totality of the circumstances,
including the trial court’s failure to note Juror 67’s demeanor on the record,
which leads us to this conclusion. See Thaler, 559 U.S. at 49. Therefore,
our decision to vacate Appellant’s judgment of sentence is consistent with
Thaler.


                                     - 24 -
J-S17003-17


explanation offered by the prosecutor was highly implausible when considered

in light of the totality of the circumstances surrounding the voir dire process.

      It is for this reason that our dissenting colleague’s argument that we are

“substituting [our] judgment for that of the trial court,” Dissenting Opinion,

post at 17, is flawed. Our dissenting colleague cites nothing in the record to

indicate that the trial court observed Juror 67 and found that Juror 67’s

demeanor credibly exhibited the basis for the strike attributed to her by the

Commonwealth.

      Instead of relying on Snyder, which is binding precedent, our learned

colleague relies on Jackson, which is not binding precedent for the reasons

set forth above. Moreover, Jackson differs from the factual scenario in the

case sub judice.

      The extensive portion of Judge Beck’s opinion quoted by our dissenting

colleague did not address the third step of Batson. See Dissenting Opinion,

post at 18-19, quoting Jackson, 562 A.2d at 351 (Beck, J., opinion

announcing the judgment of the court). Instead, this language came from

Judge Beck’s discussion of the second Batson step. See Jackson, 562 A.2d

at 351 (Beck, J., opinion announcing the judgment of the court).24 Judge Beck

only reached the third Batson step with respect to jurors who were challenged

because of their alleged familiarity with the location of the crime. See id. at




24
   The defendant in Jackson only argued step two of Batson with respect to
this prospective juror. He argued step three for other prospective jurors.


                                     - 25 -
J-S17003-17


352-354. As noted above, we agree with the trial court, the Commonwealth,

and our dissenting colleague that the Commonwealth’s proffered rationale for

striking Juror 67 satisfied the second step of Batson. Our disagreement is

with the trial court’s finding that Appellant failed to prove purposeful

discrimination at step three of the Batson analysis.

      Although Judge Beck did not reach the third Batson step in the portion

of the opinion relied on by our dissenting colleague, she did reference it in her

analysis of the second Batson step.       Specifically, she stated that, “A trial

judge should not uncritically accept [body language] or any other proffered

explanation for a peremptory challenge.       Instead, the judge should assess

each proffered explanation in light of [his or] her independent recollection of

the demeanor and responses of the venire panel members.” Id. at 351. As

noted above, in the case at bar the trial court failed to assess the

Commonwealth’s proffered explanation for striking Juror 67 in light of its

independent recollection of Juror 67’s demeanor and responses. Thus, this

case is more akin to Snyder than to Jackson – in which the plurality failed

to reach step three of the Batson test.

      The persuasive value of the Commonwealth’s explanation for striking

Juror 67 is so low that, when combined with the other factors listed above,

the totality of the circumstances indicates that the Commonwealth struck

Juror 67 with discriminatory intent. The trial court’s finding to the contrary

was clearly erroneous. As such, we conclude that the Commonwealth violated



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J-S17003-17


the Equal Protection Clause of the Fourteenth Amendment as interpreted by

Batson.         As   a   Batson   violation     can   never   be   harmless   error,

Commonwealth v. Basemore, 744 A.2d 717, 734 (Pa. 2000), we vacate

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

         In sum, we conclude that there was sufficient evidence to convict

Appellant at trial and Appellant’s challenge to the denial of his motions to

quash is moot. We conclude, however, that the Commonwealth’s peremptory

strike of Juror 67 was racially motivated and violated Batson. Accordingly,

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

explained in note 11 supra, because we remand for a new trial we decline to

address Appellant’s remaining issues which would only entitle him to a new

trial.

         Judgment of sentence vacated.            Case remanded.        Jurisdiction

relinquished.

         Judge Musmanno joins this Opinion.

         Judge Stabile files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/19/2018




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