J-S77012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MONTANA JEROME BELL,

                            Appellant                        No. 728 MDA 2017


      Appeal from the Judgment of Sentence Entered December 30, 2016
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000901-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED FEBRUARY 20, 2018

        Appellant, Montana Jerome Bell, appeals from the judgment of

sentence of 2-4 years’ incarceration, imposed following his conviction for

aggravated harassment by a prisoner, 18 Pa.C.S. § 2703.1.1                    Appellant

claims that the prosecutor violated the Equal Protection Clause of the

Fourteenth     Amendment        by     discriminatorily    exercising   a   peremptory

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 “A person who is confined in or committed to any local or county detention
facility, jail or prison or any State penal or correctional institution or other
State penal or correctional facility located in this Commonwealth commits a
felony of the third degree if he, while so confined or committed or while
undergoing transportation to or from such an institution or facility in or to
which he was confined or committed, intentionally or knowingly causes or
attempts to cause another to come into contact with blood, seminal fluid,
saliva, urine or feces by throwing, tossing, spitting or expelling such fluid or
material.”
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challenge to a prospective juror in violation of Batson v. Kentucky, 476

U.S. 79 (1986). After careful review, we affirm.

      The facts underlying Appellant’s conviction are not germane to this

appeal. Briefly, the Commonwealth charged Appellant, an African-American

inmate, with a Section 2703.1 offense for spitting on a prison guard. During

jury selection on October 3, 2016, the Commonwealth exercised its sixth

peremptory challenge against Gary Abdullah, the only African-American on

the thirty-member venire panel.     Appellant objected pursuant to Batson.

After further inquiry by the trial court, the court overruled that objection.

The jury subsequently convicted Appellant after a one-day trial held on

November 7, 2016. On December 30, 2016, the court sentenced Appellant

as stated above.

       Appellant filed a timely post-sentence motion asking the trial court to

reconsider his Batson challenge.      On April 26, 2017, the court issued an

opinion and order deny the post-sentence motion. See Opinion and Order

(hereinafter “TCO”), 4/26/17, at 1.    Appellant then filed a timely notice of

appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. On May

19, 2017, the trial court issued a Rule 1925(a) statement in lieu of an

opinion, in which the court indicated that it would rely on its April 26, 2017

opinion.

      Appellant now presents the following question for our review:

      Did the Trial Court err in permitting the prosecution to
      discriminatorily exercise a peremptory challenge to strike the
      only African–American male prospective juror in the entire

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      Courtroom from serving on [Appellant]'s Jury, in violation of
      Batson…?

Appellant’s Brief at 5.

      “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 the Equal

Protection Clause prohibits a prosecutor from striking jurors “solely on

account of their race or on the assumption that black jurors as a group will

be unable impartially to consider the State's case against a black

defendant.” Batson, 476 U.S. at 89.

      The Court in Batson established a three-step inquiry for
      evaluating claims of racial discrimination in jury selection. First,
      the defendant must make a prima facie showing that the
      prosecutor has exercised peremptory challenges on the basis of
      race. Id. at 96[.] Second, if the requisite showing has been
      made, the burden shifts to the prosecutor to articulate a race-
      neutral explanation for striking the jurors in question. Id. at
      97[.]   Finally, the trial court must determine whether the
      defendant has carried his burden of proving purposeful
      discrimination. Id. at 98[.]

             Under Batson, to establish a prima facie case that the
      prosecutor exercised peremptory challenges in a racially
      discriminatory manner, the defendant must prove that he is a
      member of a cognizable racial or ethnic group and that the
      prosecutor has exercised peremptory challenges to remove
      members of such group from the venire. Id. at 96[.] The
      defendant also must show that these facts and other relevant
      circumstances raise an inference that the Commonwealth used
      peremptory challenges to exclude venire persons from the same
      racial or ethnic group. Id. In doing so, the defendant is entitled
      to rely on the fact that “peremptory challenges constitute a jury


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      selection practice that permits ‘those to discriminate who are of
      a mind to discriminate.’” Id.

Commonwealth v. Jones, 951 A.2d 294, 299 (Pa. 2008).

      Instantly, the trial court concluded that Appellant failed to establish a

prima facie case of prosecutorial racial discrimination.       The court first

acknowledged that Appellant and the juror in question, Mr. Abdullah, are

both members of the same cognizable racial group (African-American), and

that the Commonwealth used a peremptory challenge to remove Mr.

Abdullah during jury selection. TCO at 4. Nevertheless, the court found that

Appellant did “not come forward with any other evidence to support a

conclusion that the Commonwealth’s peremptory strike of Mr. Abdullah was

because of his race.”   Id. (emphasis in original).    Consequently, the trial

court reasoned:

      [Appellant] cannot meet his prima facie burden of proving
      discrimination in the jury selection process solely by pointing to
      [the] use of a single peremptory strike to eliminate a potential
      juror who belongs to a particular race group, see
      Commonwealth v. Simmons, [662 A.2d 621 (Pa. 1995)], and
      [Appellant] has not come forward with any other evidence to
      support his claim of racial discrimination.

Id. In Simmons, our Supreme Court stated that the “use of a peremptory

challenge on a single person of color without more is insufficient to establish

a Batson violation.”      Simmons, 662 A.2d at 631 (hereinafter, the

“Simmons Rule”).

      Directly contradicting the trial court’s opinion, Appellant argues “a

prima facie case was shown, as evidenced by the [c]ourt’s request for the

Commonwealth to provide a race neutral explanation for striking Mr.

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Abdulla[h].” Appellant’s Brief at 16. We disagree. We do not view the trial

court’s attempt to construct a more complete record regarding Appellant’s

Batson challenge as demonstrative of Appellant’s passing the prima facie

Batson hurdle. This is particularly true in light of the trial court’s opinion, in

which it indicates that Appellant did not establish a prima facie case.

      Indeed, this is critical because Appellant offers little explanation or

analysis of how he substantiated a prima facie case that the prosecutor

exercised a racially discriminatory peremptory challenge.           The bulk of

Appellant’s arguments focus instead on criticisms of the prosecutor’s

proffered explanations for striking the black juror.      As indicated above in

Jones, the prosecution is not required to offer a race-neutral explanation for

excluding a particular juror unless and until a Batson challenger overcomes

his or her prima facie burden.

      Here, Appellant has only shown that the sole black juror in the jury

pool was excluded, a circumstance which, by itself, falls squarely within the

rubric of the Simmons Rule. That fact establishes only the first element of

the two-part prima facie test, which is itself only the first step in a three-part

Batson inquiry. To overcome the prima facie hurdle, Appellant must also

“show that these facts and other relevant circumstances raise an inference

that the Commonwealth used peremptory challenges to exclude venire

persons from the same racial or ethnic group.”        Jones, 951 A.2d at 299.

Because this step occurs before the burden shits to the prosecution to

proffer race-neutral explanations for a peremptory challenge, the credibility

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of such explanations are not fertile ground for establishing a prima facie case

of discrimination, as the United States Supreme Court explained in Johnson

v. California, 545 U.S. 162 (2005):

      [The] burden of persuasion rests with, and never shifts from, the
      opponent of the strike. Thus, even if the State produces only a
      frivolous or utterly nonsensical justification for its strike, the
      case does not end-it merely proceeds to step three. The first
      two Batson steps govern the production of evidence that allows
      the trial court to determine the persuasiveness of the
      defendant's constitutional claim. It is not until the third step
      that the persuasiveness of the justification becomes relevant-the
      step in which the trial court determines whether the opponent of
      the strike has carried his burden of proving purposeful
      discrimination.

Johnson, 545 U.S. at 171 (footnotes, quotation marks, and citations

omitted).   If the persuasiveness of the Commonwealth’s justification for

striking a juror is not relevant until the third step, then it cannot be a

relevant factor when considering the first.

      Our Supreme Court has provided guidance as to what types of

circumstances may be used to demonstrate a prima facie case of

discrimination.   In Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa.

1989), the Court indicated that “[e]xamples of such ‘relevant circumstances’

that might support or refute … an inference [of racial discrimination in jury

selection] are a ‘pattern’ (or not) of strikes against black jurors, and the

prosecutor's questions and comments during voir dire.” Id. at 850.

      The prosecutor’s use of a peremptory strike to exclude a single

African-American juror cannot possibly constitute such a pattern, absent



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other evidence, which is the essence of the Simmons Rule.         Compare

Simmons, supra, with Commonwealth v. Smulsky, 609 A.2d 843, 845

(Pa. Super. 1992) (recognizing that a prima facie case of purposeful

discrimination was demonstrated where it was “clear that the prosecutor

exhausted all seven of her peremptory challenges to exclude black

venirepersons”).     Moreover, Appellant has not pointed to any questions or

comments by the prosecutor during voir dire that suggest a discriminatory

purpose.

     Accordingly, we conclude that the trial court correctly found that

Appellant failed to demonstrate a prima facie case of discrimination under

Batson, and that it did so based on factual determinations that are not

clearly erroneous.

     Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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