J-A28010-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DONTE MCCALLISTER

                            Appellant                   No. 2739 EDA 2013


             Appeal from the Judgment of Sentence May 23, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0016107-2009


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED NOVEMBER 14, 2014

        Appellant, Donte McCallister, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for four (4) counts of robbery and one (1) count each of

conspiracy to commit robbery, firearms not to be carried without a license,

carrying firearms on public streets or public property in Philadelphia, and

possessing instruments of crime.1 We affirm.

        In its opinion, the trial court fully sets forth the relevant facts and

procedural history of this case.         Therefore, we have no reason to restate

them.

____________________________________________


1
   18 Pa.C.S.A. §§ 3701(a)(1)(ii), (iv), 903, 6106, 6108, and 907,
respectively.
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        Appellant raises the following issues for our review:

           WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
           GRANTING THE COMMONWEALTH’S CHALLENGE FOR
           CAUSE AS TO [JUROR #1]?

           WHETHER THE TRIAL COURT ERRED IN VIOLATION OF
           THE    UNITED    STATES    AND     PENNSYLVANIA
           CONSTITUTIONS BY DENYING APPELLANT’S OBJECTION
           TO THE COMMONWEALTH’S PEREMPTORY CHALLENGE TO
           [JUROR #34] ON GROUNDS OF RACIAL DISCRIMINATION
           PURSUANT TO BATSON V. KENTUCKY?[2]

(Appellant’s Brief at 2).

        In his first issue, Appellant argues Juror #1’s conduct and answers to

the trial court’s questions during voir dire in no way demonstrated a

likelihood of prejudice, because Juror #1 confirmed she could be a fair and

impartial juror despite her belief that the criminal justice system treated her

cousin unfairly in a prior case. Appellant asserts nothing in the record or in

the trial court’s opinion suggests any reason to doubt the credibility of Juror

#1.     Appellant also disputes the Commonwealth’s other justification of its

challenge for cause, namely, that Juror #1 had witnessed someone steal her

cousin’s Buick LeSabre approximately twenty years earlier—the same type of

car Appellant and his cohorts used in this case. Appellant claims this fact is

meaningless.      Appellant concludes the court palpably abused its discretion

when it granted the Commonwealth’s challenge to Juror #1 for cause. We

disagree.
____________________________________________


2
    476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).



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     “The decision whether to disqualify a juror is within the sound

discretion of the trial court and will not be reversed in the absence of a

palpable abuse of discretion.” Commonwealth v. Stevens, 559 Pa. 171,

197, 739 A.2d 507, 521 (1999).         “A challenge for cause to service by a

prospective juror should be sustained and that juror excused where that

juror demonstrates through his conduct and answers a likelihood of

prejudice.” Commonwealth v. Ingber, 516 Pa. 2, 7, 531 A.2d 1101, 1103

(1987). “The trial court makes that determination based on the prospective

juror’s answers to questions and demeanor.” Stevens, supra at 197, 739

A.2d at 521.

           The challenge of a juror for cause is addressed to the trial
           judge, and much weight must be given to his judgment in
           passing upon it. In exercising his discretion as to the
           fitness of a juror to serve, he has the juror before him, and
           much latitude must be left to him; and the weight to be
           given to the answers of a juror when examined on his voir
           dire is not to be determined exclusively by his words as we
           read them in the printed record. They are first to be
           weighed by the trial judge who sees and hears the juror,
           and, in the exercise of a wide discretion, may conclude
           that he is not competent to enter the jury box for the
           purpose of rendering an impartial verdict, notwithstanding
           his words to the contrary….

Commonwealth v. Robinson, 581 Pa. 154, 204, 864 A.2d 460, 490

(2004), cert. denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005)

(quoting Commonwealth v. Sushinskie, 242 Pa. 406, 413, 89 A. 564, 565

(1913)).     “[A] finding regarding a [venireperson’s] impartiality ‘is based

upon determinations of demeanor and credibility that are peculiarly within a


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trial judge’s province…. The trial judge is of course applying some kind of

legal standard to what he sees and hears, but his predominant function in

determining juror bias involves credibility findings whose basis cannot be

easily discerned from an appellate record.” Commonwealth v. Smith, 518

Pa. 15, 37, 540 A.2d 246, 256 (1988) (quoting Wainwright v. Witt, 469

U.S. 412, 424-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841, ___ (1985)). “A

juror’s   bias   need    not   be    proven    with   unmistakable       clarity.”

Commonwealth v. Carson, 590 Pa. 501, 573, 913 A.2d 220, 262 (2006),

cert. denied, 552 U.S. 954, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007).

      Additionally: “[T]he purpose of the voir dire examination is to provide

an opportunity to counsel to assess the qualifications of prospective jurors to

serve.” Ingber, supra at 6, 531 A.2d 1103 (quoting Commonwealth v.

Drew, 500 Pa. 585, 588, 459 A.2d 318, 320 (1983)).

          It is therefore appropriate to use such an examination to
          disclose fixed opinions or to expose other reasons for
          disqualification. Thus the inquiry must be directed at
          ascertaining whether the venireperson is competent and
          capable of rendering a fair, impartial and unbiased verdict.
          The law also recognizes that prospective jurors were not
          cultivated in hermetically sealed environments free of all
          beliefs, conceptions and views. The question relevant to a
          determination of qualification is whether any biases or
          prejudices can be put aside upon the proper instruction of
          the court.

Ingber, supra at 6-7, 531 A.2d 1103 (quoting Drew, supra at 588, 459

A.2d at 320) (internal citations omitted).

      Instantly, Juror #1 indicated on her jury questionnaire that she or


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J-A28010-14


someone close to her had been charged with a crime.            The trial court

questioned Juror #1 as follows.

        [THE COURT]:         Can you tell us who that is?

        [JUROR #1]:          I had a cousin last year.

        [THE COURT]:         Different cousin?

        [JUROR #1]:          Yes.    And he was, we were           in
                             courtroom 805 for a drug charge.

                                   *    *    *

        [THE COURT]:         So    you    attended       the    court
                             proceedings?

        [JUROR #1]:          Yes.

        [THE COURT]:         Was he convicted?

        [JUROR #1]:          Yes.

        [THE COURT]:         Do you feel that he was treated fairly
                             by the system?

        [JUROR #1]:          No.

        [THE COURT]:         Do you think the fact that you believe
                             he was not treated fairly, do you think
                             that would interfere with your ability
                             to be fair and impartial?

        [JUROR #1]:          No.

        [THE COURT]:         What do you think was not fair about
                             it?

        [JUROR #1]:          I don’t think all the evidence was
                             there and it was a lot of going back
                             and forth and continuances, and it
                             just shows that things were not
                             together.

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J-A28010-14



(See N.T. Voir Dire, 3/6/13, at 24-25.) Juror #1 also indicated (1) she had

a cousin who was murdered in 2005 or 2006; (2) she witnessed someone

steal her cousin’s Buick LeSabre in 1990; and (3) her father served as both

a police officer and a correctional officer. Juror #1 stated that none of these

facts would interfere with her ability to be fair and impartial in Appellant’s

case.

        Immediately   after   the   court’s   examination   of   Juror   #1,   the

Commonwealth moved to strike Juror #1 for cause for the following reasons:

          Your Honor, challenge for cause for a few reasons. [Juror
          #1] indicated in her cousin’s trial he was treated unfairly.
          While she does say[] that she can…still be fair with regards
          to that, we can’t take that on face value.

          And beyond that, Your Honor, she indicates that part of
          that problem is the case went back and forth and
          continuances and was around for a long time. This case
          has been around since 2009, but she will not know that.

          Further, Your Honor, the actual car, if I’m not mistaken, in
          this case is a Buick LeSabre. So I think that is an issue…in
          and of itself as far as commonality of the car.

Id. at 28.

        Juror #1’s perception that her cousin was treated unfairly by the

criminal justice system in a recent case gave the court reason to believe she

would be biased against the Commonwealth. Thus, the record supports the

court’s decision to grant the Commonwealth’s challenge for cause as to Juror

#1. See Stevens, supra. Although Juror #1 said her cousin’s experience

would not interfere with her ability to be fair and impartial in Appellant’s

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J-A28010-14


case, this statement was not dispositive.3 See Robinson, supra. The court

found a likelihood of prejudice based on its direct observation of Juror #1’s

answers and demeanor. We see no reason to disturb the court’s credibility

determination. See Stevens, supra; Smith, supra.

       In his second issue, Appellant argues that the court implicitly found

Appellant had established a prima facie case that the prosecutor had struck

Juror #34 on account of race because the court directed the Commonwealth

to respond to defense counsel’s stated grounds for the Batson claim.

Appellant asserts the court subsequently failed to evaluate the prosecutor’s

race-neutral explanation for striking Juror #34 and inconsistently stated

Appellant had failed to make out a prima facie case of racial discrimination.

Appellant contends the court misapplied the three-prong test when it
____________________________________________


3
  In its Pa.R.A.P. 1925(a) opinion, the trial court mistakenly stated that Juror
#1 said she could not be fair and impartial because of her belief that her
cousin received unfair treatment.         Nevertheless, Appellant makes no
argument that the court misunderstood Juror #1’s answer at the time of
initial questioning. Moreover, the voir dire transcript confirms that when the
court made its ruling on the challenge for cause, the court was in fact aware
that Juror #1 stated she could be fair and impartial. After Juror #1
indicated her cousin’s experience would not affect her jury service, the court
continued to question her regarding other answers in her questionnaire. At
the close of the examination, the court again asked, “Is there any reason
why you would not be fair and impartial in this case?” Juror #1 responded,
“No.” (N.T. Voir Dire, 3/6/13, at 27). The court was reminded of Juror #1’s
affirmation that she would be fair and impartial yet again when the
prosecutor stated, “While [Juror #1] does say[] that she can…still be fair
with regards to that, we can’t take that on face value.” Id. at 28. The court
then granted the challenge “based on [the prosecutor’s] argument.” Id. at
29. Thus, absent more, the court’s misstatement in its Rule 1925(a) opinion
does not cause us to change our analysis.



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J-A28010-14


evaluated Appellant’s Batson claim and failed to make the requisite findings

of fact and conclusions of law. Appellant further disputes the legitimacy of

the prosecutor’s stated justification for striking Juror #34, namely, the

prosecutor’s belief that another venireperson, described as a “South

Philadelphia   union     organizer,”    would     be   more     sympathetic       to    the

Commonwealth’s         cause.      Appellant      suggests     this     justification    is

discriminatory because it is based on a belief that a “white labor leader is

going to be more favorable to the Commonwealth than an African-

American.” (Appellant’s Brief at 34). Appellant claims the prosecutor had

already used peremptory challenges on three other black venirepersons.

According to Appellant, the reasons given for two of these strikes were

highly questionable, as there was no reason to doubt the ability of these

prospective jurors to be fair and impartial.           Appellant concludes the trial

court improperly rejected his Batson claim, and this Court must award a

new trial. We disagree.

      “An   appellate    court   will   reverse   a trial     court’s   finding    of   no

discrimination in the jury selection process only if that finding is clearly

erroneous.”    Commonwealth v. Burns, 765 A.2d 1144, 1147 (Pa.Super.

2000), appeal denied, 566 Pa. 657, 782 A.2d 542 (2001). “The trial judge

has before him…the entire venire and is well situated to detect whether a

challenge to the seating of one juror is part of a pattern of singling out

members of a single race for peremptory challenges.” Commonwealth v.


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J-A28010-14


Miller, 721 A.2d 1121, 1124 (Pa.Super. 1998). “Thus, deference to the trial

court’s finding on the issue of discriminatory intent makes particular sense

because the finding largely will turn on an evaluation of credibility.” Id.

      The United States Supreme Court in Batson established a three-part

test for evaluating a claim of racial discrimination in the jury selection

process. See Batson, supra. The rationale of Batson, as applied to jury

selection/elimination, requires the following under Pennsylvania law:

         To establish…a prima facie case, a defendant must show
         that he is of a cognizable racial group, and that the
         prosecutor has exercised peremptory challenges to remove
         from the venire members of the defendant’s race. Second,
         the defendant is entitled to rely on the fact…that
         peremptory challenges constitute a jury selection practice
         that permits those to discriminate who are of a mind to
         discriminate. Finally, the defendant must show that these
         facts and any other relevant circumstances raise an
         inference that the prosecutor used that practice to exclude
         venire[persons] for the petit jury on account of their race.
         This combination of factors in the empanelling of the petit
         jury, as in the selection of the venire, raises the necessary
         inference of purposeful discrimination.

Commonwealth v. Hill, 727 A.2d 578, 581-82 (Pa.Super. 1999), appeal

denied, 561 Pa. 653, 747 A.2d 898 (1999) (citation and internal quotation

marks omitted) (emphasis in original).

         Pennsylvania law further requires the defendant, in
         his…prima facie case, to make a record specifically
         identifying:

         1. the race or gender of all venirepersons in the jury
            pools;

         2. the race or gender of all venirepersons remaining after
            challenges for cause;

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J-A28010-14



         3. the race or gender of those removed by the prosecutor;
            and,

         4. the race or gender of the jurors who served and the
            race or gender of jurors acceptable to the
            Commonwealth who were stricken down by the
            defense.

Id. at 582. After this 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.   The striking of a

number of individuals belonging to some cognizable group, alone, is not

dispositive of a Batson violation. Id.

      If the trial court determines the defendant has carried his burden, the

court then asks the prosecutor to articulate a race-neutral basis for striking

the jurors at issue.     Id.     The prosecutor’s explanations need not be

persuasive or even plausible, as long as the explanation is valid on its face.

Miller, supra. “Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race-neutral.” Id. at 1123

(quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859,

1866, 114 L.Ed.2d 395, 406 (1991)).               If the prosecutor presents a race-

neutral explanation, the trial court must decide whether the defendant has

proved purposeful racial discrimination. Miller, supra.

      Instantly,   defense     counsel    raised     a   Batson    claim   when   the

Commonwealth used its final peremptory challenge on Juror #34. Defense

counsel asserted the Commonwealth had used three consecutive peremptory

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J-A28010-14


     “The decision whether to disqualify a juror is within the sound

discretion of the trial court and will not be reversed in the absence of a

palpable abuse of discretion.” Commonwealth v. Stevens, 559 Pa. 171,

197, 739 A.2d 507, 521 (1999).         “A challenge for cause to service by a

prospective juror should be sustained and that juror excused where that

juror demonstrates through his conduct and answers a likelihood of

prejudice.” Commonwealth v. Ingber, 516 Pa. 2, 7, 531 A.2d 1101, 1103

(1987). “The trial court makes that determination based on the prospective

juror’s answers to questions and demeanor.” Stevens, supra at 197, 739

A.2d at 521.

           The challenge of a juror for cause is addressed to the trial
           judge, and much weight must be given to his judgment in
           passing upon it. In exercising his discretion as to the
           fitness of a juror to serve, he has the juror before him, and
           much latitude must be left to him; and the weight to be
           given to the answers of a juror when examined on his voir
           dire is not to be determined exclusively by his words as we
           read them in the printed record. They are first to be
           weighed by the trial judge who sees and hears the juror,
           and, in the exercise of a wide discretion, may conclude
           that he is not competent to enter the jury box for the
           purpose of rendering an impartial verdict, notwithstanding
           his words to the contrary….

Commonwealth v. Robinson, 581 Pa. 154, 204, 864 A.2d 460, 490

(2004), cert. denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005)

(quoting Commonwealth v. Sushinskie, 242 Pa. 406, 413, 89 A. 564, 565

(1913)).     “[A] finding regarding a [venireperson’s] impartiality ‘is based

upon determinations of demeanor and credibility that are peculiarly within a


                                       -3-
J-A28010-14


trial judge’s province…. The trial judge is of course applying some kind of

legal standard to what he sees and hears, but his predominant function in

determining juror bias involves credibility findings whose basis cannot be

easily discerned from an appellate record.” Commonwealth v. Smith, 518

Pa. 15, 37, 540 A.2d 246, 256 (1988) (quoting Wainwright v. Witt, 469

U.S. 412, 424-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841, ___ (1985)). “A

juror’s   bias   need    not   be    proven    with   unmistakable       clarity.”

Commonwealth v. Carson, 590 Pa. 501, 573, 913 A.2d 220, 262 (2006),

cert. denied, 552 U.S. 954, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007).

      Additionally: “[T]he purpose of the voir dire examination is to provide

an opportunity to counsel to assess the qualifications of prospective jurors to

serve.” Ingber, supra at 6, 531 A.2d 1103 (quoting Commonwealth v.

Drew, 500 Pa. 585, 588, 459 A.2d 318, 320 (1983)).

          It is therefore appropriate to use such an examination to
          disclose fixed opinions or to expose other reasons for
          disqualification. Thus the inquiry must be directed at
          ascertaining whether the venireperson is competent and
          capable of rendering a fair, impartial and unbiased verdict.
          The law also recognizes that prospective jurors were not
          cultivated in hermetically sealed environments free of all
          beliefs, conceptions and views. The question relevant to a
          determination of qualification is whether any biases or
          prejudices can be put aside upon the proper instruction of
          the court.

Ingber, supra at 6-7, 531 A.2d 1103 (quoting Drew, supra at 588, 459

A.2d at 320) (internal citations omitted).

      Instantly, Juror #1 indicated on her jury questionnaire that she or


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