J.A22034/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
                                            :
ERNEST LEONDA MCKNIGHT,                     :
                                            :
                           Appellant        :     No. 400 MDA 2014


           Appeal from the Judgment of Sentence November 1, 2013
             In the Court of Common Pleas of Huntingdon County
              Criminal Division No(s).: CP-31-CR-0000176-2013

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 25, 2014

        Appellant, Ernest Leonda McKnight, appeals from the judgment of

sentence1 entered in the Huntingdon County Court of Common Pleas after a

jury found him guilty of aggravated harassment by prisoner.2         Appellant




*
    Former Justice specially assigned to the Superior Court.
1
  We have amended the caption to reflect that this appeal      lies from the
sentencing order announced on October 31, 2013, but filed      November 1,
2013, and not the January 24, 2014 order denying Appellant’s   post sentence
motion. See Commonwealth v. Lawrence, 99 A.3d 116,             117 n.1. (Pa.
Super. 2014); see also Pa.R.A.P. 108(d).
2
    18 Pa.C.S. § 2703.1.
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claims that the trial court erred in overruling his Batson3 objection to the

Commonwealth’s peremptory strike of Juror 27, the only African-American

on the list of prospective jurors.      We agree, vacate the judgment of

sentence, and remand for further proceedings.

       On February 26, 2013, Appellant, who is African-American, was

charged with aggravated harassment by a prisoner for spitting in the face of

a corrections officer while being escorted to a prison law library.          On

September 3, 2013, the parties agreed to select a jury from a list of thirty

prospective jurors without the presence of the trial judge.          Immediately

before the court excused itself, then District Attorney George N. Zanic4

informed the court that it intended to strike Juror 27. N.T., Jury Selection,

9/3/13, at 10.      Anticipating a Batson challenge, the District Attorney

explained his decision to strike Juror 27 to the court as follows:

          I’m going to use a peremptory challenge on one African
          American member of the panel and the reason I’m doing
          that is because of his relationships. He is related to and he
          is on the list, he is a cousin of former Pennsylvania State
          Police Corporal McNeal.       You may remember Corporal
          McNeal’s wife was involved in a week-long trial here. I did
          not try that case. I was involved in this case, however. I
          don’t know what his relationship with her is. That couple’s
          now divorced. The Corporal and the Defendant’s [sic],
          [Juror 27]’s first cousins with Corporal McNeal. I would


3
    Batson v. Kentucky, 476 U.S. 79 (1986).
4
  District Attorney Zanic prosecuted Appellant’s case at trial. Subsequently,
he was elected as a Court of Common Pleas Judge and currently serves as
President Judge.



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            strike anyone. Has nothing to do with the fact he’s African
            American.

Id. at 8.

      Appellant objected and requested that Juror 27 be examined. Id. The

trial court denied the request for examination, asserting that an additional

inquiry would not change the District Attorney’s decision to strike Juror 27,

and overruled Appellant’s objection. Id. at 8-9. After the parties selected

the jury, the trial judge commented that if he “was in the Commonwealth’s

case, [he] would never, ever have struck [Juror 27].” Id. at 10. Addressing

the District Attorney, the judge stated, “I’ll make you a bet this comes back

to bite you in the ass and the Superior Court will never buy it.” Id.

      That same day, the jury found Appellant guilty of aggravated

harassment by a prisoner. The trial court, on October 31, 2013, sentenced

him to eighteen to thirty-six months’ imprisonment consecutive to any

sentence he was currently serving.        Appellant filed timely post-sentence

motions on November 8th, which the trial court denied on January 24, 2014.

Appellant timely appealed and submitted a court-ordered Pa.R.A.P. 1925(b)

statement, asserting that the Commonwealth failed to articulate a race-

neutral or “clear and reasonably specific explanation” for striking Juror 27.

Appellant’s Statement of Matters Complained of on Appeal, 3/7/14, at 1.

      The trial court, in response, relied on its opinion denying Appellant’s

post-sentence motions. Therein, the trial court noted that “[t]he gist of the

District Attorney’s challenge was that the juror was a first cousin of a


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member of the Pennsylvania State Police whose wife had been prosecuted.”

Trial Ct. Op., 1/24/14, at 5. It further observed the Office of the Attorney

General “handled the case” against the former trooper’s wife, but “District

Attorney Zanic’s office had been involved in the investigation leading to the

charges being filed.”    Id.    The court determined the District Attorney’s

“concern therefore was that [Juror 27] might harbor animosity towards him

over the prosecution of his cousin’s wife.” Id. at 5-6.

      The trial court stated, “[T]he question . . . was whether or not the

proffered reason was race neutral.”        Id. at 7.   The court opined, “[T]he

District Attorney gave a race neutral reason for challenging Juror 27.      We

concluded then and are equally certain today that he had no discriminatory

intent in striking the juror.” Id. at 8.

      Appellant’s sole claim on appeal is that the trial court erred in

overruling his Batson objection to the Commonwealth’s striking of Juror 27.

Appellant’s Brief at 20. Appellant argues the trial court improperly accepted

the Commonwealth’s explanation as race-neutral and not purposefully

discriminatory.   Id. at 29.     In support, Appellant refers to the court’s

comments on the Commonwealth’s decision to strike Juror 27. Id. at 31-32.

      The Commonwealth concedes there is a prima facie showing that it

struck Juror 27 based on race.       Commonwealth’s Brief at 2.      It asserts,

however, that it proffered a race-neutral explanation for exercising its strike,

i.e., that Juror 27 was a first cousin of a former State Trooper whose ex-wife



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had been on trial the week before the instant trial.5          Id. at 3.    The

Commonwealth asserts its explanation was clear and reasonably specific in

that “the prospective juror’s relationships . . . gave rise to the logical

inference that the juror might bear some animosity toward the prosecution.”

Id. at 8.     The Commonwealth acknowledges the trial court expressed

reservations over its use of the peremptory strike, but describes the court’s

comments as “mere speculation on th[e Superior Court’s] post hoc

assessment of the prosecutor’s credibility.” Id. at 8-9.

      When reviewing the trial court’s determination of whether the

Commonwealth acted with discriminatory intent when striking a juror, an

appellate court “may overturn the trial court’s decision only if it is clearly

erroneous.”    Commonwealth v. Sanchez, 36 A.3d 24, 45 (Pa. 2011)

(citation omitted).   As the Pennsylvania Supreme Court noted, “‘There will

seldom be much evidence bearing’ on the ‘decisive question’ of ‘whether

counsel’s race-neutral explanation for a peremptory challenge should be

believed.’ ‘[T]he best evidence often will be the demeanor of the attorney

who exercises the challenge.’”    Commonwealth v. Cook, 952 A.2d 594,

603 (Pa. 2008) (citations omitted). Therefore, we accord “great deference”

to the trial court’s findings of fact “because a reviewing court . . . is not as




5
  It is unclear from the record whether the present trial judge presided over
the trial of the former trooper’s wife.



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well positioned as the trial court to make credibility determinations.”         Id.

(citation omitted).

      The principles underlying a Batson objection challenge are well

settled.

              The Batson Court recognized that peremptory
           challenges “permit [ ] those to discriminate who are of a
           mind to discriminate” based on race in jury selection.
           “[T]he harm Batson seeks to avoid is not only a trial
           where members of the defendant’s own race have been
           excluded from the jury on account of their race, but also
           the harm to the prospective jurors and the community at
           large that results when citizens are denied participation in
           jury service based upon their race.”        The successful
           Batson objector is the third party beneficiary of the venire
           person’s equal protection right not to be excluded from a
           jury on account of his/her race.

               To prove a defense-side Batson claim, the defendant
           has to initially establish “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.”
           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.” The trial court ultimately
           makes a determination of whether the defense has carried
           its burden of proving purposeful discrimination.

Sanchez, 36 A.3d at 44.

      With respect to the first prong of a Batson claim, if the Commonwealth

concedes the existence of a prima facie case, a reviewing court may proceed

to consider the remaining two Batson prongs. See id. at 44-45. Under the

second Batson prong, the burden shifts to the Commonwealth.               Id.   The

Commonwealth must proffer a “clear and reasonably specific explanation of

its actions which must consist of legitimate reasons of exercising the


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challenges.”    Commonwealth v. Correa, 620 A.2d 497, 501 (Pa. Super.

1993) (citations and quotation marks omitted).                 At this stage, the

Commonwealth need only “forward a facially valid race-neutral explanation

and . . . there is no demand [for] an explanation that is persuasive, or even

plausible[.]”   Sanchez, 36 A.3d at 45 (citation and quotation marks

omitted). An explanation is race neutral on its face unless a discriminatory

intent is inherent in the explanation. Id.

       If the Commonwealth satisfies the second Batson prong, the third

prong requires the trial court to            determine whether the defendant

established purposeful discrimination by the Commonwealth. See id. at 44.

“It is at this stage that the persuasiveness of the facially-neutral explanation

proffered by the Commonwealth is relevant.”            Cook, 952 A.2d at 602-03

(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. Garrett, 689 A.2d 912, 917 (Pa. Super. 1997).

However,

         [t]here are any number of bases on which a party may
         believe, not unreasonably, that a prospective juror may
         have some slight bias that would not support a challenge
         for cause but that would make excusing him or her
         desirable. Such reasons, if they appear to be genuine,
         should be accepted by the court, which will bear the
         responsibility of assessing the genuineness of the
         prosecutor’s response and of being alert to reasons that
         are pretextual.    If the court determines that the
         prosecution’s presentation is inadequate to rebut the


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          defendant’s proof, the court should declare a mistrial and a
          new jury should be selected from a new panel.

Commonwealth v. Lloyd, 545 A.2d 890, 895 (Pa. Super. 1988) (citations

and emphasis omitted). An explanation for striking a prospective juror need

not rise to a level justifying a for-cause challenge.     Commonwealth v.

Rico, 711 A.2d 990, 992 (Pa. 1998).

      Instantly, because the Commonwealth concedes there was a prima

facie case that its strike of Juror 27 was based on race, our review focuses

on the trial court’s assessment of the second and third prong of Batson.

See Sanchez, 36 A.3d at 44-45.         Specifically, we must review the trial

court’s consideration of the Commonwealth’s race-neutral explanation and

the persuasiveness of that explanation.6

      As to the second Batson prong, we discern no basis to disturb the trial

court’s   conclusion   that   the   Commonwealth    asserted    a   race-neutral

explanation for striking Juror 27. We emphasize that at this stage, the court

had no obligation to evaluate the persuasiveness of the explanation, but

considered only whether the explanation was race-neutral on its face. The

Commonwealth asserted, and the trial court found, that Juror 27 had familial

relationships, which could prejudice the Commonwealth.         This explanation

was sufficient to meet the second prong.

6
  Appellant did not adduce evidence from the remaining jury selection
process, which was not transcribed. Therefore, there is no record of the
Commonwealth’s decisions regarding its selection or striking of other
potential jurors.



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      As the third Batson prong, the trial court described the “gist” of the

Commonwealth’s race-neutral explanation and found the Commonwealth to

be credible when offering the explanation.      Trial Ct. Op. at 5-6, 8.     The

court, however, did not consider whether the Commonwealth’s asserted

belief that Juror 27 could be prejudiced against the Commonwealth was

reasonable or legitimate. This inquiry was particularly important under the

circumstances of this case, because the Commonwealth explained its belief

that a distant family relationship could give rise to a possibility of prejudice,

but professed that it had no knowledge of any relationship between Juror 27

and the former wife of his cousin. We further note that there is no basis in

the record to conclude that Juror 27 could have been aware of the District

Attorney’s role in the investigation of the prospective juror’s cousin’s wife.

Lastly, the court’s own expressions of concern regarding the use of the strike

appear to belie its credibility finding as to the genuineness of the

Commonwealth’s concern.

      In light of the unique circumstances of this case, we are compelled to

conclude that the trial court did not properly rule on Appellant’s Batson

objection. Although the court accepted the Commonwealth’s explanation as

race-neutral, there is an inadequate basis in the record to conclude that it

considered reasonableness or persuasiveness of the explanation as required

by the third Batson prong.         Accordingly, we vacate the judgment of

sentence and remand this case for further proceedings. On remand, the trial



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court, if necessary, may permit the parties to supplement the record and

consider the Commonwealth’s explanation for striking Juror 27. If the court

finds the Commonwealth’s explanation persuasive and free of pretext, it

shall reimpose its sentence.        If the court finds the Commonwealth’s

explanation unpersuasive or pretextual, it shall order a new trial. The trial

court shall place on the record its findings of fact and credibility.

      Judgment of sentence vacated.            Case remanded.           Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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