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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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Com. v. McKnight, E.
Combined Opinion