Com. v. Edwards, D.

J-S17003-17

2018 PA Super 1

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 02, 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,

under the totality of circumstances, Appellant demonstrated a Batson
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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,

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the 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

Commonwealth exercised its strikes in a non-prejudicial manner and

overruled Appellant’s objection.

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

aggravated assault.10

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).

8 18 Pa.C.S.A. § 901, 2502.

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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

(Footnote Continued) _______________________
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
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).

(Footnote Continued Next Page)

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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 fact-finder to find every element of the crime beyond a

reasonable doubt.” Commonwealth v. Grays, 167 A.3d 793, 806 (Pa.
(Footnote Continued) _______________________
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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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 the robberies from the SUV occupied by

Appellant constituted sufficient evidence for the jury to conclude that

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

omitted). Accordingly, Appellant’s second issue is moot.

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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. 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 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

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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).14 The

Commonwealth fails to acknowledge, however, that this information was

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

14 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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his Batson challenge. Therefore, Appellant’s failure to repeat orally the

information during his Batson challenge did not waive his Batson claim.15

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

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.”);

15 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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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.

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:

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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.16 Appellant is African-

American 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

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

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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

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-

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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).17

17 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
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)
(Footnote Continued Next Page)

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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).

Although we must exercise great deference in reviewing the trial

court’s factual finding with respect to discriminatory intent, we do not

(Footnote Continued) _______________________
(“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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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.18

18In 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.

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
(Footnote Continued Next Page)

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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.19 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-

(Footnote Continued) _______________________
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.

19The 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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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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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 strikes20). 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

20 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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almost 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

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juror highly implausible 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).21

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

21 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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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.”);22 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-

22
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.

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neutral 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).23

Judge Beck only reached the third Batson step with respect to jurors who

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

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were challenged because of their alleged familiarity with the location of the

crime. See id. at 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

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

violated 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.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/2/2018

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