dissenting.
I respectfully disagree with the finding of the majority. The entire portion of the transcript relating to the selection of jurors is as follows:
MS. RAND: Your Honor, may we approach the bench for one minute?
THE COURT: Yes.
NOTE: The following bench conference is held out of the hearing of the jury:
BENCH CONFERENCE:
MS. RAND: I want to challenge the first strike that the Commonwealth took and ask for the Commonwealth to clarify the reason for striking Ms. Bowen.
*16MR. VON SCHUCH: There were a number of reasons, Judge. The first reason was the relative youth of the juror. Compared to the rest, she’s only 28, and most of the rest of them are in their thirties and forties. The second thing was that she had no children according to the sheet.2 Most of the other jurors do have children.3 I was conscious of that, because this is a case where the parents of children, particularly older children, might be more susceptible to the Commonwealth’s point of view in terms of this being a drug distribution case.
Under those circumstances, I felt that she was appropriate to strike.
I would point out to the Court that there were a total of three blacks on the jury. The Commonwealth struck only two, leaving on the jury Ms. Blizzard.
MS. RAND: I didn’t realize there was a third one.
What was the explanation on the other one?
THE COURT: The second strike?
MR. VON SCHUCH: Mr. Wright?
THE COURT: Yes.
MR. VON SCHUCH: Yes, sir, because he came into the court with the other jurors and appeared not to be dressed for the occasion. He came in wearing a Virginia State Varsity jacket; he has a Petersburg address. Living in that part of the county, Petersburg has a significant drug problem. Based on his appearance and the address location, I thought that he would be tolerant of this type of offense.
THE COURT: Ms. Rand?
MS. RAND: My concern was that the jurors are not representative of the population. There were three blacks on the panel. We now only have one, and I would think more signif*17icant reasons than what was given should be shown.
THE COURT: Well, the reasons are reasons for trial tactics, and the Commonwealth represents that race was not a consideration in any of the reasons that he stated and that come across to me.
They are legitimate reasons of trial tactics. There is basis for those, and counsel’s decision to strike someone for reasons that may affect their view of the testimony, and because of that I think that I find that the Commonwealth’s strikes were reasonably made and I note your exception to the Court’s ruling.
I would find the reasons given by the prosecutor neutral.
In the instant case, the Commonwealth attorney articulated clear and specific non-racial reasons for striking each juror. With respect to each of the jurors struck, the Commonwealth attorney stated that he was concerned because they lived near the defendant or near the scene of the crime, or in areas of “high crime” generally. The Commonwealth attorney also considered the age, dress, and demeanor of the prospective jurors in exercising his peremptory challenges. These specific, neutral reasons are sufficient to rebut a prima facie case of purposeful discrimination.
Taitano v. Commonwealth, 4 Va. App. 342, 347, 358 S.E.2d 590, 592-93 (1987)(citations omitted).
I do not necessarily disagree with the majority’s finding that Rule 5A:18 bars appellant’s hearsay argument; however, because the majority remands the case for a new trial I would advise the trial court that because the statement was not offered for its truth, but only to show how the officers were alerted to act it was not error to permit this as evidence at trial.
For the reasons stated, I would affirm the judgment of the trial court.
The original transcript reported that Ms. Bowen “had children” and that most of the other jurors “do not have children.” This was erroneously reported and at a hearing held on October 18, 1990, the record was corrected to read as shown here.
See footnote 1.