concurring:
I agree with the majority’s conclusion that appellant has failed to establish racial discrimination in the selection of the jury that tried and convicted him. I write separately, however, because I believe that the trial court, in determining that a prima facie case of such discrimination had been made out, applied an incorrect legal standard.
Resolution of this issue turns upon the interpretation and application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court’s most recent discussion of equal protection guarantees in the context of petit jury selection. Batson revisited an area previously addressed by the court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) —the use of peremptory challenges to remove minority venirepersons from the petit jury. Noting that Swain had been applied in a manner which placed an almost insurmountable burden of proof upon a criminal defendant seeking to establish racial discrimination in the petit jury selection process, Batson made it clear that an equal protection violation may be found where a defendant shows, based on the facts surrounding the empanelment of the jury in his or her individual case, that potential jurors have been stricken on account of their race. Thus the evidentiary standard of Swain, which had required a showing of systematic use of peremptory challenges to remove minority jurors in case after case, was overruled. In its place, the court laid out an evidentiary test whereby
a defendant can establish a prima facie case [of racial discrimination] by showing that he is a “member of a cognizable racial group,” that the prosecutor exercised “peremptory challenges to remove from the venire members of the defendant’s race,” and that those “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.” [Batson,] 476 U.S., at 96 [106 S.Ct. at 1723]. Once the defendant makes out a prima facie case of discrimination, *63the burden shifts to the prosecutor “to come forward with a neutral explanation for challenging black jurors.” Id., at 97, 106 S.Ct. at 1723.
Teague v. Lane, — U.S. —-—, 109 S.Ct. 1060, 1066, 103 L.Ed.2d 334 (1989).1
In redefining the evidentiary burden to be placed upon a defendant seeking to establish unconstitutional discrimination, however, the Batson court made it clear that it was not reshaping the guarantees of the equal protection clause, which had long been read to forbid racial discrimination in the selection of juries. Rather, it recognized that Batson and Swain sprang from the same deeply rooted constitutional principles and employed the same analytical framework in considering the quantum of proof required to raise a prima facie case of discriminatory use of peremptory challenges. Thus, the statement in Swain that “purposeful discrimination may not be assumed or merely asserted— [but] must be proven, the quantum of proof being a matter of federal law,” 380 U.S. at 205, 85 S.Ct. at 827, was echoed in Batson, where the court recognized that, to constitute a remediable offense against equal protection principles, the
governmental action claimed to be racially discriminatory “must ultimately be traced to a racially discriminatory purpose.” As in any equal protection case, the “burden is, of course,” on the defendant who alleges discriminatory selection of the venire “to prove the existence of purposeful discrimination.”
476 U.S. at 93, 106 S.Ct. at 1721 (citations omitted).
Also inherent in Batson’s redefinition of the burden of proof to be placed upon the defendant was its continued recognition of the importance of the government’s interest in the legitimate use of its peremptory challenges. Although it noted that the right of the prosecution to exercise peremptory challenges was not based in the Constitution and must therefore yield to the rights guaranteed by the
*64Equal Protection Clause, the court referred with approval to Swain’s review of “the ‘very old credentials’ of the peremptory challenge system and noted the ‘long and widely held belief that peremptory challenge is a necessary part of trial by jury.’ [Swain], 380 U.S., at 219 [85 S.Ct. at 835].” 476 U.S. at 92 n. 15, 106 S.Ct. at 1720 n. 15. Thus Batson did not disturb Swain’s holding that the government has a right to exercise its challenges in any manner it chooses so long as their use does not serve racially discriminatory ends. Nor did it question the statement that
[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry, and without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. It is often exercised upon the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,” upon a juror’s “habits and associations,” or upon the feeling that “the bare question of [a juror’s] indifference may sometimes provoke a resentment.”
Swain, 380 U.S. at 220, 85 S.Ct. at 836.
However, where Swain had concluded that the governmental interest in its peremptories could be vindicated only by leaving their use entirely untrammelled unless a system-wide abuse could be shown, Batson recognized that such a test left too much room for intentional, but selective, racial discrimination. It therefore sought, not to go to the opposite extreme by abolishing or unduly burdening the use of the peremptory challenge, but rather to reach a new accommodation between “the prosecutor’s historical privilege of peremptory challenge free of judicial control and the constitutional prohibition on exclusion of persons from jury service on account of race.” 476 U.S. at 92, 106 S.Ct. at 1720.
In rebalancing these competing interests, the Batson court had the benefit of two decades of refinement of the *65law governing proof of equal protection claims. In that period, the court had recognized that direct proof of discriminatory animus is rarely available and thus that, if the guarantees of the equal protection clause are to be more than hollow promises, a defendant must be permitted to meet his or her burden of proof by use of circumstantial evidence. The test which had evolved, and upon which Batson’s formulation of the prima facie case of discriminatory use of peremptories was based, was whether the defendant had shown that the totality of the relevant facts gave rise to an inference of discriminatory purpose. Batson, 476 U.S. at 94, 106 S.Ct. at 1721, citing Washington v. Davis, 426 U.S. 229, 239-42, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976). This test was intended to be flexible, a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977) that “ ‘takes into account all possible explanatory factors' in the particular case,” Batson, 476 U.S. at 95, 106 S.Ct. at 1722, citing Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972).
Thus, although the disproportionate impact of a challenged practice upon a racial minority or its potential to be abused by those of a mind to discriminate are proper considerations in determining whether the defendant has made out a prima facie case, those facts alone have never been viewed as sufficient to establish a constitutional violation. Washington v. Davis, 426 U.S. at 238-42, 96 S.Ct. at 2046-49. It is only if those factors in combination with all other facts that might tend to support or refute the existence of discriminatory animus give rise to an inference of intentional racial discrimination that the burden shifts to the government to prove that the appearance of discrimination can be explained by the application of permissible neutral criteria and procedures. Batson, 476 U.S. at 96-97, 106 S.Ct. at 1722-23.
*66Reading Batson in light of these evidentiary principles, it becomes clear that the third element of its three-part prima facie case should be the focus of the trial court’s inquiry in cases where discriminatory use of peremptory challenges has been alleged. The first element of the test merely specifies the indispensable prerequisites of an equal protection claim: membership in a protected group and state action which affects that group. The second step in the analysis recognizes that the peremptory challenge lends itself to abuse by those who wish to discriminate. However, neither that fact nor the mere fact that strikes were disproportionately exercised against minority venirepersons establishes a prima facie case of discrimination. Washington v. Davis, supra. Rather, such factors must be weighed in combination with all other circumstances tending to support or refute the claim of racial animus. Only if the totality of these circumstances gives rise to an inference that the government exercised its peremptory challenges with an intent to discriminate may a prima facie case be found and the government’s right to its peremptory challenges be qualified by requiring the prosecutor to come forward with a neutral explanation for his or her actions. To treat this standard of proof too lightly or to apply a lesser standard is to vitiate the Batson court’s stated intention to protect the legitimate governmental interests served by the peremptory challenge.
Although the majority has properly recited the evidentiary standard of Batson as adopted and applied in Pennsylvania, see Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989); Commonwealth v. Hardcastle, 519 Pa. 286, 546 A.2d 1101 (1988), I believe that its approval of the trial court’s bald conclusion that a prima facie case of racial discrimination had been made out is a serious error in the application of that standard. The trial court here did not engage in the type of sensitive inquiry or careful balancing of competing interests contemplated by Batson’s totality of the relevant circumstances test. Rather, it appears that its conclusion was a mechanical response to the fact that the prosecutor exercised all of his peremptories to strike black *67venirepersons. Such a pattern of strikes might, in an appropriate case where none of the attendant circumstances suggested a different motivation, support a reasoned conclusion that an inference of discrimination was raised. See Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Here, however, I am not convinced that the trial court properly understood the nature of the inquiry required of it under Batson or that a consideration of all relevant facts, and not merely the pattern of strikes, would have led it to the conclusion that a prima facie case was made out.
An examination of the record in this case indicates that the trial judge’s first express finding that a prima facie case had been made out is contained in his opinion prepared for appeal pursuant to Pa.R.A.P. 1925. Although the defense claim of an equal protection violation was first raised at the conclusion of voir dire, the trial court denied it at that time, and declined to require the prosecution to state reasons for its challenges, stating
in view of the fact that the defendant is of the black race, the alleged victim of the crime is a black man, the arresting officer is a black man, and the only white witness in this case ... would be a white detective, under those circumstances, I will accept the District Attorney’s assurance that his striking of the seven persons so far was not based on race.
N.T. 1/9/87 at 2.87. The claim was renewed by the defense in post-verdict motions, and at the hearing on those motions the Commonwealth was permitted to put on testimony as to the neutral reasons for exercising the strikes. However, that testimony was heard by the trial court without any finding that a prima facie case had been made out by the defense and despite the court’s repeated indications of its belief that because both the victim and the defendant were black, no racial problem existed.
The record of the two instances in which the Batson issue was raised and argued in the trial court is thus somewhat at odds with the trial judge’s statement, in the opinion he prepared for this appeal, that he had “reached the conclu*68sion, after a study of this record, that the defendant, who is a member of the black race, has established that the action of the prosecution in peremptorily challenging seven potential jurors, all of whom were black, has made out a prima facie case of purposeful discrimination in the selection of the jury panel.” Opinion of the Trial Court at 3. The explanation for this disparity is suggested by the trial judge’s reliance in reaching this conclusion upon a quotation from this court’s decision in Commonwealth v. Williams, 364 Pa.Super. 630, 528 A.2d 980, 982 (1987), where a panel stated that
to make out a prima facie case of intentional discrimination in jury selection, the defendant must establish that he is a member of a cognizable racial group and that the prosecution used peremptory challenges to remove from the venire members of the defendant’s race. The defendant can then rely on the presumption that peremptory challenges to veniremen permit discrimination by those inclined to do so, and thereby establish that the facts and relevant circumstances raise the inference in his case that the prosecutor used the peremptory challenges to discriminate intentionally.
(emphasis added). In light of the trial judge’s previous,apparently strong, feeling that race had not been a factor in the jury selection here, his abrupt reassessment of the adequacy of the defendant’s evidence suggests that he interpreted this language to mean that once defendant had shown his membership in a minority group and a pattern of strikes against other members of his race, a finding of a prima facie case was required. Such a reading presents a clear conflict with Batson, Washington v. Davis, and the long line of equal protection cases using a totality of the circumstances test, however, and thus could not have been intended by the Superior Court panel. Properly read, Williams merely restates and simplifies the somewhat complicated terms in which the Batson court couched its eviden*69tiary test.2
Based on this misapprehension, the trial court made its finding of a prima facie case without giving any consideration to the circumstances tending to refute a discriminatory motive for the prosecutor’s actions in this case. Rather, the trial judge considered such factors as the absence of racially charged issues suggesting a motive for discrimination and the empanelment of two black jurors before the Commonwealth had exhausted its peremptories only in assessing the credibility of the prosecutor’s proffered neutral reasons for the challenges.3 This course of action, while undertaken in an attempt to follow the letter of Batson, contravened its intent by tipping the scales too far in favor of the defense. To consider the totality of the circumstances only after the value of the government’s peremptories has been mitigated by the need to describe to a judge and opposing counsel the sometimes almost whimsical concerns that may permissibly motivate the peremptory challenge renders nugatory the legitimate governmental interest that Batson took care to protect.4
*70Had the trial court properly interpreted Williams and Batson and considered all of the circumstances surrounding this trial in finding a prima facie case here, I might agree with the majority that, applying an abuse of discretion standard of review, that conclusion could be approved. However, because the trial court misconstrued the applicable evidentiary test and because this record discloses facts, noted above, that might have tended to refute the existence of racial animus in this case had the proper test been applied, I cannot agree that defendant has made out a prima facie case of racial discrimination in the selection of the jury panel.
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.
BROSKY, J., joins.. Batson’s three-part statement of this evidentiary standard has been quoted in the majority opinion and I will not repeat it here, as I believe that Teague’s gloss on the Batson language is more readily understood and applied.
. I do not intend to suggest that a trial judge should be afraid to change his or her mind after an initial ruling that no racial discrimination has occurred where the facts of the case support such a reversal. In considering whether such a reversal is appropriate, however, the freshness of the judge’s impressions at the time of jury selection and the initial denial of the Batson claim should be given considerable weight.
. In addition, the trial court failed to give consideration at any time to the fact that, although the Commonwealth had a peremptory challenge available to it in the selection of the two alternate jurors, that challenge went unused in the seating of the two alternates, one of whom was black.
. The determination of whether a prima facie case exists is one of real importance because, once the prosecutor has been required to explain his or her actions, the "essential nature of the peremptory challenge!, which] is that it is ... exercised without a reason stated [and] without inquiry,” Swain, 380 U.S. at 220, 85 S.Ct. at 836, has been compromised. For this reason, I strenuously disagree with the majority’s suggestion that “it is prudent for a court to err on the side of finding a prima facie case and requiring a neutral explanation.” The Supreme Court’s attempt in Batson to ease to a realistically sustainable level the burden of proof placed upon defendants alleging discriminatory jury selection should not be twisted so as to allow a pro forma finding of prima facie racial discrimination. If the prosecution’s right to exer*70cise peremptory challenges is not to be abolished entirely, neither should it be made meaningless by allowing defendants to strip the government of the primary value of those challenges based on unsupported allegations of racial discrimination.