dissenting:
Equal justice for all is not simply an expression of boast, it must be, as well, a declaration of goal. And so it is that this Court is here called upon to interpret and execute the mandate issued by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant claims that the trial prosecutor exhibited an indigenous bigotry by excluding members of the black race from the panel of jurors which was to try him. The trial court concluded that, under Batson, appellant had established a prima facie case of discrimination. However, the trial court erred, contends appellant, when it further concluded that the prosecution had adequately assumed the burden “to come forward with a neutral explanation for challenging black jurors.” 476 U.S. at 97, 106 S.Ct. at 1723.
I join in the determination of the majority that the trial court properly concluded that the pattern of challenges employed by the Commonwealth raised an inference of *72discrimination so as to shift the burden of explanation to the prosecution. However, while I take pride in the obvious careful analysis of my colleagues and admire their insightful expression of view, I am compelled to dissent because:
I do not agree with the majority that Batson permits the inclusion of the facts of (1) the race of the victim, and (2) the race of the prosecution witnesses, as relevant factors in the determination by the trial court of a claim that a prosecutor was racially motivated in the use of peremptory challenges.
I am of the mind that the explanation of the prosecution for using all of its peremptory challenges to reject potential black jurors falls so far short of the required “neutral explanation” as to more closely resemble prevarication than pretext.1
Since I have been thus convinced by the persuasive opinion in dissent provided by our venerable colleague Judge J. Sydney Hoffman as a member of the panel which earlier considered this appeal, I better serve, for several reasons, to quote his expression:
“RELEVANCE OF RACIAL ISSUES
“Recent panel decisions by this Court have held that the absence of racial issues in a case is relevant to a determination whether there has been purposeful discrimination in the selection of the jury panel. See Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986). See also Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987).3 More specifically, these cases stand for the *73proposition that the presence or absence of ‘racial issues’ in a case is relevant4 to the question whether a defendant has made out a prima facie case of race discrimination under Batson v. Kentucky. The cases thus seem to suggest that a prosecutor’s purposefully discriminatory action in excluding black jurors may be constitutionally harmless, if no racial issues are present.
“[The en banc majority states that the result in Long and McKendrick is not contrary to the result it calls for in this case. However, as] I understand the principles underlying Batson, the fact that racial issues are not present in a case is irrelevant to a determination whether (a) a defendant has established a prima facie case, or (b) a prosecutor has provided an adequate neutral explanation. Accordingly, I would hold that McKendrick and Long were wrongly decided [and should be overruled].
“In Commonwealth v. McKendrick, supra, the defendant, a black man, was tried by an all-white jury. The defendant argued that the trial court erred in allowing the Commonwealth to use its peremptory challenges to strike all black venirepersons. Id., 356 Pa.Superior Ct. at 74, 514 A.2d at 150. A panel of this Court, applying Batson, held that appellant ‘has not made a prima facie case.’ Id., 514 A.2d at 151. In explaining the rationale for its holding, the panel cited with approval the following analysis by the trial court:
(A)s a practical matter, despite the fact that McKendrick was tried by an all-White jury, he instantly received a fair and impartial trial free of racial concerns. In truth, there were no racial issues in this case. Both the defendant and his victim were members of the Black race. The greatest portion of the witnesses for both sides were Black. In sum, this was not a case involving an interracial killing in which specific racial groups would be prone to take sides of prejudice.
Id., 356 Pa.Superior Ct. at 77, 514 A.2d at 151 (emphasis supplied).
“In Commonwealth v. Long, supra, the defendant, a black man, was tried by a jury composed of ten white members and two black members. The defendant argued *74that the Commonwealth purposefully and deliberately exercised its peremptory challenges to excuse four black venirepersons. Id., 367 Pa.Superior Ct. at 193, 532 A.2d at 855. In rejecting this argument, the Long Court emphasized that (1) the actual jury panel included two black members; and (2) ‘[t]he case to be considered by the panel involved a victim and a defendant who were both black.’ Id., 367 Pa.Superior Ct. at 195, 532 A.2d at 856. The panel, applying Batson, then held that ‘[o]n these facts we do not believe an inference can be established that the prosecutor used the peremptory challenges to racially discriminate.’ Id., 367 Pa.Superior Ct. at 195, 532 A.2d at 856.
“Both McKendrick and Long proceed on the assumption that the only constitutionally infirm reason the Commonwealth might have for exercising peremptory challenges against black jurors is the belief that, in a case involving racial issues, black citizens might be prejudiced in favor of the defendant, and thus could not fairly try the case. When this temptation does not exist — i.e., when there are no ‘racial issues' in a case — McKendrick and Long would hold, apparently as a matter of law, that a defendant cannot prove purposeful discrimination in the selection of the jury. In my view, McKendrick and Long reflect a fundamental misapprehension of both the holding in Batson and the historical nature and scope of the right underlying that decision. Preliminarily, I would note that there is nothing in the language of Batson itself to suggest that the presence of a racial issue is a necessary requirement in establishing a case of race discrimination in the selection of a jury. More fundamentally, such a requirement flies in the face of the second rationale for the United States Supreme Court’s decisions in this area: the right of prospective jurors not to be disqualified based on their race.
“In Batson v. Kentucky, supra, the Supreme Court described the historical background of this second rationale as follows:
‘In Swain v. Alabama, [380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965),] this Court recognized that a “State’s purposeful or deliberate denial to Negroes on account of *75race of participation as jurors in the administration of justice violates the Equal Protection Clause.” ... This principle has been “consistently and repeatedly” reaffirmed ... in numerous decisions of this Court both preceding and following Swain. We reaffirm the principle today.
‘More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, 10 Otto 303, 100 U.S. 303, 25 L.Ed. 664 (1880). That decision laid the foundation for the Court’s unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race---- Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.
‘[T]he defendant [has] the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria____ The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, ... or on the false assumption that members of his race as a group are not qualified to serve as jurors----
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‘Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at trial____ A person’s race simply is “unrelated to his fitness as a juror.” ... As long ago as Strauder, therefore, the Court recognized that by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror—
*76‘The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice____’
Batson v. Kentucky, supra at 87, 106 S.Ct. at 1716-18 (citations and footnotes omitted) (emphasis supplied).
“The Batson Court then noted that, with specific regard to the discriminatory use of peremptory challenges, Swain v. Alabama recognized that,
‘It was impermissible for a prosecutor to use his challenges to exclude blacks from the jury “for reasons wholly unrelated to the outcome of the particular case on trial” or to deny to blacks “the same right and opportunity to participate in the administration of justice enjoyed by the white population.” ... Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was “being perverted” in that manner____’
Id. at 91, 106 S.Ct. at 1720 quoting Swain v. Alabama, supra, 380 U.S. at 224, 85 S.Ct. at 838 (emphasis supplied). Moreover, when discussing the prosecution’s burden under Batson once a defendant has established a prima facie case, the Court emphasized the twin rationales underlying the new rule:
‘Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, ... so it forbids the States to . strike black veniremen on the assumption' that they will be biased in a particular case simply because the defendant is black.’
476 U.S. at 97, 106 S.Ct. at 1723 (emphasis supplied).6
“These passages should make clear both that (1) the defendant’s equal protection rights are not limited to cases involving racially-charged issues; and (2) even if the defen*77dant’s rights were so limited, the rights of citizens generally are sufficient to render purposeful racial discrimination in the selection of the venire unconstitutional in a case without racial overtones. Properly understood, then, Bat-son did not abandon the prior disapproval of systems of discrimination designed to eliminate the participation of all blanks in the jury process. Instead, Batson supplemented the prior rule, by allowing defendants to prove purposeful discrimination on an individual basis as well as on a systematic basis.7 A panel of this Court succinctly articulated the effect of Batson as follows:
‘[T]he purpose of the new rule in Batson is to provide a more effective means of ensuring that members of racial minorities are not excluded from the jury for discriminatory reasons and to ensure to a defendant the right to be tried by his peers, which may include other members of his own race.’
Commonwealth v. McCormick, 359 Pa.Super. 461, 474, 519 A.2d 442, 449 (1986) (emphasis supplied).
“In summary then, the fact that racial issues are not present in a case should not affect the viability of a defendant’s claim of purposeful discrimination.8 As Batson and Swain teach, even where no racial issues are present, the purposefully discriminatory exclusion of members of a cognizable racial group violates the equal protection clause because it denies to the excluded group rights and opportunities enjoyed by the rest of the citizenry. Accordingly, I would hold that, to the extent that McKendrick and Long focus on the absence of racial issues in evaluating claims of purposeful discrimination, they are inconsistent with the principles underpinning Batson and cannot be followed. Similarly, I would hold that the absence of racial issues in no way helps the Commonwealth in meeting its burden of establishing a neutral explanation for its exercise of its peremptory challenges, and thus cannot support the majority's decision to affirm the judgment of sentence.”
“3 This interpretation was recently reaffirmed in Commonwealth v. Monroe, 373 Pa.Super. 618, 542 A.2d 113 (1988).
"4 I note that, in Commonwealth v. McKendrick, the absence of racial issues was the only reason given for the Court’s conclusion that *78the defendant did not establish a prima facie case. 356 Pa.Super. at 77, 514 A.2d at 151 (quoting tried court opinion).
"6 In his concurring opinion, Justice White emphasized that the rule in Batson applied to both forms of discrimination:
The Court now rules that such use of peremptory challenges in a given case may, but does not necessarily, raise an inference, which the prosecutor carries the burden of refuting, that his strikes were based on the belief that no black citizen could be a satisfactory juror or fairly try a black defendant.
476 U.S. at 100-101, 106 S.Ct. at 1725 (White, J., concurring) (emphasis supplied).
,<7 The problem that existed after Swain — and which was rectified in Batson — was forcefully articulated by Justice Nix, now Chief Justice, in his dissenting opinion in Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975):
In Swain the Court reasoned that the presumption [that the prosecutor uses peremptory challenges to obtain a fair and impartial jury] is only overcome where the prosecutor in case after case is responsible for the removal of all Negroes from every jury____
"Is justice to sit supinely by and be flaunted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy that permits the use of a presumption to hid[e] the existence of an obvious fact?
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“The glaring weakness in the Swain rationale is that it fails to offer any solution where the discriminatory use of peremptory challenges is made on a selected basis. In Northern communities systematic exclusion of an entire racial group is rarely seen. More frequently, the problem arises in cases where the facts give rise to racial overtones and where an objective and unbiased jury is most needed. Swain provides no protection against this type of abuse. To the contrary, it facilitates its perpetuation.
Id. at 298-99, 336 A.2d at 295 (NIX, J., dissenting) (emphasis supplied).
“8If racial issues are present, of course, that fact may help to establish the defendant’s prima facie case. I emphasize only that, in light of the dual policies underlying the rule in Batson, the absence of racial issues cannot operate as a bar to a defendant’s establishing a case of purposeful discrimination."
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I further differ with the ruling of the majority that the testimony of the trial prosecutor attained the “neutral explanation” required to rebut the prima facie case of discrimination which, the majority and the trial court agree, had been established. Rather, I find that the reasons provided *79by the prosecution for rejection of the seven black jurors is so apathetically contrived2 an account that it is but a further reflection of the discrimination displayed by the prosecutor during the jury selection process. Again, Judge Hoffman so artfully stated the basis for my conclusion that I reecho his expression of view:
“II. ADEQUACY OF COMMONWEALTH’S SPECIFIC ‘NEUTRAL EXPLANATION’
“I turn now to the specific reasons preferred by the trial prosecutor in support of his exercise of his peremptory challenges. Appellant argues, inter alia, that all but one of these specific reasons are either legally insufficient or pretextual. For example, appellant argues that a close examination of the voir dire reveals that the trial prosecutor’s claim that he peremptorily challenged four black jurors simply because they were familiar with the area is clearly pretextual. For the reasons that follow, I agree that this explanation is pretextual.
“At the post-verdict motion hearing, the trial prosecutor articulated his reason for peremptorily striking the four jurors in question as follows:
The rest of the peremptory challenges that I exercised were individuals who, based on my recollection, had a familiarity with the location where this incident was alleged to have taken place. Either they knew the area, they lived in the area or had friends in the area. My belief was that in a case where I felt it was a strong case, it was an identification issue, as I perceived it, I just felt that if a police officer or if the complaining witness would have testified with regard to having something incorrect *80with regard to distance or street names, that that might have drawn the jury’s attention away from what I felt was otherwise a strong case.
So I was trying to see that jurors who said that they had no familiarity with the location of the particular area where the robbery was alleged to have taken place [were seated?].
N.T. May 6, 1987 at 13-14. For purposes of this appeal, I will assume that familiarity with the scene of a crime is a legally sufficient basis for the exercise of peremptory challenges. A close review of the voir dire reveals, however, that this reason, even if it is legitimate as a general matter, was neither uniformly nor neutrally applied; instead, only black jurors who indicated a familiarity with the area were challenged by the Commonwealth.
“The jury in this case was selected over a two-day period, during which thirty-six potential jurors were subject to voir dire examination. Of the thirty-six prospective jurors, the Commonwealth failed to ask fourteen whether they had a familiarity with the area in question.11 Moreover, five jurors were selected to sit on the jury panel even though they had not been asked (by the judge, defense counsel, or the prosecutor) whether they had a familiarity with the area.12 In addition, the Commonwealth failed to strike three non-black jurors who stated that they did have a familiarity with the area. In summary, the Commonwealth did not attempt to ascertain whether all prospective jurors were familiar with the area, accepted non-black jurors who were familiar with the area, and accepted other non-black jurors without knowing whether they were familiar with the area.13 On this record, familiarity with the area cannot be viewed as a racially ‘neutral’ explanation for the Commonwealth’s challenge of four black jurors. In light of these facts, I would conclude that the prosecutor’s proffered explanation for exercising four of his strikes against black jurors is clearly pretextual. Compare Garrett v. Morris, 815 F.2d 509, 514 (8th Cir.1987) (‘The prosecutor’s *81rationale — the blacks’ purported lack of education background, and knowledge — seems clearly pretextual in light of his decision not to strike white jurors who differed in no significant way.’). I would therefore hold that the prosecution has failed to rebut appellant’s prima facie showing of purposeful discrimination in the selection of the jury panel.14 Accordingly, I would vacate the judgment of sentence and remand for a new trial.15”
"11 See N.T. January 8, 1987 at 90-91, 121-28, 138-43; N.T. January 9, 1987 at 2.2-2.4.
"12 See N.T. January 8, 2987 at 90-91, 121-28, 138-43; N.T. January 9, 1987 at 2.2-2.4.
"11 See N.T. January 8, 2987 at 90-91, 121-28, 138-43; N.T. January 9, 1987 at 2.2-2A
"14 Appellant also contends that the Commonwealth failed to offer an adequate neutral explanation for peremptorily challenging two of the other three black venirepersons that it excused. Because my conclusion that the Commonwealth racially discriminated in its striking four black prospective jurors in itself requires that a new trial be granted, I need not address the question whether the Commonwealth also discriminated in striking two other jurors. Cf. United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986). (‘Under Batson, the striking of one black juror for a racial reason violates the equal protection clause, even where other black jurors are seated, and even where valid reasons for the striking of some black jurors are shown____ [T]he command of Batson is to eliminate, not merely to minimize, racial discrimination in jury selection.’) (emphasis supplied).
“15 I emphasize that in concluding that the Commonwealth’s prof-erred explanation is pretextual, I do not mean to suggest that the trial prosecutor consciously misrepresented his motives. Rather, I am mindful of Justice Marshall’s observation in his concurring opinion in Batson:
“Nor is outright prevarication by prosecutors the only danger here. ‘[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.’ ”
476 U.S. at 106, 106 S.Ct. at 1728 (citation omitted).
And so it is that I would reverse the judgment of conviction and provide for a new trial.
JOHNSON, J., joins.. Only the uninitiated will deny that some proportion of prosecutors are disposed to preclude blacks from service as jurors. Those prosecutors argue that the practice of such bias by the prosecution is but an exercise in advocacy to which they are compelled because (1) blacks sure less conviction minded than other discernable segments of the populace, and (2) there exists on the part of black jurors an inbred bias in favor of black defendants. Aside from the sociological repugnance of these assertions, such a rationale merits but summary rejection since it ignores the quite fundamental precept that a government of the people must not be permitted to display any of the failings of her people. And, of course, that explanation also overlooks the mother’s knee adage that two wrongs do not make a right.
. The extended delay between the issuance of the peremptory challenges during voir dire examination and the Batson hearing conducted by the court could, of course, have served to impede the prosecutor from recounting to the court in certain and precise manner the basis for his rejection of the jurors. The prosecution did not, however, indicate that the delay effected any uncertainty in his final account of the reasons for rejection.