dissenting:
I read Commonwealth v. Futch, 492 Pa. 359, 424 A.2d 1231 (1981), differently than the majority does, and I am therefore unable to join that part of its opinion holding that Futch is dispositive of the question whether appellant was entitled to a hearing to determine whether the district attorney’s office used its peremptory challenges to exclude black jurors.
On voir dire in appellant’s case, two of the first twelve jurors selected and one of the first two alternates were apparently black. Appellant contends that the Commonwealth’s use of peremptory challenges to strike these three jurors denied him “the right to have any of his peers on the jury.” N.T. 2/27/80, 338. Appellant also argues that the *255trial court should have granted his request for an evidentiary hearing at which he planned to show “that there is a pattern among the District Attorneys in Allegheny County to remove black people from the juries in a case where there is a black defendant and a white victim.” N.T. 2/27/80, 338. See also N.T. 3/3/80, 6.
In its opinion supporting its denial of appellant’s request for a hearing to show a pattern of discrimination in the use of peremptory challenges by the district attorney’s office, the trial court concluded that appellant was not entitled to a hearing because in Commonwealth v. Futch, supra, “[o]ur Supreme Court has determined that there was no such violation by the Allegheny County Prosecutors in case after case, for the period of time during which this case came to trial. This case was tried in March, 1980; Futch came to trial in April, 1980.” Slip op. at 15. Although the majority agrees with the trial court’s reading of Futch, at 1348, in fact the Supreme Court made no such determination.
In Futch the trial court held a hearing in which counsel was permitted to introduce evidence as to the use of peremptory challenges to exclude black jurors. The trial court concluded that the defendant had established a prima facie case of discrimination by showing that some members of the district attorney’s office had used peremptory challenges in a racially discriminatory manner. See Commonwealth v. Futch, supra, 492 Pa. at 364, 424 A.2d at 1233. In reviewing the trial court’s decision, the Supreme Court summarized the evidence and the trial court’s ruling on it. However, the Court did not determine, as the majority concludes, that the defendant had not established a pattern of discrimination in the use of peremptory challenges. The Court expressed no view on this question. Instead, in reversing the trial court it held only that the defendant had not established that peremptory challenges had been used in a discriminatory manner “in the jury selection of his case.” Id., 492 Pa. at 366, 424 A.2d at 1234 (emphasis added).
*256Upon appellant’s request for a hearing to establish systematic discrimination, the Commonwealth noted that it had used all seven of its peremptory challenges, so that whites as well as blacks were removed from the jury panel. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court said:
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.
Id. at 221, 85 S.Ct. at 836.
See also Commonwealth v. Futch, supra, 492 Pa. at 365, 424 A.2d at 1223; Commonwealth v. Martin, 461 Pa. 289, 297, 336 A.2d 290, 294 (1975). The Commonwealth does not dispute appellant’s assertion that all blacks were removed from the jury panel. This fact alone, of course, did not establish discrimination; under Swain and Futch, the presumption is that in removing blacks, the Commonwealth was acting properly. However, appellant should have been granted the hearing he requested so that he could offer evidence to overcome the presumption. To be sure, the defendant in Futch had only recently made the same allegation of discrimination as appellant was making. However, because a defendant in one case fails to prove something is no reason why another defendant in another case may not try to prove it. If the trial court fears time-consuming and unnecessary repetition of testimony, it may require offers of proof, or stipulations may be resorted to. Here, the trial court simply denied appellant the opportunity to offer evidence; nothing in Futch supports that denial.
The judgment of sentence should be reversed and a new trial granted.