dissenting.
I must dissent.
The state’s use of peremptory challenges to exclude jurors on the basis of race has been condemned by the United States Supreme Court as being violative of the equal protection clause in the Fourteenth Amendment of the federal constitution. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). As the Court in Batson observed, “[exclusion of black citizens from service as jurors is a primary example of the evil the Fourteenth Amendment was designed to cure.” 476 U.S. at 85, 106 S.Ct. at 1716. Purposeful racial discrimination in the selec*261tion of jurors violates a defendant’s right to equal protection because it denies him the protection that trial by jury is intended to secure. Id. 476 U.S. at 86, 106 S.Ct. at 1717. The accused, whose life or liberty is to be put on trial, is not the only person whose right is violated; such discrimination also denies equal protection to the excluded juror. Id. 476 U.S.at 87, 106 S.Ct. at 1717-1718.
Despite the facile lip-service generally paid to the above constitutional principles, they are effectively nullified by evidentiary requirements that virtually insulate a prosecutor’s use of the peremptory challenge to exclude jurors. In the law’s present stage of development, the defendant has the burden of proving purposeful racial discrimination in the prosecutor’s use of peremptory challenges. Even if the defendant succeeds in establishing a prima facie case of such discrimination, the prosecutor can defeat the claim if the hearing court accepts his “neutral explanation” for excluding jurors of the defendant’s race.
As Mr. Justice Marshall observed in Batson, “[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill-equipped to second-guess those reasons.” 476 U.S. at 106, 106 S.Ct. at 1728 (Marshall, J., concurring). Justice Marshall pointed out that, if easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes, then the constitutional prohibition against racially-based juror exclusion is illusory. Id. Those considerations, and the inherent potential of peremptory challenges to distort the jury process by allowing the exclusion of jurors on racial grounds, led Justice Marshall to the conclusion that peremptory challenges should be banned entirely from the criminal justice system. Id. 476 U.S. at 107, 106 S.Ct. at 1728-1729.
We in this Commonwealth, the birthplace of that document that first assured the people of this nation of equal protection under the law, have a unique responsibility to assure the effective application of this principle to all of our citizens. This unique responsibility has been recognized and specifically acknowledged in the Declaration of Rights *262under our State Constitution. Article I, section 26 mandates, in the clearest of terms:
§ 26. No discrimination by Commonwealth and its political subdivisions
Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right.
Clearly the right to a fair and impartial jury is a civil right of all Pennsylvanians. See Article I, section 6. Moreover, Article I, section 28 requires that “equality of right under the law shall not be denied or abridged.” This mandate precludes us from being content with any procedural safeguard which is inherently ineffective in preventing any type of prohibited discrimination in the jury selection process. I agree with Mr. Justice Marshall that “[mjerely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.” Id. 476 U.S. at 105, 106 S.Ct. at 1727 (Marshall, J., concurring). Failure to effectively secure the rights guaranteed under Article I, section 26 denies the legitimate expectation of fairness and perpetuates the frustration that minorities have already too long endured.
The instant record reflects that the Commonwealth used fourteen of its peremptory challenges, twelve of which were directed against black jurors. There ^ rere 14 persons of the black race in the panel from which the selection was made. Only one black juror served as a juror in this case. The arbitrary nature of the concept of peremptory challenges renders it impossible to effectively prevent its use as a discriminatory tool. The willingness of this Court to accept the nondiscriminatory explanation given by the Commonwealth further emphasizes the inadequacy of this remedy. Nor does the fact that it may have been unconsciously injected in this case mitigate the evil involved. This was recognized by Justice Marshall in Batson:
*263Nor 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.” King [v. County of Nassau] supra [581 F.Supp. 493] at 502 [E.D.N.Y.1984]. “A prosecutor’s own ... unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own ... unconscious racism may lead him to accept such an explanation as well supported. As JUSTICE REHNQUIST concedes, prosecutors’ peremptories are based on their “seat-of-the-pants instincts” as to how particular jurors will vote.” Post [476 U.S.] at 138 [106 S.Ct. at 1745]; see also THE CHIEF JUSTICE’S dissenting opinion, post, at 123 [106 S.Ct. at 1736-1737].
476 U.S. at 106, 106 S.Ct. at 1728 (Emphasis in original).
What cannot be ignored is that the integrity of the adjudication process is not dependent upon the existence of peremptory challenges. Challenges for cause were designed to assure fair and impartial fact finding tribunals and have adequately served that purpose. Peremptory challenges provide only the gratuitous introduction of an arbitrary element into the process. Because of their inherent arbitrary character, their continued use in criminal trials by either the Commonwealth or defense should no longer be condoned. The mischief is exacerbated when it is permitted in capital trials. Its use by the Commonwealth, to the detriment of the civil rights of a citizen, is unquestionably inappropriate under Article I, section 26 of our Constitution.
Although a majority of this Court has employed the test prescribed by a majority of the United States Supreme Court in Batson for determining the validity of an alleged Fourteenth Amendment violation (I have serious reservations as to the legitimacy of its application even of that test to the instant facts), I am of the view that we have the additional responsibility in this jurisdiction to ban the use of *264peremptory challenges in criminal trials where arbitrary considerations could conceivably be a factor. The ironic feature of this case is that the defendant, a black male, was accused of brutally killing, robbing and burglarizing the home of an elderly black couple. The situation was further exacerbated by an attempt to burn the premises to cover these horrendous acts. The fact that one would conceive that ethnic origin would sway a jury in this factual setting, even if the victims had been of another race, clearly demonstrates the type of erroneous assumptions that underpin racial thinking in our nation today.
I therefore dissent and would award the grant of a new trial before a trier of fact constitutionally constituted.