Commonwealth v. Jackson

562 A.2d 338, 386 Pa. Super. 29, 1989 Pa. Super. LEXIS 2082

Opinions

BECK, Judge:

The issue is whether the prosecutor at appellant’s trial for robbery violated the equal protection clause of the federal constitution by using peremptory challenges to exclude members of the appellant’s race from the trial jury. Appellant contends that under the legal standard articulated by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the prosecutor failed to rebut a prima facie showing that the Commonwealth’s peremptory challenges had been used for a racially discriminatory purpose. We conclude that appellant’s claim is without merit and we affirm his judgment of sentence.

I.

This is an appeal by Edward Jackson from a judgment of sentence imposed by the Court of Common Pleas of Philadelphia County. Appellant is a black man who was arrested in connection with an armed robbery. He was charged with robbery, possession of an instrument of crime, and conspiracy. He invoked his right to trial by jury.

During voir dire, the prosecution and the defense were each permitted seven peremptory challenges. The prosecutor used all seven of his challenges to remove black prospective jurors. Immediately after the prosecution’s seventh strike, defense counsel objected on the grounds that the prosecutor had violated his client’s right to the equal protection of the law by challenging jurors in a racially discriminatory manner. The court denied counsel’s motion to impanel a new jury and voir dire resumed. The final petit jury consisted of nine white jurors, one oriental juror, and two black jurors, as well as one white alternate and one black alternate.

At trial, the Commonwealth called three witnesses to the stand. Rodney Harmon, a black man, testified that the appellant and an accomplice had held him up at gun point on July 21, 1986 at the intersection of 49th Street and Fair-mount Avenue in Philadelphia. Benjamin Walton, a black police sergeant, testified that he observed the appellant walking with a short black man at a location near the crime scene, and that he apprehended appellant while the other man escaped. Leslie Byrd, another black police officer, testified that he brought Mr. Harmon to the location where the appellant had been detained, and that Mr. Harmon identified the appellant as his attacker. The defense attempted to cast doubt on the reliability of Mr. Harmon’s identification. On January 12, 1987, the jury returned a verdict of not guilty on the conspiracy charge and of guilty on the robbery and possession of an instrument of crime charges.

Appellant filed timely post-verdict motions in which he again asserted that the prosecutor had practiced racial discrimination during the jury selection process. After scheduling a post-trial hearing on the equal protection claim, the court denied the motions. On September 3, 1987, appellant received a total sentence of five to ten years imprisonment.

Appellant filed a timely appeal from his judgment of sentence in which he again raised the equal protection issue, and the case was certified for en banc review. After careful consideration, we affirm.

II.

The ultimate goal of the jury selection process is to ensure that the defendant is tried by a fair and impartial jury of his peers. In order to further this goal, two methods have been devised to eliminate unsuitable jurors— the challenge for cause and the peremptory challenge. The Commonwealth and defense counsel may make an unlimited number of challenges for cause. Challenges for cause, however, are only granted where: 1) a prospective juror’s conduct or responses during voir dire demonstrate a likelihood of prejudice; or 2) the prospective juror has such a close familial, financial, or situational relationship with parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice. Commonwealth v. Berrigan, 369 Pa.Super. 145, 158, 535 A.2d 91, 98 (1987) (en banc). Both the Commonwealth and defense counsel are also permitted a limited number of peremptory challenges.¹ The primary function of the peremptory challenge is to allow parties to strike prospective jurors who they have good reason to believe might be biased but who are not so clearly and obviously partial that they could otherwise be excluded from the panel. See Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1888).

Many legal scholars have contended that the right to peremptory challenges is among the most important safeguards of the fairness of a criminal trial. See Swain v. Alabama, 380 U.S. 202, 218-221, 85 S.Ct. 824, 834-36, 13 L.Ed.2d 759 (1965). Unfortunately, however, the availability of these challenges creates a danger that an element of racial discrimination will be introduced into criminal proceedings. For example, a prosecutor might choose to strike a prospective juror solely because she is black and the defendant is also black. This conduct denies both the prospective juror and the defendant the equal protection of the law guaranteed by the fourteenth amendment. See Batson v. Kentucky, 476 U.S. at 85-89, 106 S.Ct. at 1716-19. The prospective juror is disadvantaged on the basis of race because she is denied the same opportunity as a white person to participate in the criminal justice system as a finder of fact. The defendant is disadvantaged on the basis of race because she is denied the same opportunity as a white person to be tried by a jury from which members of her own racial group have not been purposefully excluded. Cf. Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1880) (“It is not easy to comprehend how it can be said that while every white man is entitled to a jury selected ... without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former.”)

During the past quarter century, appellate courts have struggled with the problem of how to preserve the right to peremptory challenges while at the same time minimizing the potential for racial discrimination. In Swain v. Alabama, supra, the United States Supreme Court first recognized that the racially motivated use of peremptory challenges could rise to the level of a constitutional violation. Yet, the Swain Court’s principal concern was to ensure that the prosecution’s jury selection practices would not be unduly restricted. The Court emphasized that “the presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury” 380 U.S. at 222, 85 S.Ct. at 837. The Court further held that this presumption could only be overcome by evidence that the prosecutor systematically excluded members of a particular racial group from juries “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be____” 380 U.S. at 223, 85 S.Ct. at 837. This evidentiary standard was extensively criticized since it imposed a virtually insurmountable burden of proof on defendants and prevented courts from remedying nearly all of the equal protection violations which occurred during the voir dire process. See, e.g., Commonwealth v. Martin, 461 Pa. 289, 298-300, 336 A.2d 290, 294-96 (1975) (Nix, J., dissenting).

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court reconsidered the Swain decision, and developed a new procedure for evaluating challenges to the prosecutions’ use of peremptory strikes. Under Batson, a defendant may rely exclusively on the facts of his own case when proving a constitutional violation. In order to prevail, the defendant must initially establish a prima facie case of discrimination.

To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these 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. This combination of factors in the empaneling of the petit jury, as in selection of the venire, raises the necessary inference of discrimination.

476 U.S. at 96-97, 106 S.Ct. at 1723 (citations omitted). See also Teague v. Lane, — U.S. — , 109 S.Ct. 1060, 103 L.Ed.2d 334, 345 (1989).

Thus, a prima facie case of discrimination has three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of race. See Commonwealth v. Abu-Jamal, 555 A.2d 846, 850 (Pa.1989).²

If a defendant makes a prima facie showing of discrimination, the burden then shifts to the prosecution to justify his decision to strike minority jurors. “The prosecutor must therefore articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (footnote omitted). The trial judge must then make the ultimate determination of whether the defendant has established purposeful discrimination. Id.

In the instant case, the trial judge ruled that appellant Jackson had presented a prima facie case under Batson. The court then concluded that the prosecution had successfully rebutted this prima facie case by providing a neutral explanation for its pattern of strikes. Appellant contends that the prosecutor did not provide an adequate neutral explanation. On the other hand, the Commonwealth asserts in its brief as appellee that the prosecutor’s neutral explanation was legally sufficient. The Commonwealth also notes that as an appellate court we have the power to affirm a judgment of sentence where the trial court reached a correct result for the wrong reason. See Commonwealth v. Allem, 367 Pa.Super. 173, 178, 532 A.2d 845, 848 (1987). The Commonwealth therefore urges that we uphold the conviction on the ground that appellant failed to establish a prima facie case of discrimination without reaching the neutral explanation issue.

We shall first consider whether the trial court erred by finding a prima facie case. We will then proceed to address the adequacy of the prosecutor’s explanation for his peremptory challenges.

III.

The trial court stated in its opinion:

We have reached the conclusion, 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.

Trial Court Op. at 3. The Commonwealth contends that the trial court committed an error of law by reaching this conclusion. We do not agree.

Batson sets forth two clear preconditions for a finding of a prima facie case: the defendant’s membership in a cognizable racial group, and the exclusion of other members of that racial group from the jury. Beyond this, Batson allows trial judges a fair degree of latitude in assessing whether a prima facie case has been established. The Batson Court explained:

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in a particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.

476 U.S. at 96-97, 106 S.Ct. at 1723.

Thus, the precise question before us is whether the trial court abused its discretion under Batson by finding a prima facie case. We cannot say that the court abused its discretion, especially since the prosecutor exercised all seven of his peremptory challenges against blacks. A jurist could reasonably conclude that this pattern of challenges raises a sufficient inference of discrimination to justify shifting the burden of proof to the prosecution. Accordingly, the trial court’s finding should not be disturbed.

In reaching this conclusion, we do not adopt a per se rule that any particular number of strikes against minority venirepersons must invariably give rise to a prima facie case. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir.1988) (rejecting per se rule); United States v. Clemons, 843 F.2d 741 (3d Cir.1988), cert. denied, —U.S. —, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988) (similar reasoning). We recognize that in some instances, courts have found that notwithstanding a significant number of strikes against black venirepersons, no prima facie case had been established under the totality of the circumstances. See, e.g., United States v. Sangineto-Miranda, supra (no prima facie case where all peremptory challenges used against blacks); Commonwealth v. Abu-Jamal, supra, at 850 (no prima facie case where prosecutor who was afforded twenty peremptory challenges struck eight blacks and seven whites); Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988) (no prima facie case where prosecutor who was afforded twenty peremptory challenges struck twelve blacks and two whites). In these cases, an appellate court denied relief under Batson after the trial court had first held that there was no prima facie case or after the trial court had failed to address the issue.³ The Commonwealth has not alerted us to any appellate decision which has overturned an explicit trial court finding of a prima facie case. Moreover, we are not persuaded that such a disposition is appropriate in the case sub judice.

The Commonwealth argues that the appellant could not satisfy his initial burden of proving a prima facie case for two reasons. First, the appellant is a black man who was arrested by black police officers and accused of committing a crime against another black man. Second, two blacks served on the jury which convicted appellant of this crime. The Commonwealth’s view is that one may not infer that the prosecutor engaged in racial discrimination in light of: 1) the common racial background of the defendant and the prosecution witnesses; and 2) the racial integration of the petit jury. We shall consider the impact of each of these factors on the analysis of a Batson claim.

A.

We agree with the Commonwealth that the potential for misuse of peremptory challenges is greatest when a defendant is accused of attacking an individual of a different race. In such a case, the prosecutor has a special incentive to select jurors who are of the same racial background as the victim. For example, if a black man stands accused of killing a white man, a white juror may be likely to identify with the victim. Accordingly, a trial judge should examine the use of peremptory challenges with particular care whenever the trial involves an element of interracial conflict.

This does not mean, however, that the absence of interracial conflict guarantees that peremptory challenges will be exercised for proper reasons. In Swain v. Alabama, the United States Supreme Court recognized the problem of “the prosecutor in a county [who], in case after case, and whoever the defendant or the victim may be, is responsible for the removal of Negroes____” 380 U.S. at 223, 85 S.Ct. at 837. See also Batson, 476 U.S. at 103-04, 106 S.Ct. at 1726-27 (Marshall, J., concurring) (citing statistics on systematic exclusion of blacks from juries). One motive for such conduct is the underlying belief that a white juror would be more likely than a black juror to assume that blacks frequently commit crimes and that any black who is accused of a crime is probably guilty. Another motive for consistently striking blacks is the concern reflected in a training manual prepared by the Dallas County District Attorney’s Office: “You are not looking for any member of a minority group which may subject him to oppression— they almost always empathize with the accused.” Acker, Exercising Peremptory Challenges After Batson, 24 Criminal Law Bulletin 187, 203 n. 67 (1988) (quoting Texas Observer, May 11, 1973 at 65). Whatever the motive, the exclusion of black venirepersons solely on account of race is a violation of the equal protection clause that trial courts must be prepared to remedy.

We conclude that even where the defendant and the victim are both black, some prosecutors may attempt to minimize the number of blacks who are selected as jurors. Thus, the fact that a defendant is a member of the same racial group as the Commonwealth’s witnesses is in no way inconsistent with a finding of a prima facie case.

B.

We next consider the significance of the ultimate racial configuration of the petit jury. In the instant case, the record indicates that two black jurors were selected before the assistant district attorney had exhausted all of his peremptory challenges. The fact that the prosecutor did not take advantage of his opportunity to strike these jurors is evidence that he did not discriminate on the basis of race. See United States v. Sangineto-Miranda, 859 F.2d at 1522 (“If there are minority members on the jury but the [prosecution] did not use all its peremptory challenges, that would be a factor tending to refute discrimination.”) This evidence, however, is not conclusive.

There are several reasons why a prosecutor may permit one or two blacks to sit on a jury, but may use her peremptory challenges to discriminate against the remaining blacks in the venire pool. First, the prosecutor may try to deflect criticism of a discriminatory jury selection' strategy by allowing token minority representation on the jury. Alternatively, the prosecutor may strive to eliminate nearly all black venirepersons, but may make an exception in favor of a subgroup of black venirepersons who are viewed as sympathetic to the Commonwealth, e.g., black police officers, or black senior citizens who have been victims of violent crimes. Furthermore, in urban areas where the total number of blacks in the venire pool may far exceed the number of peremptory strikes, it is sometimes impossible to exclude every black who is reached on voir dire. In such a situation, the biased prosecutor may initially tolerate a few black jurors but might then try to limit the overall black presence on the jury.

In United States v. Clemons, the Third Circuit recently noted:

Striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks---- Similarly, we doubt the significance of including a single black on a panel if, at the same time, the government used most of its peremptory challenges ... to strike blacks with backgrounds similar to the white jurors ultimately selected____

In view of the various jury selection practices and the unique racial makeup of each judicial district, we are unwilling to depart from Batson’s reliance on the trial judge’s expertise in assessing a prima facie case. Although it may be easier to establish a prima facie case when all blacks are excluded from a jury, or when one or two blacks are excluded from a panel in a district with a low black population, we cannot say the conclusion is automatic____ Nor can we conclude that the inclusion of blacks on the jury bars a prima facie case, especially where other facts and circumstances may constitute an inference of prosecutorial discrimination in the selection process.

843 F.2d at 747-48 (footnote and citations omitted) (emphasis supplied). We agree. Cf. Commonwealth v. Dinwiddie, 373 Pa.Super. 596, 542 A.2d 102 (1988) (affirming finding of prima facie case where two blacks served on jury).

C.

In summary, we find that the race of the victim, the race of the prosecution witnesses and the race of the petit jurors are relevant factors which a trial judge is free to consider when evaluating a Batson claim. Indeed, in the case sub judice, the trial judge relied in part on these factors when he concluded that appellant’s prima facie case had been successfully rebutted. See n. 9, infra. Relief under Batson, however, is not limited to instances in which a black defendant is accused of attacking a white victim or is tried by an all white jury. Any per se rule that would limit a finding of a prima facie case to such circumstances would insulate a significant number of potential equal protection clause violations from judicial review.

We are aware that some prior panels of this court have stressed that the victim was black or that the jury included some blacks when affirming trial court decisions that denied a Batson challenge. See Commonwealth v. Monroe, 373 Pa.Super. 618, 542 A.2d 113 (1988); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987); Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986). The result in those cases is not contrary to the result we reach today. The instant case is distinguished by the fact that the trial judge made an explicit finding that the defendant had made a prima facie showing of discrimination. As Justice Houston of the Alabama Supreme Court noted when discussing an appeal with a similar fact pattern to that of the case sub judice:

In this case the defendant was black, the victim was black, and the “eye witness” whose testimony was the foundation stone of the state’s case was black; and the state did not peremptorily challenge all blacks____ This is where the trial court must use its discretion in determining, after considering all relevant circumstances, whether the state’s use of peremptory challenges created a “prima facie case of discrimination against black jurors.” Batson, 476 U.S., at 97, 106 S.Ct. at 1728. The trial court’s decision must not be reversed unless it is clearly erroneous.

Ex parte Branch, 526 So.2d 609, 633 (1987) (Houston, J., dissenting).⁴

A trial court should consider the totality of the circumstances when evaluating a Batson challenge.⁵ The court should be alert to the possibility of Batson violations whenever the prosecution has repeatedly stricken members of the defendant’s racial group. Invidious manipulation of the petit jury may occur in a variety of factual contexts. Moreover, over the long run, the failure to adequately investigate plausible claims of racial discrimination would have negative consequences for society as a whole. As the United States Supreme Court stated in Batson:

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 our system of justice.

476 U.S. at 87, 106 S.Ct. at 1718. On the other hand, public confidence in our system of justice is enhanced when prosecutors are afforded an opportunity to demonstrate that racial considerations played no part in their exercise of peremptory challenges.

We hold that the court did not abuse its discretion by finding a prima facie case of discrimination. Cf. Ex parte Branch, supra (finding prima facie case where victim was black and one black served on jury); Stanley v. State, 313 Md. 50, 72, 542 A.2d 1267, 1278 (1988) (finding prima facie case where victim was black and three blacks served on jury).

IV.

Under Batson, “Once the defendant makes a prima facie showing, the burden shifts to the state to come forward with a neutral explanation for challenging black jurors.” 476 U.S. at 97, 106 S.Ct. at 1723. We must now consider whether the trial court erred by determining that the prosecutor had met his burden of proof.

On January 9, 1987, during voir dire, defense counsel raised a timely objection to the prosecution’s use of peremptory challenges. Defense counsel stated for the record the name, juror number, and race of each of the seven venirepersons who had been stricken by the prosecution. The prosecutor responded by asserting that he clearly did not have a discriminatory motive in light of the fact that the victim was black and that he would be calling black witnesses. He also said, “I have reasons for striking off the people that I struck that don’t have anything to do with race.” N.T. Jan. 9, 1987 at 2.85. The court accepted these assurances without requiring any further explanation and the case proceeded to trial.

After appellant was convicted, the court reviewed post-verdict motions and scheduled a hearing for May 6, 1987 to receive further evidence relating to the the exercise of peremptory challenges. At the hearing, the prosecutor appeared as a witness and testified under oath that at no time during his professional career had he ever discriminated on the basis of race. Although he could no longer remember many of the details of the voir dire proceeding at appellant’s trial, he also provided a brief explanation for each of his peremptory challenges.

At the conclusion of this testimony, the trial court scheduled oral argument for August 25, 1987, and ordered both parties to submit briefs on the Batson issue. At oral argument, defense counsel attempted to demonstrate that the prosecutor’s explanations for his peremptory challenges were pretextual. The trial court ultimately concluded that the prosecutor had successfully rebutted the appellant’s prima facie case of discrimination.

Before discussing the merits of the trial court’s ruling, a few words about procedure are in order. In this case, the prosecutor was not asked to offer a neutral explanation for his strikes until nearly four months after voir dire. Defense counsel did not have an opportunity to argue that this explanation was pretextual for an additional three and a half months. Such extensive delays, in the instant case over seven months, are impediments to the sound resolution of a Batson claim. As time elapses, it becomes increasingly difficult for the prosecutor to recall with precision her reasons for striking or not striking members of the venire panel. Moreover, the trial judge may have difficulty evaluating the reasons supplied if the demeanor and responses of venire panel members are not fresh in her mind.

The precise manner in which a Batson claim is to be handled must be entrusted to the discretion of the trial court. However, where a defendant has raised a timely Batson challenge and has established a prima facie case of discrimination, we believe that the interests of justice are ordinarily best served by requiring the prosecutor to come forward with reasons for his peremptory challenges at some time before the Commonwealth presents its case in chief.⁶ The prosecutor should articulate the reasons for her strikes, and the defense attorney should then have an opportunity to respond with any arguments as to why these reasons are factually unfounded or legally insufficient. See United States v. Thompson, 827 F.2d 1254 (9th Cir.1987). Where helpful, the prosecutor should reply to the defense arguments and offer any needed clarification of her neutral explanation. The trial judge should then promptly rule on the Batson claim.⁷

In the instant case, it is likely that the judge originally concluded that the defense had not established a prima facie case, and then changed his mind after examining post-verdict motions. We commend the trial judge for his willingness to reexamine his initial decision. However, the fact that a judge may reconsider his decision is one reason why in a close case it is prudent for a court to err on the side of finding a prima facie case and requiring a neutral explanation before the Commonwealth presents evidence at trial.⁸ In this way, the judge can create a record which will facilitate his own post-verdict motions review, as well as the review of the appellate courts.

We next consider our standard of review of the trial court’s decision on the merits. The opinion of the trial court states:

[The prosecutor] impressed me as a thoroughly credible witness, and I accept his testimony without reservation. I am completely satisfied that he has given a neutral explanation why the race of the prospective jurors played no part in the exercise of his peremptory challenges, and I so conclude. (

Trial Court Op. at 6.⁹

Our scope of review of the trial court’s finding is restricted. In Batson, the Court referred in a footnote to appellate review of a trial court’s conclusion that the prosecutor had rebutted a prima facie case of discrimination. The Court stated that:

“[A] finding of intentional discrimination is a finding of fact” entitled to appropriate deference by a reviewing court. Anderson v. Bessemer City, 470 U.S. 564, 573, 84 L.Ed.2d 518, 105 S.Ct. 1504 [1511], (1985). Since the trial court’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference. Id., at 575-576, 84 L.Ed.2d 518, 105 S.Ct. 1504 [1512].

476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21. Thus, an appellate court will reverse a trial court’s finding of no discrimination only if that finding is clearly erroneous. United States v. Tindle, 860 F.2d 125, 129 (4th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 3176, 104 L.Ed.2d 1038 (U.S.1989); United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986), rev’d on other grounds, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); Ex parte Branch, 526 So.2d at 625.

This is not to say that the trial court’s discretion is unlimited. Whenever a trial judge determines that the defendant has established a prima facie case of discrimination, the Commonwealth must come forward with a neutral explanation for its pattern of strikes. See Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723. Moreover, in order to qualify as legally sufficient, a prosecutor’s explanation must meet certain minimal requirements.

First, the prosecutor’s proffered explanation must be “clear and reasonably specific.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20. A prosecutor “may not rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirming] [his] good faith in making individual selections.’ ” Id. 476 U.S. at 98, 106 S.Ct. at 1724 (citation omitted). Instead, the prosecutor should independently justify each strike that he exercised against a member of the defendant’s minority group. Cf. Commonwealth v. Dinwiddie, 373 Pa.Super. 596, 542 A.2d 102 (1988), allocatur granted, 521 Pa. 609, 557 A.2d 341 (1989) (ordering new trial where prosecutor declined to enumerate specific reasons for peremptory challenges).

Second, the prosecutor’s proffered explanation must consist of “ ‘legitimate reasons’ for exercising the challenges.” Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20. This is a broad category. “[T]he prosecutor’s explanation need not rise to a level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723. “ ‘[T]here are any number or bases’ on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause.” Id., 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20 (citation omitted). The chief example of an illegitimate reason for exercising a challenge would be to exclude a prospective juror because of her racial background.

[T]he prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or on his intuitive judgment — that they would be partial to the defendant because of their shared race. Just as the Equal Protection Clause forbids the States to exclude blacks 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.

Id. at 97, 106 S.Ct. at 1723.

Third, the prosecutor’s proffered explanation must be rejected if it is pretextual. See, e.g., Garrett v. Morris, 815 F.2d 509 (8th Cir.1987), cert. denied 484 U.S. 898, 108 S.Ct. 233, 98 L.Ed.2d 191 (1987); Commonwealth v. Jones, 374 Pa.Super. 493, 543 A.2d 579 (1988), allocatur granted, 521 Pa. 610, 557 A.2d 342 (1989). An explanation which at first blush would appear to be clear, specific, and legitimate may be exposed as a pretext for racial discrimination when considered in light of the entire voir dire proceeding. See United States v. Thompson, 827 F.2d at 1260. However, as we recently noted in Commonwealth v. Lloyd, “the primary responsibility for assessing the genuineness of a prosecutor’s reasons is vested in the trial court----” 376 , 545 A.2d 890, 895 (1988). Only where the trial judge clearly abused his discretion by accepting an explanation which is “not supported by the record” or which “appear[s] to be unreasonable or arbitrary in the face of clear evidence to the contrary” will we substitute our judgment for that of the trial court. Id. Any other policy would be inconsistent with the great deference owed to the trial court’s credibility determinations. See Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21 (quoted supra).

In the case sub judice, the prosecutor stated his reasons for striking prospective jurors on the record at the post-verdict motions hearing. N.T. May 6, 1987 at 12-14. We find that these reasons were reasonably specific and were not obviously illegitimate. The question of whether this explanation should be deemed to be pretextual is more difficult. We conclude, however, that under all the facts of this case, the trial court’s decision to accept these reasons as a bona fide neutral explanation was not clearly erroneous.

During voir dire, the assistant district attorney struck seven black individuals: Morris E.; Luther K.; Charles J.; Eric P.; Anthony W.; Sheila J.; and Geraldine W. His reasons for striking these individuals fall into four categories.

First, the prosecutor struck Morris E. because his uncle had been arrested.

I challenged a person who during the questioning ... stated that he knew somebody that had been arrested. I think he stated it was his uncle, and he had been sitting on the porch with his uncle and he made a comment, “Well, I guess it’s illegal to sit on the porch,” the implications being that he might have ... had negative feelings toward the police, based on my perception that he believed that his uncle had been arrested for no reason, just for sitting on the porch.

The basis for this challenge was clearly proper. Appellant does not object to this peremptory challenge.

Second, the prosecutor struck Luther K. because he appeared to be uncooperative and hostile at the time of voir dire.

I exercised a peremptory challenge on one person who, it was basically what you would call body language. I can recall it was individual questioning of the jurors. They would come and sit in the jury box[.] I believe he had dark glasses on, and he was kind of sitting with his arm draped over, and I just got very negative feelings during my questioning of this individual. And even during [defense counsel’s] questioning of him. Call it body language, if you will.

Q. You are indicating, for the record, you are slumped to the left side with your arm draped over the railing of the witness-box.

A. Correct.

Appellant contends that a prosecutor’s impression of a prospective juror’s demeanor is not a proper reason for exercising a peremptory challenge. We do not agree. The manner in which a venireperson dresses, his facial expressions, his tone of voice, and his posture all provide relevant information concerning his attitude toward the court system and his ability to serve as a fair and impartial juror. Both district attorneys and defense counsel routinely base their trial selection strategy in part on such physical cues. In this case, the prosecutor noted for the record those aspects of Luther K.’s conduct which called into question his willingness to be serious and attentive throughout the trial. We find that the prosecutor’s explanation for striking Luther K. was legally sufficient. Cf. United States v. Garrison, 849 F.2d 103, 106 (4th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988) (prosecutor may strike individual perceived as inattentive); United States v. Forbes, 816 F.2d 1006, 1009 (5th Cir.1987) (prosecutor may strike individual perceived as hostile).

We recognize that a reference to a prospective juror’s “body language” may mask a decision to exercise a peremptory challenge solely on the basis of race. A trial judge should not uncritically accept this or any other proffered explanation for a peremptory challenge. Instead, the judge should assess each proffered explanation in light of her independent recollection of the demeanor and responses of the venire panel members. As an appellate court, we must ordinarily defer to the trial court’s evaluation since the trial judge had a direct opportunity to observe the voir dire process. Accordingly, we will accept the prosecutor’s statement as an accurate summary of his reasons for striking this particular prospective juror.

Third, the prosecutor struck Charles J. because of his extensive employment-related contact with Philadelphia police officers.

I challenged an individual who was employed as a custodian at a state police barracks. I challenged that individual because [of] my belief that his contact with the police may have been such [that] he might have been privy to, you know, what might have been termed “lockerroom banter”, where he may hear police officers talking about cases. And I thought that might have had a negative impact.

Appellant notes that Charles J. stated on voir dire that he could fairly evaluate all of the evidence. Appellant further notes that the Commonwealth did not affirmatively establish that Charles J. had in fact been exposed to “lockerroom banter” which had prejudiced him against police witnesses. However, a peremptory challenge need not be supported by the same quantum of proof as would be necessary to justify a challenge for cause. By virtue of his employment, Charles J. may have overheard policemen expressing cynical attitudes toward the criminal justice system. He may also have overheard gossip concerning instances in which policemen have allegedly testified with something less than full candor. Since the Commonwealth’s case was based in large part on the testimony of police officers, the trial judge did not clearly abuse his discretion by accepting the explanation for this strike.

Finally, the prosecutor struck four prospective jurors — Anthony W., Sheila J., Eric P. and Geraldine W. — because of their familiarity with the area surrounding 49th Street and Fairmount Avenue in Philadelphia. This is the location where the crime took place.

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 that 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 with regard to distance or street names, that they 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].

Appellant maintains that this statement is clearly pretextual. He emphasizes that the prosecutor failed to strike Bruce C., Herbert M. and Shelita B. — three other prospective jurors who were also acquainted with the same vicinity.¹⁰ However, the prosecutor could have reasonably concluded that these three venire panel members would not have been likely to focus on neighborhood street names and geography. Bruce C. had relocated to Philadelphia from Buffalo, New York three years before the trial. When asked if he knew the area of 49th Street and Fairmount Avenue, he responded “Roughly, yes.” N.T. Jan. 8, 1987 at 92. He had never lived in or about the area. Herbert M. said that he had lived in the area, but at a time twenty-five or thirty years before trial. N.T. Jan. 8, 1987 at 118. Shelita B. said only that she knew the area “[v]aguely”. N.T. Jan. 9, 1987 at 2.33.

On the other hand, the voir dire transcript indicates that the four challenged individuals currently had friends who lived in the area or had visited the area in recent years. Anthony W. testified that he had friends in the area and goes there “almost every other night.” N.T. Jan. 9,1987 at 2.63. Sheila J. testified that she knew the area by “[pjassing through.” N.T. Jan. 8, 1987 at 133. Eric P. testified that he was familiar with the area and that he knew people who lived there. N.T. Jan. 9, 1987 at 2.50. Geraldine W. testified that she goes shopping in the area. N.T. Jan. 8, 1987 at 136. Striking these four people was consistent with the prosecutor’s strategy of eliminating prospective jurors who might have had fresh knowledge of the layout of the neighborhood streets.

Appellant cites Commonwealth v. Jones, 374 Pa.Super. 493, 543 A.2d 579 (1988), allocatur granted, 521 Pa. 610, 557 A.2d 342 (1989), in support of his pretext argument, but his reliance on that case in misplaced. In Jones, the assistant district attorney ostensibly challenged a black woman because she lived near a potential alibi witness. However, the assistant district attorney failed to strike a white man who lived even closer to the potential alibi witness than the black woman. During post-verdict motions review, the trial court concluded that there was no significant distinguishing characteristic between the black woman and the white man. Consequently, the trial judge granted a new trial under Batson and a panel of this court affirmed that decision on appeal.

Jones applies to situations in which the sole reason proffered for striking a black venireperson applies with equal force to a white venireperson whom the prosecutor declined to challenge. In such a case, the prosecutor’s neutral explanation should ordinarily be deemed a pretext as a matter of law. Cf. Garrett v. Morris, 815 F.2d at 514 (blacks allegedly challenged because of lack of education, yet whites with limited education not challenged); Gamble v. State, 257 Ga. 325, 357 S.E.2d 792 (1987) (blacks allegedly challenged because of age, lack of intelligence, and kinship with persons with drug and alcohol problems, yet whites with same characteristics not challenged); Slappy v. State, 522 So.2d 18 (Fla.1988), cert. denied, — U.S. —, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988) (black woman allegedly challenged because she was a teacher, yet white teacher not challenged). In the case sub judice, the trial court could have reasonably concluded that the challenged venirepersons were not similarly situated with' the unchallenged venirepersons. Therefore, the trial judge did not clearly abuse his discretion by accepting the prosecutor’s neutral explanation.

Appellant also argues that the explanation was pretextual because the prosecutor did not question every venire panel member regarding his ties to the neighborhood. The voir dire transcript indicates that the Commonwealth failed to ask fourteen of thirty-six venire panel members whether they knew the area. Moreover,- five venirepersons who were not questioned about the neighborhood were selected to sit on the jury. A prosecutor’s failure to question venirepersons in a consistent manner is one indication that he might be rejecting prospective jurors on the basis of race. There is, however, no per se rule0that a question that is asked of one panel member must be asked of all.

We must bear in mind that the time allowed for voir dire is limited and that counsel must weigh a combination of qualities when deciding how to exercise peremptory challenges. Thus, for example, a prosecutor who generally tries to exclude all people who live in a particular vicinity may be eager to accept a prospective juror who might know the area but who has been the victim of a violent crime. Similarly, a prosecutor who generally tries to exclude all people who live in the area may use her last strike to exclude a prospective juror who might know nothing of the neighborhood but who appears to be inattentive or hostile. Furthermore, a prosecutor may simply forget to ask a particular question during one segment of the voir dire.

In the instant case, the prosecutor may not have asked some venirepersons about the neighborhood because he trusted them or distrusted them based upon other factors which were unrelated to race. In some instances, the prosecutor may have simply assumed that a venireperson was not likely to know the neighborhood because he had stated that he lived in a section of the city far removed from the scene of the crime. Moreover, we note that defense counsel closely questioned some venirepersons about their knowledge of the neighborhood and yet failed to raise this matter with others. On the particular facts of this case, we cannot say that the prosecutor’s pattern of questioning provides such clear evidence of racial discrimination that a new trial is required.

In summary, the trial judge found that appellant established a prima facie case of discrimination. This finding was not an abuse of discretion. The trial judge also found that the Commonwealth rebutted this prima facie case of discrimination. This finding was also not an abuse of discretion. Therefore, appellant’s Batson challenge is not meritorious.

The judgment of sentence is affirmed.

CIRILLO, President Judge, files a concurring opinion in which BROSKY, J., joined. McEWEN, J., files a dissenting opinion in which JOHNSON, J., joined. DEL SOLE, J., joins opinion by BECK, J. MONTEMURO, J., joins opinion by BECK, J. TAMILIA, J., files a concurring opinion. POPOVICH, J., joins opinion by BECK, J., except as to subsection IV(A) and files a Concurring Statement.

1 . At common law, only the defendant was permitted peremptory challenges. The Commonwealth, however, could ask any prospective juror to "stand aside” until the entire venire panel had been questioned and the defendant had exercised his peremptory challenges. Only if a deficiency of jurors remained after the whole venire panel had been exhausted were the venirepersons who had been asked to "stand aside" recalled for jury service. See Swain v. Alabama, 380 U.S. 202 212-13, 85 S.Ct. 824, 831-32, 13 L.Ed.2d 759 (1965).

In Pennsylvania, the right to exercise peremptory challenges was first extended to the Commonwealth by an 1860 statute which allowed four peremptory challenges to the prosecution and twenty peremptory challenges to the defense in trials for certain serious felonies. Act of 1860, March 31, P.L. 427 §§ 36-37. See Warren v. Commonwealth, 37 Pa. 45 (1860) (finding statute constitutional). In 1901, the legislature equalized the number of peremptory challenges afforded the Commonwealth and the defense and abolished the traditional practice of "standing aside” jurors. Act of 1901, March 6, P.L. 16, § 1; Act of 1901, July 9, P.L. 629, § 1, Pa.Stat.Ann. tit. 19 § 811 (Purdon 1964).

The right to exercise peremptory challenges is now guaranteed by the Pennsylvania Rules of Criminal Procedure. The instant case is controlled by Rule 1126(a)(2) which states: "In trials involving a non-capital felony and where there is only one defendant, the Commonwealth and the defendant shall each be entitled to (7) peremptory challenges."

2 . The statement that "peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate’ ” 476 U.S. at 97, 106 S.Ct. at 1723, is not an independent element of the prima facie case but is rather a general observation upon which defendants may rely when attempting to establish an inference of discrimination.

3 . In Commonwealth v. Hardcastle, supra, the defendant specifically alleged after voir dire and before trial that the prosecution had discriminated on the basis of race by exercising twelve of his twenty peremptory challenges against black jurors. This objection was denied. Sometime after judgment of sentence was imposed, the United States Supreme Court announced the Batson decision. On appeal from the judgment of sentence, the Pennsylvania Supreme Court found that defendant had preserved a Batson challenge to his conviction, and that "the trial court did not rule on this issue." 519 Pa. at 244, 546 A.2d at 1104. The Court therefore conducted the initial inquiry as to whether the defendant had established a prima facie case of discrimination, and concluded that he had not. However, the Court stressed that under ordinary circumstances, "[i]n deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances." Id. (citing Batson, 476 U.S. at 96, 106 S.Ct. at 1723 and supplying emphasis). Cf. Commonwealth v. Abu-Jamal, supra (Pennsylvania Supreme Court conducted initial review of Batson challenge where Batson was decided while case was pending on direct appeal).

4 . In Ex parte Branch, supra, the trial court found that the defendant’s prima facie case had been rebutted by the prosecutor’s neutral explanation for his pattern of strikes. The defendant appealed, and the Alabama Supreme Court remanded to the trial court for further consideration of the adequacy of the neutral explanation. Although Justice Houston dissented from the decision to remand, his discussion of the prima facie case requirement is consistent with the majority opinion.

5 . Factors which may be relevant to a determination as to whether the defendant has established a prima facie case include not only the race of the victim, the witnesses, and the seated jurors, but also: 1) the number of strikes used against minorities, 2) the percentage of minorities on the venire panel eliminated by peremptory strikes; 3) the past conduct of the prosecutor in challenging members of minority groups at other trials; 4) the type and manner of the prosecutor’s statements and questions during voir dire; and 5) similarities and differences between challenged and unchallenged venire panel members. Warning signs of possible discrimination include: 1) evidence that the use of peremptory challenges had a disparate impact on minority venire panel members; 2) evidence that challenged venire panel members had no characteristic in common except for race; 3) evidence that minority venire panel members were questioned in a manner that was especially likely to elicit disqualifying responses; and 4) evidence that minority venire panel members were struck while white panel members who had similar characteristics were retained. See Ex parte Branch, 526 So.2d at 622-23 (collecting cases); Acker, supra, 24 Criminal Law Bulletin at 197-201 (collecting cases).

6 . We are aware that in some counties, a judge is often not present in the courtroom during voir dire. Nothing in this opinion requires a judge to be present for voir dire. However, it is advisable for a judge to dispose of a Batson claim before the Commonwealth presents its case in chief so as to avoid the need for a new trial if the claim is meritorious.

7 . We note that the denial of a Batson claim is not immediately appealable as a final order. In most instances, appellate resolution of the matter must be deferred pending appeal from a judgment of sentence.

8 . Of course, the trial judge should promptly deny any Batson claim which is merely designed to harass the prosecution or delay trial.

9 . The court also noted that the danger of racial discrimination was reduced in this case inasmuch as the Commonwealth witnesses and some members of the jury were black. These factors are relevant to the neutral explanation phase of a Batson inquiry, as well as to the prima facie case phase of a Batson inquiry, since they tend to support the prosecutor’s assertion that his reasons for striking prospective jurors were unrelated to race. However, for the reasons stated in Section III of this opinion, these factors should not be viewed as conclusively establishing an absence of racial discrimination.

10 . Prior to argument on the post-verdict motions, defense counsel filed an affidavit with the court in which he swore that based upon his recollection Bruce C. was Caucasian. Since the Commonwealth did not contest this point, we will assume that Bruce C. was Caucasian for purposes of our review. We note, however, that defense counsel has never represented that either Herbert M. or Shelita B. were Caucasian. Nor does the record reveal whether Herbert M. and Shelita B. were black or white.