Commonwealth v. Stern

573 A.2d 1132, 393 Pa. Super. 152, 1990 Pa. Super. LEXIS 905
CourtSupreme Court of Pennsylvania
DecidedMay 1, 1990
Docket3154
StatusPublished
Cited by10 cases

This text of 573 A.2d 1132 (Commonwealth v. Stern) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Stern, 573 A.2d 1132, 393 Pa. Super. 152, 1990 Pa. Super. LEXIS 905 (Pa. 1990).

Opinions

TAMILIA, Judge:

Appellant herein, Lewis Stern, appeals judgment of sentence of life plus two and one-half to five years imprisonment imposed following his convictions of first degree murder 1 and possession of an instrument of crime.2 Appellant and co-defendant, Steven Johnson, were convicted at a jury trial in which the evidence established that Johnson hired Stern to kill James Clark for Clark’s failure to return drug money to Johnson after Clark made sales for him. An eyewitness, Joe Buxton, testified he saw not only the killing but the set-up by Johnson to get Clark to the murder scene.

[155]*155Although the co-defendants were tried simultaneously and have one issue on appeal in common, their appeals will be addressed separately. As to co-defendant, Johnson, see Commonwealth v. Johnson, — Pa.Super. —, — A.2d — (unpublished memorandum filed 4/16/90).

Stern’s first assignment of error is that the prosecutor intentionally used his peremptory challenges to exclude black jurors from sitting at trial. Both defendants and the Commonwealth were allowed eight peremptory challenges during selection of the regular jury panel and two peremptory challenges during selection of the alternatives. The Commonwealth used six of its eight initial peremptory challenges against blacks and both peremptory challenges during selection of alternates were against blacks. The final jury panel consisted of ten whites and two blacks, after a black alternate took the place of a white juror who was excused due to hardship.

Appellant had the burden of proving to the trial court a prima facie case of discrimination by the Commonwealth in exercising its peremptory challenges. This rule and its requirements were set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and recently reviewed by this Court, en banc, in Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (plurality Opinion).

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 [156]*156practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the impaneling of the petit jury, as in selection of the venire, raises the necessary inference of discrimination. [Batson v. Kentucky,] 476 U.S. at 96-97, 106 S.Ct. at 1723 (citations omitted). See also Teague v. Lane, 489 U.S. 288 [-], 109 S.Ct. 1060 [1066-67], 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.

Id., 386 Pa.Superior Ct. at 40-41, 562 A.2d at 343. Only after a defendant proves a prima facie case of discrimination does the burden shift to the prosecutor to justify his strikes. Id., 386 Pa.Superior Ct. at 41-43, 562 A.2d at 344.

Immediately after the jury was impaneled, appellant’s counsel moved for the jury to be striken based on the alleged discriminatory selections of the prosecutor.

Following the motion, the court permitted both defense counsel and the prosecutor to discuss with him the specific allegations of prejudice or bias.3 The transcript illustrates that the trial judge seriously considered appellant’s allegations of specific bias in the context of the voir dire, which he personally supervised. The trial judge exhibited a sound grasp and recollection of the proceedings, and in fact corrected misstatements of fact by appellant’s counsel as to the selection process.

[157]*157Appellant’s counsel began by alleging that because the Commonwealth had exercised six of its eight peremptive challenges against blacks and only one against whites, and both of his peremptory challenges in choosing alternate jurors were used against blacks, the inference of bias existed. This is not a conclusive indicator, however, of discrimination as we have not adopted “a per se rule that any particular number of strikes against minority venirepersons must invariably give rise to a prima facie case.” Id., 386 Pa.Superior Ct. at 43, 562 A.2d at 344-45. Appellant does not compare any particular black venirepersons who were striken by the prosecutor with those jurors accepted by him to show us how his strikes were discriminatory. See Commonwealth v. Weaver, 390 Pa.Super. 434, 568 A.2d 1252 (1989).

Appellant’s second specific allegation of bias was that in attempting to keep a white person, Juror 86, on the jury who wished to be excused for a minor medical problem, the prosecuting attorney questioned her for five minutes about her condition. She was excused for cause by the court. Mr. Campolongo’s response was that he didn’t believe the condition was a ground for nonservice as a juror since he suffered from it himself. A third instance involved Juror 447, who appellant’s counsel alleges was questioned too extensively about her ability to judge people in light of her religious beliefs. Appellant’s counsel admitted to asking similar questions but in a “different tone” and a less offensive manner (T.T., 11/24/88, p. 31). The trial judge determined this was a legitimate line of questioning even though it had not been asked of any white juror. The next incident alleged by appellant to have illustrated bias concerned a black, Juror 328, who, although he previously had sat as an alternate juror on another criminal trial, wanted to be excused from this trial because he did not want to sit on a murder case. By agreement of counsel, the court therefore excused him. Appellant’s counsel argued the Commonwealth showed bias in that when a white person (Juror 86) asked to be excused, he questioned her for five minutes until such time the court excused her, but as to Juror 328, a [158]*158black person, no lengthy questioning was conducted before the court agreed to excuse the juror. We agree with the trial court that because all counsel agreed to excuse Juror 328, there is no merit to appellant’s bias argument.

As to the alternate jurors 13 and 14, appellant’s counsel argued that although they were black, they were accepted only after the Commonwealth used its two challenges to exclude other blacks.

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Commonwealth v. Stern
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Cite This Page — Counsel Stack

Bluebook (online)
573 A.2d 1132, 393 Pa. Super. 152, 1990 Pa. Super. LEXIS 905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stern-pa-1990.