Commonwealth v. Jones

CONCURRING OPINION

Chief Justice CASTILLE.

I maintain the view that appellant’s failure to raise a contemporaneous objection to the jury selection process at his trial is fatal to his Batson claim, and if left to my own devices, I would not reach the other points addressed by the Majority Opinion. Nevertheless, given that Madame Justice Todd’s analysis is thorough and eminently well-reasoned, and that a majority of this Court determined in Commonwealth v. Jones, 583 Pa. 130 , 876 A.2d 380 (2005) (“James Jones I”) that consideration of the merits of appellant’s Batson claim was warranted, I join the Majority Opinion and write only to elaborate on several points.

Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) revolutionized jury selection practices, so much so that the High Court has repeatedly made clear that the decision does not apply retroactively. See, e.g., Allen v. Hardy, 478 U.S. 255, 259-61 , 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986); Ford v. Georgia, 498 U.S. 411, 417 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). The variety of Batson challenges forwarded here, however cleverly constructed, cannot change the essential circumstances of the instant appeal. By constitutional definition, appellant’s 1981 jury selection cannot have been conducted in violation of a non-retroactive constitutional rule that did not then exist, and that appellant did not predict and preserve by contemporaneous challenge. Appellant’s requested relief is therefore barred, as this Court recognized in Commonwealth v. Sneed, 587 Pa. 318 , 899 A.2d 1067, 1075 (2006) (deeming Batson claim waived on collateral review for *306 failure to raise it at trial). This contemporaneous-to-trial focus is why I dissented from our prior order remanding this case to the PCRA court for consideration of appellant’s Batson claim. See James Jones I, 876 A.2d at 388-89 (Castille, J., concurring and dissenting) (noting that appellant’s Batson claim was “an attempt to secure, via the guise of ineffectiveness, the retroactive benefit of a non-retroactive decision”).

I write separately also to address this Court’s decision in Commonwealth v. Uderra, 580 Pa. 492 , 862 A.2d 74 (2004). Citing Uderra , the Majority correctly holds that, to pursue a collateral claim premised upon a waived Batson issue, appellant must establish actual, purposeful discrimination since his failure to challenge the jury selection process at his trial upsets the normal Batson test. Uderra was a collateral appeal in which the appellant — like appellant herein — raised his Batson claim under the guise of ineffectiveness, asserting trial counsel’s failure to claim, at trial, discriminatory jury selection. The Batson — derived issue addressed in Uderra was a question of federal law — namely, whether an appellant who failed to raise a contemporaneous objection to the jury selection process at his trial is entitled to the burden-shifting framework set forth in Batson . Recognizing that the High Court itself had left this issue unresolved, we determined that the “emerging view” on this federal question was that a defendant who failed to raise a contemporaneous Batson challenge is not entitled to the benefit of Batson’s burden-shifting framework, “but instead, bears the burden in the first instance and throughout of establishing actual, purposeful discrimination.” Uderra, 862 A.2d at 86 (citing Second Circuit’s holding on issue in McCrory v. Henderson, 82 F.3d 1243, 1251 (2d Cir.1996), and supporting dicta in Ford, 498 U.S. at 422 , 111 S.Ct. 850 ). Citing, inter alia, McCrory, the Third Circuit recently joined the ranks of its sister Circuits in interpreting Batson as requiring a contemporaneous objection. See Abu-Jamal v. Horn, 520 F.3d 272, 283-84 (3d Cir.2008) (citing, in addition to McCrory, Allen v. Lee, 366 F.3d 319, 327-28 (4th Cir.2004) (en banc); Sledd v. McKune, 71 F.3d 797, 799 (10th Cir.1995); Thomas v. Moore, 866 F.2d 803, 804 *307 (5th Cir.1989)). Thus, Uderra has aligned Pennsylvania with the growing consensus of the federal Courts of Appeals that the U.S. Supreme Court “in Batson ‘envisioned an objection raised during the jury selection process.’ ” Abu-Jamal, 520 F.3d at 280 -81 (quoting McCrory, 82 F.3d at 1247 ).

Finally, as the Majority correctly notes in concluding that the existence of the McMahon videotape does not support a prima fade case under Batson of discriminatory jury selection at appellant’s trial, the trial took place approximately six years before the McMahon tape was created. While I agree that appellant’s reliance on the McMahon tape does not, for this reason, help him overcome his Batson waiver, I would also stress that the fact that appellant’s trial took place nearly five years before Batson was even decided, in my view, utterly forecloses the possibility of Batson relief. Appellant’s Batson claim was always a non-starter.

Justice EAKIN joins this opinion.