# Commonwealth v. Futch

> Supreme Court of Pennsylvania · January 30, 1981 · 492 Pa. 359

URL: https://www.frixlaw.com/law-library/cases/9649221

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Clifford FUTCH
- **Court:** Supreme Court of Pennsylvania
- **Decided:** January 30, 1981
- **Citations:** 492 Pa. 359; 424 A.2d 1231; 1981 Pa. LEXIS 789
- **Precedential status:** Published
- **Opinion:** Concurrence by Nix
- **Judges:** O'Brien, Roberts, Nix, Larsen, Flaherty, Kauffman
- **Cited by:** 9 later opinions in the Frix Law Library

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## Opinion text

NIX, Justice,
concurring.
The majority again refuses to seize the opportunity to adopt a viable standard to eliminate the use of peremptory challenges in a manner violative of Article I, § 9, of the Pennsylvania Constitution. 1
It has generally been conceded that group affiliation is deemed an indicator of unconscious bias. The exercise of peremptory challenges based on group affiliation is frequently used as a trial strategy, and on occasion even encouraged. See, ALI-ABA Joint Committee on Continuing Legal Education, Trial Manual 3 For the Defense of Criminal Cases, §§ 326-40 (3d.ed.1974). Swain v. Alabama, 380 *369 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965) rejected the petitioner’s argument that a peremptory challenge based on group affiliation of race violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. That decision suggests the presumption of validity might be overcome where the prosecutor persistently excluded blacks over a period of time, but it could not be overcome by proof the prosecutor excludes blacks from a particular jury or “because they were Negroes.” 380 U.S. at 222 , 85 S.Ct. at 837 . Yet in Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975) exclusion based on group affiliation (sex) was not condoned on the ground that the Sixth Amendment right to an impartial jury required the grand jury to be selected from a representative cross-section of the community. However, the representative cross-section standard was not applied to the composition of petit juries.
It is evident that the Swain standard will not effectively assure the individual’s right to an impartial jury of one’s peers, as mandated by Article I, § 9. If the right is not to be illusory, it is incumbent upon this Court to provide a test that will prohibit the use of peremptory challenges based on group membership. This can only be accomplished by setting forth a criteria for the establishment of a prima facie case rebutting the presumptive validity of the peremptory challenge.
The need for such criteria is evident from the quality of the testimony presented in this case regarding the widespread practice of using peremptory challenges by the prosecution to strike black prospective jurors in Allegheny County. “.. . [E]ighty-two witnesses, including defense attorneys, former assistant district attorneys from Allegheny County, two trial judges of the Court of Common Pleas of Allegheny County, and former black criminal defendants who had been convicted in jury trials” (Opinion, at 1232-1233) testified as to the issue, on behalf of the defense. Persons of integrity and high repute such as the Honorable Thomas A. Harper and the Honorable Ralph Cappy, Judges *370 of the Court of Common Pleas of Allegheny County, gave evidence. This testimony memorializes the fact that this Commonwealth, in the interests of justice, must address the problem forthwith.
While Mr. Justice Roberts notes the transcript contained little statistical evidence in this case, this Court has not addressed the problem of criteria for a prima facie case of rebuttal beyond the one set forth in Swain, supra 2 in spite of numerous opportunities to do so 3 . It is to be noted that although the majority stresses the lack of statistical data in this record, it must be remembered that this Court has not adopted the statistical decision theory. 4
My disquietude with the lack of a method for rebuttal of the presumption of validity is not solitary. See Martin, The Fifth Circuit and Jury Selection Cases: The Negro Defendant and His Peerless Jury, 4 Hous.L.Rev. 443 (1966); Note, The Supreme Court, 1964 Term, 79 Harv.L.Rev. 103, 135-139 (1965); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 *371 Va.L.Rev. 1157 (1966); Note, Fair Jury Selection Procedures, 75 Yale L.J. 322 (1965); Note, Peremptory Challenge-Systematic Exclusion of Prospective Jurors on the Basis of Race, 39 Miss.L.J. 157 (1967); Note, The Jury: A Reflection of the Prejudice of the Community, 20 Hastings L.J. 1417 (1969); Comment, A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process, 18 St. Louis U.L.J. 662 (1974); Comment, The Prosecutor’s Exercise of the Peremptory Challenge to Exclude Nonwhite Jurors: A Valued Common Law Privilege in Conflict with the Equal Protection Clause, 46 U.Cin.L.Rev. 554 (1977); Recent Development, Racial Discrimination in Jury Selection, 41 Alb.L.Rev. 623 (1977); Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries, 86 Yale L.J. 1715 (1977).
This dissatisfaction has been previously expressed in dissents in Commonwealth v. Brown, 490 Pa. 560 , 417 A.2d 181 (1980) and Commonwealth v. Martin, 461 Pa. 289 , 336 A.2d 290 (1975). Reaffirming the essence of the Brown dissent 5 1 again urge the majority of this Court to reconsider its position. Additionally, I urge the adoption of the Wheeler test partially mentioned in the majority opinion. Since I raised this complaint in Martin, supra, three major jurisdictions have seen the need to follow the suggested course of action. 6 Yet Pennsylvania remains intransigent.
However, I concur in the result because I agree with the majority’s conclusion that even under the Wheeler test the presumption has not been overcome in this case.
. Article I, § 9, of the Pennsylvania Constitution,
Rights of accused in criminal prosecutions
In all criminal prosecutions the accused hath a right to ... trial by an impartial jury of the vicinage; ... nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers....
. [the presumption is overcome] when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries. 380 U.S. at 222 , 85 S.Ct. at 837 .
. See Annot., Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race (1975), 79 A.L.R.3d 14 , where the author concluded (at p. 24) in the 10 years after Swain “... all of the cases involving this issue thus far, all of which have dealt with ■ blacks as the group peremptorily challenged, no defendant has yet been successful in providing to the court’s satisfaction an invidious discrimination by the use of the peremptory challenge against blacks over a period of time.”
The Pennsylvania experience has been identical.
. This method of decision making has been subjected to the criticism that, in essence, the statistical method does not lend itself well to accurate evaluation, efficacy and concretization. See Kairys, et al., Jury Representativeness: A Mandate for Multiple Source Lists (1977); Kuhn, Jury Discrimination: The Next Phase, 41 S.Cal.L.Rev. 273-276 (1968).
. The fact that this problem has repeated itself in this case and other cases since our pronouncement in Martin bears further evidence of the ineffectiveness of the Swain test in preserving the fundamental principles of fair trial in this jurisdiction.
460 Pa. 560 , 417 A.2d at 188 .
. Commonwealth v. Soares, - Mass. -, 387 N.E.2d 499 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978); State v. Eames, La., 365 So.2d 1361 (1978).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649221. Public record. Not legal advice.