# Commonwealth v. Simmons > Supreme Court of Pennsylvania · October 27, 1989 · 388 Pa. Super. 271 URL: https://www.frixlaw.com/law-library/cases/9652395 ## Case - **Full name:** COMMONWEALTH of Pennsylvania v. Brian SIMMONS, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 27, 1989 - **Citations:** 388 Pa. Super. 271; 565 A.2d 481; 1989 Pa. Super. LEXIS 3197 - **Precedential status:** Published - **Opinion:** Concurrence by Beck - **Judges:** Cirillo, Brosky, McEwen, Sole, Montemuro, Beck, Tamilia, Popovich, Johnson - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9652395 ## How later opinions describe it (automated extraction) - stating this Court does not have the power to review the work of an inferior tribunal, as on certiorari, where no statutory right of appeal exists and that the Judicial Code does not grant us any broad discretionary power of review ## Opinion text BECK, Judge, concurring: The principal issue presented by this case is whether appellant is entitled to a new trial on the ground that the prosecution refused to disclose why appellant was assigned *281 to the Career Criminal Program. Appellant argues that in order to promote openness and accountability, the Philadelphia District Attorney’s Office should be required to provide all defendants with a statement of reasons why they have been included within the Career Criminal Program. Much could be said in favor of requiring such a statement of reasons, at least where the prosecutor’s decision to label the defendant a career criminal resulted in the defendant being tried before a special judge assigned to handle career criminal matters. I agree with the majority, however, that this court lacks the authority to implement such a requirement. If we were to direct that the District Attorney provide a statement of reasons in every case as a precondition for assigning a defendant to the Career Criminal Program, we would in effect be promulgating a new rule of criminal procedure, an exclusive function of the Pennsylvania Supreme Court. The remedy that the appellant seeks must be provided by the Pennsylvania Supreme Court, or not by any court. It should be emphasized, however, that this court has both the authority and the responsibility to consider challenges to the placement of specific individuals in the Career Criminal Program when those challenges are based on purported violations of existing rules of criminal procedure or of statutes or of the federal or state constitution. Prosecutorial discretion is not unfettered. Commonwealth v. Pittman, 515 Pa. 272, 279-82 , 528 A.2d 138, 142-43 (1987) (citing United States v. Batchelder, 442 U.S. 114, 124-26 , 99 S.Ct. 2198, 2204-05 , 60 L.Ed.2d 755 (1979)). For example, the equal protection clause prohibits selective enforcement of the criminal laws “based upon an unjustifiable standard such as race, religion or other arbitrary classification.” Id. Moreover, the presence or absence of a statement of reasons may be of crucial importance in determining whether a challenge to a prosecutor’s actions under the equal protection clause has merit. In this regard, the United States Supreme Court’s opinion in Batson v. Ken *282 tucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), is instructive. In Batson , the Court addressed a claim that the prosecutor had violated the equal protection clause by exercising peremptory challenges in a racially discriminatory manner. The Court held that in order to prevail on this claim, the defendant has the initial burden of establishing a prima facie case of racial discrimination. If the defendant makes a prima facie showing of discrimination, the burden then shifts to the prosecution to “articulate a neutral explanation”, 476 U.S. at 98 , 106 S.Ct. at 1724 , i.e., provide a statement of reasons, in order to rebut the inference of invidious discrimination. Unless the prosecution comes forward with a persuasive statement of permissible reasons for his jury selection decisions, the defendant is entitled to relief, and if the trial court wrongfully denies relief, an appellate court must order a new trial. See generally Commonwealth v. Jackson, 562 A.2d 338 (Pa.Super.1989) (en banc) (plurality). Batson demonstrates that the equal protection clause limits the prosecution’s ability to select jurors. I think it is clear that the equal protection clause also limits the prosecution’s ability to select judges. At the time of appellant’s trial, assignment to the Career Criminal Program resulted in the trial being handled by a special Career Criminal Program judge. If appellant had come forward with evidence indicating that he was assigned to the Career Criminal Program on the basis of race, or religion, or some other forbidden consideration, I would find that the prosecution was obliged to supply a statement of reasons to rebut the inference of discrimination. Moreover, if the prosecution failed to supply such a statement of reasons, a new trial would be in order even if the Career Criminal Program judge were clearly not biased against the defendant. The selection of a decision maker by a means that violates the equal protection clause is prejudice per se. A black defendant who qualifies for relief under Batson could not be *283 denied a new trial on the grounds that the all white jury that tried him was fair and impartial. Similarly, a defendant who is assigned to the Career Criminal Program on the basis of an unjustified standard could not be denied a new trial on the grounds that the Career Criminal judge was fair and impartial. In the instant case, however, I agree with the majority that the appellant’s judgment of sentence must be affirmed. Appellant asserts in his brief that his selection for the Career Criminal Program violated the equal protection clause. Yet, appellant has not come forward with evidence that supports an inference that the prosecution engaged in any form of invidious discrimination. Appellant claims only that his selection for the program was “arbitrary”, and he relies on the fact that he would not have qualified for the Career Criminal Program under a set of internal guidelines established by the Philadelphia District Attorney’s Office that was not in effect at the time of his trial. Under these circumstances, I see no reason to disturb appellant’s conviction. I therefore concur in the result reached by the majority. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652395. Public record. Not legal advice.