# Commonwealth v. Rico > Supreme Court of Pennsylvania · April 27, 1998 · 551 Pa. 526 URL: https://www.frixlaw.com/law-library/cases/9728187 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Joseph RICO, Appellee - **Court:** Supreme Court of Pennsylvania - **Decided:** April 27, 1998 - **Citations:** 551 Pa. 526; 711 A.2d 990; 1998 Pa. LEXIS 873 - **Precedential status:** Published - **Opinion:** Concurrence by Castille - **Judges:** Flaherty, Zappala, Cappy, Castille, Nigro, Newman - **Cited by:** 21 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/9728187 ## Opinion text CASTILLE, Justice, concurring. I join the opinion announcing the judgment of the court as I agree that the Superior Court erred in determining that the prosecutor purposefully discriminated on the basis of ethnicity in exercising peremptory challenges. Nevertheless, I write separately because of the potentially troublesome ramifications of the test that the Court sets forth to determine *542 whether an ethnic group is “cognizable” for Batson 1 purposes. I do not, however, imply any criticism of the Court in this discussion, as I believe that the Court has been compelled to promulgate a test of this nature in light of the United States Supreme Court’s incomplete resolution of the issues implicated by Batson and its progeny. According to the United States Supreme Court, a Batson challenge does not stem from any right held by the defendant, but rather from the Fourteenth Amendment right to equal protection held by the prospective juror, which is asserted by the defendant via third-party standing doctrine. See Powers v. Ohio, 499 U.S. 400, 413-14 , 111 S.Ct. 1364, 1372-73 , 113 L.Ed.2d 411 (1991)(acknowledging that Batson claim is asserted via third-party standing under Fourteenth Amendment, and thus the race of defendant is irrelevant in determining defendant’s standing to make Batson objection). In J.E.B. v. Alabama Ex Rel. T.B., 511 U.S. 127, 137 , 114 S.Ct. 1419, 1425-26 , 128 L.Ed.2d 89 (1994), the Supreme Court applied traditional equal protection principles in determining that not only race-based peremptory challenges, but also gender-based challenges were unconstitutional. Specifically, the Court invoked the standard intermediate-tier scrutiny to find that the state had no compelling reason to exercise peremptory challenges on the basis of gender. See id. at 135-57, 114 S.Ct. at 1424-36 . Citing the “history of total exclusion” from jury service shared by African-Americans and females, the Court determined that judicial intervention was warranted to prevent the further proliferation of a particularly repugnant stereotype — a stereotype sanctioned by law for much of this nation’s existence — that these particular groups of people cannot dispassionately and rationally weigh evidence in a legal matter. Id. Left in the wake of Batson and J.E.B. was the question of whether some ethnicity-based stereotypes are, like race-based and gender-based stereotypes, so repugnant and historically pervasive as to mandate judicial intervention, and if so, which ethnic groups are to be protected? Although the Supreme *543 Court has never explicitly determined whether peremptory challenges may be exercised on the basis of a juror’s ethnicity, 2 the logic of traditional equal protection doctrine would suggest that ethnicity is also a prohibited basis of discrimination in the jury selection process. If gender-based peremptories cannot survive intermediate-tier scrutiny, it would seem to follow almost axiomatically that ethnicity-based peremptories would be unconstitutional under the standard strict scrutiny analysis that applies to all classifications based on ethnicity or national origin — regardless of the particular ethnicity at issue. 3 See, e.g., Miller v. Johnson, 515 U.S. 900, 913 , 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995). The full force of this logic would lead diligent defense attorneys to make a record of the ethnic background of each venireperson and then raise a Batson challenge every time a juror with any identifiable ethnic background was stricken, in the hope that an appellate court would view as pretextual the prosecutor’s proffered reason for the strike and thereby order a new trial. 4 Trial courts would have to determine the ethnic *544 background of all prospective jurors, 5 and would then have to rule on the adequacy of a potentially indeterminate series of Batson challenges followed by ethnicity-neutral proffers. Perhaps because appellate courts fear the above-described result, they have uniformly — and wisely in my opinion — ignored the logic of the equal protection doctrine that would seem to inevitably compel this result. Realizing that it would be unnecessary and overburdensome to include all ethnic groups under Batson’s paternal wing, courts have foreclosed the possibility of continuous Batson challenges by limiting the ethnic groups that are “cognizable” for purposes of Batson. The problem that courts have had is deciding where to draw the line among ethnic groups. 6 Today, in an attempt to guide the courts of the Commonwealth in their resolution of the vexing issues of whether and where to draw the line, this Court adopts the same test that has been uniformly adopted by the federal courts that have considered this issue. 7 Al *545 though I am unable to devise a better test for determining ethnic “cognizability,” I wish to point out the predicament that our courts are likely to face as they attempt to apply this test — a predicament which further underscores the need for the United States Supreme Court to decisively address the issues of whether ethnic groups are “cognizable” for Batson purposes and, if so, where the lines should be drawn. 8 The test set forth by the Court consists of four parts. 9 Each part is fact-intensive and will require the trial judge to *546 conduct a hearing to determine whether the ethnic group at issue satisfies that part. Application of the four parts of this test will potentially embroil our trial courts in a quagmire of tedious factfinding. 10 First, our courts will have to determine whether an ethnic group possesses a sufficiently “common thread of attitudes, ideas and experiences.” One need not strain one’s imagination to foresee the potential for intractable factual disputes over this issue alone. For example, if a defendant alleges that Irish-Americans have been improperly excluded from the jury, the defendant will have to call Irish-American witnesses, whose testimony may or may not establish a common thread of attitudes, ideas and experiences. Depending on how the trial judge exercises her discretion, the court might then hear Irish-American rebuttal witnesses from the prosecution, testifying that they do not share the alleged common attitudes and ideas. The defense will undoubtedly conduct extensive cross-examination as to how any Irish-American could not share such ideas or attitudes at some level. Next, the defendant will need to show that Irish-Americans share a “community of interests” that cannot be adequately represented by another group if they are excluded from the jury. Presumably, the prosecutor at this point will call members of other ethnic groups who are represented on the jury to try to elicit information that would show that the interests of Irish-Americans, whatever they are, would be equally well represented by the other jury members of different ethnicity. The trial court will now be ready to hear testimony on whether Irish Americans have experienced or are experiencing discriminatory treatment in the community and are in *547 need of protection from community prejudice. This will likely involve Irish-Ameriean witnesses detailing the discrimination they have faced, rebutted by other witnesses who may testify that they have advanced to positions of power and prestige without facing noticeable discrimination. Finally, at the end of this minitrial, the trial judge will be ready to address each of the prongs in the four-part test and determine whether Irish-Americans are a “cognizable” group for Batson purposes. Moreover, because the litigant is asserting the jurors ’ rights, the trial court might well have to conduct several of these minitrials before it can empanel a jury. A party may object to a peremptory strike (as well as appeal a ruling that a peremptory strike was valid) any time the strike was made against a member of a group that Batson and its progeny protect from discrimination, irrespective of whether the strike affected the defendant’s right to a fair trial. See Powers v. Ohio, 499 U.S. 400, 413-14 , 111 S.Ct. 1364 , 1377-79 113 L.Ed.2d 411, 426-27 (1991). Accordingly, any time a juror with some vaguely identifiable ethnic background is excused, a litigant may raise a Batson challenge. Before she can make a ruling, the trial judge will have to determine whether the juror’s ethnic background is cognizable. Thus, the test that we are constrained to promulgate today has the potential to envelop our trial courts in a tedious factfinding process at the jury selection stage, generate inconsistent determinations on whether certain ethnic groups are cognizable, and ultimately present this Court with intractable legal issues concerning what facts establish legal “cognizability.” I do not believe that the United States Supreme Court intended this result, but I do believe that this result or one similar to it is dictated by any plain understanding of the principles set forth in Batson and its progeny. The only alternatives are either to acknowledge that all ethnic groups are cognizable for purposes of a Batson challenge — and face the consequences of such a decision — or assert that no ethnic group is cognizable. I believe that the former alternative constitutes the height of absurdity as it would, without any *548 sound justification, “increase the number of cases in which jury selection — once a sideshow—will become part of the main event.” J.E.B., supra, 511 U.S. at 147, 114 S.Ct. at 1431 (O’Connor, J., concurring). While I find the latter alternative the only logical solution to the issue raised, I cannot endorse that alternative for the aforementioned reasons (fn.8, supra). Consequently, I take this opportunity to urge the United States Supreme Court to clarify the outer limits of Batson so that our trial courts may be relieved of the albatross which we must place around their necks for the present. NEWMAN, J., joins this concurring opinion. . Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). . In Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 , the Supreme Court held that an exercise of a peremptory challenge on the basis that the prospective juror was bilingual (Spanish-English) and unlikely to accept the Court’s translations was acceptable. In so holding, the Court declined to address the threshold issue of whether the defendant had made out a prima facie case that the juror had been discriminated against on any basis that Batson forbids, deciding that the issue was moot due to the prosecutor’s proffer of a race-neutral explanation for the challenge. See id. at 357, 111 S.Ct. at 1865. Thus, the issue of whether ethnic groups are included under Batson's wing is technically still unresolved. . Strictly speaking, there is no sound analytical rationale for subdividing ethnic groups for purposes of the equal protection clause. Yet the failure of the United States Supreme Court to speak further to this issue has compelled the state courts and the lower federal courts to do precisely that, as discussed infra. . In this regard, I note that there is no allowance for "harmless error” review in the context of Batson claims. While it might seem quite nonprejudicial, for example, if a prospective white juror is discriminated against on the basis of his race in the trial of an African-American defendant, an appellate court may not determine that the Batson error is harmless even in such a case. See J.E.B., supra, 511 U.S. at 159, 114 S.Ct. at 1437 (Scalia, J., dissenting)(citing Powers v. Ohio, 499 U.S. 400, 415 , 111 S.Ct. 1364, 1373 , 113 L.Ed.2d 411 (1991)). Thus, anytime *544 the appellate courts of this Commonwealth determine that a trial court erred by denying ethnic "cognizability” or by improperly accepting an ethnicity-neutral proffer, a new trial is automatically mandated. . Determining a juror’s ethnicity could itself prove burdensome. For example, in the matter under consideration, would an Anglo-Saxon woman married to an Italian-American man be considered Italian-American for purposes of the jury selection process? To discriminate against a white woman because she married an African-American man would obviously violate equal protection doctrine; thus, it would seem reasonable for defense counsel to argue that a peremptory challenge was impermissibly exercised against a woman because she had married an Italian-American. What degree of consanguinity would trigger the required race-neutral proffer by the challenging party? Taken to its logical extension, trial counsel would be able to delve interminably into each prospective juror’s family background to discover a hint of ethnicity in an attempt to trigger a Batson challenge. These are some of the problems that the logic of traditional equal protection doctrine seems to compel courts to address in the wake of Batson . . Trial courts in our sister states have been unable to agree on whether any of the following ethnic groups, inter alia, sire "cognizable” for Batson purposes: Spanish Americans, Mexican Americans, Asian Americans, Native Americans, Italian Americans, Irish Americans and Jewish Americsms. See Jay M. Zitter, Annotation, Use of Peremptory Challenges to Excluded Ethnic and Racial Groups, other than Black Americans, from Criminal Juries Post-Batson State Cases, 20 A.L.R. 5th 398 (1994). . See Murchu v. United States, 926 F.2d 50, 54 (1st Cir.1991); United States v. DiPasquale, 864 F.2d 271 , 282 (3rd Cir.1988), cert. denied, 492 *545 U.S. 906 , 109 S.Ct. 3216 , 106 L.Ed.2d 566 (1989), United States v. Dennis, 804 F.2d 1208, 1210 (11th Cir.1986), cert. denied, 481 U.S. 1037 , 107 S.Ct. 1973 , 1974, 95 L.Ed.2d 814 (1987). . My own view is that Batson is not properly extended to any group besides those defined by race and gender. It is only the “history of total exclusion” from jury participation — a history that is shared exclusively by African-Americans and women — that compelled the prohibition of race- and gender-based peremptories in Batson and J.E.B.. See J.E.B., supra, 511 U.S. at 135 and 142 n. 14, 114 S.Ct. at 1424 -25 and 1428 n. 14. Justice O'Connor, who provided the fifth vote necessary for a majority opinion in J.E.B., also wrote a concurring opinion expressing her belief that the extension of the Batson principle should be limited to the government's use oí gender-based strikes. See id. at 147-49 , 114 S.Ct. at 1430-32 . Even the majority opinion in J.E.B. suggests that peremptory challenges exercised on the basis of race or gender are unconstitutional not because they stereotype the prospective juror as one who will be partial to one side in a particular case, but because they harken back to the much more repugnant stereotype that African-Americans and women do not have the rational minds necessary to find the facts dispassionately in any case. See id. at 142 n. 14, 114 S.Ct. at 1428 n. 14 ("where peremptory challenges are made on the basis of group characteristics other than race or gender, they do not reinforce the same stereotypes about the group’s competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life”) (citation omitted)(emphasis added). Quite simply, no ethnic group in this country shares this same history of categorical, state-sanctioned exclusion from jury participation. In the aggregate, I believe that these are compelling indications that the United States Supreme Court would not — and should not — make ethnicity a prohibited basis of discrimination in the jury selection process. However, in light of the inherent tension of my proposed conclusion with traditional equal protection doctrine, which affords greater protection against ethnicity-based discrimination than against gender-based discrimination, I will not leap to this conclusion ahead of the United States Supreme Court. . Specifically, the test provides that an ethnic group is "cognizable” if the trial court finds that it: (1) is defined and limited by some clearly *546 identifiable factor or factors; (2) possesses a common thread of attitudes, ideas or experiences; (3) shares a community of interests such that the group’s interests cannot be adequately represented if the group is excluded from the jury selection process; and (4) has experienced or is experiencing discriminatory treatment and is in need of protection from community prejudices. . Before trial courts can even apply this test, they must of course determine the ethnicity of the juror at issue, which means that they will have to address the concerns raised in footnote five, supra. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728187. Public record. Not legal advice.