# Commonwealth v. Rico > Supreme Court of Pennsylvania · April 27, 1998 · 551 Pa. 526 URL: https://www.frixlaw.com/law-library/cases/9728188 ## 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:** Dissent by Nigro - **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/9728188 ## Opinion text NIGRO, Justice, dissenting. I cannot accept the Majority’s conclusion that the trial court did not err in finding that the prosecution’s use of peremptory challenges against Mr. Giorgi and Ms. Bratolla were not impermissibly discriminatory. Therefore, I must respectfully dissent. Preliminarily, the Majority assumes that Italian-Americans meet the cognizability test set forth in its opinion. I believe that the cognizability test adopted by the Majority, as it is set forth, imposes a burden of proof on individuals raising Batson claims which is not in accord with the letter or the spirit of Batson. 1 In addition, as Justice Castille aptly points out in his *549 concurring opinion, the Majority’s delegation of the responsibility of determining whether specific ethnic groups are cognizable for Batson purposes to the trial courts has troubling ramifications. 2 While I do not agree with the conclusion that determinations of specific ethnic groups’ cognizability should be left to the trial courts or with the cognizability test set forth by the Majority, 3 for purposes of this dissent I will adopt their assumption that Italian-Americans are a cognizable ethnic group for Batson purposes. 4 However, even applying the *550 test enunciated by the Majority, I disagree with the Majority’s conclusion that no error on the part of the trial court has been demonstrated. To the contrary, the record reflects that even though the trial court was uncertain as to whether Italian Americans were a cognizable group for Batson purposes, it was clearly concerned about several of the peremptory strikes used by the prosecution, and took pains to preserve the record with respect to the strikes of Vincent Giorgi and Susan Bratolla. Arguably, this uncertainty explains the trial court’s refusal to strike the jury panel because of the prosecution’s use of peremptory challenges to strike jurors of ItalianAmeriean descent. During voir dire, the prosecution used a peremptory challenge to strike Vincent Giorgi. There is no question that Mr. Giorgi was of Italian descent. During voir dire by the court, Mr. Giorgi steadfastly maintained that evidence which might link Appellant or one or more of the witnesses with organized crime would not affect his ability to be fair and impartial. Following the strike the trial court asked the prosecutor to provide a neutral explanation for the strike, in accord with the strictures of Batson and its progeny. The prosecutor replied that he thought he saw “fear in [Giorgi’s] demeanor and his voice when organized crime was mentioned and that in conjunction with his Italian background led me to believe he would not be a juror suitable with this case.” The defense then moved to strike the panel, and the court denied the motion. The prosecution also used a peremptory challenge to strike Susan Bratolla, whom the Commonwealth conceded was of Italian descent. During voir dire Ms. Bratolla repeatedly stated that evidence linking Appellant to organized crime *551 would not affect her ability to be fair and impartial. When the trial court requested a neutral explanation for the strike the prosecutor indicated that Ms. Bratolla lived in “South Philadelphia in an area over which the mob will speak and I think she’s subject to intimidation so in an abundance of caution I’m striking her.” The trial court did not accept the prosecutor’s explanation and was not going to strike her. The prosecutor interjected that refusing the strike would prejudice the Commonwealth because Ms. Bratolla had already overheard his attempt to strike her. Only in the face of this apparent prejudice did the trial court relent and permit the strike. Thus, what the prosecution could not get through the front door it forced through the back. Following Ms. Bratolla’s voir dire the trial court refused to allow the prosecution to use peremptory strikes against any individuals of Italian descent unless the strikes were first discussed at sidebar — out of the hearing of any potential juror. The defense then again moved to strike the panel, and the trial court responded that it would not, primarily because it was unsure whether Italian-Amerieans constituted a cognizable group for Batson purposes. Contrary to the findings of the Majority, the facts of record indicate the trial court did not simply accept the prosecution’s explanations for striking Italian-American venirepersons. Instead, the trial court repeatedly voiced its frustration with the prosecutor’s tactics and in fact, created a detailed record regarding the prosecution’s use of its peremptory strikes against Italian-Amerieans. The Majority prospectively puts the issue of cognizability in the hands of the trial court while ignoring the fact that the trial court in the instant case did not have the benefit of a determination of ethnicity as a cognizable group. 5 *552 In light of the above, I respectfully dissent from the Majority opinion and would affirm the Superior Court’s reversal of Appellant’s conviction, remanding the case for a new trial wherein the prosecution would not be permitted to strike jurors on the impermissible grounds of their ethnicity. . The Majority adopts a four-part cognizability test set forth in United States v. DiPasquale, 864 F.2d 271 , 277 (3rd Cir.1988) to guide the trial courts in making their cognizability determinations. However, the fourth part of the cognizability test, which requires an individual raising a Batson challenge to show that the group being excluded from the venire has experienced or is experiencing discriminatory treatment and is in need of protection from community prejudices is, in my opinion, not in accord with Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Batson expressly states that an individual raising an equal protection claim based on impermissible discrimination in jury selection need only show that a cognizable group is being impermissibly singled out in his or her particular venire. Id. at 80 , 106 S.Ct. at 1713-14 , 90 L.Ed.2d at 76-77 . In addition, to show the cognizability of a group, Batson requires only that the individual raising the challenge prove that the group being discriminated against in the venire is capable of being singled out for differential treatment. Id. at 94 , 106 S.Ct. at 1722 , 90 L.Ed.2d at 86 . Therefore, I would recom *549 mend that the Majority not adopt the four-part cognizability test set forth in DiPasquale, because it imposes a higher burden of proof on individuals raising Batson challenges than is required by our United States Supreme Court. . Justice Castille’s concurrence recognizes the onerous fact-finding task which is being delegated to the trial courts as a result of the Majority’s decision. The trial courts will have to make factual determinations regarding the cognizability of any number of ethnic groups on a case-by-case basis. I believe that this Court should make a general determination as to the cognizability of any and every specific ethnic group for Batson purposes. Such a determination would alleviate the fact-finding responsibility of the trial courts, and would eliminate the possibility of inapposite determinations of specific ethnic groups’ cognizability for Batson purposes which will inevitably result from the case-by-case cognizability determinations ordered by the Majority’s holding. . The majority would leave the issue of a particular ethnic group's cognizability for Batson purposes to the trial courts' sound discretion. I cannot agree with this proposition. The trial courts are designed to effect justice in particular cases, not to proclaim the close identity and oppressed status of one ethnic group versus another's. This Court has recognized that race and gender always establish cognizability pursuant to Batson , thereby providing sound guidance to the trial courts. See Commonwealth v. Hardcastle, 519 Pa. 236, 242-43 , 546 A.2d 1101, 1103-04 (1988)(race-based strikes violate equal protection clause); Commonwealth v. Jones, 542 Pa. 464, 519 , 668 A.2d 491, 518 (1995)(gender-based strikes violate equal protection clause)(citing J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994)). I would recommend that this Court provide the same type of guidance to the trial courts with respect to the cognizability of ethnic groups, rather than impose upon them the burden of determining ethnic groups’ cognizability on a case-by-case basis. . Adopting the cognizability test set out in Batson v. Kentucky, Italian-Americans would be considered a cognizable group if they are capable of being singled out for differential treatment. Batson v. Kentucky, 476 U.S. 79, 94 , 106 S.Ct. 1712, 1722 , 90 L.Ed.2d 69, 86 (1986). The Third Circuit Court of Appeals has identified several other criterion for determining the cognizability of a group for Batson purposes which do not violate the principles of that decision. United States v. DiPasquale, *550 864 F.2d 271 , 277 (3rd Cir.1988). These include common backgrounds, ideas, group loyalties and interests. Id. Based on the standard set out in Batson , and further detailed in DiPasquale, I believe that Italian-Americans, as well as any and every discernable ethnic group in America today are cognizable for Batson challenge purposes. Every ethnic group is capable of being singled out for differential treatment in one way or another, and every ethnic group shares a common background and some ideas, loyalties and interests linked to a single culture; those commonalities are part of what makes up an ethnic group. . There is little question that granting ethnic groups cognizable status under Batson will pose difficult problems for our courts to face. Over twelve years ago, when the United States Supreme Court decided Batson , Justice White correctly predicted that "much litigation [would] be required to spell out the contours of the Court's holding today.” Batson, 476 U.S. at 102 , 106 S.Ct. at 1726 , 90 L.Ed.2d at 91 (White, J., concurring). The people of this Nation share a wealth of ancestries *552 unmatched anywhere in the world, making precise determinations as to any individual's particular ethnic background an extremely difficult task. In his Concurring Opinion, Justice Castille observes that a quagmire of trials within trials might arise if ethnic groups are given cognizable group status for Batson purposes. While I agree with his observation, I cannot agree with his personal conviction that ethnic groups should not be afforded the protections of the Equal Protection Clause in jury selection. Difficulty in application of the protection for ethnic groups is a formidable obstacle. This obstacle, however, cannot extinguish the right of qualified jurors and indeed all Americans to a justice system devoid of discrimination in violation of the Constitution. Perhaps our system of justice would be best served by elimination of peremptory challenges altogether, as Justice Zappalla suggests in his Concurring Opinion. However, until and unless such a result is reached, we must do justice unto the people on whose confidence our judicial system depends. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728188. Public record. Not legal advice.