The opinion
J-A19037-23
2023 PA Super 263
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AHMAD NASIR :
:
Appellant : No. 925 EDA 2022
Appeal from the Judgment of Sentence Entered March 8, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006797-2019
BEFORE: BOWES, J., STABILE, J., and PELLEGRINI, J.*
OPINION BY BOWES, J.: FILED DECEMBER 12, 2023
Ahmad Nasir appeals from his judgment of sentence of life imprisonment
without the possibility of parole imposed upon his convictions of first-degree
murder, conspiracy, possession of an instrument of crime (“PIC”), and a
violation of the Uniform Firearms Act (“VUFA”). We affirm.
Jimmie Bryant was murdered in an alley in Philadelphia on the evening
of January 28, 2019, shot fifteen times by a man who fled in a waiting Nissan
Maxima with heavily tinted windows. Notably, the brake lights of the car were
illuminated before the shooter entered through the front passenger door. The
police recovered fired casings from the scene and a holster discarded on the
street during the Nissan’s flight. The Nissan ultimately was abandoned on a
nearby street. One police officer caught up to the vehicle in time to witness
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* Retired Senior Judge assigned to the Superior Court.
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the passenger exit but was unable to give chase until backup arrived and it
could be determined that the vehicle had no remaining occupants. By that
time, neither the passenger nor the driver was able to be located. The police
ran the license plate and determined that the vehicle was registered to an
address at which Appellant’s paramour, Shin Abdussamad, resided.
The subsequent execution of a search warrant on the Nissan produced,
inter alia, a nine-millimeter Glock semi-automatic handgun containing an
empty fifteen-cartridge magazine, a loose ammunition magazine, two cell
phones and chargers, gloves, and an opened bottle of Mountain Dew.
Fingerprints and DNA evidence were taken from the items where available, as
well as from the vehicle itself. Police also recovered paperwork from Delia’s
Gun Shop, receipts from Spring Garden Wash & Lube, and vehicle registration
and insurance cards in the name of Daniel Stephon Brown.1 Police obtained
video from the gun shop and the car wash from January 22, 2019, the date
on the receipts. Both of these videos depicted Appellant with a man named
Stanley Purcell. Further, Appellant’s fingerprints were identified among those
taken from the Nissan involved in the shooting.
Homicide detectives informed Agent Edward Lichtenhahn of the Gun
Violence Task Force of the attempted gun purchase at Delia’s Gun Shop. His
investigation revealed that the paperwork and license submitted for the
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1 While the registration address was that of Ms. Abdussamad, the police
determined that no person named Daniel Stephon Brown lived there.
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purchase was in the name of Daniel Stephon Brown. The transaction had been
denied because a background check showed that Mr. Brown had been
involuntarily committed while he had served in the United States Navy.
Agent Lichtenhahn contacted Ian Johnston, who had served as
Appellant’s probation officer since December 2018, to review the video
footage. He identified Appellant, who was not permitted to carry a firearm.
While Appellant had reported as scheduled to Mr. Johnston without any
violations for over a year, Mr. Johnson was unable to contact or locate
Appellant in the weeks following the shooting.
Both Agent Lichtenhahn and Mr. Johnston obtained warrants for
Appellant’s arrest. Appellant was eventually apprehended in Virgina in May of
2019, and charged with violating his probation and VUFA. Following the
issuance of an arrest warrant and detainer, Appellant waived extradition and
was returned to Pennsylvania. A buccal swab was then taken from Appellant’s
cheek pursuant to a warrant.
Ultimately, the DNA sample obtained from Appellant was matched with
that found on the Glock, magazine, cell phones, Mountain Dew bottle, gloves,
and various areas of the Nissan, and ballistics testing indicated that the
casings recovered from the scene of Bryant’s murder were fired from the Glock
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in question.2 Consequently, Appellant was charged with the remainder of the
offenses enumerated above and a warrant for his arrest was issued.
During jury selection for his trial, Appellant raised several challenges
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) (establishing the
procedure for a defendant to allege purposeful discrimination in the selection
of a jury through the prosecutor’s use of peremptory challenges). Specifically,
Appellant alleged that the Commonwealth improperly struck two black jurors
on account of their race. However, the trial court accepted the
Commonwealth’s proffered reasons for dismissing those jurors as legitimate
and race-neutral and denied Appellant’s challenges.
At trial, the Commonwealth offered numerous witnesses to testify to the
facts outlined above. Additionally, the Commonwealth called Detective
Thorsten Lucke, an expert in video recovery and analysis. The evening before
testifying, Detective Lucke had created a video that compiled footage from
Delia’s Gun Shop, the Spring Garden Wash & Lube, and the area of the
shooting. Within the compilation, Detective Lucke superimposed a still image
of Appellant taken from the gun shop onto footage of the Nissan’s passenger
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2 One of the phones had DNA from at least two people. That phone was
registered to Ms. Abdussamad. Other unidentified DNA and fingerprints were
recovered elsewhere, of particular note on the driver’s side of the Nissan. Lab
tests were inconclusive as to whether this evidence related to Mr. Purcell, who
arrived at a local hospital shortly after the shooting with a gunshot wound to
his hand and bullet fragments on his clothing, but declined to indicate where
or how he was shot.
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at the scene of the murder for the purpose of facilitating comparison of
Appellant’s appearance at the time in question with the appearance of the
purported shooter. Appellant, who had not previously seen the compilation
video, objected. The trial court sustained the objection, ruling that the
inserted image be removed from the rest of the video and instructing the jury
that it was within their sole province to determine the identity of the Nissan’s
passenger. After the jury nonetheless saw the inserted image again, Appellant
unsuccessfully moved for a mistrial on multiple occasions.3
In the end, the jury convicted Appellant of the crimes listed at the outset
of this writing. The same day, the court sentenced him to the mandatory term
of life imprisonment, with concurrent sentences of ten to twenty years for
conspiracy, three to six years for VUFA, and two to four years for PIC.
Appellant filed a timely post-sentence motion which the trial court promptly
denied without a hearing. This timely appeal followed, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions, which we have re-ordered
for ease of discussion:
1. Did the court err, abuse its discretion and violate due
process of law when it denied the defense motion to dismiss
the conspiracy count at the close of the evidence as the
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3 During deliberations, the jury asked to review the video footage. The trial
court accommodated the request, permitting the jury to watch unaltered
footage of the gun shop, of the person exiting the Nissan, and of the individual
running back to and entering the Nissan.
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evidence was insufficient to permit it to go to the jury or to
sustain a guilty verdict?
2. When there was no evidence upon which to base such an
instruction, did the court err and abuse its discretion when
it instructed the jury that it could find Appellant guilty of
first- or third-degree murder, if he or a co-conspirator killed
the victim and Appellant had a specific intent to kill and/or
malice[?]
3. Did the court err, abuse its discretion and violate Appellant’s
right to due process of law secured by the Fourteenth
Amendment to the United States Constitution and the
Pennsylvania Constitution, and Pa.R.Crim.P. 573, when it
denied Appellant’s mistrial motion following the prosecutor’s
display during the testimony of Detective Thorsten Lucke of
a video in which [Detective] Lucke inserted Appellant’s
photo . . . without having provided said altered video to the
defense prior to displaying it to the jury?
4. Did the trial prosecutor violate Appellant’s right to equal
protection of the law secured by the Fourteenth Amendment
to the United States Constitution and the Pennsylvania
Constitution as articulated in Batson . . . when he
peremptorily struck African-American venirepersons 15 and
22?
5. Did the court abuse its discretion, err, make unsupported
factual findings and misapply steps two and three of the
Batson three-step process, when it found that the
prosecutor offered race neutral reasons for these strikes and
found “no pattern?”
Appellant’s brief at 2-3.
We first examine Appellant’s claims that the Commonwealth’s evidence
was insufficient to (1) survive his motion to dismiss the conspiracy charge,
and (2) support instructing the jury on conspiracy liability. Although stated
as separate issues, Appellant essentially presents the same argument for
each. See Appellant’s brief at 34-36. This is apt, because if the evidence was
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legally sufficient to defeat a motion to dismiss the conspiracy charge, then it
was sufficient to warrant a jury instruction on conspiracy liability. See
Commonwealth v. Chambers, 980 A.2d 35, 49 (Pa. 2009) (“Instructions on
defenses or theories of prosecution are warranted when there is evidence to
support such instructions.”).
The following legal principles govern our consideration of legal
sufficiency:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for that of the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.
Commonwealth v. Goodis, 299 A.3d 1008, 1014 (Pa.Super. 2023) (cleaned
up).
A conviction for criminal conspiracy requires the Commonwealth to
prove that the defendant: “(1) entered into an agreement to commit or aid
in an unlawful act with another person or persons; (2) with a shared criminal
intent; and (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Munson, 261 A.3d 530, 542 (Pa.Super. 2021). We have
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observed that “it is difficult to prove an explicit or formal agreement to commit
an unlawful act,” and, therefore, agreement is often “proved inferentially by
circumstantial evidence[.]” Commonwealth v. Thoeun Tha, 64 A.3d 704,
710 (Pa.Super. 2013) (cleaned up). In this vein:
The conduct of the parties and the circumstances surrounding
such conduct may create a web of evidence linking the accused to
the alleged conspiracy beyond a reasonable doubt. The
conspiratorial agreement can be inferred from a variety of
circumstances including, but not limited to, the relation between
the parties, knowledge of and participation in the crime, and the
circumstances and conduct of the parties surrounding the criminal
episode.
Commonwealth v. Watley, 81 A.3d 108, 116 (Pa.Super. 2013) (cleaned
up).
Appellant argues that the circumstantial evidence in this case “was
illusory and far too speculative” to establish his participation in a conspiracy
to murder Mr. Bryant. Appellant’s brief at 34. He contends that it was “too
giant a leap” to find a conspiracy from the facts that forensic evidence showed
that Stanley Purcell had been in the Nissan at some point in time and had
accompanied Appellant when he attempted to purchase a firearm less than a
week before the murder. Id. at 35. Appellant suggests that the fact that
objective evidence demonstrated that the brake lights had been activated on
the Nissan when he entered the passenger door after the shooting was
insufficient to establish “that there was a second person in the car at the time
of the killing,” claiming that “a simple Google search” indicates that brake light
malfunctions can cause the lights to remain on when the pedal is not
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depressed.4 Id. Since no one other than Appellant was ever seen entering
or exiting the Nissan, Appellant maintains that the existence of a getaway
driver was mere speculation. Id. at 36.
We reject Appellant’s contention that finding the existence of a
conspiracy from the evidence here required guesswork rather than logical
inferences. As the trial court painstakingly set for in its Pa.R.A.P. 1925(a)
opinion, the Commonwealth’s evidence permitted the jury to reasonably
conclude that Appellant planned and executed the murder of Mr. Bryant with
at least one other person. See Trial Court Opinion, 8/22/22, at 3-25, 50-55.
In short, the circumstances surrounding Appellant’s criminal activities, from
the attempted illicit purchase of the murder weapon with Mr. Purcell to the
use of a driver to get to and flee from the murder, evinced that Appellant and
at least one other person had a shared intent to kill Mr. Bryant, agreed to do
so, and committed multiple overt acts in furtherance of that agreement.
Accord Commonwealth v. Jordan, 212 A.3d 91, 98–99 (Pa.Super. 2019)
(finding conspiracy sufficiently established by the defendant’s association with
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4 Appellant does not indicate where this Google search evidence was admitted
at trial, and we have been unable to locate it within the certified record. We
admonish counsel that evidence de hors the record is wholly inapplicable to
our review. See, e.g., Everett Cash Mut. Ins. Co. v. T.H.E. Ins. Co., 804
A.2d 31, 34 (Pa.Super. 2002) (“Under our Rules of Appellate Procedure, those
documents which are not part of the ‘official record’ forwarded to this Court
are considered to be non-existent.” (cleaned up)); Pa.R.A.P. 1921, Note (“An
appellate court may consider only the facts which have been duly certified in
the record on appeal.”).
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another person before and after the shooting); Commonwealth v. Davalos,
779 A.2d 1190, 1193–94 (Pa.Super. 2001) (holding conspiracy established
where one individual drove the shooter to the scene, waited “long enough for
the shooter to empty his gun into [a] group of men,” and served as the
getaway driver). Therefore, Appellant’s first two issues merit no relief.
Appellant next asserts that the trial court erred in denying his requests
for a mistrial based upon the altered video evidence offered by Detective
Lucke. We consider this issue mindful of the following principles:
The trial court is in the best position to assess the effect of an
allegedly prejudicial [piece of evidence] on the jury, and as such,
the grant or denial of a mistrial will not be overturned absent an
abuse of discretion. A mistrial may be granted only where the
incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary instructions
are adequate to overcome any possible prejudice.
Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014) (cleaned up). The
moving party bears the burden of proving prejudice. See Commonwealth
v. Pope, 14 A.3d 139, 145 (Pa.Super. 2011).
Appellant argues that the trial court should have granted a mistrial
based upon the prosecution’s use of an altered video at trial without first
providing it to Appellant as is required by Pa.R.Crim.P. 573. That Rule
mandates that the Commonwealth disclose and permit defense counsel to
inspect, inter alia, “any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence,” and “the transcripts and recordings
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of any electronic surveillance, and the authority by which the said transcripts
and recordings were obtained.” Pa.R.Crim.P. 573(B)(1)(f)-(g). The Rule’s
remedy provision states:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with
this rule, the court may order such party to permit discovery or
inspection, may grant a continuance, or may prohibit such party
from introducing evidence not disclosed, other than testimony of
the defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(F). “A violation of discovery does not automatically entitle
appellant to a new trial. Rather, an appellant must demonstrate how a more
timely disclosure would have affected his trial strategy or how he was
otherwise prejudiced by the alleged late disclosure.” Commonwealth v.
Brown, 200 A.3d 986, 993 (Pa.Super. 2018) (cleaned up).
Here, Appellant acknowledges that the trial court found a discovery
violation but maintains that the court abused its discretion in ruling that a
cautionary instruction was sufficient to remedy the situation. He posits that
this case “was after all an identification case,” with the video “important
enough to the jury, that it asked to view it a second time (albeit, without the
alteration)” and “to view Appellant without the mask that he had been wearing
because of COVID.” Appellant’s brief at 33. Appellant asserts that he suffered
“significant” prejudice in that the altered video “effectively created evidence
that had not been previously disclosed that “caused suggestivity beyond
repair.” Id.
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The trial court explained its decision as follows:
The record reflects that this court denied Appellant’s motion
for a mistrial on several occasions, thereby finding that Appellant
was not prejudiced by the inclusion of the inserted photograph
such that he was deprived of a fair trial. This court agreed that
the final version of Detective Lucke’s compilation video, with all
inserted comparison photographs, should have been disclosed to
Appellant’s counsel. The failure to disclose was not the result of
any intentional act by the Commonwealth. Moreover, all the
footage contained in the compilation video, including the source
of the disputed inserted photograph, had been previously
disclosed during discovery. Furthermore, the source of the
inserted photograph, the footage taken from Delia’s Gun Shop
showing Appellant attempting to purchase a firearm, was shown
to the jury without objection during the testimony of Ian Johnston
and earlier during the testimony of Detective Lucke. As this
footage exceeded five minutes in duration, the jury had therefore
viewed the footage extensively before any comparison
photographs were inserted.
As the compilation video and inserted photograph were
therefore c[ompo]sed of evidence previously disclosed to the
defense and presented to the jury, Appellant cannot demonstrate
that he was prejudiced by the video. Moreover, any potential
prejudice that Appellant might have suffered by the presentation
of the compilation video was cured when this court issued both a
clarifying instruction and a full curative instruction to the jury. As
the law presumes that the jury will follow the instructions of the
trial court, the issuance of these instructions eliminated any need
to declare a mistrial. There is no suggestion within the record that
the jury was unable to appropriately weigh the evidence and
render a fair verdict.
Trial Court Opinion, 8/22/22, at 48 (unnecessary capitalization omitted).
We discern no abuse of discretion in the trial court’s ruling. Plainly, if
the Commonwealth had printed still photographs from the gun shop video and
the footage at the scene of the murder, it could have held them side by side
and allowed the jury to assess the resemblance between the two. That is in
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essence what occurred here, not, as Appellant suggests, the equivalent of an
unduly suggestive lineup for an eyewitness identification. Further, the trial
court properly instructed the jury that it alone was to decide whether it was
Appellant in both instances. As any prejudice here was remedied through the
instructions, a mistrial was unwarranted. Accord Commonwealth v.
Chambers, 599 A.2d 630, 638 (Pa. 1991) (“Since Appellant has not
demonstrated how he was prejudiced by the failure to review these notes prior
to trial, we find no abuse of discretion or error of law in the trial judge’s refusal
to grant a mistrial.”). Consequently, no relief is due.
Finally, we turn to Appellant’s Batson issues, beginning with a review
of the applicable law. The Batson decision recognizes two types of harm
flowing from the racially-motivated use of peremptory strikes: (1) the harm
caused by “a trial where members of the defendant’s own race have been
excluded from the jury on account of their race,” and (2) “harm to the
prospective jurors and the community at large that results when citizens are
denied participation in jury service based upon their race.” Commonwealth
v. Sanchez, 36 A.3d 24, 44 (Pa. 2011) (cleaned up). “The successful Batson
objector is the third[-]party beneficiary of the venire person’s equal protection
right not to be excluded from a jury on account of his/her race.” Id.
To show a Batson violation, an appellant must generally
demonstrate his particular factual situation satisfies the well-
established test laid out by the United States Supreme Court’s
opinion in that case: First, the defendant must make a prima facie
showing that the prosecutor has exercised peremptory challenges
on the basis of race. Second, if the requisite showing has been
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made, the burden shifts to the prosecutor to articulate a race-
neutral explanation for his peremptory challenges. Finally, the
trial court must determine whether the defendant has carried his
burden of proving purposeful discrimination.
Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013).
A Batson claim presents a mixed question of law and fact, and “[t]he
ultimate burden of persuasion regarding racial motivation rests with the
opponent of the strike.” Commonwealth v. Murray, 248 A.3d 557, 567
(Pa.Super. 2021). Specifically, while the first and second prongs of a Batson
claim present legal issues, the trial court’s ruling on the persuasiveness of the
proffered race-neutral explanation constitutes a factual finding. See
Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013). In this regard:
The trial court should consider the totality of circumstances when
determining whether the prosecutor acted with discriminatory
intent. This Court must give great deference to the trial court’s
determination that peremptory challenges were free of
discriminatory intent, and we will not overturn the determination
unless it was clearly erroneous. Such great deference is
necessary because a reviewing court, which analyzes only the
transcripts from voir dire, is not as well positioned as the trial
court is to make credibility determinations. Moreover, there will
seldom be much evidence on the decisive question of whether the
race-neutral explanation for a peremptory challenge should be
believed; the best evidence often will be the demeanor of the
prosecutor who exercises the challenge.
Murray, supra at 567–68 (cleaned up).
Accordingly, to assess Appellant’s Batson arguments, we first establish
the totality of the circumstances surrounding the Commonwealth’s exercise of
peremptory challenges to strike Prospective Jurors No. 15 and 22. The general
procedure was as follows. The court brought in each prospective juror one by
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one for follow-up questioning on answers they supplied in written
questionnaires and group responses at the start of voir dire. Of note, the
questionnaire asked for the venireperson’s race and contained check-the-box
yes or no questions involving his or her prior jury service and experience with
crime as a victim, witness, or defendant, both themselves and for people close
to them. After the questioning was completed, Appellant and the
Commonwealth alternated being the first to indicate whether each juror was
acceptable.
Selection progressed without controversy as to the following prospective
jurors, whose biographical information and ultimate juror status we
summarize below:5
• No. 1: a black welder whose father had been a Philadelphia police
officer.6 The juror was accepted by both parties.
• No. 2: a black pharmacist who had been the victim of a theft and had
witnessed a shooting, whose girlfriend had a family member who was
murdered, and whose cousin was an assault victim. The juror was
accepted by both parties.
• No. 3: a white teacher whose father and uncle were policemen and who
had family members who were theft victims. Appellant exercised his
first strike.
• No. 4: a white corporate lawyer who had witnessed crimes including a
hit-and-run and property destruction. The Commonwealth exercised its
first strike.
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5 We omit from our discussion jurors who were excused or stricken for cause.
6 All jurors only discussed residence in the Philadelphia area unless we note
otherwise.
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• No. 6: a black individual of undisclosed profession whose relative had
been murdered in New York and who believed that her husband had
been charged with and convicted of felony gun offenses based upon a
misunderstanding. The Commonwealth exercised its second strike.
• No. 7: a white occupational therapist who had lived in North Carolina
until three years prior and had no experience with witnessing or being
a victim of crime and had no connections with law enforcement. The
juror was accepted by both parties.
• No. 8: a black account clerk who had two cousins who were state
troopers, a cousin who was the victim of a carjacking, and a nephew
who was prosecuted for sexual assault. The juror was accepted by both
parties.
• No. 9: a black bus driver whose son’s best friend was murdered when
hit by a stray bullet. The juror was accepted by both parties.
• No. 11: a white accountant who moved to Philadelphia from
Washington, DC four years prior and who had no experience with
witnessing or being a victim of crime and had no connections with law
enforcement. The juror was accepted by both parties.
• No. 12: a sports agency consultant and former truck driver of
undisclosed race with two relatives who were Philadelphia police officers,
whose brother-in-law was robbed at knife point, and whose nephew was
charged with assault. Appellant exercised his second strike.
• No. 13: a black school custodian and former salesperson who witnessed
a stabbing, whose sister was murdered and cousin prosecuted for rape,
and who had both a friend and a cousin serving as police officers. The
juror was accepted by both parties.
• No. 14: a black teacher with a criminal justice degree whose close friend
was robbed at gunpoint and whose sister witnessed a murder. The
Commonwealth exercised its third strike.
• No. 15: a black hospitality manager who relocated to Philadelphia from
California eight years prior and who had no experience witnessing or
being a victim of crime and had no connections with law enforcement.
The Commonwealth exercised its fourth strike.
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• No. 16: a white project manager who had been charged with DUI and
went through a diversionary program. The juror was accepted by both
parties.
• No. 17: a retail employee of undisclosed race who had been mugged
and raped, who witnessed multiple retail thefts, and whose brother-in-
law had been prosecuted for drug offenses. Appellant exercised his third
strike.
• No. 18: a black graduate student who had attended school in West
Virginia and Nebraska before relocating to Philadelphia approximately
six years prior and who had no experience witnessing or being a victim
of crime and had no connections with law enforcement. The juror was
accepted by both parties.
• No. 20: a white human resources employee who had no experience
witnessing or being a victim of crime and had no connections with law
enforcement. Appellant exercised his fourth strike.
• No. 21: a white project manager in IT who relocated to Philadelphia
from Wilmington, Delaware six or seven years prior and who had no
experience witnessing or being a victim of crime and had no connections
with law enforcement. The juror was accepted by both parties.
Controversy arose with Prospective Juror No. 22, a black school bus
mechanic who had been out of high school for four years, who had no
experience witnessing or being a victim of crime, and who had no connections
with law enforcement. The Commonwealth exercised its fifth strike and
Appellant asserted a Batson challenge. In pertinent part, the record reflects
the following resolution of the issue:
[DEFENSE]: Judge, I’m going to object, and I would like the
Commonwealth to state, for the record, the basis of their
challenges. And I’d like the record to reflect it was a young
African-American male with prior jury service and that did not
check one box on the questionnaire and responded to the Court,
clearly, that he could be fair and impartial. I’d like to know what
the Commonwealth’s basis for that challenge was.
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THE COURT: All right. Are you making a Batson challenge?
[DEFENSE]: Yes, I am, Your Honor.
[COMMONWEALTH]: Your Honor would have to find that, based
on what we have here, that that’s equivalent, based on the
number of people that we have and what our challenges have
been.
THE COURT: All right. Well, we have nine jurors seated.
[COMMONWEALTH]: Exactly.
THE COURT: Of the nine jurors, I don’t know what their --
well, we can see what they are. I want to make sure the record
is clear here so there’s no issues.
[DEFENSE]: There’s five African-Americans and [four]
Caucasians.
....
THE COURT: Okay. Now, in terms of the strikes, there was
Juror No. 3. I just want to go back --
[COMMONWEALTH]: And that happens to be a white female.
THE COURT: All right. I just want to go back, so we have the
record fully docketed and correct.
THE COURT CRIER: Your Honor, I have the Commonwealth
striking No. 4.
THE COURT: Okay, but No. 3 was a white female.
[COMMONWEALTH]: No. 4 strike was a white female.
THE COURT: Yes. No. 6?
THE COURT CRIER: That would be No. 6.
[COMMONWEALTH]: Black female.
THE COURT CRIER: Then, Commonwealth 3 would be No. 14.
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THE COURT: That was a black male.
[COMMONWEALTH]: Yes.
THE COURT CRIER: And then, the Commonwealth’s fourth
strike was No. 15.
THE COURT: Which was --
[DEFENSE]: Which was a black female.
THE COURT: Black female is No. 15.
[COMMONWEALTH]: Based on that, does Your Honor find that
there’s some pattern?
THE COURT: Well, from what I see, three of your strikes were
used for African-Americans, one for a white female; am I correct?
[COMMONWEALTH]: Hold on one second.
[DEFENSE]: No. 14 is a black female. No. 15 was a black
female. No. 6 was a --
[COMMONWEALTH]: No. 4 -- Judge, the fact of the matter is it
really is more of an issue of how many jurors have presented
themselves and what the number has been in terms of --
THE COURT: I just want to establish what numbers we’re
talking about.
Now, [Defense], are you contending that this strike, this last
strike, that somebody else was allowed on the jury with these
same characteristics or background?
[DEFENSE]: No, Judge. What I’m suggesting is there’s
absolutely no reason to strike the person that was just stricken by
the Commonwealth.
[COMMONWEALTH]: That’s --
[DEFENSE]: I mean, there was a person stricken earlier who
answered the exact same way by the Commonwealth. I think
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Juror No. 14 didn’t check any boxes, and she was a black female.
She was stricken.
[COMMONWEALTH]: And on --
[DEFENSE]: Excuse me.
[COMMONWEALTH]: I’m sorry.
[DEFENSE]: Juror No. 15, Your Honor. Juror No. 15 was a
black woman and checked no boxes. She was struck by the
Commonwealth. Up comes this juror, who also is a black person
and also checked no boxes.
THE COURT: Did you say Juror No. 14 checked no boxes?
[DEFENSE]: Juror No. 14, I have as -- no, I’m sorry, Juror
No. 15, I said. I corrected myself, Your Honor.
Juror 14 checked some boxes. She was stricken as well by
the Commonwealth. She was another black female.
THE COURT: Right, but –
[DEFENSE]: 15 did not check one box.
THE COURT: And was stricken.
[DEFENSE]: And was stricken by the Commonwealth. And
now comes this juror, who is similarly situated, and does not check
one box, and he’s stricken by the Commonwealth.
THE COURT: Well, this juror, I think, checked the prior juror
before; am I right?
[DEFENSE]: Correct. All the more reason I renew my
challenge.
[COMMONWEALTH]: And, again, Your Honor, I can make the
point that nothing was checked in, no experience that they had,
nothing -- no crimes, no nothing, and I made that move. But what
Your Honor has to see is whether or not you’ve established some
sort of pattern. I would say that based on the people that we’ve
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sat here today, and the number that we’ve gone through, there’s
no pattern established.
And what [Defense] just told you just two seconds ago was
that, well, you know, it’s almost like I don’t have the right to take
a gut feeling and say, you haven’t checked off anything, I don’t
know anything about you, you know; where I’ve sat black male,
black male, skip, black female, black male, black male, white
female, and I suggest Hispanic female. What pattern has been
established?
[DEFENSE]: It’s not a Hispanic female, No. 1.
[COMMONWEALTH]: Whatever –
THE COURT: The issue is this. And I want to make sure the
record is clear.
You have a right to strike whoever you want to strike, as
long as it’s not for gender or racial reasons. My question is, so
that the record is clear for later on, the last person that you struck,
No. 22, what was the reason there?
[COMMONWEALTH]: The reason was there was no experience.
There was absolutely -- he wrote mechanic down on the side, has
no experience, never knew anybody that was the victim of a
crime, never knew anything. There was nothing to ask him. You
simply said to him, sir, you marked off this; unlike the other
people, where there was some dialogue, and you went on for a
period of time.
THE COURT: Okay. And Mr. –
[DEFENSE]: No. 22 is a prior juror. What do you want --
[COMMONWEALTH]: I don’t care. I’m not here --
THE COURT: Hold it. I don’t want back and forth.
That’s your reason for 22, and the other one that was raised
of somebody who also didn’t answer any questions, what number
was that?
[DEFENSE]: 15.
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THE COURT: 15. And the reason there, [Commonwealth]?
[COMMONWEALTH]: If I could just take a look at --
THE COURT: Sure.
[COMMONWEALTH]: Same thing, Your Honor; just recently got
here from California, states she has no -- no one that she’s ever
known, nothing, no crimes, no one’s ever been a victim of any
crimes or anything like that. She just been simply in the
hospitality thing. I didn’t really think much of it on what she does
or --
THE COURT: All right. So those are your reasons. And at this
point, I don’t see or find any pattern, and those reasons are race-
neutral reasons that either side can decide they don’t want certain
types of people without background and experience.
[DEFENSE]: Including persons that have prior jury
experience and have no other boxes checked.
THE COURT: Well, the person who has -- is there anybody on
here who is put on who has the exact same thing as No. 22?
[COMMONWEALTH]: Judge, that’s not the issue.
THE COURT: No, I’m just asking.
[COMMONWEALTH]: That’s not the issue.
THE COURT: I don’t see anybody who is like that from
everything I’ve seen.
[DEFENSE]: Well, Juror No. -- there are people with prior
jury duty that have been on put on on [sic] the --
[COMMONWEALTH]: The only prior --
[DEFENSE]: No. 4 sat on prior juries.
THE COURT: Let me just look here for a second.
[DEFENSE]: Juror No. 2.
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THE COURT: No. 4, I thought was stricken, right?
[DEFENSE]: No. 4 was stricken, but Juror No. 2 had prior
jury experience.
[COMMONWEALTH]: Yeah, we accepted her. We accepted her.
There were other questions that you asked --
THE COURT: Wait a second. Juror No. 2 answered other
questions as to being a victim of a crime and being an eyewitness
to a crime.
[DEFENSE]: Yes.
THE COURT: There’s a difference there. Based on what I see,
I believe that strike was a proper use --
[DEFENSE]: All right.
THE COURT: -- and we’ve made a record, and let’s go.
N.T. Trial, 3/1/22, at 125-35.
Selection then resumed with Prospective Juror No. 24, a black customer
service employee who had studied criminal justice in college and who had no
experience witnessing or being a victim of crime or connections with law
enforcement. When the Commonwealth indicated its desire to exercise a
strike, Appellant reasserted his Batson challenge. The following discussion
ensued:
[DEFENSE]: I raise the same issue, Judge; just for the
record, another Batson challenge, another black female, no
record other than prior jury service, identical to Juror No. 20, the
Commonwealth --
THE COURT: [Commonwealth], your reason?
[COMMONWEALTH]: I think it’s the same thing. I don’t see any
experience or anything on there on any of the topics, other than
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she was a previous juror. I don’t have anything about her being
a previous juror. I don’t know what she answered as a previous
juror.
....
[DEFENSE]: I have the same challenge, Your Honor.
[COMMONWEALTH]: I’ll accept.
THE COURT: Okay.
[COMMONWEALTH]: Make it on there, and I’ll accept, but --
[DEFENSE]: Acceptable to the defense.
[COMMONWEALTH]: -- think that --
THE COURT: You don’t have to. My question --
[COMMONWEALTH]: No, but my point is Your Honor is
referencing a question to me. I think that I’m making similar
strikes based on lack of experience of anybody, you know, based
on this case.
THE COURT: You have a right to make that argument that
they have no other experience, other than having been on a jury.
[COMMONWEALTH]: Exactly.
THE COURT: I think you said previously that -- I just want to
make sure the record is clear as to what is going on here. If you
want to accept, you can accept.
[COMMONWEALTH]: Okay. Well, that’s -- the point that I’m
making is that none of these other questions that I think will come
to fruition on this case, this type of factual case, this scenario
here, there’s nobody that they know, there’s been no other crime,
no other -- they know nothing about any crimes or anything else,
been involved in it, and that’s fine. They could be a good character
and everything else, but my point is that’s my --
THE COURT: That’s your basis.
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[COMMONWEALTH]: Not based on any gender or race or
anything.
[DEFENSE]: Judge, I find it difficult to believe that Batson
somehow would allow for the argument that if somebody doesn’t
have a prior problem with police, or prior arrest in their family, or
a police officer to whom they’re related, that somehow that would
make them more qualified than anybody that’s already been
selected for prior jury service?
THE COURT: I don’t think --
[COMMONWEALTH]: It goes to experience, and I’ve made that
clear.
[DEFENSE]: They have jury trial experience. Isn’t that what
you want?
THE COURT: Well, I think what’s being referred to, if I’m
correct, is no experience with being a victim of a crime or knowing
somebody who’s a victim of a crime or knowing somebody who’s
been arrested, eyewitness or any of these kinds of questions.
[COMMONWEALTH]: Correct.
THE COURT: Am I correct about that?
[DEFENSE]: And my argument, Judge, is[:] is it seriously
being suggested that Batson says that people who have had
some experience, either being arrested or people in the family
being arrested or being related to police, make them more
qualified than somebody that has none of those prejudices, and
has already been accepted as a jur[or]? What possible reason
would you have to get rid of two black persons who have prior
jury service and no other checks against --
THE COURT: Because --
[DEFENSE]: -- jury selection.
THE COURT: -- the question is, both for your selections and
for the DA’s selections, whether or not these are race-neutral
reasons.
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Now, if there’s a white juror that is seated, who has the
same characteristics, just prior jury service, not answering any of
the questions, that’s an issue. Other than that, if there are race-
neutral reasons, that’s the question that Batson deals with.
That’s what I’m hearing, based on the strikes.
[DEFENSE]: And I --
[COMMONWEALTH]: And I don’t have either way. If Your
Honor thinks it’s too close to the line, I don’t have a problem
accepting --
THE COURT: So, accept, and let’s move on.
[COMMONWEALTH]: Well, then I accept, and we move on.
N.T. Trial, 3/1/22, at 138-42.
Next was Prospective Juror No. 26, a person of undisclosed race who
worked in health insurance marketing and had been a victim of a burglary and
a mugging, who was accepted by both parties. Prospective Juror No. 29, of
undisclosed race, moved to Philadelphia from Boston two years prior, worked
in the entertainment field, had no experience witnessing or being a victim of
crime or connections with law enforcement, and was Appellant’s fifth strike.
Prospective Juror No. 30, a law office manager of undisclosed race, had
been the victim of a burglary and had cousins and friends who were police
officers, as well as a brother who was arrested as part of what was later
disclosed as systemic corruption within the 39th District of the Philadelphia
Police. The Commonwealth exercised its sixth strike and Appellant again
invoked Batson, with the following discussion occurring:
[DEFENSE]: Batson; exact opposite of what the
Commonwealth says they were excusing --
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[COMMONWEALTH]: No --
THE COURT: Hold it, hold it, hold it.
[Defense], you’re making a Batson challenge –
[DEFENSE]: I am, Your Honor.
THE COURT: -- saying that this woman was struck for racial
reasons.
[Commonwealth], your response.
[COMMONWEALTH]: Your Honor, I think that what I’m
responding, even though she said she could be fair, she stated
that her brother had been arrested, and that her brother had been
part of what she deemed the 39th District thing. That would be
the 39th District where all these people were charged illegally,
arrested, convicted illegally, and then we had a whole entire -- as
Your Honor remembers -- pause in this whole system.
[DEFENSE]: I raise it, Judge, ’cause I was curious as to why
with people that have no priors, and that was the basis for the
Commonwealth’s objection earlier on black persons --
[COMMONWEALTH]: But this one affected her brother, directly,
and she said that.
THE COURT: If what I’m hearing is that prior had to do with
experience, and here, her brother was illegally arrested in the
39th District Police scandal, which I’ll take judicial notice of, and
where police framed different defendants, and [Commonwealth]
did not want somebody on the jury who was connected to this or
had experience in family being illegally charged.
[DEFENSE]: Well, this was -- before I was interrupted,
Judge, I was just trying to say that earlier, people were being
excused or challenged by the Commonwealth because they had
no contacts or any kind of experience with the justice system.
Here’s a person who’s related to police officers, has friends with
police officers, has relationships with police officers, and just
because there was an incident 20 years ago, 1992, I believe that
scandal hit, 30 years ago, that other than the fact that she has
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completely opposite of what the Commonwealth had previously
relied upon to excuse people, she’s excused.
[COMMONWEALTH]: Your Honor, do you hear what he said?
THE COURT: Okay. Just -- we don’t need to go on.
The issue that I heard from both counsel is this. It’s not an
issue of being a burglary victim, and it’s not an issue of cousins or
friends in the Police Department. It’s an issue of her brother being
illegally arrested and a police scandal where the police lied. And
based on that, if I’m hearing this correctly, [Commonwealth]
doesn’t want this juror on there, and I deny the motion or the
challenge. Let’s go.
N.T. Trial, 3/1/22, at 157-60.
Next was Prospective Juror No. 31, who was white, worked in banking
and had no experience witnessing or being a victim of crime or connections
with law enforcement. It was Appellant’s turn to go first in accepting or
striking the juror. The following transpired:
[DEFENSE]: Judge, I’d like the record to reflect that the only box I
saw checked on him, just to make sure I’m clear –
[COMMONWEALTH]: Are we going to start this --
THE COURT: Hold it, hold it, hold it. I’m going to stop it right now.
If it’s defense, [Defense], accept or strike.
[DEFENSE]: Acceptable.
THE COURT: [Commonwealth].
[COMMONWEALTH]: I’m going to accept, based on -- and
three picks before, Your Honor just asked me to accept and move on.
I’m going to accept.
[DEFENSE]: For the record, if I may. I’d like the record to reflect
that this juror basically has checked in the same fashion that two
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previous jurors checked, who both happen to be African-American.
This juror has none of the experience that was the reliance basis for
the Commonwealth to suggest that it was not race-based. This is a
white, middle-aged man, retired, who checked one box that was prior
jury service, identical to the other two persons who happen to be
African-American persons, one woman and one man, and who were
excused. And the basis for the excuse was the exact same reflection
on their information questionnaire as this man’s.
So I renew my challenge, Judge, to the other two individuals
that were dismissed. They were black. This man’s white. He’s
acceptable. They weren’t. Exact same qualifications.
THE COURT: [Commonwealth].
[COMMONWEALTH]: Your Honor, I accepted him based on the
fact that we have gone through this, and Your Honor asked me about
a prior juror just three strikes before, and I said, okay, I’ll accept that
person.
THE COURT: No, but what I don’t understand is the issue of the
others --
[COMMONWEALTH]: Well, I agree with this one. I -- you know,
I’m perfectly willing to strike him because he doesn’t have any
background.
THE COURT: So strike him.
[DEFENSE]: Well, Judge, you know, I mean --
THE COURT: I don’t know what to say.
[DEFENSE]: -- no explanation for why you could do it to two black
people, but when a white man comes up? And supposedly, it is
exactly the same position that the Commonwealth --
THE COURT: From what I’m hearing -- just a second. From what
I’m hearing as to No. 31, the Commonwealth is striking him.
[COMMONWEALTH]: Yes.
[DEFENSE]: But now he just changed his mind.
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[COMMONWEALTH]: Well, he’s making sarcastic --
THE COURT: Hold it, hold it. One -- first of all, when I’m talking,
please.
No. 2, if the Commonwealth is striking, then that takes the
issue away.
[DEFENSE]: Well, that’s true, Judge, except for the Batson
challenge raised earlier. Why wouldn’t the Commonwealth then
change its ruling -- or change its acceptance or rejection of those
other two people? He changed his mind on this one because he just
realized he was not being consistent, and he had a problem.
[COMMONWEALTH]: Your Honor, note for the record who we
chose on this case.
THE COURT: He can -- he can change his mind if he thinks that
what he’s doing is an issue, because of who else he struck, No. 1 --
[COMMONWEALTH]: And the other people --
THE COURT: -- No. 1 -- hold it, [Commonwealth]. No. 2, the same
reason he’s using here, he’s used for the others. So unless there’s
some difference between 31 and the others that he’s also struck, and
the last person that was accepted, I believe, was No. 26; am I correct
about that?
[COMMONWEALTH]: That’s correct.
THE COURT: And that person had certain experience. And before
that, I’m just going back here, No. 24 was accepted, who was an
African-American female. So that’s [the Commonwealth’s] No. 7,
let’s go. Strike.
[COMMONWEALTH]: Is that the seventh strike, Your Honor?
THE COURT CRIER: It is.
N.T. Trial, 3/1/22, at 162-66. The selection continued until the court had a
jury of twelve, seven of whom were black and five white, with two white
alternates. See Trial Court Opinion, 8/22/22, at 33.
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Upon this background, we consider Appellant’s claims that the
Commonwealth’s striking of Prospective Jurors No. 15 and 22 violated
Batson. He asserts that he is entitled to relief from this Court because the
trial court erred in its application of Batson steps two and three, and abused
its discretion in making factual findings that are unsupported by the record.7
Specifically, Appellant asserts that the trial court’s second-prong ruling
was faulty because the reasons offered by the Commonwealth, which he
characterizes as having been the lack of affirmative responses on the written
questionnaire and a “gut feeling,” were “not race neutral because they are so
outside the pale of a reasonable justification for each strike.” Appellant’s brief
at 25. Appellant contends that these amount to general denials of
discriminatory intent that do not satisfy the Commonwealth’s burden. Id.
(citing Batson, supra at 94 (“The State cannot meet this burden on mere
____________________________________________
7 The trial court opines that Appellant failed to pass the first hurdle requiring
him to make a prima facie showing that the Commonwealth’s strikes were
race-based. See Trial Court Opinion, 8/22/22, at 40-41. However, Appellant
asserts that the fact that the trial court proceeded to the second prong by
asking the Commonwealth to articulate its reasons for the strikes mooted the
question of the legal sufficiency of the prima facie case. See Appellant’s brief
at 25. Since “[t]he law is not entirely consistent as to whether a court may
proceed to the second-step Batson analysis when a defendant has failed to
make out a prima facie case,” we opt to take “the safer course of action” of
basing our ruling upon examination of the second and third prongs.
Commonwealth v. Murray, 248 A.3d 557, 570 (Pa.Super. 2021).
Accordingly, we offer no opinion as to whether the facts asserted by Appellant
were legally sufficient to establish a prima facie case.
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general assertions that its officials did not discriminate or that they properly
performed their official duties.”)).
Appellant’s representations of what race-neutral reasons were proffered
by the Commonwealth for striking Prospective Jurors No. 15 and 22 are belied
by the record. The Commonwealth did reference its right to follow a “gut
feeling” in arguing that no prima facie case had been shown. See N.T. Trial,
3/1/22, at 131. However, when the court moved to the second prong and
asked the Commonwealth for its reasons for exercising the strikes, it did not
rely on gut feeling, but instead articulated concrete bases.
In particular, the Commonwealth indicated that it rejected No. 15
because (1) she was a hospitality manager who (2) had no experience as a
crime victim “or anything like that,” and (3) had moved to Philadelphia from
California. Id. at 133. The Commonwealth stated that it struck No. 22, the
recent high school graduate, because (1) his dialogue with the court during
voir dire questioning was lacking compared to the other venirepersons, and
(2) he “has no experience, never knew anybody that was the victim of a crime,
never knew anything.” Id. at 132.
Based upon consideration of the reasons actually offered by the
prosecution, the trial court “concluded that the reasons offered by the
Commonwealth were facially valid and could be considered race-neutral due
to the lack of any stated discriminatory intent.” Trial Court Opinion, 8/22/22,
at 41. We agree. Neither of the potential jurors in question had any
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prosecution-friendly experiences, such as being or knowing a crime victim or
otherwise having positive ties to law enforcement. No. 15 additionally
appeared unengaged throughout the process, suggesting that he might lack
the attentiveness required to follow the web of evidence the Commonwealth
intended to present. See Trial Court Opinion, 8/22/23, at 41. Meanwhile, No.
22’s background in hospitality in California did not suggest a prosecution-
friendly juror. Hence, the Commonwealth’s proffered reasons for the strikes
were not the legally-invalid general denials asserted by Appellant. Rather, the
trial court’s second-prong analysis is supported by the record.
As for the third Batson prong, Appellant claims “it is apparent that
discrimination was at work” for several reasons. Appellant’s brief at 27. He
first asserts that the lack of experience cited by the Commonwealth as its
basis for rejecting Nos. 15 and 22 “made no sense” because “the absence of
such affirmative responses [to the experience questions] typically places the
prospective jurors in a positive light” as one who lacks cause to be biased.
Id. at 28. Second, Appellant argues that the Commonwealth’s acceptance of
white jurors who had no experience with crime or law enforcement indicates
that the proffered race-neutral reasons were mere pretext. Id. Third,
Appellant maintains that the prosecution’s flip-flopping on whether to strike
Potential Jurors No. 24 and 31 further proves the existence of pretext in the
earlier strikes, as it negated the lack-of-experience rationale and left only race
as the explanation for the different initial choices. Id. at 28-29.
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The Commonwealth, represented in this case by the Philadelphia County
District Attorney both at trial and on appeal, albeit through different attorneys,
agrees with Appellant that Batson was violated, citing three facts that “are
strongly indicative of discriminatory intent.” Commonwealth’s brief at 20.
Those factors are: (1) the race-neutral explanation for striking Prospective
Jurors No. 15 and 22 was unpersuasive because it had accepted similarly-
situated white venirepersons; (2) it initially struck black Prospective Juror No.
24, but accepted after the defense cried foul; and (3) it did the opposite with
Prospective Juror No. 31, initially accepting but then opting to strike. Id.
We reject both parties’ arguments.8 The trial court here plainly credited
the Commonwealth’s proffered race-neutral reasons for striking Prospective
Jurors No. 15 and 22. The court then examined the totality of circumstances
to determine whether Appellant had met his burden of persuading the court
____________________________________________
8 It is incumbent upon a district attorney “to see that the commonwealth’s
case is fully and fairly presented.” Commonwealth v. Myers, 403 A.2d
85, 86 (Pa. 1979) (internal quotation marks omitted, emphasis altered). A
prosecutor must both respect the defendant’s rights to a fair trial and
vigorously pursue the interest of the public in having the laws enforced. See,
e.g., Commonwealth v. Clancy, 192 A.3d 44, 52 (Pa. 2018);
Commonwealth v. Schultz, 133 A.3d 294, 328 (Pa.Super. 2016). Given the
abundantly reasonable alternative explanations for the strikes that are fully
supported by the certified record, we are disturbed by the Commonwealth’s
decision to abdicate its duty to advocate on behalf of the citizens of
Pennsylvania and the victim in this matter. Unlike the dissent, we do not
presume that the Commonwealth opted to concede the Batson issue because
the Assistant District Attorney in question privately admitted intentional racial
discrimination. Rather, we accept at face value the legal positions stated in
the Commonwealth’s brief and deem them contrary to our standard of review.
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that the reasons were pretextual and purposeful discrimination was the actual
reason for the strikes. It properly looked at the inconsistencies alleged by
Appellant, as well as the total makeup of the jury pool, chosen jurors, and
strikes exercised, to see if there was a pattern to the Commonwealth’s choices
that suggested purposeful discrimination. See Commonwealth v. Edwards,
177 A.3d 963, 975 (Pa.Super. 2018) (“Statistics alone are insufficient to prove
discriminatory intent. Statistics can be used, however, when considering the
totality of the circumstances to determine if the Commonwealth exercised its
peremptory strikes in a discriminatory manner.” (internal citations omitted)).
Finding no such evidence, the trial court made the factual determination that
Appellant had not carried his burden of persuading the court that Prospective
Jurors No. 15 and 22 were stricken in acts of purposeful discrimination.
It is readily apparent to this Court that the arguments for reversal
advocated by both Appellant and the Commonwealth fail to appreciate and
apply the appropriate appellate standard of review. As noted above, the trial
court’s third-prong conclusion is a finding of fact to which we must give “great
deference” and overturn only if it was “clearly erroneous.” Murray, supra at
568. The parties essentially ask us to look at the paper record and make a
different determination as to the credibility and persuasiveness of the
Commonwealth’s motivations than the trial court made after examining the
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prosecutor’s demeanor and the totality of the circumstances.9 That we may
not do.
Furthermore, our review of the record does not reveal the type of
inconsistency alleged by Appellant. In essence, Appellant took the reasons
actually stated by the Commonwealth, recharacterized them as being limited
to whether the person had criminal justice experience as a victim or juror, and
cried foul because there were white potential jurors without experience who
were not stricken. However, as discussed above, the lack of experience with
crime was not the only basis offered by the Commonwealth for striking
Prospective Jurors No. 15 and 22, and was obviously not the sole
determinative factor in the Commonwealth’s decision whether to challenge
any given juror.10 Moreover, the flip-flopping done by the prosecution in
exercising subsequent strikes seems just as likely an exercise of extreme
caution in response to what, on a cold record, appears to be attempts by
defense counsel to bully the prosecution. These arguments did not persuade
____________________________________________
9 Likewise, the dissent acknowledges our highly deferential standard of review,
yet opts to run roughshod over it, supplanting the trial court’s factual finding
that no purposeful discrimination occurred with its own divination of the “real
reasons” why the prosecution exercised its challenges based upon the
credibility determinations it makes from its abridged review of the cold record.
See Dissenting Opinion at 20-21.
10For example, the Commonwealth accepted black Prospective Juror No. 1
despite a lack of experience as a crime victim or witness, but that individual
had a father who had been a police officer. Conversely, the Commonwealth
opted to strike white Prospective Juror No. 4, a corporate lawyer, although
she did have experience as a witness to crimes.
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the trial court that purposeful discrimination occurred, and do not persuade
us that the trial court abused its discretion in finding that Appellant had
ultimately failed to prove his claims.11
Nor do we discern any legal error. Appellant asserts that the trial court
misapplied the law in looking for a pattern of discrimination rather than
considering whether each strike was itself an act of discrimination violative of
the Equal Protection Clause. See Appellant’s brief at 30 (citing Batson, supra
at 95). See also Flowers v. Mississippi, 139 S.Ct. 2228, 2242 (2019)
(“[E]ven a single instance of race discrimination against a prospective juror is
impermissible.”).12
____________________________________________
11 The dissent cites a list of ways in which a defendant can prove a Batson
challenge, such as by pointing to the prosecution’s disparate questioning of
black and white jurors or to its exercise of strikes in past cases. See
Dissenting Opinion at 5 (citing Flowers v. Mississippi, 139 S.Ct. 2228, 2243
(2019). The dissent then seems to indicate that a trial judge has an obligation
to look for the applicability of every such factor whether the Appellant had
advocated them or not. Id. a 6. In our view, any lack of consideration of
potentially relevant factors in this case is attributable not to an error of law by
the trial court, but to Appellant’s arguable failure to make a record of a prima
facie Batson violation in the first place as noted supra at n.7.
12 The dissent also suggests that the trial court denied Appellant’s Batson
challenges solely based upon the lack of any pattern of discrimination gleaned
from a statistical examination of the prospective jurors and strikes, and that
we opt to employ our own, different reasoning in affirming the trial court’s
ruling. See Dissenting Opinion at 16-17, 19-21, 23. We deem it unnecessary
to refute each instance of impropriety leveled at us by the dissent, as it is
obvious from an objective reading of our opinion that the dissent’s
representations are inaccurate.
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However, we see no indication that the trial court was of the impression
that a pattern of discrimination was necessary to establish a Batson violation.
Indeed, in reciting the third prong of the Batson analysis, the court made no
reference to any requirement of a pattern, acknowledging that the issue was
whether an examination of the totality of the circumstances persuaded it that
the prosecution in fact acted with discriminatory intent. See Trial Court
Opinion, 8/22/22, at 39. Rather, the court sought any such pattern of
discrimination to establish that Commonwealth’s proffered motivations for
striking each of the individual jurors were unreliable. Finding none, nor any
other circumstances to overturn its credibility determination, the trial court
properly rejected Appellant’s claims that the Commonwealth’s decisions to
strike Prospective Jurors No. 15 and 22 were acts of purposeful discrimination.
For the foregoing reasons, we conclude that Appellant has presented no
valid basis for this Court to disturb any of the trial court’s rulings on the
questions presented. Accordingly, we uphold his judgment of sentence.
Judgment of sentence affirmed.
Judge Stabile joins this Opinion.
Judge Pellegrini files a Dissenting Opinion.
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J-A19037-23
Date: 12/12/2023
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