IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT LARK, : CIVIL ACTION

Petitioner, :

: (DEATH PENALTY

v. : HABEAS CORPUS)

:

JEFFREY BEARD, ET AL., : NO. 01-1252

Respondents :

MEMORANDUM

Padova, J. July 30, 2012

I. INTRODUCTION

Before the Court for the second time is Robert Lark’s Petition for Writ of Habeas Corpus

filed pursuant to 28 U.S.C. § 2254. On July 3, 2007, we conditionally granted the Petition, finding

that the Commonwealth of Pennsylvania failed to satisfy its burden at the second step of the analysis

established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). See 1

Lark v. Beard, 495 F. Supp. 2d 488, 503 (E.D.Pa. 2007) (“Lark I”) vacated sub nom Lark v.

Secretary, Pa. Dept. of Corr., 645 F.3d 596 (3rd Cir. 2011) (“Lark II”). On June 16, 2011, the

United States Court of Appeals for the Third Circuit vacated our Order granting the Petition. Lark

In Batson, the Supreme Court held that deliberate or purposeful exclusion of African 1

Americans from jury service violates the Equal Protection Clause. Id., 476 U.S. at 84. The decision

set forth a three-step procedure for evaluating claims of discrimination in the jury selection process:

First, a defendant must make a prima facie showing that a peremptory challenge has

been exercised on the basis of race. Second, if that showing has been made, the

prosecution must offer a race-neutral basis for striking the juror in question. Third,

in light of the parties’ submissions, the trial court must determine whether the

defendant has shown purposeful discrimination.

Miller–El v. Cockrell, 537 U.S. 322, 328-29 (2003) (“Miller-El I”) (discussing three-step inquiry

(citing Batson, 476 U.S. at 96–98)).

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 1 of 36
II, 645 F.3d at 629. The Commonwealth did not challenge our finding that Lark established a prima

facie case at step one, but confined its challenge to our holding that Lark was entitled to the entry

of the conditional writ of habeas corpus because the Commonwealth had not articulated a raceneutral explanation for its strikes at step two. Id. at 620-21. The Third Circuit determined that,

notwithstanding the Commonwealth’s failure to meet its step two burden of demonstrating a raceneutral ground for its peremptory strike of a minority veniremen, the burden remains on Petitioner

to show by a preponderance of the evidence at step three that the prosecutor engaged in purposeful

discrimination. Lark II, 645 F.3d at 625-27 (analyzing Johnson v. California, 545 U.S. 162 (2005)

and explaining that the prosecutor’s lack of response at step two is evidence to be taken into account

at step three, but is not, by itself, of such dispositive force that it establishes that there was a Batson

violation). Presentlybefore the Court are the parties’ additional submissions on the step three issues. 

We find that Petitioner has satisfied his burden of demonstrating by a preponderance of the evidence

that the prosecutor engaged in purposeful discrimination in striking African-American veniremen

from his jury. Accordingly, we again conditionally grant the writ.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The Third Circuit fully set forth the factual basis for Lark’s conviction and the direct and

collateral appeal history in Lark II, 645 F.3d at 599-606, which we incorporate by reference herein. 

To summarize, Petitioner was convicted of first degreemurder, possession of an instrument of crime,

terroristic threats, and kidnaping in the Court of Common Pleas of Philadelphia County on June 28,

1985, and was subsequently sentenced to death. The convictions resulted from Lark’s killing of Tae

BongCho, and his kidnaping and restraint of Cho’s two young children and their mother. Petitioner

appealed, and the Supreme Court affirmed his convictions and sentences on May 20, 1988. See

-2-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 2 of 36
Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988). 

Following extensive state collateral proceedings, Lark filed the instant petition for writ of

habeas corpus, pursuant to 28 U.S.C. § 2244, on March 16, 2001, alleging an Eighth Amendment

ineffective assistance of counsel claim in connection with both the guilt and penalty phases of his

trial, as well as a Fourteenth Amendment Equal Protection claim. Lark II, 645 F.3d at 602 n.9. After

determining that Petitioner alleged facts that, if true, would satisfy his Batson step one burden by

making a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of

race, we conducted an evidentiary hearing. Id. at 603.

To support its step two burden, we permitted the Commonwealth to present circumstantial

evidence to reconstruct the prosecutor’s peremptorystrike decision-making process. The prosecutor,

having first testified that he had no current recollection of the Lark jury selection, nor any

independent or refreshed recollection of the voir dire after having read the voir dire transcript, Lark

I at 495, was allowed to testify to his practice of considering certain criteria in exercising peremptory

challenges. He identified the following factors that he routinely considered and the reason he

considered that factor significant: (1) the neighborhood where the potential juror lived was

significant to his decision to exercise a peremptory strike because he did not want jurors who lived

near the defendant or near to where the incident occurred (N.T. 11/8/06 at 73-74); (2) the potential

juror’s employment status, because persons with a job have roots in the community (id. at 82); (3)

the potential juror’s age, because older jurors are wiser and more responsible (id. at 94); (4) whether

the potential juror had relatives that were police officers, which he considered a positive factor (id.

at 95); (5) the potential juror’s home ownership, because it showed a stake in the community (N.T.

11/9/06 at 10); (6) vocation – he did not want teachers and social workers as jurors (id.); (7) hardship

-3-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 3 of 36
(id. at 48); (8) prior jury experience (id.); (9) whether the juror had been a victim of crime or a

witness or defendant in a criminal case (id.); (10) whether the juror knew any potential witness in

the trial (id.); (11) whether the juror had any feelings about the death penalty (id.); and (12) whether

the potential juror had children the same age as the defendant (N.T. 11/8/06 at 102). The prosecutor

denied striking any juror because of his or her race. (N.T. 11/9/06 at 51.) He testified that using race

as a factor in jury selection was legally and morally abhorrent to him. (N.T. 11/8/06 at 71-72.)

The prosecutor also testified as to why he thought he may have stricken certain members of

the venire, based upon his review of the voir dire transcript. However, even after he reviewed the

transcript, the prosecutor could state no reason for striking three African-American veniremen: 

Shirley Sampson, Florence Williams, and Edison Sisco. Lark II, 645 F.3d at 604-05. We

determined in Lark Ithat the Commonwealth’s failure to satisfyits burden of production with respect

to the prosecutor’s peremptory strikes of Sampson, Williams, and Sisco at step two of the Batson

analysis mandated the granting of the writ. Lark I at 503. The Third Circuit agreed that the

Commonwealth failed to satisfy its burden of production at step two, Lark II, 645 F.3d at 603;

however, the Third Circuit disagreed with our conclusion that the Commonwealth’s failure at step

two warranted granting the writ. Id. at 626-28. The Third Circuit indicated that, where the passage

of time has diminished the prosecutor’s recollection of the voir dire, the district court should proceed

to the third step of the Batson analysis. Id. at 628.

II. STEP THREE OF THE BATSON ANALYSIS

In Williams v. Beard, 637 F.3d 195 (3d Cir. 2011), the Third Circuit restated the law

applicable to step three: 

At step three of the Batson analysis, the petitioner must show that “it is more

-4-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 4 of 36
likely than not that the prosecutor struck at least one juror because of race.” Bond

[v. Beard, 539 F.3d 256 (3d Cir. 2008)] at 264. To determine whether the petitioner

has carried his or her burden, the court must evaluate “all evidence introduced by

each side (including all evidence introduced in the first and second steps) that tends

to show that race was or was not the real reason” for each strike. Hardcastle [v.

Horn, 368 F.3d 246 (3d Cir.2004)] at 259 (quoting Riley v. Taylor, 277 F.3d 261,

286 (3d Cir. 2001) (en banc)); see also Snyder v. Louisiana, 552 U.S. 472, 478, 128

S.Ct. 1203, 170 L.Ed.2d 175 (2008) (explaining that “all of the circumstances that

bear upon the issue of racial animosity must be consulted”). Step three ultimately

focuses upon the prosecutor’s subjective motivation, which ideally includes an

assessment of the demeanor and credibility of the various voir dire participants. See

Snyder, 552 U.S. at 477, 128 S.Ct. 1203 (“Step three of the Batson inquiry involves

an evaluation of the prosecutor’s credibility, and the best evidence [of discriminatory

intent] often will be the demeanor of the attorney who exercises the challenges.”

(alteration in original) (internal citations and quotation marks omitted)). 

Williams, 637 F.3d at 215-16. As this discussion makes clear, a key part of our analysis at step three

will be determining whether or not we accept the prosecutor’s assertion that race played no part in

his decision making process. In making this determination, we consider the entire record, including

the statistical evidence Petitioner introduced at step one, see id. at 214 (noting that statistical

evidence may be sufficient by itself to make out a prima facie case of racial discrimination at step

one, citing Jones v. Ryan, 987 F.2d 960, 971 (3d Cir. 1993)), as well as the evidence offered by the

Commonwealth at step two, to show what factors the prosecutor ordinarily considered in making

peremptory strike decisions. “An explanation that appears race neutral at step two may betray an

improper motive if it is invoked to strike African Americans but not other non-black venirepersons

exhibiting the same characteristic.” Id. at 216.

At step three, we also examine “comparator” evidence, “comparing stricken members of the

venire to individuals the Commonwealth deemed acceptable.” See id. (“We have previously

authorized such an evaluative procedure, explaining, ‘A comparison between a stricken black juror

and a sitting white juror is relevant to determining whether the prosecution’s asserted justification

-5-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 5 of 36
for striking the black juror is pretextual.’”) (quoting Riley, 277 F.3d at 282; Holloway v. Horn, 355

F.3d 707, 724 (2004)); see also Snyder, 552 U.S. at 479–86, 128 S.Ct. 1203 (performing comparative

analysis); Miller–El v. Dretke, 545 U.S. 231, 241–52 (2005) (“Miller-El II”) (finding Batson

violation based in part on juror comparison evidence). 

The Third Circuit in Williams stated that, when conducting a comparison analysis,

it is insufficient to proffer venire members who lack one or more of the

characteristics upon which the prosecutor exercised a strike. This is not to erect an

unreasonable roadblock; rather, it ensures accuracy in an area often guided by

guesswork and hunches. See [United States v.] DeJesus, [347 F.3d 500 (2003)] at

505 (explaining that a peremptory challenge “is usually based on educated guesses

about probabilities based on the limited information available to an attorney about

prospective jurors”). Because the focus in step three is to uncover a prosecutor’s

subjective motivation, it is imperative to account for the complete combination of

factors that caused the prosecutor to exercise a strike. 

Williams, 637 F.3d at 217. The comparator evidence in Williams was held to be unpersuasive,

however, because the petitioner could identify no comparators that met all of the criteria exhibited

by the stricken veniremen. Id. However, as the Supreme Court explained in Miller-El II, there is

no per se rule “that no comparison is probative unless the situation of the individuals compared is

identical in all respects, and there is no reason to accept one. . . . A per se rule that a defendant

cannot win a Batson claim unless there is an exactly identical white juror would leave Batson

inoperable; potential jurors are not products of a set of cookie cutters.” Id. at at 247 n.6; see also

Snyder, 552 U.S. at 483 (finding that the prosecutor’s acceptance of white jurors who disclosed

information “at least as serious” as that disclosed by stricken African-American juror made

prosecutor’s reliance on that factor implausible).

-6-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 6 of 36
III. DISCUSSION2

Petitioner argues, based upon the trial record of the voir dire and the evidence adduced at our

evidentiary hearing, that it is more likely than not that the Commonwealth engaged in purposeful

discrimination in the exercise of peremptory strikes against African-American veniremen. To

support his argument Petitioner relies upon (a) a statistical analysis of the prosecutor’s peremptory

strikes, (b) comparisons among jurors, and (c)the prosecutor’s comments when Petitioner’s attorney

objected to his pattern of peremptory strikes.3

A. Pattern of strikes

1. Strike rates and acceptance rates

In Lark I, we made extensive findings of fact in deciding the Batson step two issue. The 2

discussion which follows of the state court record and the record of the evidentiary hearing constitute

additional findings of fact. In addition, we have created and appended hereto a spreadsheet (“App.

1”), in which we correlate from the voir dire testimony and the parties’ stipulations, the race,

demographic information, and peremptorychallenge criteriaofthe 29members of the venire actually

subject to a peremptory challenge decision by the prosecutor. The contents of the spreadsheet and

the discussion in this opinion of the data compiled therein likewise constitute additional findings of

fact.

Petitioner also asks us to consider the “McMahon Tape” as demonstrating the culture of 3

discrimination in the Philadelphia District Attorney’s Office at the time of his trial. On this tape, an

assistant in the Philadelphia District Attorney’s Office tutored his colleagues in methods of avoiding

Batson claims while still limiting the number of African-Americans chosen as jurors in criminal

trials. We previously found as fact that the prosecutor knew the creator of the tape, Jack McMahon,

but that McMahon was never his supervisor or senior in the District Attorney’s Office and he never

gave him instructions on how to pick a jury. Lark I at 494. We also found that Petitioner’s jury

selection occurred prior to the creation of the McMahon Tape. Id.

Petitioner concedes that “the Third Circuit has been unwilling to put much weight upon

McMahon’s remarks when another prosecutor tried the case . . . [n]evertheless, the relationship

between [the prosecutor’s] testimony and the McMahon video is worth noting.” (Pet. Mem. at 20-

21.) He further points out several similarities between the strategies taught by McMahon and the

prosecutor’s actions here. Despite Petitioner’s urging, since we find that the other evidence

Petitioner presents is sufficient to support our conclusion that it is more likely than not that AfricanAmerican veniremen were peremptorily struck on account of their race, we have not considered the

“McMahon Tape” evidence. 

-7-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 7 of 36
The parties stipulated to the racial composition of the venire from which Petitioner’s jurywas

selected. Lark II, 645 F.3d at 605-06. After all veniremen excused for cause or by consent are 4

excluded, the jury, which totaled 14 people, including the two alternates, was selected from a venire

consisting of 45 people. Of those 45 people, the prosecutor had the opportunity to accept or strike

29 veniremen before the jurywas filled. Of these 29 people, 17 were African-American and 12 were

Caucasian. (App. 1.) The prosecutor exercised 15 peremptory strikes. (Id.) Of those 15 strikes, 13

were used to strike African-American veniremen – resulting in an 87% strike rate. (Id.; Lark II at

606). He used two strikes against Caucasian veniremen – a 13% strike rate. (Id.) The prosecutor 5

accepted only four of the 17 African-American jurors he had the opportunity to accept – for an

acceptance rate of 23.5%; he accepted 10 of the 12 Caucasian jurors he had the opportunity to accept

– for an acceptance rate of 83%. (Id.) 

The Commonwealth argues that this evidence does not establish at step three that any

particular strike was the product of discrimination. First, it notes that four African-Americans were

seated as jurors, which, it argues, lends credibility to the prosecutor’s testimony that he was not

excluding jurors because theywere African-American. (Resp. at 3-4 citing DeJesus, 347 F.3d at 509

(stating that the fact that one Hispanic and three African Americans were seated in the final jury,

while the government had three unused three peremptory strikes, makes the government’s

There has been no stipulation or evidence presented on the race of those veniremen stricken 4

for cause or by consent.

Based upon our own review of the voir dire record, we vacate our prior Finding of Fact No. 5

47, see Lark I, 495 F. Supp. 2d at 499 (citing Stipulation #1 for the proposition that the prosecutor

struck 71% (12 of 17) of the available African-American venire members and struck only 17% (3

of 18) of the non-African-American veniremen) to the extent that it is inconsistent with this

paragraph.

-8-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 8 of 36
race-neutral explanation more believable)).

The Commonwealth also asks us to consider another statistic – the prosecutor’s acceptance

rate – which it contends is more “benign.” (Resp. at 4.) As noted, of the 17 African-Americans that

the prosecutor had the opportunity to accept or strike, he accepted four, or about 23.5%. We

consider the African-American acceptance rate, along with all of the other evidence, as relevant to

the step three determination. However, a comparison with the prosecutor’s acceptance rate for

Caucasian jurors, 10 out of 12 or 83%, is also evidence we consider.

Third, the Commonwealth notes that there is no evidence concerning the race of the entire

venire or the race of jurors struck by the defense. It contends that, in the absence of this evidence 

there is no way to accurately calculate the overall exclusion rate, i.e., to compare the racial makeup

of the entire venire with the racial makeup of the seated jury. See United States v. Gooch, 665 F.3d

1318, 1327, 28 (D.C. Cir. 2012) (stating “When the ‘jury composition mirror[s] the make-up of the

venire’ and ‘the prosecutor’s strikes [do] not skew the racial composition of the resulting jury,’ ‘[t]he

circumstances . . . are a far cry from the facts of cases in which the Supreme Court has found a

Batson violation.’” (quoting United States v. Moore, 651 F.3d 30, 41 (D.C. Cir. 2011) (per curiam))). 

It asserts that Petitioner’s failure to establish the racial makeup of the entire venire is an independent

reason why his Batson claim fails because the exclusion rate is necessary for reliable assessment of

the statistical evidence. (Resp. Mem. at 5 (citing Lewis v. Horn, 581 F.3d 92, 103 (3d Cir. 2009)). 

The Commonwealth’s reliance on Lewis is, however, misguided. The Lewis court was

discussing Batson’s step one requirements, not step three, and Lewis’s claim failed because he had

no evidence to support his allegations that 66.6% of the members of the venire stricken by the

prosecutor were African-American. Id. at 103-04. The Lewis Court also stated that the exclusion

-9-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 9 of 36
rate is not absolutely necessary to satisfy Batson’s step one requirements. Lewis at 103 (stating “In

Abu-Jamal [v. Horn, 520 F.3d 272 (3d Cir. 2008)] we emphasized the importance (although not

necessity) of supplying information about the strike rate and the exclusion rate in order to

demonstrate a prima facie violation of Batson”) (parenthetical in original). Moreover, we are

required when we determine whether the Petitioner has satisfied his burden at step three to evaluate

“all evidence introduced byeach side (including all evidence introduced in the first and second steps)

that tends to show that race was or was not the real reason” for each strike. Williams at 215 (quoting

Hardcastle, 368 F.3d at 259). Focusing solely on the failure to establish the “overall” exclusion rate

would violate this principle. 

The Commonwealth also argues that Petitioner’s strike and acceptance statistics evidence

fails to meet his step three burden because in four recent cases, all decided after we issued Lark I,

the Third Circuit rejected Batson claims that cited similar statistical evidence. First, we reject the

inference that these cases mandate that Petitioner’s statistical evidence should be viewed in isolation

from all other material evidence at step three. As just stated, we must look to the totality of the

evidence to determine whether race was or was not the real reason for each strike. Second, we find

that none of the four cases mandate a conclusion that it is more likely than not that Petitioner cannot

demonstrate racial discrimination in jury selection in this case. 

The first case on which the Commonwealth relies is Williams, 637 F.3d 195. In Williams,

the prosecutor accepted five of the 19 African Americans she had the opportunity to strike, for an

acceptance rate of 26.3%. By contrast, her acceptance rate of white veniremen was 90%. Id. at 215. 

The Third Circuit found that the variation in the prosecutor’s acceptance rates for African-American

and Caucasian veniremen was sufficient to establish a prima facie showing of racial discrimination

-10-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 10 of 36
at step one. Id. However, the Court concluded that the comparison evidence presented by the

petitioner was insufficient to establish that the prosecutor’s race-neutral explanations for her strikes

were pretextual. Id. at 216-19. The Third Circuit concluded that Williams’s Batson challenge failed

on its merits at step three because the totality of petitioner’s proofs – not just the statistics – did not

overcome the prosecutor’s stated non-discriminatory reasons for her strikes. Id. at 219-220.

Similarly, in the second decision cited by the Commonwealth, Lewis, 581 F.3d 92, the

petitioner claimed that the prosecutor exercised eight of his 12 peremptory strikes against AfricanAmericans, for a strike rate of 66.67%. Id. at 104. Further, petitioner alleged he was tried by an allCaucasian jury. Id. The Third Circuit found that petitioner had not made out a step one prima facie

case of discrimination because he had not cited to any record evidence or any other support outside

the record, to substantiate his bare allegations. Id. (stating “Without information about the number

and racial composition of the entire venire, we cannot calculate the exclusion rate and we lack the

‘contextual markers’ to analyze the significance of the strike rate.”). The Court further stated that,

even if it accepted as true “Lewis’s bald assertion that eight of the twelve venire members whom the

prosecutor struck were African-American, a strike rate of 66.67% is insufficient information to

establish a prima facie case of racial discrimination in the exercise of peremptory strikes.” Id. Here,

in contrast, Petitioner identified the race of the 29 veniremen for whom the prosecutor exercised a

choice, the prosecutor’s strike rate of African-Americans was significantly greater than 66.67%, and

Petitioner has presented other evidence on the step three issue. Thus, both Williams and Lewis have

little application to this case.

Next, the Commonwealth relies upon Abu-Jamal, 520 F.3d 272. In Abu Jamal, the

prosecution strike rate of African-Americans was 66.67% with three African-Americans chosen as

-11-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 11 of 36
jurors. Id. at 287, 291. While the Commonwealth asserts that the decision “emphasized the

difficulty of evaluating the significance of the strike rate without knowing the racial makeup of the

venire, from which the exclusion rate might be calculated,” (Resp. Mem. at 7 (emphasis in original) 

(citing Abu-Jamal, 520 F.3d at 290-92)), this was not the import of the opinion. In a decision

governed by the AEDPA, the Third Circuit determined the state court rejection of the Batson claim

was not unreasonable in part because petitioner had the opportunity to question the prosecutor about

his striking African-American veniremen at a hearing in state court and failed to do so. Id. at 292.

Because Abu Jamal failed to adequately develop the record when he had that opportunity, the Third

Circuit concluded that the state court finding that he had not made out a prima facie case at step one

was a reasonable interpretation of Batson. Id. 

Lastly, the Commonwealth relies upon Bond, 539 F.3d 256. In Bond, the prosecution strike

rate of African-Americans was 78.6% with four African-Americans chosen as jurors (two were

alternates). Id. at 269. The Commonwealth asserts that this case stands for the proposition that “raw

statistics do not provide a clear picture of intentional racial discrimination.” (Resp. Mem. at 7

(quoting Bond, 539 F.3d at 269)). While this quote is correct, it has been taken out of context. In

fact, while the Third Circuit was acknowledging that this statistic was mitigated by the fact that the

percentage of African-Americans on the jury was actually higher than the percentage of AfricanAmericans in one of the two venire panels considered by counsel during Bond’s jury selection, that

was not the sole basis for the Bond Court’s conclusion that the petitioner had failed to meet his

obligations under step three. Id. at 269-275. In Bond, the prosecutor offered contemporaneous

non-discriminatory reasons for his strikes and the trial court made findings that these were not

pretextual. Id. at 271-72. On habeas review, the Third Circuit afforded deference to these holdings. 

-12-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 12 of 36
Here, we deal in large part with stricken jurors for whom the prosecutor could identify no nondiscriminatory reasons for his strikes apparent from the voir dire transcript. Because none of the four

decisions the Commonwealth cites mandates a conclusion that Petitioner’s statistical evidence

should not be reviewed in connection with his step three burden, we treat the prosecutor’s strike rate

and acceptance rate statistics as part of the totality of evidence tending to show whether or not race

was the real reason for each strike.

2. Analysis of the prosecutor’s jury selection criteria

To support its step two burden, we permitted the Commonwealth to present circumstantial

evidence to reconstruct the prosecutor’s peremptory strike decision-making process. This evidence

is also relevant at step three. Hardcastle, 368 F.3d at 259. In addition to relying upon the fact that

the prosecutor could state no reason whatsoever for striking at least three African-American

veniremen, Petitioner argues that our factual findings, along with the testimony of record from the

voir dire, support the step three conclusion that the prosecutor engaged in purposeful discrimination

because the record demonstrates that the prosecutor applied the factors he identified differently to

African-American and Caucasian veniremen. We will first review each factor to determine whether

the prosecutor applied them in a race-neutral fashion. 

A. Neighborhood where the incident took place (North Philadelphia)

The prosecutor testified that he routinely considered whether a potential juror lived near the

location of the crime. (N.T. 11/8/06 at 73-74.) The crime in this case occurred in North

Philadelphia. (N.T. 6/5/85 at 29.) There were several veniremen stricken by the Commonwealth

who currently or formerly lived in North Philadelphia (Sampson, Geter, Traynham, Wilson, S.

Williams). (App. 1.) There were no veniremen who currently or formerly lived in North

-13-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 13 of 36
Philadelphia who were not stricken by the Commonwealth. (Id.) We conclude that the prosecutor

applied this factor consistently.

B. Employment status as proxy for roots in the community

The prosecutor testified that he routinelyconsidered whether a potential juror was employed. 

(N.T. 11/8/06 at 82.) The prosecutor accepted three of the four unemployed veniremen who were

Caucasian. (App. 1 (Petruzelli, Kostryckyj, Mancini seated; Landis struck).) However, he accepted

only one of the seven African-American veniremen who were unemployed. (Id. (Sheen seated;

Cooper, Geter, F. Williams, Traynham, Lewis, Jefferson struck).) He accepted seven of the eight

Caucasians who were employed. (Id. (Longo, Giorgio, Merrill, Arentzen, Hawthorne, Hamski,

Caione seated; Rabb struck).) However, he accepted only three of the 10 African-Americans who

were employed. (Id. (Alston, Robinson, Hill seated; Sampson, Green, Wilson, Patton, Sisco, S.

Williams, Erby struck).) We conclude that there are racial variances in the prosecutor’s application

of his stated preference for employed jurors. 

C. Preference for older jurors

The prosecutor testified that he routinely considered a potential juror’s age, as he believed

that older jurors were wiser and more responsible. (N.T. 11/8/06 at 94.) The prosecutor accepted 6

three of the four Caucasian veniremen who had the positive attribute of being older. (App. 1

(Giorgio, Petruzelli, Hawthorne seated; Rabb struck).) He accepted only three of the 14 AfricanWhile many veniremen were not asked to state their age during the voir dire, counsel would 6

have been able to determine their general age from their appearance. Where a veniremen’s age is

not specified in the record, we have extrapolated whether the venireman was an older or younger

person based upon their voir dire testimony, i.e., the age of their children, that they were retired, or

the year they graduated from school. By examining the testimony, we have been able to determine

a general age for each venireman and have classified them in App. 1 as either “older” or “younger.”

-14-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 14 of 36
American veniremen who were older. (Id. (Alston, Robinson, Hill seated; Sampson, Green, Geter, 

F. Williams, Traynham, Wilson, Sisco, S. Williams, Lewis, Jefferson, Erbystruck).) The prosecutor 

accepted seven of the eight Caucasians who possessed the negative attribute of being younger. (Id.

(Longo, Merrill, Arentzen, Hamski, Caione, Kostryckyj, Mancini seated; Landis struck).) He

accepted only one of the three African-Americans who were younger. (Id. (Sheen seated; Cooper,

Patton struck).) We conclude that there are racial variances in the prosecutor’s application of his

stated preference for older jurors. 

D. Positive connections to police officers

The prosecutor testified that he routinely exercised a preference for jurors with positive

familial or social connections to police officers. (N.T. 11/8/06 at 95.) He accepted all three of the

veniremen with positive police connections who were Caucasian. (App. 1. (Merrill, Arentzen,

Hawthorne).) However, he accepted only three of the five African-American veniremen with

positive police connections. (Id. (Alston, Robinson, Sheen seated; Wilson, Patton struck).) The

prosecutor accepted seven of the nine Caucasians with no positive police connections. (Id. (Longo,

Giorgio, Petruzelli, Hamski, Caione, Kostryckyj, Mancini seated; Rabb, Landis struck).) He

accepted only one of the 12 African-Americans with no positive police connections. (Id. (Hill

seated; Sampson, Green, Cooper, Geter, F. Williams, Traynham, Sisco, S. Williams, Lewis,

Jefferson, Erby struck).) We conclude there are racial variances in the prosecutor’s application of

his stated preference for jurors with a positive familial or social connections to police officers. 

E. Home ownership as proxy for stake in the community

The prosecutor also testified that home ownership was a positive factor in his consideration

of potential jurors because it demonstrated a stake in the community. (N.T. 11/9/06 at 10.) 

-15-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 15 of 36
Nevertheless, only nine veniremen were asked about their ownership of a home and all of those nine

veniremen were asked about home ownership by defense counsel. (App. 1 (Giorgio, Merrill,

Sampson, Green, Petruzelli, Geter, Landis, Hawthorne, Jefferson).) Because the prosecutor did not

pursue this inquiry, we do not rely upon his testimony that home ownership was a factor that he used

in making his decisions.

F. Significant negative vocations

The prosecutor testified that he considered certain vocations to be significant and negative

factors, and specified that he did not want teachers and social workers as jurors. (N.T. 11/9/06 at

10.) However, he accepted Amelia Hill, an African-American social work supervisor employed by

the Philadelphia County Board of Assistance for the jury. (App. 1.) No other veniremen worked at

one of these specified vocations. We do not find that the prosecutor’s application of this factor

implies racial discrimination because the juror who possessed this characteristic was AfricanAmerican and was accepted by the prosecutor. 

G. Prior jury experience

The prosecutor did not express either a preference or a dislike for jurors who had previously

served on a jury; he merely stated it was a factor he considered. (N.T. 11/9/06 at 48.) Only four

veniremen expressed that theyhad prior juryexperience. Two were Caucasian and both were seated. 

(App. 1 (Merrill, Hawthorne).) Two were African-American; one was seated, the other was stricken

by the Commonwealth. (Id. (Hill seated; F. Williams struck).) We cannot conclude that the

prosecutor applied this factor in a discriminatory fashion based on the record before us. 

H. Victims or witnesses of a crime

Like prior jury experience, the prosecutor did not express either a preference or a dislike for

-16-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 16 of 36
jurors who were victims or witnesses to crimes; he merely stated it was a factor he considered. (N.T.

11/9/06 at 48.) The prosecutor accepted six of the seven Caucasian veniremen who self-identified

as being a witness or victim of crime. (App 1 (Longo, Giorgio, Arentzen, Hawthorne, Hamski,

Mancini seated; Rabb struck).) He accepted onlyone of the two African-American veniremen in that

category. (Id. (Hill seated; Wilson struck).) He accepted four of the five Caucasians who did not

self-identify as being a witness or victim of crime. (Id. (Merrill, Petruzelli, Caione, Kostryckyj

seated; Landis struck).) He accepted only three of the 13 African-Americans in that category. (Id.

(Alston, Robinson, Sheen seated; Sampson, Green, Cooper, Geter, F. Williams, Traynham, Patton,

Sisco, S. Williams, Jefferson struck).) We conclude there are racial variances in the prosecutor’s

acceptance and rejection of jurors based upon this factor. 

I. Defendant in a criminal case

The prosecutor testified that he considered whether a potential juror or family member had

been a defendant in a criminal case. (N.T. 11/9/06 at 48.) Only four veniremen not stricken for

cause stated that they or a family member were a defendant in a criminal case. Three were AfricanAmerican and were all peremptorilystricken bytheCommonwealth. (App 1 (Wilson, Lewis, Erby).) 

One was Caucasian and was seated. (Id. (Hawthorne).) While the sample size is small, we conclude

there is a stark racial disparity in the prosecutor’s application of what would appear to be an

important voir dire subject.

J. Veniremen with children the same age as the defendant

The prosecutor testified that he preferred jurors without children who were approximately

the same age as the defendant. (N.T. 11/8/06 at 102.) The prosecutor accepted all three of the 7

At the time of the trial, Lark was 33 years old. (N.T. 11/8/06 at 91.) 7

-17-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 17 of 36
Caucasian veniremen who possessed the negative factor of having children the same age as

defendant. (App. 1 (Giorgio, Petruzelli, Hawthorne).) He rejected eight of the 10 African-American

veniremen with this negative factor. (Id. (Alston, Robinson seated; Sampson, Green, Geter, F.

Williams, Traynham, Lewis, Jefferson, Erbystruck).) He accepted seven of the nine Caucasians who

possessed the positive factor of having no children defendant’s age. (Id. (Longo, Merrill, Arentzen,

Hamski, Caione, Kostryckyj, Mancini seated; Landis, Rabb struck).) He accepted only two of the

seven African-Americans who possessed this positive factor. (Id. (Sheen, Hill seated; Cooper,

Wilson, Patton, Sisco, S. Williams struck).) We conclude there are racial variances in the

prosecutor’s application of his stated preference for jurors without children approximately the same

age as the defendant.

K. Other factors

All veniremen who expressed a legitimate hardship, knew a witness, or had objections to the

death penaltywere excused for cause. Accordingly, these cannot serve as legitimate non-race factors

supporting any Commonwealth peremptory challenge.

B. Side-By-Side Comparison of Jurors

As we have discussed above, comparisons between a stricken African-American venireman

and a similarly situated seated Caucasian juror is highly relevant at step three. See Williams, 637

F.3d at 216; Miller-El II, 545 U.S. at 241-52. Petitioner has asked that we consider comparison

evidence with respect to thirteen of the African-American veniremen stricken by the prosecutor.

1. Shirley Sampson

In Lark I, we found as fact that, after reading the voir dire transcript, the prosecutor had no

independent or refreshed recollection of why he struck Sampson. Lark I, 495 F. Supp. 2d at 495-96. 

-18-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 18 of 36
We found as fact that he was unable to offer any race-neutral justification for this peremptory strike. 

Id. at 499. Now that we are considering all of the evidence at step three, the Commonwealth has

suggested that Sampson mayhave been stricken because she lived nearthe crime scene, her daughter

was in the mental health profession, and defense counsel interacted with her for a prolonged period. 

(Resp. Mem. at 9-10.) Significantly, none of these factors were identified by the prosecutor at the

evidentiary hearing as reasons why he may have stricken Sampson and they are entirely speculative. 

Also, while Ms. Sampson once lived in North Philadelphia, she testified she currently lived in

Logan, her daughter’s profession, mental health, was not one of the significant vocations identified

by the prosecutor, and her interaction with defense counsel was not significantly different from

defense counsel’s questioning of other veniremen. Accordingly, we do not credit these explanations.

We again find that the Commonwealth has failed to show any step two race-neutral reason for this

strike. 

Ms. Sampson possessed many of the positive attributes the prosecutor identified. The voir

dire record discloses that she possessed the following racial, demographic, social, educational, and

economic characteristics: African-American, female, married, older, lived in Logan, federal

employee (Navy Quartermaster), home owner, some high school education (non-Catholic), four

children two of whom were adults. (N.T. 6/6/85 at 33-38.) We find that Eleanor Giorgio is a

comparator seated juror. Ms. Giorgio was Caucasian, female, married, older, lived in West

Philadelphia, employed (University of Pennsylvania), home owner, high school education (nonCatholic), three adult children, one of whom was male. (N.T. 6/5/85 at 99-105.) Another seated

juror comparator is Margaret Petruzelli. She was Caucasian, female, married, older, lived in

Mayfair, unemployed homemaker, home owner, high school education (Catholic), three adult

-19-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 19 of 36
children, two of whom were male. (N.T. 6/7/85 at 25-34.) In addition, Sampson, Giorgio, and

Petruzelli were all interviewed early in the voir dire, at a time when the prosecutor had similar

numbers of peremptory strikes still available to him, eliminating this as a distinguishing factor.

The two comparator seated jurors are very similar to Ms. Sampson with respect to many

pertinent criteria. Moreover, there were no Caucasian veniremen with equally close comparator

criteria who were struck by the prosecutor. Because the Commonwealth has not articulated any

plausible race-neutral reason to support the prosecutor’s peremptory strike of Ms. Sampson, and she

was treated differently than comparator Caucasian veniremen who were seated, we conclude based

upon our review of the record of the voir dire and the comparison of Ms. Sampson with members

of the venire who possessed similar characteristics, that it is more likely than not that the prosecutor

exercised his peremptory strike based upon her race.

2. Alwina Green

Ms. Green possessed many of the positive, stable, attributes the prosecutor identified as

preferable. She was older, married, employed by the federal government, a high school graduate

taking college courses, and owned her home in West Philadelphia. (N.T. 6/6/85 at 100-108.) The

prosecutor stated at the evidentiary hearing that, while “she seem[ed] like a perfectly acceptable

juror,” he may have used his peremptory strike because Ms. Green was the mother of two teen-aged

children and was attending night school. He perceived that these factors may have indicated to him

at the time that jury service would be too heavy a burden on her. (N.T. 11/8/06 at 77-80.) In its

Response, the Commonwealth postulates additional reasons why Ms. Green may have been struck:

she “had worked with disabled veterans (akin to ‘social workers’ about which the prosecutor was

cautious . . .)” and that the prosecutor and defense counsel briefly argued in her presence. (Resp.

-20-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 20 of 36
Mem. at 10.) Again, the prosecutor did not testifythat these were factors he would typically consider

in striking Ms. Green and they represent nothing more than speculation. The Commonwealth’s

claim that she “worked with disabled veterans (akin to ‘social workers’ . . .)” is also a misreading

of the record. Ms. Green testified that her work involved approving life insurance applications for

disabled veterans. (N.T. 6/6/85 at 108.) There is no evidence that she was engaged in work similar

to “social work.”

Notably, while the prosecutor testified twenty-one years after the fact that he might have

stricken Ms. Green because jury service would present a heavy burden to her, Ms. Green herself

claimed the opposite during voir dire. She told counsel that her class work would not interfere with

jury service, and that jury service would merely replace her day time work commitment. (Id. at 8

104.) Accordingly, we do not credit this reasoning as a race-neutral justification for the

Commonwealth’s strike of Ms. Green.

We find that the same two Caucasian comparators discussed with regard to ShirleySampson

also can be compared to Ms. Green because they possessed many of the same pertinent criteria. As

we stated, Ms. Giorgio was a Caucasian female, who was married, was older, lived in the same

neighborhood as Ms. Green (West Philadelphia), was employed, owned her home, and had a nonCatholic high school education; one difference, however, was the age of her children – Giorgio’s

three children were all adults. (N.T. 6/5/85 at 99-105.) Margaret Petruzelli was a Caucasian female,

who was married, was older, lived in Mayfair, was an unemployed homemaker, owned her home,

and had a high school education (Catholic), with the same distinguishing factor that her children

We note also that Lark’s trial occurred during the month of June and there was no testimony 8

that Green was currently attending classes. (See N.T. 6/6/03 at 107 (testifying that her class schedule

“last semester . . . was 3 nights a week”) (emphasis added).)

-21-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 21 of 36
were all adults. (N.T. 6/7/85 at 25-34.) Like Sampson, Giorgio, and Petruzelli, Ms. Green was also

interviewed early in the voir dire, at a time when the prosecutor had similar numbers of peremptory

strikes still available to him, eliminating this as a distinguishing factor. We find that the only

significant difference between these comparator jurors is the age of their children. We do not credit

this factor as a race-neutral justification for the Commonwealth’s strike of Ms. Green. First, contrary

to the prosecutor’s speculation that she might be overburdened by the fact that she was the mother

of two children, Ms. Green testified that one of the two children did not live in the family home. 

(N.T. 6/6/03 at 103, 107.) Additionally, the prosecutor did not specifically rely upon her child care

commitment alone as a race-neutral reason for the strike. Rather it was the perceived combined

burden of her child care commitment with the incorrect assumption that she would be attending night

school classes during the trial, that he indicated may have led him to believe that jury service would

be too heavy a burden on her. Because the Commonwealth has not articulated any plausible raceneutral reason to support the prosecutor’s peremptory strike of Ms. Green, and she was treated

differently than comparator Caucasian veniremen who were seated, we conclude based upon our

review of the record of the voir dire and the comparison of Ms. Green with members of the venire

who possessed similar characteristics, that it is more likely than not that the prosecutor exercised his

peremptory strike based upon her race.

3. Debra Cooper

Debra Cooper was a 20 year old African-American woman living with her mother and two

sisters in East Mount Airy, who was presently unemployed but had previously worked as a stock

clerk and had attended community college studying finance. (N.T. 6/6/85 at 122-28.) The

prosecutor testified that he might have struck Ms. Cooper because she was young, defense counsel

-22-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 22 of 36
was an attractive man to whom she may have been attracted, and the voir dire transcript showed that

defense counsel spent “about five pages interacting with her.” (N.T. 11/8/06 at 82, 11/9/06 at 29.) 

While defense counsel spent similar amounts of time interacting with other female jurors whom the

prosecutor did not strike, (e.g., Juror Filomenia Ciaone (N.T. 6/10/85 at 26-28); Juror Eleanor

Giorgio (N.T. 6/5/85 at 102-05); Juror Margaret Petruzelli (N.T. 6/7/85 at 27-34)), we find the

prosecutor did not act inconsistentlywith his stated preferences when he accepted Filomenia Caione

but struck Ms. Cooper. Petitioner contends that Caione was similarly situated to Cooper. However,

Caione was employed and enrolled in college (N.T. 6/10/85 at 25) while Cooper was presently

unemployed and not currently enrolled. While they shared some characteristics – both were female,

single, younger, did not live in the same area where the crime occurred, and lived with a parent – Ms.

Caione attended Catholic schools (id.), a positive factor that Ms. Cooper did not share. 

Consequently, we cannot conclude that the prosecutor’s acceptance of Ms. Caione as a juror

undermines his race-neutral reasons for striking Ms. Cooper.

In addition, the prosecutor’s assertion that defense counsel developed a rapport with Ms.

Cooper is substantiated by the record. While he asked her questions similar to other venireman,

including more in-depth questions about her background, he also joked with her about using

recreational drugs and her “perfect ears.” (N.T. 6/6/85 at 126-28.) The quality of this interaction

differentiates her from any comparator seated juror. Accordingly, based on our review of the voir

dire, the prosecutor’s possible reasons for striking Ms. Cooper, and our comparison of Cooper and

Caione, we cannot conclude that it is more likely than not that the peremptory strike of Ms. Cooper

was based upon her race.

4. Willie Geter

-23-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 23 of 36
Willie Geter was an African-American woman who lived in the Tioga section of North

Philadelphia, was unemployed, married, had a high school education (non-Catholic), two sons one

of whom was an adult, and owned her home. (N.T. 6/7/85 at 40-45.) The prosecutor testified that

he may have struck Ms. Geter because she lived in North Philadelphia, nearthe neighborhood where

the crime took place. (N.T. 11/8/06 at 83.) The Commonwealth further notes that she was also

unemployed and had a son the approximate age of Petitioner, although the prosecutor did not identify

those factors as possible bases for his strike. These bases would be consistent with the prosecutor’s

stated preferences. We have not identified any Caucasian seated juror who shared these criteria. 

Based upon our review of the voir dire and the prosecutor’s possible race-neutral reasons, we cannot

conclude that it is more likely than not that the peremptory strike of Ms. Geter was based upon her

race.

5. Florence Williams

In Lark I, we found as fact that the prosecutor had no independent or refreshed recollection

of why he struck Florence Williams and could identify no factors present with regard to Ms.

Williams that he typically would have taken into account in exercising a peremptory strike. Lark I

at 497. The Commonwealth presently speculates that the prosecutor may have struck her because

she had two children, ages 17 and 27, and the prosecutor had stated that he disfavored jurors who

could over-identify with the Petitioner. (Resp. at 10.) 

When we examine the voir dire transcript, we find that Williams had attributes the prosecutor

considered positive. Williams was: African-American, female, married, older, lived in Mt. Airy,

homemaker, high school education (non-Catholic), two adult children. (N.T. 6/7/85 at 96-100.) We

find that Margaret Petruzelli is a comparator seated juror. Petruzelli was: Caucasian, female,

-24-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 24 of 36
married, older, lived in Mayfair, homemaker, home owner, high school education (Catholic), adult

children. (N.T. 6/7/85 at 25-34.) We have identified no Caucasian veniremen with equally close

comparator criteria who were peremptorily struck by the prosecutor. We conclude, based upon our

review of the record of the voir dire, the fact that the prosecutor could not state a plausible raceneutral reason for his peremptory strike of Ms. Williams, and the comparison of Ms. Williams with

a member of the venire who possessed similar characteristics, that it is more likely than not that the

prosecutor exercised his peremptory strike based upon her race.

6. Winnie Traynham

Winnie Traynham was an older African-American woman who was retired from her job at

Temple Hospital. (N.T. 6/7/85 at 102-03.) She was a widow with training in nursing who lived in

North Philadelphia with her two adult male sons. (Id. at 104.) The prosecutor testified that he may

have struck Ms. Traynham because she was from roughly the same neighborhood where the incident

occurred, and that she had two bachelor sons living at home who were approximately the same age

as Petitioner. (N.T. 11/8/06 at 89-90.) On cross-examination, the prosecutor conceded that Ms.

Traynham’s two sons may have been far older than Petitioner, given references in the voir dire that

Traynham was elderly at the time of Petitioner’s trial. (N.T. 11/8/06 at 44-45.) Nonetheless, the

possibility that he could have stricken her because she lived in the same neighborhood as the murder

scene was consistent with the prosecutor’s stated criteria and there were no comparator seated jurors

with this criterion. Accordingly, we cannot conclude that it is more likely than not that his

peremptory strike of Ms. Traynham was based upon her race.

7. William Wilson

William Wilson was an African-American man who had previously served as a juror, had

-25-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 25 of 36
a friend who was a police officer, had been convicted of carrying a firearm without a permit, lived

in North Philadelphia, was employed, and had a high school education. (N.T. 6/7/85 at 146-152.) 

The prosecutor asked the trial judge to strike Mr. Wilson for cause based on his prior conviction but

the judge denied the request. (Id. at 152.) The prosecutor testified that he may have struck William

Wilson because he had been convicted of a gun crime. (N.T. 11/8/06 at 92.) No seated jurors shared

this distinction. Accordingly, based on our review of the voir dire and the prosecutor’s possible raceneutral reason for striking Mr. Wilson, we cannot conclude that it is more likely than not that this

peremptory strike was based upon race.

8. Lisa Patton

Lisa Patton was a young African-American woman who was the niece of both a retired

Philadelphia Police captain and an active Philadelphia Police lieutenant. (N.T. 6/7/85 at 159-160.) 

She had attended high school at the Sicilian Academy, was employed as a part-time sales person

during the summer while living with her parents in West Oak Lane, and was a full time student at

Emory University. (Id. at 162-63.) The prosecutor testified that he may have struck her because she

was a young women who might be attracted to defense counsel. (N.T. 11/8/06 at 95-96.) He

admitted, however, that nothing in the record supported this concern. (N.T. 11/9/06 at 31.) 

Petitioner contends that the prosecutor’s race-neutral reason for his strike of Ms. Patton is

pretextual because there was a young female Caucasian veniremen the prosecutor did not strike. 

Filomenia Caione was a youngCaucasian woman who lived with her parents while attending college

and working part-time during the summer. (N.T. 6/10/85 at 25-26.) The prosecutor could not

explain why he was unconcerned that Ms. Caione might also establish a rapport with defense

counsel. (N.T. 11/9/06 at 31-33.) The prosecutor testified that Ms. Caione may have established a

-26-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 26 of 36
rapport, but he was unconcerned about it because of Ms. Caione’s other positive attributes: she was

employed, she attended a Catholic university (Villanova), and “looked like a person who could

follow instructions and had a conscience.” (Id. at 33.) 

We find that Ms. Caione is a close comparator venireman. Ms. Patton was interviewed on

the afternoon of June 7, 1985; Ms. Caione was interviewed on the morning of June 10, 1985, the

next trial day. The two women had many common attributes: age, part-time employment status,

student status, and were living with a parent. Ms. Caione had the positive attribute of a Catholic

school education, but Ms. Patton had also attended a private school and had the positive attribute of

police familial connections. The amount of time defense counsel spent questioning the two was also

similar, approximately one and one-half pages of transcript. (Compare N.T. 6/7/85 at 163-64; N.T.

6/10/85 at 26-28.) We conclude, based upon our review of the record of the voir dire and the

comparison of Ms. Patton with Ms. Caione that it is more likely than not that the prosecutor’s

possible reason for striking Ms. Patton is not credible and that he exercised his peremptory strike of

Ms. Patton based upon her race.

9. Edison Sisco

In Lark I we found as fact that the prosecutor “could identify no specific factor present with

regard to Cisco [sic] that he typically would have taken into account in exercising a peremptory

strike.” Lark I at 497-98. Nonetheless, the Commonwealth now postulates that, because neither the

prosecutor nor defense counsel asked Mr. Sisco any questions, theremayhave been something about

his appearance or demeanor that is undisclosed by the voir dire transcript that made an impression

on the lawyers. (Resp. Mem. at 12.) While it is true that no other venireman, stricken or seated, was

given as short a shrift as Mr. Sisco, this explanation is entirely speculative; the prosecutor did not

-27-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 27 of 36
suggest at the evidentiary hearing that it was a factor in his decision. 

Based upon the prosecutor’s stated criteria, there is a comparator venireman who was seated. 

Sisco was an African-American, married, older male, who lived in West Philadelphia and was

employed at Metropolitan Hospital in communications and had a non-Catholic high school

education. (N.T. 6/7/85 at 171-72.) Sisco was similarly situated to Frank Hawthorne, who was a

Caucasian, married, older male, who owned his own home in Kensington, had four adult children, 

was employed at Rohm & Haas as an operator and had a non-Catholic high school education. (N.T. 

6/7/85 at 72-79.) Mr. Hawthorne was accepted for the jury even though he had the negative factors

of having four adult sons, one of whom had been arrested as a juvenile. (Id. at 75-76.) Also, Mr.

Hawthorne was accepted as the ninth seated juror, after five Commonwealth peremptories had been

used and at a time when the prosecutor had peremptories still available to him to act upon these

negative factors. Between the prosecutor’s acceptance of Mr. Hawthorne and his strike of Mr. Sisco,

no additional jurors had been seated and the prosecutor had exercised four additional peremptories,

all against African-Americans, making the strike he used against Mr. Sisco more precious. Based

on our review of the voir dire, and the prosecutor’s lack of any race-neutral reasons for his strike of

Mr. Sisco, his acceptance of the Caucasian comparator, and the comparative value of the remaining

peremptory strike exercised against this African-American veniremen, we conclude that it is more

likely than not that the strike was based upon Mr. Sisco’s race. 

10. Sandra Williams

Sandra Williams was an African-American woman who lived in the Nicetown section of

Philadelphia, was employed by the Internal Revenue Service, was married, had a degree from

Harcum Junior College and had attended public high school. (N.T. 6/7/85 at 173-75.) She had two

-28-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 28 of 36
minor children and had previously lived in North Philadelphia. (Id. at 175.) The prosecutor testified

that he may have struck Ms. Williams because she lived in the area where the murder took place. 

(N.T. 11/8/06 at 98.) Petitioner has not argued that Ms. Williams was treated differently than any

similarly situated seated juror. Accordingly, based on our review of the voir dire record and the

prosecutor’s possible race-neutral reason for his peremptory strike of Ms. Williams, we cannot

conclude that it is more likely than not that the peremptory strike of Ms. Williams was based upon

her race.

11. Helen Lewis

Helen Lewis was an African-American woman whose daughter had been the victim of a

gunpoint robbery two years before Lark’s trial. (N.T. 6/5/85 at 4.) She stated that this crime would

not affect her ability to be fair. (Id. at 5.) In addition, her son had been arrested as a juvenile. (Id.

at 6.) Ms. Lewis lived in the Fairmount section of Philadelphia, was unemployed, had a high school

education, five children and was a widow. (Id. at 6-7.) The prosecutor noted the following factors

in the transcript of Lewis’ voir dire that were consistent with his criteria for jury selection: she had

a daughter that was robbed at gunpoint – which ordinarily would have been a positive factor for the

prosecutor – but she seemed overly concerned about being fair; she also had the negative factor of

a son who was arrested as a juvenile. (N.T. 11/8/06 at 100.) He testified that he may have accepted

her as a juror if he had fewer peremptories, but at that point in the voir dire he had sufficient strikes

remaining. (Id. at 100-01.) Petitioner argues that the prosecutor’s stated concern about Ms. Lewis

being overly concerned with fairness is belied by the record. When asked if her daughter being

robbed would affect her, she confirmed that she “would be fair to someone. I would hate to think

that I wasn’t fair to a person for what someone else did. I don’t think I could do that.” (N.T. 

-29-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 29 of 36
6/10/85 at 5.) She also stated that she could put her daughter’s experience out of her mind because

it was a different case. (Id.)

Petitioner argues that Ms. Lewis was treated differently with regard to this issue than a

similarly situated Caucasian who was seated as a juror. Richard Longo, who testified that the

beating of one cousin and the shooting of another cousin made him “skeptical” about police and

responded “yes, basically” when asked by the trial court if the experience left a “feeling of

disappointment or resentment at the way the police handled the case.” (N.T. 6/5/85 at 63-64.) 

Because of significant differences between them, we do not consider Mr. Longo a close comparator

to Ms. Lewis. As stated, Ms. Lewis was a widowed, older, female, African-American, who lived

in Fairmount, was unemployed (disabled former domestic), and was high-school educated (nonCatholic) with five children, one of whom was arrested as a juvenile. (N.T. 6/10/85 at 2-8.) She

was also considered very late in the voir dire process when only three seats were still unfilled. Mr.

Longo was a married, male, younger Caucasian, who lived in South Philadelphia, was employed as

a project manager, and was Catholic school educated with two young children. (N.T. 6/5/85 at 57-

70.) Mr. Longo was the first venireman seated on the jury. (Id. at 70.)

Petitioner further argues that Ms. Lewis was treated differently from a similarly situated

Caucasian seated juror, Frank Hawthorne, whose son was also arrested as a juvenile. Mr. Hawthorne

was a Caucasian, married, older male, who lived in Kensington and was employed at Rohm & Haas

as an operator, had a non-Catholic high school education, a niece who was a Philadelphia police

officer involved in the MOVE confrontation, and a son that was arrested as a juvenile. (N.T. 6/7/85

at 72-79.) In addition, Mr. Hawthorne testified in a civil matter involving a problem with Caucasian

youths in his neighborhood using drugs and harassing neighbors, and chartered a civic group to deal

-30-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 30 of 36
with this issue. (Id. at 74-75.) We find that there are significant distinctions between Ms. Lewis and

Mr. Hawthorne. While Ms. Lewis was widowed and unemployed, Mr. Hawthorne was married,

currently employed, related to a police officer, and involved with an anti-drug civic group. While

Ms. Lewis and Mr. Hawthorne shared the significant factor of having a son arrested as a juvenile,

we find the totality of the information adduced about the two veniremen at the voir dire removes Mr.

Hawthorne as a comparator. Accordingly, based on our review of the voir dire and the prosecutor’s

possible reasons for his peremptory strike, we cannot conclude that it is more likely than not that the

prosecutor’s peremptory strike of Ms. Lewis was based upon her race. 

12. Edith Jefferson

Edith Jefferson had the following characteristics: African-American, female, married, older,

lived in South Philadelphia, unemployed, rented her home, high school education (non-Catholic),

two adult children (age unspecified but with their own children). (N.T. 6/10/85 at 10-14.) The

prosecutor stated that he may have struck Ms. Jefferson because she had children approximately the

same age as Petitioner and that she was considered late in the voir dire process – eleven jurors had

been seated – when he still had strikes left and could be more choosey. (N.T. 11/8/06 at 102.) 

Petitioner contends that Ms. Jefferson was treated differently from two seated Caucasian

jurors, Eleanor Giorgio and Margaret Petruzelli. Ms. Giorgio, as we stated earlier, was Caucasian,

female, married, older, lived in West Philadelphia, was employed at the University of Pennsylvania, 

owned her home, had a high school education (non-Catholic), and had three adult children, one of

whom was male. (N.T. 6/5/85 at 99-105.) Ms. Petruzelli, as we described earlier, was Caucasian,

female, married, older, lived in Mayfair, was an unemployed homemaker, owned her home, had a

high school education (non-Catholic), and had three adult children, one of whom was male. (N.T. 

-31-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 31 of 36
6/7/85 at 25-34.) However, one factor that differentiates Ms. Jefferson from Ms. Giorgio and Ms.

Petruzelli is that, while the comparators were interviewed early in the voir dire, Ms. Jefferson was

interviewed much later when the prosecutor, as he testified, could be more choosey. We find this

is a legitimate distinction between Ms. Jefferson and the comparators. Accordingly, based on our

review of the voir dire, the prosecutor’s possible race-neutral reason for his peremptory strike of Ms.

Jefferson, and the comparisons with the two seated jurors, we cannot conclude that it is more likely

than not that the peremptory strike of Ms. Jefferson was based upon her race.

13. Rosa Erbe

Rosa Erbe was an African-American, widowed, older, woman who lived in Southwest

Philadelphia, worked at the Hershey Hotel in food service, attended public high school and had two

adult sons who both had been convicted of crimes. (N.T. 6/10/85 at 51-54.) The prosecutor testified

that he may have struck Ms. Erbe because her sons had been convicted of crimes. (N.T. 11/8/06 at

103-104.) Petitioner offers no specific comparator venireman who was seated on the jury. 

Accordingly, based on our review of the voir dire, and the prosecutor’s possible race-neutral reason

for his peremptory strike of Ms. Erbe, we cannot conclude that it is more likely than not that the

peremptory strike of Ms. Erbe was based upon her race.

C. The prosecutor’s pre-Batson defense to claims of discrimination

“The Third Circuit has recognized that, at the third step, a prosecutor’s present race-neutral

explanations for his or her strikes must be evaluated in light of any pre-Batson defense to the claim

that those strikes were racially discriminatory in violation of the Equal Protection Clause.” 

Hardcastle v. Horn, 521 F. Supp. 2d 388, 403 (E.D.Pa. 2007) (aff’d 332 F. App’x 764 (3d Cir.

2009)) (citing Riley, 277 F.3d at 284-85 (noting that the prosecutor’s explanations for striking an

-32-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 32 of 36
African-American juror “must be evaluated . . . in light of the nature of the State’s pre-Batson

defense on direct appeal” and stating that prevailing law that permitted strikes on the basis of race

was “significant” to the step 3 analysis)).

The prevailing law in the Commonwealth of Pennsylvania at the time of Petitioner’s trial on

the permissibilityof race-based peremptorystrikes was Commonwealth v. Henderson, 438 A.2d 951

(Pa. 1981). As we stated in Hardcastle,

Henderson adhered to the holding in Swain [v. Alabama, 380 U.S. 202 (1965)] that

intentional discrimination in juryselection in violation oftheEqual Protection Clause

could only be proven by a pattern of purposeful discrimination over many cases,

“‘with the result that no Negroes ever serve on petit juries . . . .’” Henderson, 438

A.2d at 956 (quoting Swain, 380 U.S. at 223). Indeed, the Pennsylvania Supreme

Court stated, in Henderson, that the purposeful elimination of African-American

venirepersons from a particular jury on the basis of race would not necessarily violate

the Constitution.

Hardcastle, 521 F.Supp.2d at 403.

This discussion of Pennsylvania’s pre-Batson law provides the context to statements made

by the prosecutor in response to a defense objection during voir dire. After the prosecutor exercised

six consecutive strikes of African-American veniremen, the prosecutor and defense counsel became

involved in an exchange of comments concerning the prosecutor’s actions. In our Lark I opinion,

we found as fact that defense counsel

raised an objection, and sought to preserve a record, regarding the Commonwealth’s

pattern of using peremptory strikes to remove African-American veniremen from the

jury. Notes of Testimony at 176-77, Commonwealth v. Lark, Jan. Term 1980, No.

2012-2022 (Ct. C.P. Phila. June 7, 1985). [Defense counsel] stated to the trial judge,

“as of this afternoon, your Honor, he is striking all blacks.” [The prosecutor]

responded, “Oh, how awful.” Id. at 177. 

[The prosecutor] testified that he remembered exactly what he meant when

he said “Oh, how awful.” He was being sarcastic, because he recognized [defense

counsel’s] objection as an attempt to raise a racial issue. When he made the

statement, nine jurors had been seated of whom three were African-American. (N.T.

-33-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 33 of 36
11/8/06 at 106.) [The prosecutor] was irritated with what he saw to be a ploy to put

a racial issue into the case. He testified that he used sarcasm, which he conceded was

not his most attractive quality, at other points in the trial when he became frustrated

with [defense counsel’s] trial tactics. (Id. at 107-108.)

Lark I, 495 F.Supp.2d at 498. Irrespective of the prosecutor’s claim that his comment was meant

as sarcasm, Petitioner argues that the prosecutor’s additional comments relating to his legal

justification for making his strikes are highly significant. Petitioner contends that, in the heat of the

moment, the prosecutor did not challenge the accuracy of defense counsel’s factual charge that “he

was striking all blacks” who had been part of the venire panel called that day, but instead summarily

denied any systematic exclusion of black jurors, noting that three of the nine jurors who had already

been seated were black:

I know that on this jury in my opinion, we have selected 9 jurors, 30 percent of which

are Black. Now, that’s my opinion. That’s my perception. It may be more. But it’s

certainly not less. And all of the lawyer [sic] –

[Defense counsel]: I’m not challenging the law, John.

[The prosecutor]: Systematic exclusion of anybody on the basis of race. I’m

not – and there’s – obviously not systemic exclusion when you’ve got 3 members out

of 9 who are the same race as the defendant and his attorney.

(N.T. 6/7/85 at 181.) According to Petitioner, the prosecutor’s denial of systematic exclusion of

all black jurors is telling because, at the time of the trial, Pennsylvania law allowed counsel to strike

jurors on the basis of race, so long as it was not systematic. Petitioner asserts that the reference to

systematic exclusion is evidence that the prosecutor knew the prevailing law, and was knowingly

striking individual black jurors on account of their race because he knew that prevailing law

permitted him to do so.9

The prosecutor testified at the evidentiary hearing that, at the time of the trial he “was not 9

sure” if it was permissible to strike jurors on the basis of their race. He was aware of the rule of

Swain condemning the systematic exclusion of racial groups from jury venires and was also familiar

with state court precedents. (N.T. 11/8/06 at 65; see Lark I, 495 F. Supp. 2d at 495. He had testified

-34-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 34 of 36
We find that the prosecutor’s resort to a denial of systematic racial exclusion is additional

circumstantial evidence supporting Petitioner’s claim that it is more likely than not that he struck one

or more African-American veniremen because of their race. The prosecutor’s denial of systematic

racial exclusion indicates that he understood the prevailing legal parameters of race-conscious jury

selection under state law and argued them to the trial judge in response to the defense objection. He

did not deny the allegation that he was striking African-Americans on account of their race, he only

denied that he was doing so systematically. This evidence supports the conclusion that the

prosecutor’s race-neutral explanations for individual strikes are neither plausible nor reliable. See

Riley, 277 F.3d at 285 (noting that the state’s contemporaneous reliance on Swain to defend a claim

on direct appeal that it had exercised its strikes in a racially discriminatorymanner, together with the

state’s failure to deny on direct appeal that it exercised its strikes in a racially discriminatorymanner

“suggests that race was at least a partial basis for its use of peremptory challenges,” which suggestion

supports the conclusion “that the State’s proffered race-neutral explanations are pretextual”).

IV. CONCLUSION

Having carefully considered all of the evidence on the record before us, we find that

Petitioner has satisfied his burden of establishing by a preponderance of the evidence that the

Commonwealth’sstrikes of five African-American members of the venire, ShirleySampson, Alwina

at the evidentiary hearing that 

I knew at that time that there were certain cases that addressed the selection of the

jury panel as a whole, that is all the jurors who would be brought in for that day. And

I knew there were all – there was also – I knew there was – that – that the focus was

on systematic exclusion of – of blacks, just because they’re black I guess, and that I

knew that wasn’t right.

(N.T. 11/8/06 at 65.)

-35-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 35 of 36
Green, Florence Williams, Lisa Patton, and Edison Sisco were motivated by race in violation of the

Equal Protection Clause of the Fourteenth Amendment. We base this finding upon the totality of

the evidence presented, including the statistical evidence of disparity in the prosecutor’s strike rates

and acceptance rates of African-American and Caucasian veniremen, the racial disparities in the

application of his jury selection criteria, the comparison evidence, and the prosecutor’s focus and

contemporaneous defense to the accusation of racial discrimination. Consequently, we again find

that the proper relief in this case is to conditionally grant Petitioner’s writ, vacate his conviction, and

allow the Commonwealth of Pennsylvania to retry Petitioner.

An appropriate order follows.

BY THE COURT:

/s/ John R. Padova 

______________________

John R. Padova, J.

-36-

Case 2:01-cv-01252-JP Document 112 Filed 07/30/12 Page 36 of 36