J-S26021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DUANE JONES, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2530 EDA 2022

Appeal from the PCRA Order Entered September 9, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009523-2015

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 26, 2023

Duane Jones appeals from the order dismissing his first, timely petition 

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. 

He argues that his trial counsel was ineffective for failing to challenge the 

prosecutor’s strike of a prospective juror under Batson v. Kentucky, 476 

U.S. 79 (1986). We affirm.

Jones was charged with rape and other crimes in August of 2015. His 

case proceeded to jury selection on December 4 and 5, 2017. Jury selection

included individual voir dire of all prospective jurors who had not been 

disqualified based on their responses to the jury questionnaire.1 At individual 

voir dire, the Commonwealth exercised four peremptory challenges, striking 

____________________________________________

1 Prospective jurors who had given presumptively disqualifying answers, such 

as not being able to follow the judge’s instructions, were assigned to a “B 

group” that was not brought in for individual voir dire. No one objected to 

this procedure.
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prospective jurors 5, 24, and 30 on the first day and prospective juror 6 on 

the second day (“PJ5,” “PJ24,” “PJ30,” and “PJ6,” respectively).

Trial followed jury selection. The jury returned a guilty verdict on 

December 8, 2017. On April 27, 2018, Jones was sentenced to an aggregate 

term of 6 to 12 years of confinement followed by 4 years of probation.

Jones filed post-sentence motions, which the trial court denied. Jones 

timely appealed, this Court affirmed, and our Supreme Court denied 

discretionary review. Commonwealth v. Jones, 226 A.3d 664 (table), No. 

2803 EDA 2018 (Pa. Super. Jan. 31, 2020) (non-precedential decision), 

allocatur denied, 662 Pa. 29, No. 82 EAL 2020 (Pa. Sept. 1, 2020). 

On July 26, 2021, Jones filed a timely, counseled PCRA petition, his first. 

In his petition, Jones alleged, inter alia, that his trial counsel was ineffective 

for “fail[ing] to object to the exclusion of juror(s) by the Commonwealth, 

solely based on race.” PCRA Petition, 7/26/21, at 6, 8–9 (capitalization 

omitted). He averred: “Here, [Jones] is African-American and the prosecutor 

struck four African-American prospective jurors,” “Two African-American 

jurors were accepted by the Commonwealth,” and “The Commonwealth struck 

zero white jurors.” Id. at 8–9. Jones attached documentation from jury 

selection, including the judge’s daily list of jurors, the jurors’ questionnaires, 

and his trial counsel’s notes from jury selection.

The Commonwealth responded that Jones’ claims were meritless. It

attached handwritten notes from the prosecutor’s file from jury selection.
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The PCRA court2 held an evidentiary hearing on Jones’ petition on June 

2, 2022. The trial prosecutor testified. Because the prosecutor had only a 

general recollection of a trial from five years earlier, PCRA counsel refreshed 

the prosecutor’s recollection with her own handwritten notes. The notes 

included an abbreviation for each prospective juror’s race, sex, and age range. 

The prosecutor gave the following reasons for her peremptory strikes:

• PJ5 had a better rapport with defense counsel and acted annoyed at 

the prosecutor’s questions.

• PJ24 had a strange affect with the judge and made a joke. The 

prosecutor believed she would sympathize with Jones.

• PJ30 did not fill out the jury questionnaire. The prosecutor believed

she would not take the process seriously.

• PJ6 had answered no to every question on the jury questionnaire. 

The prosecutor did not believe that an older lifelong resident of 

Philadelphia would not have experienced crime. The prosecutor

testified that PJ6 “was reluctant to provide any information about 

anything” she asked.

N.T., 6/2/22, at 13–15, 18–19, 21, 24–27.

Jones’ trial counsel also testified at the evidentiary hearing. He stated 

that, now reviewing his notes, “it appears that Black jurors were being struck.”

____________________________________________

2 The Honorable Roger Gordon, who presided over Jones’ trial, was no longer 

seated at the time of Jones’ PCRA petition. The PCRA case was assigned to 

the Honorable Giovanni O. Campbell.
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Id. at 41. He explained that the reason he did not object was because he had 

not realized it while it was happening. Id. at 44.

The PCRA court denied Jones’ petition by order on September 12, 2022. 

It entered findings of fact and conclusions of law on September 19, 2022

(“PCRA Court Opinion”).

Jones timely appealed. The PCRA court did not order Jones to file a 

concise statement of matters complained of on appeal. In compliance with 

Pennsylvania Rule of Appellate Procedure 1925(a), the PCRA court prepared a 

letter referring to its previous Opinion.

Jones presents one issue for review: “Whether Appellant, Duane Jones, 

is entitled to a new trial under the [PCRA] due to the deficient and prejudicial 

performance by trial counsel, specifically whether trial counsel was ineffective 

in failing to object under Batson v. Kentucky in light of the Commonwealth’s 

racially discriminatory peremptory strikes.” Jones’ Brief at 4.

With respect to the underlying Batson claim, Jones argues that the trial 

prosecutor engaged in actual, purposeful discrimination based on race. He 

provides four factors in support of this showing. First, the prosecutor

“engaged in a pattern of striking Black or Brown[3] potential jurors.” Id. at 

18–19. Second, the prosecutor noted the race of each prospective juror who 

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3 PJ30 from was listed as “B/F” in defense counsel’s notes and “H/F/Y” in the 

prosecutor’s. The PCRA court noted that she had “a surname usually identified 

as Hispanic” but declined to “read too much into” her name as proof of race. 

PCRA Court Opinion at 7 n.2 (noting the court’s own identity as a “relatively 

dark skinned Latino, with a non-Hispanic sounding name”).
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was brought in for individual voir dire. Id. at 19–20. Third, most of the 

prosecutor’s explanations for exercising strikes were unsupported by the 

record and implausible. Id. at 20–22. The voir dire transcripts did not show 

PJ5 having a rapport with defense counsel or PJ24 acting strangely or joking. 

Fourth, the prosecutor’s explanation for striking PJ6 is suspicious because 

prospective juror 34 from the first day (listed as “W/F” in defense counsel’s 

notes and “W/F/Y” in the prosecutor’s) also answered “no” to every question 

on the jury questionnaire yet was accepted as juror 10 for trial. Id. at 22–

26. Therefore, Jones argues that the totality of the circumstances show that 

the prosecutor struck at least one prospective juror—PJ6—with discriminatory 

intent. Id. at 26–27.

For the claim of ineffective assistance of counsel, Jones argues that the 

underlying Batson claim is meritorious and that that his trial counsel had no 

strategic basis for failing to object. Id. at 27–28. As to prejudice, Jones 

contends that because a Batson violation is a “structural error,” it inevitably 

undermines confidence in the outcome of trial. Id. at 28–29. Therefore, he 

reasons that he can meet his burden by showing that the prosecutor struck at 

least one potential juror with discriminatory intent. Id. at 29–30. Jones thus 

contends that he has proven that his trial counsel was ineffective for failing to 

raise a Batson challenge, and the PCRA court erred in denying relief.

The Commonwealth responds that the record supports the race-neutral 

reasons the trial prosecutor gave for its strikes. Commonwealth’s Brief at 12–

14. Specifically, the Commonwealth emphasizes that the prosecutor’s strike 
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of PJ6 was due to his “no” answers on the jury questionnaire and his old age—

the prosecutor would not have had the same concerns with the younger 

prospective juror who also answered that she had not been a crime victim. 

Id. at 14–15. Because the prosecutor’s explanations are plausible, the 

Commonwealth argues that the PCRA court properly found that Jones did not 

prove actual, purposeful discrimination. Id. at 15.

Jones replies that he sufficiently established the racial statistics needed 

for a prima facie showing of discrimination. Jones’ Reply Brief at 3–5. He

reiterates that because the trial prosecutor admitted to having no independent 

memory of striking PJ5, her subsequent explanation was speculative because 

it was not supported by her notes or the voir dire transcript. Id. at 5–8. As

to PJ6, Jones emphasizes that the prosecutor did not question this prospective 

juror about his experience with crime or past victimization; furthermore, PJ6 

answered all of the questions asked of him. Id. at 8–9. Jones adds that the 

record contradicts the Commonwealth’s characterization of PJ6 as elderly 

because he had one two-year-old child. Id. at 9. Jones thus concludes that 

the prosecutor’s race-neutral reason for striking PJ6 was pretextual and that 

he has proven actual, purposeful discrimination based on race. Id. at 10.

This Court’s standard of review for an order denying PCRA relief “is 

limited to whether the record supports the PCRA court’s factual determinations 

and whether its decision is free of legal error.” Commonwealth v. Carrera, 

289 A.3d 1127, 1131 n.6 (Pa. Super. 2023) (citing Commonwealth v. 

Lopez, 249 A.3d 993, 998 (Pa. 2021)). We grant “great deference to the 
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factual findings of the PCRA court if the record contains any support for those 

findings.” Commonwealth v. Washington, 269 A.3d 1255, 1262 (Pa. 

Super. 2022) (citing Commonwealth v. Howard, 249 A.3d 1229 (Pa. Super. 

2021)). This case implicates two legal claims: ineffective assistance of 

counsel, see Strickland v. Washington, 466 U.S. 668 (1984), and the use 

of peremptory strikes of prospective jurors based on race, see Batson, 476 

U.S. at 82.

Pennsylvania law requires a PCRA petitioner who claims that his attorney 

was ineffective to establish each part of a three-part test:

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s action or failure to act; and (3) the 

petitioner suffered prejudice as a result of counsel’s error, with 

prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different. 

Commonwealth v. Pierce, 527 A.2d 973, 975–76 (Pa. 1987); 

see also Commonwealth v. Solano, 129 A.3d 1156, 1162 (Pa. 

2015). If a claim fails under any required element of the 

Strickland/Pierce test, the court may dismiss the claim on that 

basis. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. 

Super. 2010). Counsel is presumed to be effective, and the 

burden of demonstrating ineffectiveness rests on the [PCRA 

petitioner]. Id.

Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc) 

(footnote omitted).

Regarding peremptory strikes, the Supreme Court held that under the 

Equal Protection Clause of the United States Constitution, a prosecutor may 

not exercise a peremptory strike against a prospective juror “on account of 

race.” Batson, 476 U.S. at 86 (citing Strauder v. West Virginia, 100 U.S. 
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303, 305 (1880)). It provided a three-step burden-shifting framework to be 

applied when a defendant objects during jury selection, which Pennsylvania 

has adopted and phrased as follows:

[f]irst, the defendant must make a prima facie showing that the 

circumstances give rise to an inference that the prosecutor struck 

one or more prospective jurors on account of race; second, if the 

prima facie showing is made, the burden shifts to the prosecutor 

to articulate a race-neutral explanation for striking the juror(s) at 

issue; and third, the trial court must then make the ultimate 

determination of whether the defense has carried its burden of 

proving purposeful discrimination.

Commonwealth v. Blakeney, 108 A.3d 739, 768 (Pa. 2014) (quoting 

Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013)).

The first step, a prima facie showing, requires a defendant to show “that 

he is a member of a cognizable racial group,[4]that the prosecutor exercised 

a peremptory challenge or challenges to remove from the venire members of 

the defendant’s race; and that other relevant circumstances combine to raise 

an inference that the prosecutor removed the juror(s) for racial reasons.” 

Commonwealth v. Edwards, 177 A.3d 964, 972 (Pa. Super. 2018) (quoting 

Commonwealth v. Cook, 952 A.2d 594, 602 (Pa. 2008)). To enable review 

of the prima facie showing, Pennsylvania courts require an appellant to

make a record specifically identifying (1) the race or gender of all 

venirepersons in the jury pools, (2) the race or gender of all 

venirepersons remaining after challenges for cause, (3) the race 

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4 “A defendant of any race may raise a Batson claim, and a defendant may 

raise a Batson claim even if the defendant and the excluded juror are of 

different races.” Flowers v. Mississippi, 588 U.S. __, 139 S. Ct. 2228, 2243 

(2019) (citing Hernandez v. Texas, 347 U.S. 475, 477–478 (1954), and

Powers v. Ohio, 499 U.S. 400, 406 (1991)).
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or gender of those removed by the prosecutor, and (4) the race 

or gender of the jurors who served and the race or gender of jurors 

acceptable to the Commonwealth who were stricken by the 

defense.

Commonwealth v. Murray, 248 A.3d 557, 568 (Pa. Super. 2021) (citing 

Commonwealth v. Hill, 727 A.2d 578, 582 (Pa. Super. 1999)).

The second step, the prosecutor’s explanation for the peremptory strike, 

“does not demand an explanation that is persuasive, or even plausible. 

Rather, the issue at that stage is the facial validity of the prosecutor’s 

explanation. Unless a discriminatory intent is inherent in the prosecutor’s 

explanation, the reason offered will be deemed race neutral.” Edwards, 177 

A.3d at 973 (quoting Commonwealth v. Harris, 817 A.2d 1033, 1043 (Pa. 

2002)).

The third step is the trial court’s ultimate determination, in which it 

“assesses the totality of the circumstances surrounding juror selection and 

determines whether the defendant has made out a case of purposeful 

discrimination.” Murray, 248 A.3d at 568. “[A] trial court’s decision on the 

ultimate question of discriminatory intent represents a finding of fact of the 

sort accorded great deference on appeal and will not be overturned unless 

clearly erroneous.” Commonwealth v. Roney, 79 A.3d 595, 619 (Pa. 2013) 

(quoting Commonwealth v. Williams, 980 A.2d 510, 531 (Pa. 2009)).

When a defendant does not preserve a Batson challenge before the trial 

court, he may only obtain relief “through a derivative claim of ineffective 

assistance of counsel.” Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 

2004) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). 
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In such cases, a post-conviction petitioner “is not entitled the benefit of 

Batson’s burden-shifting formula, but instead, bears the burden in the first 

instance and throughout of establishing actual, purposeful discrimination.” 

Id. (citing McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996), and 

Ford v. Georgia, 498 U.S. 411, 422 (1991)). Because post-conviction 

proceedings occur long after the jury was selected, a petitioner “is not entitled 

to the benefit of the burden of persuasion as to whether there is a race-neutral 

explanation for the prosecutor’s use of peremptory challenges.” 

Commonwealth v. Simpson, 66 A.3d 253, 261–62 (Pa. 2013) (citing 

Uderra, 862 A.2d at 86).

Additionally, in a Batson-based claim of ineffectiveness, the petitioner 

must “meet[] the ‘performance and prejudice’ standard for demonstrating 

counsel’s ineffectiveness.” Id. at 262 (quoting Uderra, 862 A.2d at 87, and 

Commonwealth v. Jones, 951 A.2d 294, 298–301 (Pa. 2008)). That is, 

merely establishing a Batson violation does not relieve a petitioner from 

proving the third prong of the test for ineffective assistance of counsel.5

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It is an “open question” whether all violations identified as “structural errors”

require an independent showing of prejudice. See Commonwealth v. 

Koehler, 229 A.3d 915, 955 n.8 (Pa. 2020) (Dougherty, J., concurring and 

dissenting), cf. Weaver v. Massachusetts, 582 U.S. 286 (2017) (requiring 

prejudice where the error was a closed courtroom during jury selection).

Notably, the States and federal appellate courts are divided whether a 

Batson-based claim of ineffective assistance of counsel requires a postconviction petitioner to make a separate showing of prejudice. See generally

(Footnote Continued Next Page)
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Here, the PCRA court addressed Jones’ Batson claim as follows:

In light of the exercise and withholding of peremptory 

challenges relating to Black persons and persons of color, [Jones] 

has failed to demonstrate any statistical significance to [the 

prosecutor’s] exercised peremptory challenges in a racially 

discriminatory manner. [The prosecutor] accepted Black jurors 

and other jurors of color. [Defense counsel] struck a Black person 

(Prospective Juror 40) and a person of color (Prospective Juror 

35).

The relevant circumstances do not combine to raise an 

inference that the prosecutor removed jurors for racial reasons. 

[The prosecutor’s] explanations for her use of peremptory 

challenges established race neutral reasons[,] were not a pretext 

for [racial] discrimination either in isolation or in the context of 

the entire voir dire proceeding[, and] were not based on actual, 

purposeful discrimination.

PCRA Court Opinion at 10–11 (sentences reordered and formatting altered).

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Yazzie v. State, 487 P.3d 555, 563 (Wyo. 2021) (cataloguing cases by the 

“narrow approach” and the “traditional prejudice rule”).

However, Pennsylvania cases on Batson-based ineffectiveness claims 

have always required a showing of prejudice and have not adopted arguments 

to the contrary. “[The requirement that the petitioner prove actual, purposeful 

discrimination] comports with the heightened criteria for obtaining postconviction relief, which include the requirement to demonstrate 

prejudice . . . .” Uderra, 862 A.2d at 86 (citing 42 Pa.C.S.A. § 9543); see

Commonwealth v. Hanible, 30 A.3d 426, 477–79 (Pa. 2011) (noting the 

appellant’s “structural error” argument; finding insufficient evidence of 

purposeful discrimination); cf. Commonwealth v. Collins, 957 A.2d 237, 

259 (Pa. 2008) (finding waiver for failure to develop an argument as to 

performance and prejudice).

One exception may arise in a capital case. Commonwealth v. 

Basemore, 744 A.2d 717, 734 (Pa. 2000). “[W]hile we agree with the 

Commonwealth that the evidence of guilt in this case was overwhelming, we 

find it significant that the claim that a fair and impartial jury was not 

empaneled also calls into question the reliability of the sentencing 

determination.” Id. Here, because Jones was not sentenced to death, the 

default prejudice requirement applies.
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The record supports the PCRA court’s factual finding that the prosecutor 

did not strike PJ6 or any other prospective juror for racial reasons. We note 

that Edwards, on which Jones relies, arose in the context of a preserved 

Batson challenge. Edwards, 177 A.3d at 971. There, the most important 

factor in this Court’s reversal was the prosecutor’s “wholly underpersuasive” 

explanation for striking a juror—inattentive posture. Id. at 975–76. By 

contrast, the prosecutor’s given explanation for striking PJ6 in Jones’ case 

bore directly on his perceived honesty and fairness as a juror. Because the 

prosecutor perceived PJ6 to be old (and therefore wrote down that he was 

old), she did not think that his response to the question about being the victim 

of a crime was accurate. N.T., 6/2/22, at 25. Because the prosecutor noted 

PJ6 being old, he is distinguishable from a younger “22-year-old who just 

moved to the city.” Id. at 26–27.

We also reject Jones’ contention that because the trial prosecutor 

testified that she did not “have an independent memory of” her strikes,

anything not in her handwritten notes is unsupported by the record. Id. at 

12. PCRA counsel used the prosecutor’s notes to refresh her recollection. Id.; 

see Pa.R.E. 612(a). This does not limit the prosecutor’s testimony to what 

she had written down during jury selection. “The recollection of the witness—

not the memorandum used to refresh it—is the real evidence.” Lardieri v. 

Lamont, 92 A.2d 229, 230 (Pa. Super. 1952) (quoting Commonwealth v. 

Perri, 97 Pa.Super. 78, 84 (1929)). The PCRA court, as fact finder, was in a 

good position to evaluate the prosecutor’s testimony in light of her refreshed 
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recollection and to consider all of her statements. We therefore find that the 

PCRA court did not clearly err in accepting the prosecutor’s race-neutral 

explanations for her strikes and concluding that Jones did not show actual, 

purposeful discrimination.

Further, even if Jones had proven that the prosecutor struck PJ6 based 

on his race, he has not shown that he suffered prejudice such that there is a 

reasonable probability that the result of his trial would have been different. 

Rather, Jones relies on a Batson violation being “structural error” as a 

substitute for his burden to prove that the jury selection prejudiced him. As 

addressed supra, Pennsylvania courts have not adopted this reasoning.

As the PCRA court found:

[Jones] and the complainant were both black. Race was not 

in any way an element or issue in [Jones’] trial. There is nothing 

about the nature of the crime or the race of those involved that in 

any way supports a conclusion of intentional racial discrimination 

in the prosecutor’s exercise of peremptory challenges in jury 

selection.

PCRA Court Opinion at 10–11 (formatting altered). Therefore, Jones did not 

meet his burden to prove that he was prejudiced by his trial counsel’s failure 

to raise a contemporaneous Batson challenge. Thus, he is unable to meet 

the third prong of the ineffectiveness test, and his PCRA claim fails. Simpson, 

66 A.3d at 262.

Order affirmed. Jurisdiction relinquished.
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Date: 10/26/2023