J-S17003-17

2018 PA Super 9

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

DERRICK EDWARDS

Appellant No. 436 EDA 2015

Appeal from the Judgment of Sentence imposed January 9, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at Nos: CP-51-CR-0002611-2013; CP-51-CR-0002614-

2013; CP-51-CR-0002617-2013; CP-51-CR-0002815-2013; CP-51-CR0002820-2013; CP-51-CR-0002853-2013; CP-51-CR-0002862-2013; CP51-CR-0002864-2013

BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

DISSENTING OPINION BY STABILE, J.: FILED JANUARY 19, 2018

The Majority concludes the Commonwealth’s peremptory strike of Juror 

67 was racially motivated and violated Batson.

1

 Consequently, the Majority 

would vacate Appellant’s judgment of sentence and remand for a new trial. 

Because I disagree with the learned Majority’s analysis of the Batson test, its 

rejection of the trial court’s factual determinations, and find other of our 

precedent persuasive, I respectfully dissent.2

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1 Batson v. Kentucky, 476 U.S. 79 (1986).

2 The Majority explained that it addressed only three of the issues raised by 

Appellant and, because it found a Batson violation warranting a new trial, 
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In Commonwealth v. Harris, 817 A.2d 1033 (Pa. 2002), our Supreme 

Court recognized:

Batson set forth a three-part test for examining a criminal 

defendant’s claim that a prosecutor exercised peremptory 

challenges in a racially discriminatory manner: first, 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 raceneutral 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. 

Id. at 1042 (citations omitted).3

In the context of peremptory challenges, Pennsylvania law further 

requires the defendant, in his or her prima facie case, to make a record 

specifically identifying a) the race or gender of all venirepersons in the jury 

pools, b) the race or gender of all venirepersons remaining after challenges 

for cause, c) the race or gender of those removed by the prosecutor, and d)

____________________________________________

declined to address the remaining issues. Majority Opinion at 6 n. 11. 

Because the Majority vacates the judgment of sentence and remands for a 

new trial based on Batson, I likewise decline to address Appellant’s remaining 

issues and express no opinion as to the merit of those issues.

 

3 Harris is one of the few cases since 2000 in which our Supreme Court 

considered a Batson challenge on direct appeal. Others include 

Commonwealth v. Towles, 106 A.3d 591 (Pa. 2014), involving challenges 

based on race and gender, and Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 

2011), which will be discussed infra. The vast majority of the Batson cases 

decided by our Supreme Court in recent years involved appeals from the 

denial of a PCRA petition. See, e.g., Commonwealth v. Watkins, 108 A.3d 

692 (Pa. 2014) (Majority Opinion at 10); Commonwealth v. Roney, 79 A.3d 

595 (Pa. 2013), infra. 
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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. Hill, 727 A.2d 578, 582 (Pa. Super. 1999) (citing 

Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993)). After such a record 

is established, the trial court must consider the totality of the circumstances 

to determine whether the defendant has made a prima facie case of purposeful 

discrimination. Id. (citing Commonwealth v. Thomas, 717 A.2d 468, 475

(1998) and Commonwealth v. Rico, 711 A.2d 990 (1998)).

In conducting its analysis, the Majority expressed its agreement with 

the trial court that Appellant satisfied the first prong of Batson by 

“establish[ing] a prima facie case of purposeful discrimination.” Majority 

Opinion at 14. However, my review reveals that the trial court did not make 

any such determination either on the record or in its Rule 1925(a) opinion.

During voir dire proceedings, out of the presence of the jury, Appellant’s 

counsel indicated he was “questioning” four strikes made by the prosecution. 

Notes of Testimony (“N.T.”), Voir Dire Proceedings, 10/28/14, at 88. 

Discussion first centered on the fact the court crier listed the race and gender 

of potential jurors on the strike list. The trial court then stated:

Trial Court: I’m trying to make a record here. And is number—

are these jurors all white jurors?

Appellant’s Counsel: They are all African American jurors.

Trial Court: These jurors are all African American jurors.
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Id. at 92-93. The trial court proceeded to inquire into the strikes and found 

them to be race neutral. Defense counsel did nothing to establish a proper 

and complete record on the prima facie prong of the Batson test and the 

additional prima facie criteria required under Pennsylvania law. Likewise, 

other than setting out the three-pronged test in its Rule 1925(a) opinion, the 

trial court did not discuss the prima facie showing prong of Batson, instead 

commenting, “While counsel for Appellant challenged the Commonwealth’s 

striking of four African-American venirepersons, this [c]ourt inquired into the 

strikes and found them to be race-neutral.” Trial Court Rule 1925(a) Opinion, 

2/24/16, at 18-19. I find no support in the record for the Majority’s statement 

that the trial court determined Appellant satisfied the first prong of Batson.

4

 

As this Court explained in Commonwealth. v. Thompson, 106 A.3d 742 (Pa. 

Super. 2014):

The requirements for a prima facie Batson showing are well 

settled.

Generally, in order . . . to satisfy the first requirement of 

demonstrating a prima facie Batson claim, the movant 

must establish that he or she is a member of a cognizable 

racial group, that the opposing party exercised peremptory 

challenges to remove from the venire members of his or her 

race, and that other relevant circumstances combine to 

raise an inference that the opposing party removed the 

jurors for racial reasons. Whether the movant has carried 

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4

I do find some inconsistency in the Majority concluding Appellant established 

a prima facie case of purposeful discrimination as evidenced by the trial court's 

words and actions, Majority Opinion at 14-15, while at the same time 

dismissing the trial court's words and actions wherein it found no 

discriminatory intent under the third prong of Batson. See, infra.
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this threshold burden of establishing a prima facie case 

should be determined in light of all the relevant 

circumstances.

Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1142 

(2009).

A showing that a number of strikes were used against 

venirepersons of one race will not, without more, create the 

inference necessary to establish a prima facie Batson claim. 

Rather, our Supreme Court has continually recognized that a 

moving party must preserve a “full and complete record of the 

asserted Batson violation, as it would otherwise be impossible to 

conduct meaningful appellate review of the motivations of 

prosecutors in individual cases without such a record.” 

Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 909 

(2004) (citation omitted), cert. denied, Fletcher v. 

Pennsylvania, 547 U.S. 1041, 126 S.Ct. 1617, 164 L.Ed.2d 336 

(2006). “This full and complete record requirement necessitates 

that the movant make a record identifying the race of 

venirepersons stricken by the Commonwealth, the race of 

prospective jurors acceptable to the Commonwealth but stricken 

by the defense, and the racial composition of the final jury.” Id.

at 910 (citation, footnote, and internal quotation marks omitted). 

When a movant fails to make such a record, we cannot review the 

trial court’s determination that a movant failed to establish a 

prima facie case under Batson. Id. at 909–910, citing 

Commonwealth v. Holloway, 559 Pa. 258, 739 A.2d 1039 

(1999).

Id. at 751-52 (some quotations, citations and brackets omitted). See also 

Hill, supra.

With respect to Fletcher’s “full and complete record” requirement as 

detailed in Hill, it is only because the court clerk recorded the race of the 

venirepersons on the Strike List that there was any record of the race and 

gender of the jury pool, of those remaining, of those stricken by the 

Commonwealth, of jurors who served, and of those acceptable to the 
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Commonwealth who were stricken by the defense. Strike List, 10/28/14. 

Clearly, Appellant did not make the required record. Further, the trial court 

did not make any determination that Appellant established a prima facie

showing to satisfy the first prong of Batson. Therefore, there is no 

determination for this Court to review concerning the first prong. 

Regardless, the trial court’s failure to consider the prima facie showing 

prong of the Batson test does not present an impediment to this Court’s 

review under Batson. Our Supreme Court addressed a similar situation in 

Sanchez, where the trial court likewise did not address the first prong of the 

Batson test either in court or in its Rule 1925(a) opinion, instead focusing on 

the second prong, i.e., whether the Commonwealth’s explanation of its 

peremptory strike was race-neutral. Although the Commonwealth challenged 

the finding of a prima facie showing in Sanchez, the Supreme Court 

announced it would not decide the issue of whether the appellant met his 

prima facie burden. Citing Harris and Commonwealth v. Edwards, 903 

A.2d 1139, 1154 n. 16 (Pa. 2006), the Court recognized that the United States 

Supreme Court has suggested that, under these circumstances, “we may turn 

directly ‘to the question of whether the appellant had carried his burden of 

proving that the prosecution had struck the juror based on race.’” Sanchez, 

36 A.3d at 45 (quoting Edwards, 903 A.2d at 1154 n. 16, in turn quoting

Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality)). The 
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Sanchez Court proceeded to consider the second and third prongs of the test. 

I likewise shall proceed to the second and third prongs.

The second prong of the Batson test requires the prosecution to 

articulate a race-neutral explanation for striking the jurors. See Harris, 817 

A.2d at 1043. I agree with the Majority’s analysis and conclusion that the 

Commonwealth did proffer race-neutral explanations for striking the four 

venirepersons in question. See Majority Opinion at 15-16. As our Supreme 

Court explained in Harris, at issue is the facial validity of the prosecutor’s 

explanation and, absent inherent discriminatory intent in the explanation, the 

reasons offered will be deemed race neutral. Harris, 817 A.2d at 1043. The 

trial court accepted the prosecutor’s explanations as race neutral. The 

Majority agrees and I concur in that conclusion. 

The third prong of Batson requires that the trial court determine 

whether the defense has carried its burden of proving the Commonwealth 

engaged in purposeful discrimination. See Harris, 817 A.2d at 1042. It is 

well established that the evaluation of a prosecutor’s intent for striking a juror 

is a credibility matter that lies “peculiarly within the trial judge’s province.” 

Hernandez, 500 U.S. at 365 (citations omitted). Indeed, the Majority 

acknowledged: 

[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. Such great deference is necessary because a 

reviewing court, which analyzes only the transcripts from voir dire,

is not as well positioned as the trial court is to make credibility 
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determinations. Moreover, there will seldom be much evidence 

on the decisive question of whether the race-neutral explanation 

for a peremptory challenge should be believed; the best evidence 

often will be the demeanor of the prosecutor who exercises the 

challenge.

Majority Opinion at 17 (quoting Commonwealth v. Williams, 980 A.2d 510, 

531 (Pa. 2009) (internal quotation marks and citations omitted)). As our 

Supreme Court observed, “Such great deference is appropriate and warranted 

because the trial court, having viewed the demeanor and heard the tone of 

voice of the attorney exercising the challenge, is uniquely positioned to make 

credibility determinations.” Roney, 79 A.3d at 619 (citing Williams, 980 

A.2d at 531). See also Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016) 

(quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (“in absence of 

exceptional circumstances, ‘we defer to state court factual findings unless we 

conclude they are clearly erroneous.’”)); Hernandez, 500 U.S. at 366 (“in 

the absence of exceptional circumstances, we [should] defer to the [trial 

court’s] factual findings.”). 

Despite such clear directives, the Majority does not do justice to the 

above standards. Indeed, the Majority ignores the deference owed to the trial 

court’s decision on discriminatory intent and instead makes its own findings

based on a cold record, reweighing the relevant circumstances to overturn the 

trial court’s finding regarding Juror 67.

Contrary to the trial judge who observed the voir dire process, the 

Majority determined that three factors were strongly indicative of the 
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prosecution’s discriminatory intent: first, potential jurors were identified by 

race and gender on the peremptory strike sheet [(“Strike Sheet”); second, 

statistics established that the Commonwealth struck a disproportionate 

number of African Americans; and third, the Commonwealth’s explanation for 

striking Juror 67 was “wholly underpersuasive.” Majority Opinion at 19. With 

due respect, I find this to be error by the Majority. 

Regarding the peremptory Strike Sheet, it is undisputed it provided the 

race and gender of potential jurors. However, the Majority overlooks—or at 

the very least, minimizes—the fact that the Commonwealth had no 

involvement in the preparation of the Strike Sheet or placement of any 

notations regarding race or gender. Indeed, it is clear, and acknowledged by 

the Majority, that the notations are attributable solely to the trial court’s staff. 

Id. at 4. I do not understand how the Majority can impute discriminatory 

intent to the Commonwealth from the content of this document when the 

Commonwealth had no say or involvement in its drafting. Further, while the 

Majority finds the trial court staff’s practice of notating the race and gender 

on the Strike Sheet ill-advised and inappropriate, but acknowledges that the 

inclusion of race and gender on the sheet is not discriminatory per se, id. at 

12-13, the Majority fails to explain how—or even if—the Commonwealth 

misused the information. I too fail to see how this information was misused, 

or for that matter ill-advised, especially when Appellant was required to 

include this information in the record as a part of his prima facia showing, and 
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this information discloses no more than what plainly can be observed of the 

venire panel during jury selection. As previously stated, had it not been for 

the trial court staff’s notations on the Strike Sheet, the prima facia information 

required under Hill would be completely absent from the record in this case. 

Respectfully, I find the Majority’s designation of the Strike Sheet as indicative 

of discriminatory intent as unfounded. 

Regarding the second ground, the Majority offers statistics to establish 

that the Commonwealth struck a disproportionate number of African

Americans. As the Majority acknowledged, statistics alone are not dispositive 

of the matter.

As our Supreme Court recognized in Roney, 

[The] citation of statistics does not prove purposeful 

discrimination in jury selection cases. In [Commonwealth v. 

Ligons, 971 A.2d 1125, 1244 (Pa. 2009)], we held as follows: 

“While it is clear that the prosecutor peremptorily struck more 

African-Americans than Caucasians, this fact, in and of itself, is 

insufficient to demonstrate purposeful discrimination when 

considering the totality of the circumstances.” 

79 A.3d at 622. In its discussion of deference owed to the trial court’s 

decision on discriminatory intent, the Court in Roney explained:

[G]reat deference is appropriate and warranted because the trial 

court, having viewed the demeanor and heard the tone of voice of 

the attorney exercising the challenge, is uniquely positioned to 

make credibility determinations. Although the demeanor of the 

attorney exercising the peremptory challenge is often the best 

evidence as to the question of discriminatory intent, the trial court 

should consider the totality of the circumstances before making 

its ruling. Other relevant evidence as to the ultimate question of 

whether the prosecutor exercised purposeful discrimination and 

acted with discriminatory intent includes the following: the final 
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composition of the jury, the race or gender sensitivity of the case, 

and any questionable remarks made by the prosecutor during jury 

selection. See Williams, supra at 532; Commonwealth v. 

Ligons, 601 Pa. 103, 971 A.2d 1125, 1144 (2009); 

[Commonwealth v. Cook, 952 A.2d 594, 608 (Pa. 2008); 

Commonwealth v. Spotz, 896 A.2d 1191, 1212-14 (Pa. 2006)]. 

Id. at 619 (some citations omitted).5

The Majority recognized that statistics alone are not sufficient to prove 

discriminatory intent but can be considered in the totality of circumstances to 

determine whether the Commonwealth exercised its strikes in a discriminatory 

manner. Id. at 20 (citing Ligons, 971 A.2d at 1144).6 Here, the Majority 

notes that thirty potential jurors were considered by the parties, thirteen of 

whom were African American, fourteen of whom were Caucasian, and three of 

whom were “Other,” i.e., neither African American nor Caucasian. Majority 

Opinion at 19-20. Seven of the Commonwealth’s peremptory strikes were 

used on African Americans and one was used on a person considered “Other.” 

The Commonwealth did not strike any Caucasians. Id. at 20.

____________________________________________

5 While information is available here concerning the final composition of the 

jury, see infra, there is no suggestion in the record of any particular racial 

sensitivity of the case, nor is there any reference to questionable remarks 

made by the prosecutor during jury selection. 

6 The Majority certainly will contend that there are two other bases for its 

conclusions, namely, the Strike Sheet and the explanation for striking Juror 

67. In the end, however, the statistical ground is the only one that could 

conceivably lend support to the Majority’s conclusions because it would be 

improper to penalize the Commonwealth for something it did not do or, as 

noted below, to substitute our judgment for that of the trial court simply 

because we do not like the outcome.
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The Majority determined, “The statistics in this case are startling. Unlike 

many cases addressed by our Supreme Court, in this case the Commonwealth 

exercised all eight of its peremptory strikes on racial minorities and seven of 

those eight on African-Americans.” Id. The Majority concluded:

Although the Commonwealth could not completely purge the jury 

in this case of African-Americans because of the number of 

African-American members of the venire, the Commonwealth 

greatly reduced the number of African-Americans on the jury in 

this case by exercising all of its peremptory strikes and using 

seven of those eight strikes on African-Americans. These 

probabilities, combined with the identification of the potential 

jurors’ races and genders on the peremptory strike sheet and the 

proffered, but highly implausible, race-neutral explanation for 

striking Juror 67, cause us to conclude that Appellant met his 

burden in demonstrating that the Commonwealth struck Juror 67 

with discriminatory intent.

Id. at 21.

I take issue with the Majority’s conclusions on several levels. Most 

important, as is common, reliance upon statistics can be misleading. Here, 

the Majority’s conclusion that “the probability of striking no Caucasians and 

striking at least 7 of 13 African-Americans by random chance is extremely 

small,” Majority Opinion at 20, completely omits the reasons for which these 

potential jurors were stricken, thus leaving a false impression as to why these 

strikes were exercised. While the Commonwealth did strike seven African

Americans, Appellant did not assert Batson challenges with regard to three 

of the African Americans or the “Other” venireperson. Appellant used his 

peremptory strikes on one African American, six Caucasians, and one “Other.” 
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As a result, the jury ultimately empaneled included five African Americans, 

seven Caucasians, and one “Other.” See Strike List 10/28/14. 

As important, a review of the Strike List reveals that the Commonwealth 

accepted six of the first eight African Americans on the panel. This is 

particularly telling and compelling in light of the fact the venirepersons were 

brought into the courtroom for voir dire in two groups, the first comprised of 

fifty prospective jurors and the second comprised of forty. After the trial court 

conducted group voir dire for the first fifty, asking whether the prospective 

jurors knew any of the parties, witnesses, etc., the trial court reduced that

group of fifty to nineteen. N.T., Voir Dire Proceedings, 10/28/14, at 10-18. 

From that first group of fifty, only the nineteen remaining venirepersons have 

their race and gender indicated on the Strike List. 

Voir dire continued for the nineteen prospective jurors. Of the nineteen, 

four Caucasians, one African American, and one “Other” are noted as stricken 

by the trial court, leaving thirteen in that first group. Four of the thirteen were 

Caucasian, eight were Afircan American, and one was “Other.” The 

Commonwealth struck two African Americans while Appellant struck three 

Caucasians, one African American, and one “Other.” See Strike List, 

10/28/14, at 1-2 (unnumbered). I note that both the African American and 

the “Other” stricken by Appellant were acceptable to the Commonwealth. Id. 

The remaining six from the first group who were ultimately seated on the jury 

included five African Americans and one Caucasian. Id. These “statistics” 
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belie the Majority’s suggestion that the Commonwealth was attempting to 

“purge the jury” (Majority Opinion at 21) of African Americans and highlights 

once again the impropriety of this Court attempting to substitute its judgment 

for that of the trial court. 

Further, I disagree with the Majority’s conclusion that “Appellant met 

his burden in demonstrating that the Commonwealth struck Juror 67 with 

discriminatory intent.” Majority Opinion at 20. When questioned, the 

Commonwealth offered the following explanation for striking Juror 67:

[W]hen she was being questioned by Your Honor, she was leaning 

back, seemed a little cavalier, had her arm resting on the back 

and while we were conducting voir dire in the back, she was sitting 

there with her arms crossed and her head kind of nodded, seemed 

guarded and again as if she didn’t want to be here, so I didn’t 

think she would be a fair and competent juror.

N.T., Voir Dire Proceedings, 10/28/14, at 94. The trial judge then stated, 

“Okay. Those are also neutral reasons for the Commonwealth exercising those 

strikes. Batson challenge is denied.” Id. Appellant’s counsel responded, 

“Thank you.” Id. Appellant did not mention Juror 67 in his brief, except in 

the quoted excerpt from the voir dire proceedings. Appellant further does not 

present any argument with respect to the race-neutral explanation offered by 

the Commonwealth regarding Juror 67 and does not present any statistics 

whatsoever regarding the composition of the venire or the jury empaneled.

As the record reflects, once the Commonwealth disclosed its reasons for 

striking Juror 67, the trial court did not hesitate to grant the strike. Appellant’s 

counsel did not object and the trial court seemingly did not find it necessary 
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to add its own explanation on the record for granting the strike. It would 

appear, therefore, the trial court agreed with the Commonwealth’s description 

of Juror 67’s attitude, body language, and demeanor. It is not for this Court 

to speculate otherwise. 

The argument Appellant advances in support of his Batson challenge 

includes testimony quoted from the voir dire proceedings, case law analyzing 

Batson, and a request that this Court view the prosecutor’s reasons for 

striking African American jurors in light of Foster, supra.7 Appellant’s Brief 

at 13-15. In essence, Appellant’s entire “argument” consists of one phrase, 

i.e., that the Commonwealth “systematically attempt[ed] to strike AfricanAmerican jurors, even the African-Americans with neutral answers on their 

____________________________________________

7

I note that Foster is distinguishable from Appellant’s case in several 

respects. In Foster, the challenge centered on two African-American jurors. 

The prosecution offered facially race-neutral bases for striking them. 

However, documents from the prosecution’s files revealed that both were on 

a “Definite NO’s” list. The Supreme Court also concluded that reasons offered 

by the prosecution for striking the two jurors applied as well to otherwisesimilar Caucasian panelists who were permitted to serve. Further, the reasons 

for striking one of the jurors shifted over time. The Court held that the record 

belied the prosecutor’s assertions and found the strikes were motivated in 

substantial part by discriminatory intent. Foster, 136 S.Ct. at 1748-1754. 

Viewing Appellant’s case in light of Foster, as he requests, would not provide 

any basis for disturbing the trial court’s determinations regarding the jurors 

at the center of Appellant’s Batson challenge, including Juror 67. 
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Juror Information Questionnaire, . . . to empanel a jury that would, in theory, 

find against Appellant who was an African-American.” Appellant’s Brief at 12.8

By contrast, the Majority’s detailed analysis of statistical information 

alone spans three pages of its opinion. In undertaking this analysis, it appears 

the Majority acted as Appellant’s counsel articulating a cogent argument, 

complete with statistical information not even mentioned by Appellant. This 

is not our role. See, e.g., Commonwealth v. Morales, 80 A.3d 1177, 1179 

(Pa. 2013) (per curiam) (citing MacGregor v. Mediq, Inc., 576 A.2d 1123, 

1128 (Pa. 1990) (improper for court to act as an advocate)); see also 

Commonwealth v. Walls, 391 A.2d 1064, 1066 (Pa. 1978) (Manderino, J., 

dissenting) (neither trial court not appellate court should act as advocate). 

Further, the Majority, substituting its judgment for that of the trial 

court, finds that the Commonwealth’s explanation for striking Juror 67 is 

“wholly unpersuasive,” the third factor it cites as evidencing discriminatory 

intent. Majority Opinion at 19. If the explanation was credible, the Majority 

suggests, essentially there would be no jurors to select for jury duty because 

only a few (if any) want to sit on a jury. The trial court acknowledged that 

much, and the Majority eagerly noted it. See id. at 21-22. Thus, according 

to the Majority, while the trial court erroneously concluded the Commonwealth 

____________________________________________

8 Although Appellant’s argument on the Batson challenge covers slightly more 

than three pages of his brief, the argument consists merely of citations and 

quotations with analysis of the cited cases rather than argument supporting 

of a finding of discriminatory intent under the facts of this case. 
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did not engage in discriminatory conduct, the trial court was correct in finding 

that people generally do not want to serve on a jury. Again, it is not our role 

to choose what to believe. Our role is to determine whether the credibility 

determination was clearly erroneous, not to make the credibility determination 

itself. I do note however, that the Majority, in finding discriminatory intent,

dismisses all of the Commonwealth’s observations regarding Juror 67’s 

demeanor in light of the trial court inviting potential jurors to sit back and 

relax. Majority Opinion at 22. However, there is no indication or even any 

suggestion that all or other jurors were so blatantly bothered with being there 

as Juror 67. 

This Court discussed and rejected a substantially similar Batson 

challenge to demeanor in Commonwealth v. Jackson, 562 A.2d 338 (Pa. 

Super. 1989) (en banc), a case I find instructive with respect to Juror 67. In 

Jackson, the following exchange took place between the prosecutor and the 

trial court:

Prosecutor: I exercised a peremptory challenge on one person 

who, it was basically what you would call body language. I can 

recall it was individual questioning of the jurors. They would come 

and sit in the jury box[.] I believe he had dark glasses on, and 

he was kind of sitting with his arm draped over, and I just got 

very negative feelings during my questioning of this individual. 

And even during [defense counsel’s] questioning of him. Call it 

body language, if you will.

Trial Court: You are indicating, for the record, you are slumped 

to the left side with your arm draped over the railing of the 

witness-box.

Prosecutor: Correct.
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Id. at 351.

The trial court accepted the prosecution’s explanation as race neutral. 

This Court did not disturb that ruling on appeal. In announcing the judgment 

of the Court, Judge Beck explained:

Appellant contends that a prosecutor’s impression of a prospective 

juror’s demeanor is not a proper reason for exercising a 

peremptory challenge. We do not agree. The manner in which a 

venireperson dresses, his facial expressions, his tone of voice, and 

his posture all provide relevant information concerning his attitude 

toward the court system and his ability to serve as a fair and 

impartial juror. Both district attorneys and defense counsel 

routinely base their trial selection strategy in part on such physical 

cues. In this case, the prosecutor noted for the record those 

aspects of [the juror’s] conduct which called into question his 

willingness to be serious and attentive throughout the trial. We 

find that the prosecutor’s explanation for striking [the juror] was 

legally sufficient. Cf. United States v. Garrison,, 849 F.2d 103, 

106 (4th Cir. 1988), cert. denied, 488 U.S. 996, 109 S.Ct. 566, 

102 L.Ed.2d 591 (1988) (prosecutor may strike individual 

perceived as inattentive); United States v. Forbes, 816 F.2d 

1006, 1009 (5th Cir. 1987) (prosecutor may strike individual 

perceived as hostile).

We recognize that a reference to a prospective juror’s “body 

language” may mask a decision to exercise a peremptory 

challenge solely on the basis of race. A trial judge should not 

uncritically accept this or any other proffered explanation for a 

peremptory challenge. Instead, the judge should assess each 

proffered explanation in light of her independent recollection of 

the demeanor and responses of the venire panel members. As an 

appellate court, we must ordinarily defer to the trial court’s 

evaluation since the trial judge had a direct opportunity to observe 

the voir dire process. Accordingly, we will accept the prosecutor’s 

statement as an accurate summary of his reasons for striking this 

particular prospective juror.

Id. See also Commonwealth v. Smulsky, 609 A.2d 843, 846 (Pa. Super. 

1992) (trial court did not abuse its discretion by denying objection 
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Commonwealth’s peremptory exclusion of juror thought to be disingenuous 

and detached from the outside world).

The similarities between the demeanor descriptions in Jackson and 

here are striking. As Judge Beck aptly noted regarding the importance of 

demeanor in Jackson, dress, facial expressions, and posture all provide 

relevant information.9 One must recognize that voir dire many times provides 

precious little time and opportunity for counsel to assess the whole of a 

potential juror. Counsel nonetheless must quickly arrive at an educated 

____________________________________________

9 Although I clearly acknowledge that the quoted excerpts from Jackson are 

from Judge Beck’s opinion announcing the judgment of the Court, the Majority 

reiterates that Jackson is not binding on this Court. Majority Opinion at 23 

n. 21. While I do not dispute the lack of binding authority, I maintain that 

Jackson is instructive and provides a proper framework for addressing the 

issue of juror demeanor as a basis for exercising peremptory strikes. Likewise, 

while also not binding on this Court, courts from other jurisdictions have 

employed a similar analysis. For example, in Green v. Travis, 414 F.3d 288 

(2d Cir. 2005), the Second Circuit noted:

[T]he unfavorable demeanor of a venireperson has been held to 

be a race-neutral explanation for a peremptory challenge. See, 

e.g., McCrory v. Henderson, 82 F.3d 1243, 1247-48 (2d Cir. 

1996) (noting that peremptory challenges “may legitimately be 

based not only on answers given by the prospective juror to 

questions posed on voir dire, but also on the prosecutor's 

observations of the prospective juror”); Brown v. Kelly, 973 F.2d 

116, 121 121 (2d Cir. 1992) (“An impression of the conduct and 

demeanor of a prospective juror during the voir dire may provide 

a legitimate basis for the exercise of a peremptory challenge.”

Id. at 300. Similarly, the Fifth Circuit has routinely found demeanor to be a 

race-neutral justification. See United States v. Thompson, 735 F.3d 291, 

297 n. 14 (5th Cir. 2013), and cases cited therein. 
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judgment as to each potential juror’s ability to focus, understand, follow 

instructions, and act impartially and without bias when considering the 

evidence to be presented during trial. In this case, there were thirty potential 

jurors in the venire panel after group voir dire. While experts might spend 

countless hours studying selection factors, that luxury, except in rare cases, 

is not afforded counsel during the voir dire process. Therefore, small but 

significant clues that might provide insight into a potential juror take on 

heightened importance in jury selection. Demeanor may be an important clue 

providing insight into a potential juror. I believe the Commonwealth engaged 

in just such an exercise in assessing Juror 67, just as in Jackson.

10

 

____________________________________________

10 The Majority suggests that Jackson did not address the third step of 

Batson except with respect to vernirepersons challenged due to familiarity 

with the location of the crime. Majority Opinion at 25. The Majority’s reading 

of Jackson intimates that both the trial court and this Court considered only 

that single aspect of the Batson challenge while leaving challenges based on 

demeanor unresolved. I respectfully disagree. Initially, the Court stated:

If a defendant makes a prima facie showing of discrimination, the 

burden then shifts to the prosecution to justify his decision to 

strike minority jurors. “The prosecutor must therefore articulate 

a neutral explanation related to the particular case to be tried.” 

Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (footnote omitted). 

The trial judge must then make the ultimate determination 

of whether the defendant has established purposeful 

discrimination. Id.

Jackson, 562 A.2d at 544 (emphasis added). After conducting its analysis, 

the Court concluded by indicating:

In summary, the trial judge found that appellant established a 

prima facie case of discrimination. This finding was not an abuse 
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In dismissing reliance upon Jackson, the Majority finds instructive, as 

binding precedent, the Supreme Court of the United States’ decision in 

Snyder v. Louisiana, 552 U.S. 472 (2008), to emphasize the importance of 

the record demonstrating that the trial court in fact witnessed the alleged 

demeanor relied upon by a prosecutor to strike a juror, something it finds 

lacking in this case. Majority Opinion at p. 23-24. The Majority finds my 

argument therefore flawed, because I cite nothing in the record to indicate 

the trial court observed Juror 67 and found that this juror’s demeanor credibly 

exhibited the basis for the strike attributed to her by the Commonwealth. Id.

at 24. I certainly take no issue with the Majority pointing out any omission to 

acknowledge binding precedent, except in this instance, where the proposition

for which the Majority cites Snyder was expressly rejected by the United 

States Supreme Court in Thaler v. Haynes, 559 U.S. 43 (2010) (per curiam).

In Thaler, the Court dismissed the misconception that Snyder established 

that a judge must reject a demeanor-based explanation for a peremptory 

challenge unless the judge personally observed and recalled the aspect of the 

juror’s demeanor on which the explanation was based. The Court stated:

____________________________________________

of discretion. The trial judge also found that the 

Commonwealth rebutted this prima facie case of 

discrimination. This finding was also not an abuse of discretion. 

Therefore, appellant’s Batson challenge is not meritorious.

Id. at 354 (emphasis added). 
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This case presents the question whether any decision of this Court 

“clearly establishes” that a judge, in ruling on an objection to a 

peremptory challenge under Batson v. Kentucky, 476 U. S. 79

(1986), must reject a demeanor-based explanation for the 

challenge unless the judge personally observed and recalls the 

aspect of the prospective juror’s demeanor on which the 

explanation is based. The Court of Appeals appears to have 

concluded that either Batson itself or Snyder v. Louisiana, 552 

U. S. 472 (2008), clearly established such a rule, but the Court of 

Appeals read far too much into those decisions, and its holding, if 

allowed to stand, would have important implications. We 

therefore grant the petition for certiorari, grant respondent’s 

motion to proceed in forma pauperis, and reverse the judgment 

of the Court of Appeals.

Id. at 44. Further:

In holding that respondent is entitled to a new trial, the Court of 

Appeals cited two decisions of this Court, Batson and Snyder,

but neither of these cases held that a demeanor-based 

explanation for a peremptory challenge must be rejected unless 

the judge personally observed and recalls the relevant aspect of 

the prospective juror’s demeanor.

The Court of Appeals appears to have concluded that Batson

supports its decision because Batson requires a judge ruling on 

an objection to a peremptory challenge to “ ‘undertake “a sensitive 

inquiry into such circumstantial and direct evidence of intent as 

may be available.” ’ ” 561 F. 3d. at 540 (quoting Batson, 476 

U. S. at 93, in turn quoting Arlington Heights v. Metropolitan 

Housing Development Corp., 429 U. S. 252, 266 (1977)). This 

general requirement, however, did not clearly establish the rule 

on which the Court of Appeals’ decision rests. Batson noted the 

need for a judge ruling on an objection to a peremptory challenge 

to “tak[e] into account all possible explanatory factors in the 

particular case,” 476 U. S. at 95 (internal quotation marks 

omitted). See also Miller-El v. Dretke, 545 U. S. 231, 239 

(2005); Johnson v. California, 545 U. S. 162, 170 (2005). 

Thus, where the explanation for a peremptory challenge is based 

on a prospective juror’s demeanor, the judge should take into 

account, among other things, any observations of the juror that 

the judge was able to make during the voir dire. But Batson

plainly did not go further and hold that a demeanor-based 
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explanation must be rejected if the judge did not observe or 

cannot recall the juror’s demeanor.

Nor did we establish such a rule in Snyder. In that case, the 

judge who presided over the voir dire also ruled on the Batson

objections, and thus we had no occasion to consider how Batson

applies when different judges preside over these two stages of the 

jury selection process. Snyder, 552 U. S. at 475–478. The part 

of Snyder on which the Court of Appeals relied concerned a very 

different problem. The prosecutor in that case asserted that he 

had exercised a peremptory challenge for two reasons, one of 

which was based on demeanor (i.e., that the juror had appeared 

to be nervous), and the trial judge overruled the Batson objection 

without explanation. 552 U. S. at 478–479. We concluded that 

the record refuted the explanation that was not based on 

demeanor and, in light of the particular circumstances of the case, 

we held that the peremptory challenge could not be sustained on 

the demeanor-based ground, which might not have figured in the 

trial judge’s unexplained ruling. Id. at 479–486. Nothing in this 

analysis supports the blanket rule on which the decision below 

appears to rest.

The opinion in Snyder did note that when the explanation for a 

peremptory challenge “invoke[s] a juror’s demeanor,” the trial 

judge’s “first hand observations” are of great importance. Id. at 

477. And in explaining why we could not assume that the trial 

judge had credited the claim that the juror was nervous, we noted 

that, because the peremptory challenge was not exercised until 

some time after the juror was questioned, the trial judge might 

not have recalled the juror’s demeanor. Id. at 479. These 

observations do not suggest that, in the absence of a personal 

recollection of the juror’s demeanor, the judge could not have 

accepted the prosecutor’s explanation. Indeed, Snyder quoted 

the observation in Hernandez v. New York, 500 U. S. 352, 365 

(1991) (plurality opinion), that the best evidence of the intent of 

the attorney exercising a strike is often that attorney’s demeanor. 

See 552 U. S. at 477.

Id. at 47-49 (footnote omitted).

Here, there is no suggestion that the trial judge in the case before us 

was unable to make firsthand observations of the jurors’ demeanors, and in 
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particular Juror 67, or the demeanor of the attorney exercising the peremptory 

strikes, bolstering the deference due the trial court’s findings. The trial court 

was present for and actually conducted voir dire. Upon conclusion of the jury 

selection process, the trial court addressed Appellant’s Batson challenges and 

determined the Commonwealth presented race neutral reasons for exercising 

those strikes. N.T., Voir Dire Proceedings, 10/28/14, at 90-94. There is 

nothing in the record to suggest that the trial court did not have the 

opportunity to observe Juror 67. Importantly, as reflected in the above 

excerpt, Thaler clarified that it is not imperative that the trial judge personally 

observe and recall the juror’s demeanor in order to accept the prosecutor’s 

explanation.

Given the record and our standard of review, I conclude that Appellant 

failed to meet his burden of proving the Commonwealth engaged in purposeful 

discrimination in striking Juror 67. Further, recognizing the trial court had the 

opportunity to observe the voir dire process whereas we are limited to a review 

of a cold record, and further recognizing the deference due the trial court’s 

evaluation, I find no basis for disturbing the trial court’s denial of Appellant’s 

Batson challenge. Therefore, I dissent.