*1
Ronald Pennsylvania. Supreme (J-166). Argued April 17, 1972 Reargued (J-147). April 8, 1975
Decided Jan. *2 Philadelphia, appellant. Randolph,
Harold L. D’lorio, Jr., Ralph MeEwen, Atty., Stephen J. B. Dist. appellee. Attys., Media, for Vadino, I. Anna Asst. Dist. O’BRIEN, JONES, J., ROB- EAGEN, Before C. MANDERINO, ERTS, JJ. POMEROY and OF THE OPINION COURT EAGEN, Justice. January 24, 1970, Jones, appellant, Ronald
On County of in the convicted in Delaware murder battery, degree, robbery, aggravated as- first assault and conspiracy. mo- sault with intent to kill Post trial timely tions and denied. murder were filed On con- imprisonment, viction, Jones and an was sentenced to life *3 appeal judgment tо this then Court from that of sentence followed.1 May 4, 1973,
Thereafter,
this
determined
on
Court
summary
pre
trial court had erred
its
in
denial of Jones’
petition challenging
panel
array
trial
of the
from which the trial
had been
selected.
Com
Jones,
299,
monwealth v.
(1973).
452 Pa.
opportunity properly and establish his claim.” 315, 693.2 Id. 304 A.2d at at July 18, 1973, evidentiary hearing held at an was On present given opportunity testi- whiсh Jones was support mony in of his claim and relevant factual data that the in used systematic of race. resulted discrimination because giving testimony After due to the and evi- consideration presented hearing, dence at this the trial court concluded that Jones’ contention was without merit. The record of evidentiary hearing this then this certified to disposition. for further
It is not settled constitutional
law
the Sixth
guarantee
impartial
Amendment’s
jury,
of an
trial
prosecutions
presence
criminal
mandates the
of а fair
section
community
venires, panels
cross
of the
or
petit juries
from
Taylor
Louisiana,
are chosen.
v.
(1975).
U.S.
95 S.Ct.
As
L.Ed.2d
Taylor
stated in
Louisiana, supra:
purpose
“The
guard
against
a
is to
the exercise
arbitrary power
make
the common-
available
—to
judgment
sense
hedge against
as a
prosecutor
prefer-
overzealous or mistaken
professional
ence to the
perhaps
or
overconditioned or
response
biased
judge
pro-
This
[Cite omitted.]
phylactic
provided
vehicle
jury pool
if the
is made
addition,
In
this Court determined that the other
error
claims of
*4
Jones,
by
asserted
cause to
(1)
probable
wit:
that there was insufficient
justify
issuance of a search warrant which uncovered a
.38
trial;
calibre revolver
(2)
entered into еvidence at
that
trial
suppressing
court
erred
incriminating
written
given by
police;
statement
(3)
Jones to the
the evidence was
that
insufficient to sustain the conviction of
in the
de-
murder
first
gree;
(4)
that the trial
denying
court erred in
his motion for
venue,
change
were mеritless.
provision
The Sixth
jury
Amendment’s
binding
trial is made
by
the states
virtue of the Fourteenth
Dun-
Amendment. See
Louisiana,
145,
1444,
can v.
391 U.S.
88 S.Ct.
477
up
segments
only special
populace
of the
large,
or if
groups
pool.
distinctive
are
from the
excluded
Com-
munity participation in thе administration of the crim-
law, moreover,
only
inal
is not
with
consistent
our
heritage
public
democratic
but is also
confi-
critical
dence in the
justice system.”
fairness of the criminal
530,
Id. at
Howеver, it is also clear that a defendant
in a
prosecution
criminal
constitutionally
is not
entitled to de
proportionate
mand a
number of his race on the
which
him
tries
nor on the venire or
roll from
petit
jurors
Alabama,
are drawn. Swain v.
202,
824,
380 U.S.
85 S.Ct.
(1965);
L.Ed.2d 759
Unit
ed States v. Dorsеy,
(3rd
462 F.2d
1972),
Cir.
cert.
denied,
870,
197,
409 U.S.
93 S.Ct.
be found infirm, provide “the facts must indicating evidence procedures either that as designed implemented or likely are juries to result in un representative of a cross section community, or procedures have, fact, continuously failed to represent certain population identifiable groups over a period of time.” Commonwealth Butler, 128, 448 Pa. (1972). A.2d
As evidentiary established at the hearing, array jury panels in drawn random from the voter reg- lists. name of each *5 computer kept in card placed on an IBM
istered voter is county court house. processing center at the the data order, sequential ac arranged computer The cards are regis of the listing by the names cording the which to registered street lists. appear voter on the tered voters regis then sеnt to questionnaires are qualification Juror specifically randomly computer by tered selected a voters ques completed programmed The for random selection.4 Jury member5 to a Board tionnaires are then returned registered any quеstionnaires who the to exclúde screens who, eligible juror.6 The by law, voter would be jury placed in questionnaires eligible jurors then a are .of drawing, public drawn, wheel from which are at a names jury panels to on terms of court.7 serve for different Instantly, allеges the selection Jones large County systematically utilized in excludes Delaware on population of the service numbers black from every During year question, 4. the determined that it was twenty-third to registered would have voter in Delaware juror qualification questionnaire obtain receive a in order to Therefore, enough jurors year. one commissioner for the pulled forty-nine slip containing a a the names of the from basket municipalities com- comprising County. other Delaware The twenty-threе pulled slip containing missioner a a from basket Spring- slips, twenty-three. slip each from to- numbered one with Township eleven was field name drawn the number the registration Starting on voter drawn. with the eleventh voter the on the total Springfield Township every twenty-third name list computer re- registration the voter selected list was then qualification juror questionnaire. ceive a the composed Jury members 5. Board is of two elected County. judges of Common Pleas of § generally 6. P.S. 1279. designation Although registration form does contain voter race, in the factor designation is not a registrant’s such Rather, designation used juror process. this not contend does registered and Jones fully identify the voter vote. The opportunity register to that blacks are denied the voter arriving at only in considered form is placed then qualified names are whose names of voters qualification juror importantly, computer cards. Most IBM questionnaires no jurors contain prospective are sent to designation as to race. voting percеntage Dela-
panels blacks because the population.” He con- County is “not related to ware prior of slav- *6 historical conditions tends that because of always their ery exercised servitude, blacks not and have right existence of franchise or to vote. Because posits jury selec- exclusion, this inherent that the Jones system beyond go registration rolls tion should voter encompass population. general should selection from the reject argument be because we do nоt
We
this
prospective ju
requires
the
lieve
Constitution
a source of
reg
gathered
rors other than those names
from the voter
simply
group
istration lists
of
because one identifiable
may
proportion
individuals
in a
that of
vote
lower than
general population.
the
As the Fifth
of
Circuit Court
Appeals
Camp
419,
States,
stated
v. United
413 F.2d
(5th
421
1969),
denied,
Cir.
cert.
396 U.S.
90 S.Ct.
registra
24
(1969):
L.Ed.2d 434
“Use of [voter
duty
lists as the
sole
of
tion]
source
names for
is
constitutionally permissible
unless this
results in
systematic
the
‘cognizable group
exclusion
or class
of
”
quаlified
[Emphasis
citizens.’
And a
added.]
group
persons
who
register
have failed to
to vote has
never been
“cognizable
considered to
group.”
constitute a
See United
Lewis,
States
(3rd
v.
Feasibility makes reliancе on voter They large attractive. contain a if not precisely perfect sample of qualified the area, residents of an re flecting all varying petit attitudes relevant to the jury function which such Among persons residents hold. qualified vote, discriminatоry practices absent administering the system, election alleged not herein, the open voter list is as a matter of choice. The choice of registered voter list as the source of names for 480 surely systematic invidious or discrimina-
selection disсriminatory tion, except reflects where the list itself practices.8
Therefore, a fairer cross section while sys may produced by a selection have been County, utilizing general population tem of Delaware upon regis system’s sole reliance voter constitutionally im may tration lists not be considered permissible. Lewis, supra; States Smith United v. States, 1972); (3rd United United 456 F.2d Cir. (W.D.Pa.1974); Johnson, F.Supp. States v. F.Supp-. (W.D.Pa. Torquato, United States v. 1969).9
Next, representation Jones contends *7 panel guilty jury found three blacks on the which him disproportionate population the black Delaware was to of in County. However, a stated a defendant previously, as prosecution constitutionally to de criminal entitled is proportionate a race on the mand number of his panel Alabama, supra. which tries him. Swain v. “Nei perfect ther the roll the venire mirror nor need be a accurately proportionate the or reflect strength every group.” Ala of identifiable Swain v. supra, bama, at at 829.10 S.Ct. U.S. system in Phila- 8. We note the similiar utilized delphia County Dixon v. was in States ex rel. examined United Cavell, F.Supp. judicial approval; (E.D.Pa.1968), given and stating: system, con- we the court “From examination of this quite jury panel representative of the comuni- clude that the was Alabama, ty large supra, the and and at consistent with Swain v. previously other decisions 537. cited.” Id. at § Jury of 28 U.S.C. See also the and Service Act Selection 9. seq., 1863(b)(2) particularly, § more wherein 1861 et 28 U.S.C. grand of use federal of voter the selection petit juries specifically mandated. fact, counsel, stipulated populatiоn of by approximate In as 43,574 603,456 at the time trial was black, jurors prospective per sixty-seven or 7.22 Of were called to serve in cent. case, per black or 4.48 three were the instant actually to on the persons serve cent. And of the fourteеn sworn allegations Inasmuch as the other of error raised Jones previously have been dismissed,11 considered and judgment of sentence is affirmed.
ROBERTS, J., concurring opinion. filed a MANDERINO, J., dissenting opinion. filed a NIX, part J., took no in the consideration or decision оf this case.
ROBERTS, (concurring). Justice appellant I concur the result because has failed prejudice any resulting show from the of selec- potential jurors employed tion in this case.
MANDERINO, (dissenting). Justice majority though that, I dissent. states even register propоrtion blacks vote smaller than proportion general population, of blacks in the de- right impartial fendant was not denied his to an be- (1) group regis- persons cause “a have who failed to ter to ‘cog- vote has never been considerеd constitute a ” group’ (2) nonregistration nizable volun- tary in the affirmatively sense that no one had barred registration. their logic! (and This If blacks defies *8 probably young people) other minorities are less likely register vote, any jury pool then uses that registration possi- voter jurors lists as a source cannot bly represent community a cross section of nonregistration whether voluntary is ir- is or coerced unrepresentative jury relevant. end result is still an pool. particularly This is other true when one considers
jury рanel per (including alternates) one or 7.14 was a black man cent. 2, supra. 11. See note jurors readily prospective which are available
sources computers security, other census and as social such lists. registration hold,
I voter would use оf selecting jurors prospective a violation lists right an im- to a trial Amendment defendant’s Sixth prosecution in a partial show that can unless reflect particular voter community. general up make of that A.2d 867 Pennsylvania, COMMONWEALTH Appellee, cases). (two Appellant ROUX, Harold Pennsylvania. Supreme Argued Nov. 29, 1976.
Decided Jan.