*1 289 timеly perfected mailed and thus required within the twenty days.
The order of quashing appel- the Commonwealth Court appeal lant’s is vacated and the matter remanded to the Commonwealth for Court a consideration the merits of the case.
JONES, J.,C. dissents. A.2d Pennsylvania,
COMMONWEALTH of Appellee, (two cases). Gregory MARTIN, Appellant Supreme Pennsylvania. Court of
Argued Nov. 1974. April 17, Decided *3 Sсhiller, Eerie Philadelphia, appellant. M. for F. Fitzpatrick, Emmett Atty., Dist. A. Richard Sprague, Atty., 1st Asst. Goldblatt, Dist. Steven Asst. H. Atty., Appeals Dist. Chief, Benjamin Div., Levintow, H. Atty., Asst. Dist. Sendrow, Atty., Mark Dist. Asst. Appeals Assistant Chief, Div., Deputy Gafni, Abraham J. Atty. Dist. for Law, appellee. for Philadelphia, JONES, Before J., EAGEN, O’BRIEN, C. and ROB- ERTS, MANDERINO, NIX and JJ. THE
OPINION OF COURT EAGEN, Justice.
Gregory Martin was convicted of murder degree, charges the first aggravated two robbery, con- spiracy, carrying deadly weapon a concealed unlaw- and fully carrying a firearm without a license. After a deni- post motions, al imprisonment a sentence of life imposed prison A on the conviction. sen- was murder twenty years imposed on of the tence of to was each ten concurrently robbery cоnvictions; run these sentences imprisonment with the Sentence sus- life sentence. was appeal pended from the on the other convictions. An judgment imposed on conviction sentence the murder appeal judgments from the was filed in Court. An imposed robbery filed of sentence was on convictions ap- Superior and The in thе Court later certified here. argument disposition. peals and were consolidated for sufficiency convic- The of the sustain the evidence to challenged, have examined the tions is not we nonetheless completely was record are satisfied evidence adequate. testi- more From the Commonwealth’s than throughout mony, which remained uncontradicted trial, find these facts. could Hopkins January 4, p.m., about 10:30 Arthur
On
Philadelphia in-
left
at 20th
York
a bar
Streets
tending
Accompanied by Edmund
to visit his mother.
parked
Perry,
proceeded
his automobile which
he
Hopkins
nearby.
of the
to unlock the door
As
started
ap-
appellant Martin,
vehicle,
men, including
four
gunmen
proached
guns
drawn. The
threatened
with
they cooperated. Hopkins
them
and Per-
kill
unless
both
Hopkins’
ry
ordered to enter
car. Three
closely
gunmen joined
The fourth
four
them.
followed
to 19th
car. The two vehicles traveled
behind
another
captives
then ush-
and Cumberland
Streets.
through
through
alley into
an
house
the back en-
ered
*4
Perry
Hоpkins
kitchen,
and
were
trance.
In
abductors
searched and ordered to sit on
floor. The
Hopkins
eyeglasses.
in
Per-
took from
cash and his
$400
ry
Their
hands
was also robbed
some monies.
they
then
behind their
and
were blindfolded.
tied
backs
They
were then
the front
of the house
out
door
led
they
Hopkins’
forced into
back seat of
car wherе
joined by
them to
over
Martin. He ordered
bend
meantime, Hopkins’
on the
seat.
rear
blindfold
partially dislodged
became
a
and he was
to observe
able
shotgun
rifle or sawed-off
in
front
the hands of a
seat
passenger.
through
He was also able to see
the rear
following
view
mirror
same car
that had followed
driving
them
stoppеd.
before. After
awhile the
car
captives
having
passageway
were led into a house
a small
pitch
and ordered to
It
kneel.
was
dark. A match was
lit
Perry
fatally
loud
went
noise
off. Edward
was
shotgun.
Hopkins.
shot in the
against
head
He fell
Hopkins began
struggle,
pushed
but he was
back
yelled
the floor and a second shot was
that he
fired. He
was struck albeit he was not. A third shot went off nar-
rowly missing Hopkins’
played
time,
head. At that
he
waiting
dead. His would-be killers
a few
fled. After
minutes, Hopkins managed to
as-
free himself. He found
reported
police.
sistance and
the crime to the
questioning
sufficiency
While not
of the evi
Martin
dence,
maintains he
a fair
be
denied
pursued by
cause of certain conduct
the assistant district
attorney
complains
Initially,
at trial.
he
of this officer’s
opening
jury.
urged
statement
to the
It is
it contained
“many knowing
misleading
false,
or inadmissible asser
prejudiced
tions”
jury against
which so inflamed and
impossible.1
Martin that a fair trial was
opening
prosecution
1. The
statement
should be limited to a
prove
statemеnt
legiti
facts which it intends to
and the
mate inferences deduced therefrom.
See Commonwealth
Can
non,
386 Pa.
123 A.2d
Mey
and Commonwealth v.
ers,
Project
Pa.
One such
killing
“planned
would show
assassina
dence
the
was a
by
professional assassins, kill
tion for hire”
“hit men or
strong
language,
and terrorists.”
This
but
ers
was
part
legitimate
the
most
to be
from
inference
drawn
sys
testimony.
killing,
the
The
nature of the
brutal
and
gang
bespeaks
tematic and cold execution thereof
of a
land-type killing.
failed
It is true the trial evidence
killing
and, hence,
assistant
show the
“for hire”
was
in his
attorney
district
not have so indicated
should
inadvertence,
have
opening,2
itself,
not
but this
could
we
given
prejudice
And, as
to the
rise
Martin asserts.
officer
language
prosecuting
previously,
have said
opening
justify
in the
will
a reversal
statement which
preju
must
such that
is to so
be
its unavoidable effect
against
jury
accused,
prevent
the find
dice
as to
Hoffman,
ing of a
Commonwealth v.
true verdict. See
348,
(1970).
not
It
be
Pa.
266
should also
439
A.2d 726
instantly
trial
in more
instance
ed that
than one
judge
cautioned the
that statements
counsel
only
not evidence and that
circumstances, we
determine the facts.
all of
Undеr
complaint
suffi
find the
under discussion to be without
v.
require
cient merit
retrial.
Commonwealth
Cf.
Goosby,
(1973); Common
609,
450 Pa.
We other examined opening of attorney during by his the assistant district language assist- was not used 2. The record indicates this except in his attorney during in one instance ant district opening statement. complaint nothing which discern which con- made and is, assignment This stitutes reversible error.3 error therefore, overruled. only remaining assignment error other
properly prosecutor’s us of before concerns the exercise challenges.4 urged challenges peremptory It these jury. sitting on the were used to exclude blacks from four The exercised record discloses the Commonwealth Eight peremptory challenges. to ex teеn utilized persons exclude white cuse black and six were utilized to challenges. persons. All Martin exercised seventeen person persons. either a were white black No member or an alternate.5 past decisions, recognized we that: have by jurors process
“It is to exclude a violation of due 545, Georgia, v. Whitus reason their race. U.S. of 385 Complaint prosecut- opening is made that in his statement ing of to and others as members officer referred Martin and involved Muslim reli- the gion ences Muslim Church also identified them their the However, testimony justified fully these refer- names. persuaded in- they not assertions and we are were mere jury. to tended inflame pros- Complaint opening is also made in the statement ecuting weapons at found officer referred to and ammunition were first taken. Nineteenth Street where the victims address testimony This was not exceed based on the trial and did propriety. bounds of Complaint prosecuting is made officer’s statement foreign participants one of cоun- had fled to a the crimes overstatement, try. trial While an this was the uncontradicted crimes, testimony in- others discloses that and after Martin missing. volved Un- did flee to New still Mexico and one is circumstances, der the conse- this of minimal overstatement was quence. attorney’s 4. Martin also contends the “overstate assistant district speech” рreju ment closing and misstatement of in his the facts impossible. against diced him and made fair trial a However, complaint new trial cited as for a was not cause may appeal. the monwealth v. Com court and now be on not asserted - Clair, -, Com 326 272 and Pa. A.2d Hill, 349, (1973). monwealth v. Pa. 453 A.2d 88 310 twenty 5. each entitled Commonwealth Martin were 1126, peremptоry challenges. Pennsylvania Rules See Rule Criminal Procedure. 296 643, (1967), and Pierre v.
87 L.Ed.2d 599 S.Ct. 17 536, Louisiana, 354, L.Ed. 757 U.S. 59 S.Ct. pur- proving a (1939). the existence of The burden poseful party it; who asserts discrimination on established, prima if then the however, facie case is prosecution. Georgia, burden shifts to the Whitus v. supra.” Darden, 51, 271 A.2d 441 Pa.
Commonwealth right to de individual “has no an While his on thе which mand that members of race be right however, require a him, he does have a tries systematically mem deliberately exclude state not juries jury panels and from bers his race from ultimately panels, consequently, he drawn from those exclusion, demonstrating prove systematic thereby must Moreover, Equal Protection a violation Clause. may proportionate of his demand numbers not defendant *7 panel him, from jury on the on the which tries or race right jury he to a selected, is have a which the but does jury represents panel a cross-sec from a which drawn community. initial of the has the tion The defendant demonstrating prima discrimi burden a case facie of of to nation, to then the burden shifts the Commonwealth selec evidence, fails, if the rebut the the Commonwealth system requisite constitutional not meet the tion does jury, is entitled to another standards and the defendant system complies with the consti selected under a which [Emphasis supplied.] Common tutional mandate.” 684, 311-312, Jones, 299, A.2d Pa. 304 wealth v. 452 691-692 in Supreme States аddition,
In of United Court 202, 824, Alabama, 13 L.Ed.2d U.S. 85 Swain v. S.Ct. prosecutor’s conduct the issue a addressed exercising challenges. peremptory The Court stated in that: system peremptory light purpose of
“In the
pluralistic society in
in a
it serves
and the function
trial,
jury
connection with the institution
we
cannot
requires
hold
the Constitution
an examination
proseсutor’s
for
reasons
the exercise
his chal-
lenges
given
any
presumption
any par-
in
in
case. The
using
prosecutor
ticular
case must be
challenges
impartial
jury
obtain
State’s
to
fair
try
presumption
the case
court. The
before
prosecutor
subjected
not overcome and the
therefore
by allegations
exаmination
at
all
the case
hand
Negroes
they
were removed
or that
from
Negroes.
they
Any
removed because
other re-
sult,
think,
wholly
we
would establish a rule
at odds
peremptory
system
challenge
with the
we
it.
as
know
properly
motion
Hence the
to strike the trial
[Emphasis supplied.]
denied in
case.”
presumption, however,
Id. at
“when the after case the circumstances, whatever whatever the crime and be, whoever or may the defendant is respon- victim for Negroes sible the removal of been who select- have qualified jurors by ed as commissioners and challenges who have cause, survived for with result Negroes that no petit juries, ever serve on . . .”. Id. at Swain, at 85 S.Ct. did not Court pursue the issue because the record was insufficient show the rule had peremptory sys- been violated county tem in the in question. today.
The same confronts Martin situation us *8 merely proffers prosecutor the bald assertion that systematically peremptory challenges prevent used his persons being jury black from members or alternates. produce He has support of in failed scintilla evidence proposition. any of Moreover, this bare record factual information from which we infer a consti could tutional violation.
Judgments affirmed. participate in the
POMEROY, not consideration J., did of this case. or decision dissenting opinion.
NIX, J., filed a MANDERINO, J., dissents. (dissenting).
NIX, Justice majori- portion respectfully from that dissent I appellant’s he was opinion claim that ty which dismisses by the Commonwealth’s reason of denied a fair jurors which complete of Black from exclusion prospec- facts, all of the him. the admitted tried Under panel jurors from who were members tive Black appellant was se- which convicted petit which the cause, the rejected. excused for Twо were lected were challenged peremptorily remaining eight were members by the Commonwealth. suggested presumption upon the majority
The relied Swain by Supreme States United Court L.Ed.2d 759 824, 13 Alabama, U.S. 85 S.Ct. discriminatory exclusion this blatant to overcome ap- right to foreclose of Blacks from Supreme stat- pellant complain. Thе Court Swain ed: that particular must be any case presumption in
“The challenges to obtain using the prosecutor is State’s try before the case impartial jury to a fair and pros- overcome and presumption is not court. allega- subjected to examination therefore ecutor re- Negroes were all the casе at hand tions be- they removed jury or moved from at Negroes.” Id. S.Ct. 837. they at cause presumption is reasoned the Court Swain case prosecutor in case only where overcome after every Negroes from all the removal of responsible for jury. 223, 85 Id. at S.Ct. *9 justice supinely by
Is to sit in and be flaunted case aft- remedy justice only er case befоre a is available? Is ob- repeated injustices tainable after are demonstrated? Is any justification there within the traditions of the An- glo-Saxon legal philosophy permits pre- that of a use sumption to hid existence of an obvious fact?
Blackstone,
Commentaries,
in
says,
right
his
“The
of
by jury,
country,
by
peers
or the
is a trial
of ev-
ery Englishman, and is
liberties,
the bulwark of his
by
him
America,
secured to
the Great
In
Charter.”
right
by jury
pluralistic society
of trial
in this
must
by
at
regardless
least mean trial
fellow citizens
of race.
very
body
composed
“The
idea of a
is a
of men
peers
equals
person
or
rights
whose
it is se-
determine;
lected or
is,
neigh-
summoned to
of his
bors, fellows, associates, persons having
legal
the same
society
in
status
as that which he holds.”
Strauder
Virginia,
303, 308,
West
100 U.S.
While there is for the Court of the United States must be who concerned with quality justice throughout the nation to confine its examples attention to the most blatant of exclusion based on selection, race a state should be more con- particular cerned with injustice may kind of be found within its It borders. must there is be remembered right granted no per- constitutional to the State havе emptory challenges. is, however, abundantly It clear Pennsylvania Constitution
that both Federal and right guarantee peers. his U. of trial accused VI; II, It would S.Const., Pa.Const., Art. Amend. § upon interpret consti- our seem incumbent this Court it provision in meets a manner tutional such *10 juris- prevalent injustices this kind of which are within diction. peremp respect great I have for tradition
While tory perpetrate challenges, be no tradition can allowed only injustice. Where, here, apparent it as - challenged peremptorily jurors available Black no offers the record of voir dire Commonwealth1 my judg race, is, in rejection except it basis their for presumption can ment, that а unreasonable conclude prosecutor’s the chal finding use of justify a jury. impartial lenge only to obtain fair presumption to justification the use There no for evidentiary is to only legitimate fact. Its value obscure determining the facts of assist truth. Under prose to the case, shifted should be I believe burden improper exclusion cution to rebut inference Darden, 441 Pa. jurors. Black Commonwealth 257, 262 (1970). 271 A.2d hearing to afford
I the matter for a would remand bases, explain oth- opportunity an Commonwealth eight challenges to the peremptory race, er than for jurors. Black obviously jurors for my excused cause view the two jurors case. not for service available