Commonwealth v. Jones

¶1concurring.

¶2I join the majority in remanding the claim of racial discrimination in jury selection for adequate judicial review before the post-conviction court. Left to my own devices, however, I would broaden the remand to also include a directive for the PCRA court to also conduct a hearing on the claim of deficient stewardship on the part of appellate counsel for failing to obtain judicial review of the trial court’s refusal of a defense request for a balanced jury charge relative to inconsistencies between various statements made by Appellant to police.

¶3Additionally, on the point concerning whether Appellant should receive a sentence of life imprisonment under the death penalty statute in effect at the time of Appellant’s offense and trial, which mandated the imposition of a life sentence in situations in which a death sentence was vacated, I join the majority’s treatment based the effect of Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), as precedent. As concerns the legal reasoning involved, however, my personal position is more in line with that taken by Mr. Chief Justice Gappy in his responsive opinion in Young. See Young, 536 Pa. at 80-82, 637 A.2d at 1324-25 (Cappy, J., concurring and *144dissenting) (concluding that retroactive application of the pertinent amendments to the death penalty statute increased the available punishment on remand and, therefore, resulted in an ex post facto violation).

¶4concurring and dissenting.

¶5I join the result reached by the majority with respect to all issues but one; unlike the majority, I do not believe it is necessary to remand to the PCRA court to address the issue of racial discrimination in jury selection. Instead, I would *146hold appellant has failed to demonstrate he is entitled to relief on this claim, raised in the context of layered ineffectiveness.

¶6In his statement of questions presented, appellant includes boilerplate language that all prior counsel were ineffective for failing to raise and preserve all of his claims of trial court error, including the jury selection claim. Appellant’s Brief, at 3. Thus, he has met his burden of pleading appellate counsel’s ineffectiveness for failing to raise the issue of trial counsel’s ineffectiveness at voir dire. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003) (to preserve layered ineffectiveness claim, petitioner must plead appellate counsel was ineffective for failing to raise all prior counsel’s ineffectiveness); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1021-23 (2003). However, appellant must also present argument as to appellate counsel’s deficient representation, developing each of the three prongs of Pierce1“Then, and only then, has the petitioner preserved a layered claim of ineffectiveness for the court to review; then, and only then, can the court proceed to determine whether the petitioner has proved his layered claim.” McGill, at 1022 (citation omitted).

¶7To satisfy the first prong of Pierce with respect to appellate counsel, appellant must demonstrate his underlying claim has arguable merit. See McGill, at 1022-23. This requires him to establish each Pierce prong regarding trial counsel’s ineffectiveness. See Rush, at 656. Not only does appellant fail to argue any of the Pierce prongs concerning appellate counsel’s stewardship, but he also fails to develop all three prongs regarding trial counsel. This is fatal to his claim, since “in order to succeed on an unpreserved claim of racial discrimination in jury selection, a post-conviction petitioner may not rely on a prima facie case under Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)], but must prove actual, purposeful discrimination by a preponderance of the evidence, ... in addition to all other requirements essential to overcome the waiver of the underlying claim.” Commonwealth v. Uderra, 862 A.2d 74, 87 (Pa.2004) (citation omitted).

¶8*147Like the appellant in Uderra, appellant has not had the opportunity to establish “actual, purposeful discrimination,” because the PCRA court did not conduct a hearing on the discrete issue of racial discrimination. However, as in Uderra, appellant’s proffer, even if believed, is insufficient to prove discrimination. Appellant points to the percentages of African-American venire persons who were stricken by the prosecution,2 and avers there were no race-neutral reasons for striking them; he mentions the “McMahon tape,” a 1987 videotape in which a Philadelphia assistant district attorney revealed a policy of racial discrimination in jury selection by members of that office, see Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978 (2002); he alleges the existence of statistics showing the prosecutor’s disproportionate use of peremptory challenges against African-American jurors in other cases; and he cites a series of cases “roughly contemporaneous” to this one, see Appellant’s Brief, at 80, “in which city prosecutors had been found to have discriminatorily struck black jurors.” Id.None of these factors, however, standing alone or combined, is enough to establish a purposeful pattern of actual discrimination in the jury selection in this case. Furthermore, appellant makes no proffer of what he would hope to prove at a hearing on this issue; merely citing the number of African-Americans stricken and alleging it was done with discriminatory intent does not meet the standard enunciated in Uderra. Thus, I would hold that, having failed to establish the merit of his claim, appellant is not entitled to relief and no remand to the PCRA court is necessary.