Commonwealth v. Garcia

¶1Petitioner, Juan Santa Garcia, was arrested and charged with a murder and rape that occurred in the City of Philadelphia on June 27, 1973. Subsequent to being held over for the action of the grand jury, but prior to indictment, counsel filed a petition to quash the array of the grand jury.1 A hearing on the motion was held before the *10undersigned on September 24, 1973. Petitioner, who is of Puerto Rican heritage, asserts that the grand jury is without power to indict him because the persons in Philadelphia who were charged with the selection of grand jury venires in 1972 used standards for such selection which were vague and legally impermissible. Petitioner further contends that there is practiced systematic exclusion of persons of Spanish heritage which is evidenced by the underrepresentation of such persons on the grand juries, and that such underrepresentation is caused by two factors: (1) utilization by the jury commissioners of a source of prospective jurors which does not produce a cross-section of the community; namely, voter registration lists; and (2) the utilization of selection criteria which are vague, discretionary and not authorized by statute.

¶2JURY SELECTION PROCEDURE

¶3Petitioner called as a witness Charles E. O’Connor, Esq., Assistant Clerk of the Jury Selection Board. Mr. O’Connor testified that, pursuant to statute,2 in January 1973, the Jury Selection Board was supplied by *11the Registration Commission with a list of the registered voters of the City of Philadelphia for the previous year. At a meeting with the Hon. Samuel H. Rosenberg, Secretary of the Jury Selection Board, it was determined that 90,000 questionnaires should be sent out in order to obtain a sufficiently large jury venire for the year. That number represents approximately one out of every 12 registered electors in the city of Philadelphia. Slips were made up, numbered one to 12, and placed in a box. Judge Rosenberg drew number 11. The actual selection was then made by computer. Starting with the eleventh name of an alphabetical list of registered voters, the computer was programmed to select every twelfth name. The computer then identified the selected names by ward and mechanically addressed questionnaires. Of the 90,000 questionnaires mailed, approximately 81,000 were returned. Of the latter, 28,000 names were ultimately placed in the jury wheels, and grand jurors were randomly selected from this group. The process by which 53,000 potential jurors was eliminated is alleged to be not in accordance with statute and the source of unconstitutional ethnic discrimination.

¶4The statutory qualifications for jury duty in Philadelphia County are found in the Act of May 10, 1949, P. L. 1066, sec. 2,17 PS § 1252(c). That section required that jurors be registered electors who can read, write, speak and understand the English language; that they be physically and mentally capable of rendering efficient jury service; and that they be of good moral character and have never been convicted of a crime involving moral turpitude. Section 1252(b) delegates to the selection board, its members and masters appointed by the court of common pleas, the determination of qualifications by use of questionnaires, personal interviews or otherwise. Section 9 of the act, *1217 PS §1259, provides for a three-year exemption to any citizen who has served on a jury. In addition, telegraph operators are exempted from service by the Act of April 8, 1862, P. L. 325, sec. 1, 17 PS §1102.3 Thus, there are five criteria for exclusion from jury service: (1) failure to register; (2) illiteracy; (3) physical or mental incapacity; (4) poor character; and (5) conviction of a crime involving moral turpitude; and there are two reasons for exemption: (1) prior service; and (2) occupation as a telegraph operator.

¶5The questionnaire which is sent to prospective jurors by the jury commission includes questions pertaining to occupation and employer; ability to read, write, speak and understand English, and the extent of education; criminal convictions; and prior jury service. The questionnaire also inquires whether there is any reason why the prospective juror cannot serve.

¶6Upon receipt of the questionnaires, the jury masters immediately approve those which are complete on their face, and do not indicate an impediment to service. In 1973, between six and seven thousand persons were called in for interviews if their questionnaires were not complete, or if clarification was required. The remaining questionnaires were evaluated by use of certain guidelines promulgated by the late Vincent A. Carroll, Judge of the Court of Common Pleas of Philadelphia County. Judge Carroll’s coding system details reasons why an individual would not be called for jury duty and is as follows:

R-l — Out of jurisdiction

R-2 — Deceased

R-3 — Physically and mentally unfit

R-4 — Educationally unfit

R-5 — Criminal record

*13R-6 — Jury exemption, if claimed

R-7 — City, State and Federal employe

R-8 — Military service

R-9 — Miscellaneous

¶7These nine categories include three specific subgroups: exclusions — exception from service by reason of a failure to meet statutory requirements; exemptions — immunity from service by reason of a statutory exception; excuses — exception from service by reason of individual request.

¶8R-6 represents the statutory exemption, and is not challenged by petitioner. Likewise, the exclusions encompassed by R-l, R-2 and R-3 are not being challenged by petitioner because they represent objective criteria.

¶9However, there is a certain amount of discretion exercised by the jury masters in the determination of exclusions encompassed in R-4 and R-5. Mr. O’Connor, who also serves as a jury master, testified that in determining educational qualifications, an individual who indicates on the questionnaire that he can read, write, speak and understand English may still be disqualified if he also indicates that he has not completed a grade school education. However, he added that very few persons are disqualified on the basis of R-4.

¶10To be eligible for jury duty, an individual must be of good moral character and must not have been convicted of a crime involving moral turpitude. The latter term is defined as “ [c] onduct contrary to justice, honesty, modesty, or good morals”: Black’s Law Dictionary, page 1160 (4th Ed. 1951). Mr. O’Connor indicated that persons convicted of felonies and persons who have extensive arrest records are excluded. However, he added that he considers all circum*14stances, and that old convictions or contempt of family court proceedings may be entirely discounted.

¶11It is beyond argument that the State may prescribe relevant qualifications for prospective jurors: Carter v. Jury Commission of Greene County, 396 U. S. 320, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970); Brown v. Allen, 344 U. S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Cassell v. Texas, 339 U. S. 282, 70 S. Ct. 629, 94 L. Ed. 839 (1950). Moreover, a jury selection process is not rendered invalid because it allows the exercise of judgment or a wide range of discretion by those charged with implementing it: (Franklin v. South Carolina, 218 U. S. 161, 30 S. Ct. 640, 54 L. Ed. 980 (1910); Smith v. Texas, 311 U. S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940)); or because the standards used are not mathematically precise [requirements that jurors be “upright” and “intelligent” were upheld in Turner v. Fouche, 396 U. S. 346, 354, 90 S. Ct. 532, 24 L. Ed. 2d 567, 575 (1970)]. All that is required is that the qualifications be relevant and the determinations be made in good faith and in a nondiscriminatory manner.

¶12In the instant case, there was absolutely no evidence produced at the hearing to indicate that discretion was exercised by the jury masters in the disqualification of prospective jurors in a manner that was anything but reasonable and impartial.

¶13A more complicated problem is involved in the grant of excuses under R-7 (government workers), R-8 (persons in the military), and especially R-9. R-9 encompasses self-employed and public service employes (clergy, judges, doctors, lawyers, nurses, teachers); key men in businesses (one-man barber shops); persons over the age of 70; and women with small children. Release from service under these three excuse categories arises solely out of an affirmative *15request on the part of the prospective juror and is not automatic.

¶14Petitioner contends that the jury masters are without authority to grant any excuses. With this contention, we do not agree.

¶15The Act of March 31, 1870, P. L. 732, sec. 1, 17 PS §1247, provides:

“No person shall be exempt from serving as a juror in any of the courts of the city and county of Philadelphia unless he shall have filed an affidavit, setting forth the ground for such exemption, with the clerk of the board for selecting and drawing jurors, prior to the first day of July in the year next preceding that for which he shall claim exemption; any such affidavit, when filed, shall be submitted to a judge of one of said courts, and if it shall set forth good and sufficient grounds for exemption, the name of such person shall not be placed in the wheel containing the names of jurors for the next succeeding year: Provided, however, That it shall be at the discretion of the judge or judges holding any court in said county to excuse from service any person summoned as a juror, on application in open court, and good and satisfactory cause shown.” (Italics supplied.)

¶16While we have previously made reference to the important distinctions between the terms “excuse” and “exemption,” in the context of section 1247, these two terms are synonymous and encompass both meanings previously discussed. It would be a needlessly broad use of language if “good and sufficient grounds” for an exemption referred to grounds solely statutory in nature.

¶17Any other reading of this section would leave Philadelphia County without a means of excusing persons for hardship reasons until after the hardship had actually been imposed. Moreover, such a construction *16runs counter to the statutory scheme provided for certain other counties in Pennsylvania, which specifically provides for categories of excuses.4 Compare Rabinowitz v. United States, 366 F. 2d 34 (5th Cir., 1966), and the Federal jury selection scheme described therein.

¶18The substitution of signed questionnaires for affidavits; the use by the jury masters of standards promulgated by Judge Carroll; and especially the presence of Judge Rosenberg on the jury selection board represents substantial compliance with section 1247.

¶19The granting of an excuse is not, in and of itself, unlawful. Cf. Clark v. Ellenbogen, 319 F. Supp. 623 (W. D. Pa., 1970). As has been previously discussed, the exercise of judgment or a wide range of discretion is permissible. It is only when the categories of excuses on their face indicate the exclusion of a particular group that they are unlawful. In Thiel v. Southern Pacific Co., 328 U. S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), the United States Supreme Court held that the practice utilized by California jury commissioners in excluding all daily wage earners from jury duty because of hardship, since they were invariably excused by a judge after summoning, impermissibly *17resulted in discrimination against persons of low economic and social status. Similarly, it is unconstitutional for a universally applied excuse to be used as a subterfuge for the exclusion of a particular group. In Labat v. Bennett, 365 F. 2d 698 (5th Cir., 1966), cert. denied 386 U. S. 991, 87 S. Ct. 1303, 18 L. Ed. 2d 334 (1967), the grant of an automatic excuse to all day laborers, e.g., persons not on salary, resulted in the impermissible elimination of 47 percent of the Negro males in New Orleans Parish who were otherwise eligible for service on juries.

¶20In the instant case, the excuses recognized in R-7, R-8, and R-9 are similar to those statutorily provided for in Pennsylvania counties of the second class. They have a bearing on the participation of men and women, blue collar and white collar workers, rich and poor, educated and uneducated. Because they are so varied they do not, on their face, discriminate against any identifiable segment of the population.

¶21Actual discrimination against any group or groups, including persons of Spanish heritage, will be discussed below.

¶22INVIDIOUS DISCRIMINATION

¶23Petitioner asserts that there exists in the selection of grand jurors in the City of Philadelphia, invidious discrimination against persons of Spanish heritage through the use of voter registration lists as a source of prospective jurors and by use of the aforementioned “vague and impermissible standards for the granting of excuses from jury service.”

¶24The American system of justice contemplates the use of a jury which represents a cross-section of the community: Smith v. Texas, 311 U. S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940). However, obtaining a cross-section of the community does not require that the *18jury or the venire “be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group”: Swain v. Alabama, 380 U. S. 202, 208, 85 S. Ct. 824, 13 L. Ed. 2d 759, 766 (1965); Commonwealth v. Carroll, 443 Pa. 518, 523 (1971). In Thiel v. Southern Pacific Co., 328 U. S. 217, 220, 66 S. Ct. 984, 90 L. Ed. 1181, 1185 (1946), the Supreme Court held that cross-sectional representation “does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community.”

¶25In Commonwealth v. Jones, 452 Pa. 299 (1973), a case involving allegations of racial discrimination in the selection of a petit jury, our court summarized the applicable law:

“It is clear that a defendant has no right to demand that members of his race be on the jury which tries him, however, he does have a right to require a state not to deliberately and systematically exclude members of his race from the jury panels and from the juries ultimately drawn from those panels, consequently, he must prove systematic exclusion, thereby demonstrating a violation of the Equal Protection Clause. Moreover, a defendant may not demand proportionate numbers of his race on the jury which tries him, or on the panel from which the jury is selected, but he does have a right to a jury drawn from a panel which represents a cross-section of the community. The defendant has the initial burden of demonstrating a prima facie case of discrimination, then the burden shifts to the Commonwealth to rebut the evidence, if the Commonwealth fails, the selection system does not meet the requisite constitutional standards and the defendant is entitled to another jury, *19selected under a system which complies with the constitutional mandate.” Id. at 311.

¶26In the instant case, petitioner asserts that in order to establish a prima facie case of invidious discrimination, he need only prove that there exists a substantial disparity between the number of persons of Spanish heritage called for jury duty and the proportion of such persons in the general population; and that the selection process affords an opportunity to discriminate.5 Accord: Smith v. Yeager, 465 F. 2d 272 (3d Cir., 1972), cert. denied 409 U. S. 1076 (1972); Commonwealth v. Locke, C. P. Phila. Co., MC 70-09-1190, October term, 1970, misc. no. 70-10-2476, issued October 31,1972.

¶27However, the Commonwealth correctly contends that more is necessary to establish a prima facie case. First, the petitioner must establish that the persons who are the object of the alleged discrimination constitute a cognizable group in the community: Hernandez v. Texas, 347 U. S. 475, 74 S. Ct. 667, 98 L. Ed. 866 (1954). Secondly, the holdings of the United States Supreme Court in several cases indicate that in order to establish a prima facie case, it is necessary to establish the existence of a nexus between the substantial disparity and the opportunity to discriminate. That is, the substantial disparity must arise at the point in the selection process where the opportunity to discriminate exists, e.g., where the masters exercise discretion.

¶28*20ASCERTAINABLE GROUP

¶29In numerous decisions, the Supreme Court of the United States has held that it is a denial of equal protection of the law to try a defendant under an indictment of a grand jury or before a petit jury from which all persons of his race have been excluded. See, i.e., Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839 (1900). In Ballard v. United States, 329 U. S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946), the court held that an individual may challenge the exclusion of a group from jury rolls, even though he is not a member of the group excluded.

¶30Although most cases arise in relation to discrimination against Negroes, in Hernandez v. Texas, 347 U. S. 475, 98 L. Ed. 866 (1953), the court applied the Equal Protection Clause in a Texas case involving discrimination in jury selection against persons of Mexican descent. In that case, the court required demonstration of the existence of a distinct class:

“Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated.” (Italics supplied.) Id. at 478, 98 L. Ed. at 870.

¶31This requirement was reiterated in Swain v. Alabama, 380 U. S. 202, 205, 13 L. Ed. 2d 759, 764 (1965), where the court said that the “constitutional command forbidding intentional exclusion . . . applies *21to any identifiable group in the community which may be the subject of prejudice.” In United States ex rel. Leguillou v. Davis, 115 F. Supp. 392 (D. C. V. I, 1953), the district court held that in St. Croix, persons of Puerto Rican heritage who represented 28 percent of the population of the island, constituted a minority group that was the object of prejudice.

¶32In the instant case, petitioner is of Puerto Rican descent. He asserts that persons of Spanish heritage are the object of discrimination. The Commonwealth, on the other hand, contends that if an identifiable group exists, it is limited to persons of Puerto Rican descent. No evidence was presented to support either of these positions, nor was any evidence presented tending to show that either group is the subject of prejudice in the Philadelphia community.

¶33This requirement is very necessary in cases dealing with allegations of discrimination because of race, religion or national origin, because it serves to eliminate totally frivolous claims at the outset. For instance, although no names appear on the grand jury lists for 1972 which are Oriental or Scandinavian sounding, it would be absurd to claim that the absence of such persons was due to intentional discrimination.

¶34However, for purposes of this case, this court will take judicial notice of the fact that Puerto Ricans and Spanish-speaking people in general may be the object of discriminatory practices, although such practices are most likely to be based on language deficiencies rather than ethnic bias.6

¶35*22Petitioner offered into evidence certain statistics and terms used by the United States Department of Commerce in the compilation of the 1970 census.7

¶36There are 1,948,6098 persons in Philadelphia. Of that number 45, 7989 are persons of Spanish language.10 This group is further broken down into two subgroups which are not mutually exclusive: 36,54311 are persons of Spanish mother tongue,12 and 26,70213 are persons of Puerto Rican origin or descent.14 Therefore, approximately 58 percent of persons of Spanish language are also of Puerto Rican origin or descent.

¶37*23It is relevant that specific statistics for the Puerto Rican population are given, in addition to statistics for Spanish language persons in general. Even more relevant, however, is the fact that two minority groups were selected for in-depth study relative to housing, employment, education, etc.: Negroes and Puerto Ricans.15 Clearly, identity of language was not considered a sufficient reason for evaluating all Spanish-speaking persons as one group, since those persons may have family origins in many different places in the world, i.e., Cuba, Mexico, South America, Spain. While not deciding the issue, for purposes of ruling on this petition, persons of Puerto Rican heritage will be assumed to constitute an identifiable class.

¶38SUBSTANTIAL DISPARITY

¶39In order to establish a prima facie case of discrimination, it is necessary to establish a substantial disparity between the proportion of persons of the group in question who are available for jury duty, and their proportion on the jury venire.

¶40Petitioner asserts that of the 425 persons who constituted grand juries in 1972, only 2, or .47 percent have Spanish sounding surnames. Although, at first glance this low figure appears significant, a comparison with the percentage of either Spanish-speaking or Puerto Rican persons in the population, shows that no significant disparity exists.

¶41Persons of Spanish language (45,798), comprise 2.3 percent of the population; and persons of Puerto Rican descent (26,702), comprise only 1.3 percent of the population. This latter figure, does not, however, *24represent the number of persons who were eligible to vote, because it includes persons under the age of 18. Of the total population of Philadelphia (1,948,609), 607,266,16 or 31 percent are under the age of 18. The Puerto Rican population has a much higher proportion of young people. In 1970, 14,529,17 or 54 percent of the Puerto Rican population was under the age of 18. Therefore, Puerto Ricans constituted only .91 percent of the eligible voters in the City of Philadelphia.18

¶42The disparity between .47 percent and .91 percent is insignificant. Even if 2.3 percent is used as a base, the difference is equally insignificant, and does not begin to approach the disparities condemned in previous cases. 19

¶43OPPORTUNITY TO DISCRIMINATE

¶44Initially, defendant asserts that the use of voter registration lists as a source of prospective jurors is impermissible because such a procedure eliminates from service all persons who fail to register to vote. Petitioner’s argument is without merit. Persons who fail to register to vote have never been considered to *25constitute a “cognizable group,” and it is the exclusion of such a group which is unlawful: Grimes v. United States, 391 F. 2d 709 (5th Cir., 1968), cert. denied 393 U. S. 825, 89 S. Ct. 87, 21 L. Ed. 2d 96 (1968). In United States v. Parker, 428 F. 2d 488 (9th Cir., 1970), the court held that the use of voter lists as a sole source of names of jurors is not constitutionally invalid, absent a showing of discrimination in compiling such voter registration lists.

¶45In United States v. Tillman, 272 F. Supp. 908, 915, n.10 (N.D. Ga., 1967), the court said:

“[T]he best thought of all three branches of government points toward voter registration lists as representing ‘the best cross-section of the community; indeed, they are probably the most broadly based lists available.’ ”

¶46Similarly, in Simmons v. United States, 406 F. 2d 456, 463 (5th Cir., 1969), it was said that:

“No significant improvement in our nation’s federal judicial machinery has ever met such unanimity of opinion as to its importance and propriety as has adoption by the Congress of the system of jury selection at random from voter registration lists.”

¶47See also United States v. Gast, 457 F. 2d 141 (7th Cir., 1972), cert. denied 406 U. S. 969, 92 S. Ct. 2426, 32 L. Ed. 2d 668 (1972), and cases cited at page 142. Contra: Smith v. Yeager, 465 F. 2d 272, 278, n.15 (3d Cir., 1972) (dictum), cert. denied 409 U. S. 1076 (1972).

¶48No doubt, sources of names can be found which will increase the pool of prospective jurors, i.e., telephone directories,20 church lists, club lists. However, Philadephia, with its population of almost *262,000,000, is a “melting pot”; its citizens have ancestral roots in all corners of the globe, and represent a myriad of social, religious and language groups. Consideration of ancestry by countries or ancestral language would multiply the number of classes beyond all reason. Voter registration lists constitute so great a pool, that their use as the source of prospective jurors will automatically approximate the multi-group character of the city.

¶49Petitioner did not attempt to show discrimination in the compilation of voter registration lists. In the opinion of the court, the use in Philadelphia County of such lists as the sole source of jurors was lawful.

¶50Petitioner further asserts that the opportunity to discriminate in the selection of the venire from which grand jurors are selected, exists through the use of vague and legally impermissible standards for the granting of excuses from jury service. As has been discussed below, the criteria used in excusing prospective jurors is neither vague nor impermissible. However, because the grant of excuses and certain exclusions involves the exercise of discretion by the jury masters, the opportunity to discriminate does exist.

¶51However, proof of opportunity is not enough. Petitioner has one additional burden; he must demonstrate that any disparity which exists bears a nexus to this exercise of discretion.

¶52In Turner v. Fouche, 396 U. S. 346, 360, 24 L. Ed. 2d 567, 579 (1970), the Supreme Court said:

“In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment *27rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it.” (Italics supplied.)

¶53See also, Patton v. Mississippi, 332 U. S. 463, 68 S. Ct. 184, 92 L. Ed. 76 (1947).

¶54Even though the nexus requirement may not be specifically articulated, it is invariably applied. See, i.e., United States ex rel. Seals v. Wiman, 304 F. 2d 53 (5th Cir., 1962) (course of conduct of jury commissioners of Mobile County in relying on personal knowledge of good character of prospective jurors resulted in discrimination); Smith v. Yeager, 465 F. 2d 272 (3d Cir. 1972), cert. denied 409 U. S. 1076 (1972) (disparity identified with use of key man system).

¶55Therefore, it was necessary for petitioner to prove that the jury masters actually discriminated in the selection of the jurors. This could be accomplished by direct proof, or by circumstantial evidence. Thus, if petitioner had provided evidence of the number of Puerto Ricans, or even persons with a Spanish-sounding name, who were registered to vote, and evidence that a substantial number of these persons were actually otherwise qualified to vote, then any disparity in the final choice of veniremen could be attributed by inference to the discretion exercised by the jury masters. See, i.e., Alexander v. Louisiana, 405 U. S. 625, 87 S. Ct. 643, 31 L. Ed. 2d 536 (1972); Whitus v. Georgia, 385 U. S. 545, 17 L. Ed. 2d 599 (1967). However, in the instant case, there was no such proof.

¶56It should also be noted that 15,01821 or 56 percent of persons of Puerto Rican descent in the City of Philadelphia are foreign born.

¶57Given the fact that many Puerto Ricans are foreign *28born, and that as a group their chief social disability is the inability to communicate well in English,22 this court, without specific proof, cannot hold that the insignificant disparity between the proportion of Puerto Ricans on the grand juries and the number of eligible Puerto Rican voters in the population, is the result of ethnic discrimination.

¶58In Alexander v. Louisiana, 405 U. S. 625, 31 L. Ed. 2d 536 (1972), supra, the Supreme Court said:

“This Court has never announced mathematical standards for the demonstration of ‘systematic’ exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors.” Id. at 630,31 L. Ed. 2d at 541-42.

¶59Considering all the factors in this case, this court concludes that petitioner has failed to sustain the burden of proving a prima facie case of invidious ethnic discrimination. Accordingly, his motion to quash and dismiss the array of the grand jury must be dismissed.

¶60ORDER

¶61And now, January 8, 1974, the motion of petitioner, Juan Santa Garcia, to quash and dismiss array of the grand jury is hereby dismissed.