Opinion
J-S83040-17 No. 2878 EDA 2016
04-09-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. DARNELL DOGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000557-2014 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Darnell Dogan, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial conviction of possession with intent to distribute ("PWID"). We affirm.
In its opinion, the trial court fully and accurately sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. We add the court sentenced Appellant on September 6, 2016, to twenty-one (21) to forty-two (42) months' incarceration, plus five (5) years' probation. On September 13, 2016, Appellant filed a timely notice of appeal. The court ordered Appellant on September 20, 2016, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on February 24, 2017, following an extension.
Appellant raises one issue for our review:
DID NOT THE TRIAL COURT ERR IN DENYING APPELLANT'S CHALLENGE, PURSUANT TO BATSON V. KENTUCKY , [476 U.S. 79, 106 S.CT. 1712, 90 L.ED.2D 69 (1986)], TO THE COMMONWEALTH'S RACIALLY DISCRIMINATORY USE OF PEREMPTORY STRIKES[?](Appellant's Brief at 3).
"The decision whether to disqualify a juror is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion." Commonwealth v. Stevens , 559 Pa. 171, 197, 739 A.2d 507, 521 (1999). "A challenge for cause to service by a prospective juror should be sustained and that juror excused where that juror demonstrates through his conduct and answers a likelihood of prejudice." Commonwealth v. Ingber , 516 Pa. 2, 7, 531 A.2d 1101, 1103 (1987). "The trial court makes that determination based on the prospective juror's answers to questions and demeanor." Stevens , supra at 197, 739 A.2d at 521.
The challenge of a juror for cause is addressed to the trial judge, and much weight must be given to his judgment in passing upon it. In exercising his discretion as to the fitness of a juror to serve, he has the juror before him, and much latitude must be left to him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as we read them in the printed record. They are first to be weighed by the trial judge who sees and hears the juror, and, in the exercise of a wide discretion, may conclude that he is not competent to enter the jury box for the purpose of rendering an impartial verdict, notwithstanding
his words to the contrary....Commonwealth v. Robinson , 581 Pa. 154, 204, 864 A.2d 460, 490 (2004), cert. denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005) (quoting Commonwealth v. Sushinskie , 242 Pa. 406, 413, 89 A. 564, 565 (1913)). "[A] finding regarding a [venireperson's] impartiality 'is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province.... The trial judge is of course applying some kind of legal standard to what he sees and hears, but his predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record.'" Commonwealth v. Smith , 518 Pa. 15, 37, 540 A.2d 246, 256 (1988) (quoting Wainwright v. Witt , 469 U.S. 412, 428-29, 105 S.Ct. 844, 854-55, 83 L.Ed.2d 841, ___ (1985)). "A juror's bias need not be proven with unmistakable clarity." Commonwealth v. Carson , 590 Pa. 501, 573, 913 A.2d 220, 262 (2006), cert. denied, 552 U.S. 954, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007).
Applying the rationale of Batson to a claim of purposeful discrimination based on race and/or gender as it applies to jury selection/elimination requires the following under Pennsylvania law:
To establish...a prima facie case, a defendant must show that he is of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact...that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, the defendant must show that these
facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude venire[persons] for the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.Commonwealth v. Hill , 727 A.2d 578, 581-82 (Pa.Super. 1999), appeal denied, 561 Pa. 653, 747 A.2d 898 (1999) (internal quotations omitted) (emphasis in original). After establishing this record, 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.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Charles A. Ehrlich, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed May 17, 2017, at 3-7) (finding: record does not demonstrate Commonwealth purposefully discriminated against African-American venirepersons; during Batson hearing, Commonwealth offered credible, specific, and race-neutral explanations for striking each African-American venireperson at issue). The record supports the trial court's rationale, and we see no reason to disturb it. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/9/18
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