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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
MILIQUE K. WAGNER,                       :
                                         :
                  Appellant              :
                                         :     No. 2258 EDA 2017

                    Appeal from the PCRA Order June 16, 2017
               in the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0000127-2011

BEFORE:        PANELLA, J., PLATT, J.* and STRASSBURGER, J.*

CONCURRING STATEMENT BY STRASSBURGER, J.: FILED DECEMBER 18,

2018

       In footnote four, the Majority takes note of Buchanan v. Kentucky,

483 U.S. 402, 418-19 (1987).        In that case, the United States Supreme

Court held that a defendant’s Sixth and Fourteenth Amendment rights are

not violated when the government jointly tries before a “death-qualified

jury”1 a defendant who is not facing the death penalty with a co-defendant

who is facing the death penalty. Id. at 420. However, neither this Court



1  See Commonwealth v. Woodard, 129 A.3d 480, 507 (Pa. 2015)
(“‘Death-qualifying’ a jury has been defined as the process of asking
questions during voir dire to identify individuals who object to the death
penalty and cannot impose a death sentence under any circumstance and
excluding those persons from the jury.”).




*Retired Senior Judge assigned to the Superior Court.
J-S57022-18

nor our Supreme Court has addressed specifically whether such a scenario

would violate the rights provided by the constitution of this Commonwealth.

      Our constitution provides a right to trial by jury that is “inviolate.” Pa.

Const. Art. 1, § 6. In all criminal prosecutions, the accused has a right to a

“trial by an impartial jury of the vicinage” and he cannot be “deprived of his

life, liberty[,] or property, unless by the judgment of his peers….” Pa. Const.

Art. 1, § 9. In my view, it is common sense that a jury which is open to

imposing the death penalty would be predisposed towards conviction and not

representative of a cross-section of society, and therefore, neither an

impartial jury nor a jury of one’s peers. See Com. v. Maxwell, 477 A.2d

1309, 1319 (Pa. 1984) (Nix, C.J., dissenting) (expressing view that death

qualification violates the guarantees of Article I, sections 6 and 9 of the

Pennsylvania Constitution based upon empirical data that supports “what

common sense has long suggested to be true, namely, that the death

qualification process practiced in this and other jurisdictions produces juries

that are both prosecution-prone and unrepresentative”); Brandon Garrett,

et. al., Capital Jurors in an Era of Death Penalty Decline, 126 Yale L.J.

Forum 417, 429 (2017) (concluding after conducting a study in Orange

County, California, a county which leads in imposition of the death penalty,

that death-qualification excludes even more jury-eligible adults than

previously thought; in Orange County, death qualification had the potential

to exclude up to 35% of jury-eligible adults); Richard C. Dieter, The Future



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of the Death Penalty in the United States, 49 U. Rich. L. Rev. 921, 936–

37 (2015) (noting that a death-qualified jury “will have proportionately

higher numbers of whites, males, Republicans, and others who represent a

more conservative segment of society” and be more likely to find a

defendant guilty than a randomly selected jury); Justin D. Levinson et. al.,

Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-

Eligible Citizens in Six Death Penalty States, 89 N.Y.U. L. Rev. 513, 573

(2014) (concluding after conducting a study in six of the most active death

penalty states that “death-qualified jurors hold stronger implicit and self-

reported [racial] biases than do jury-eligible citizens generally”).

      While I am constrained to acknowledge that the law permits such a

conviction-prone jury in the case of a defendant who is facing the death

penalty,   see   Lockhart     v.   McCree,     476   U.S.   162    (1986)   and

Commonwealth v. Peterkin, 513 A.2d 373, 384 (Pa. 1986), I cannot in

good conscience countenance such a result for a defendant who did not

commit a crime punishable by the death penalty. Nevertheless, I join the

Majority’s memorandum because Appellant did not raise an argument

regarding a violation of his rights under the Pennsylvania constitution. Thus,

I am constrained to affirm.




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