Commonwealth v. Edwards, D., Aplt.

Opinion

[J-53-2021] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 6 EAP 2021 : Appellee : Appeal from the Order of Superior Court : entered on July 29, 2020 at No. 3429 EDA : 2018, affirming the Order entered on v. : September 11, 2018 in the Court of : Common Pleas, Philadelphia County, : Criminal Division at Nos. CP-51-CR- DERRICK EDWARDS, : 0002611-2013, CP-51-CR-0002614-2013, : CP-51-CR-0002617-2013, CP-51-CR- Appellant : 0002815-2013, CP-51-CR-0002820-2013, : CP-51-CR-0002853-2013, CP-51-CR- : 0002862-2013 and CP-51-CR-0002864- : 2013. : : ARGUED: December 7, 2021 :

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CHIEF JUSTICE BAER DECIDED: April 12, 2022 In Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020), this Court held that

prosecutorial overreaching sufficient to invoke double jeopardy protections under Article 1,

Section 10 of the Pennsylvania Constitution includes not only intentional misconduct, but also

reckless misconduct that deprived the defendant of a fair trial. We granted allowance of appeal

in this matter to determine whether our reasoning in Johnson applies to preclude the retrial of

Appellant Derrick Edwards on double jeopardy principles where the prosecutor acted with

discriminatory intent when exercising a peremptory strike of an African American juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986).1 For the reasons that follow, we hold that

the prosecutor’s violation of Batson under the circumstances presented does not preclude the

retrial of Appellant. Accordingly, we affirm the judgment of the Superior Court, which affirmed

the trial court’s order denying Appellant’s motion to dismiss the charges against him on double

jeopardy grounds.

I. Background

The record establishes that in the early morning hours of September 18, 2012,

Appellant, who is African American, and Rasheed Thomas robbed Keith Crawford at gunpoint

in Philadelphia. Five minutes later, the two men approached Kevin Cunningham at a bus stop,

pointed a firearm at his face, and stated, “You know what this is.” After pushing Cunningham

to the ground and striking his head with the firearm, Appellant and Thomas stole his cash,

barber clips, a Bible, an engagement ring, and a cell phone.

A few weeks later on October 1, 2012, two African American males approached Whitney

Coates, pointed a firearm at her face, and stated, “You know what it is.” In response, Coates

handed the perpetrators her cell phone. That same day, approximately thirty minutes later,

Appellant and Thomas attempted to rob Donald Coke. When Coke resisted, Appellant shot

him twice in the left arm, and then fled with Thomas in a vehicle driven by Henry Bayard. Within

about fifteen minutes, Appellant committed another armed robbery, this time with Bayard,

stealing Duquan Crump’s wallet and cell phone. A short time later, Appellant and Thomas

robbed Shanice Jones at gunpoint, stealing her wallet and cell phone. Soon after, two African

American males robbed Hecktor De Jesus at gunpoint, stealing cash, an iPod touch, a wallet,

and a backpack containing clothing and a taser.

1 The Supreme Court held in Batson that a prosecutor’s challenge to potential jurors solely on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[J-53-2021] - 2 Approximately 45 minutes later, two African American males pointed a firearm at Jonas

Floyd and stole his tote bag, headphones, cell phone, wallet, keys, and cash. Police soon

located Appellant, Thomas, and Bayard in the vehicle in which they were travelling and

recovered the firearms used in the robberies, as well as a significant amount of the enumerated

stolen goods. On March 6, 2013, the Commonwealth charged Appellant with various crimes

relating to these armed robberies.

Jury selection began on October 28, 2014.2 Prior to the actual selection process, the

trial court explained its voir dire procedure, indicating that the court would ask the prospective

jurors questions while all of them were present in the courtroom to determine whether they had

any beliefs, attitudes, or experiences that might interfere with their ability to be a fair and

impartial juror. N.T. (Voir Dire), 10/28/2014, at 5. Specifically, the court would ask some

general disqualification questions to the group as a whole and then conduct further follow-up

inquiries directed at individual prospective jurors based upon their responses to the initial

questions. Counsel for the parties were not given an opportunity to question the jurors.

Appellant did not object to this procedure.

Consistent with the trial court’s practice, counsel for Appellant and the Commonwealth

exercised their peremptory challenges using a “pass the pad” method, where the court clerk

would pass to counsel for each party the juror strike sheet listing the names of each potential

juror. N.T. 8/15/2018 (Evidentiary Hearing on Motion to Dismiss), at 7-8. Counsel made

notations on the juror strike sheet indicating whether counsel accepted or struck each

prospective juror. Id. Unbeknownst to the trial court or the parties, the court crier noted on the

juror strike sheet the race and gender of each potential juror. Appellant objected to these

notations on the juror strike sheet. See id. at 90 (defense counsel stating, “I do now object to

2 Thirty potential jurors were considered by the parties; thirteen were African American, fourteen were Caucasian, and three were designated as “Other.”

[J-53-2021] - 3 that practice based upon how it has been utilized”); id. at 90-91 (defense counsel indicating

that the Commonwealth saw the notation of race or gender on the juror strike sheet and used

that information in striking the jurors). The trial court overruled Appellant’s objection, finding

that the gender and race of the jurors listed on the strike sheet did not impact the attorneys’

ability to evaluate the jurors, as the attorneys were present in the room and could observe the

gender and race of the jurors in plain sight. Id. at 91.

After the trial court removed some venirepersons for cause, the parties exercised their

peremptory strikes. There were two panels of jurors. Regarding the first panel of jurors chosen

in the morning, the prosecutor accepted six of the first eight African Americans, accepted one

juror whose race was indicated as “Other,” and struck two African Americans. Jury Strike List,

10/28/14. Relating to the afternoon panel of jurors, the prosecutor struck five African

Americans and one juror whose race was indicated as “Other.” Id. Accordingly, the prosecutor

utilized all eight peremptory challenges on individuals of a minority race, with seven of the eight

strikes against African Americans.3

Significantly, on the basis of Batson, Appellant objected to only four of the

Commonwealth’s peremptory strikes of African Americans, challenging the striking of Jurors

56, 57, 61, and 67. N.T., 10/28/2014, at 92. The trial court accepted as race neutral the

reasons the Commonwealth offered for striking Jurors 56, 57, and 61. Id. at 93-94. When the

trial court asked the Commonwealth why it struck Juror 67, the prosecutor responded:

Yes, and when she was being questioned by Your Honor, she was leaning back, seemed a little cavalier, had her arm resting on the back and while we were conducting voir dire in the back, she was sitting there with her arms crossed and her head kind of nodded, seemed guarded and again as if she didn’t want to be here, so I didn’t think she would be a fair and competent juror.

3Appellant exercised his eight peremptory strikes on one African American, six Caucasians, and one prospective juror whose race was listed as “Other.”

[J-53-2021] - 4 Id. at 94. The trial court also found this explanation to be race neutral and denied Appellant’s

Batson challenge. Id. While the trial court did not examine on the record whether the

Commonwealth’s strikes were racially motivated notwithstanding the race-neutral reasons

offered, it is implicit from the trial court’s ruling that it found no discriminatory intent.

The original jury was composed of four African Americans, seven Caucasians, and one

individual whose race was listed as “Other.” Strike List 10/28/2014. The day after the jury was

selected, both an African American juror and the juror identified as “Other” reported a hardship

and were excused from the jury. See N.T., 10/29/2014, 4-7. They were replaced by two

alternate jurors.

Appellant’s trial commenced on October 29, 2014. At that time, Thomas, Appellant’s

cohort, had already pled guilty to multiple offenses relating to the robberies described supra

and testified as a witness for the prosecution, but he refused to identify his conspirators. Over

Appellant’s objection, the Commonwealth read to the jury Thomas’ confession. The

Commonwealth further presented evidence establishing that some of the victims’ property was

recovered in the getaway car when Appellant and the other perpetrators were arrested.

On November 4, 2014, the jury convicted Appellant of eight counts each of robbery,

conspiracy to commit robbery, carrying a firearm without a license, carrying firearms on the

public streets of Philadelphia, possessing an instrument of crime, and one count each of

attempted murder, aggravated assault, and conspiracy to commit aggravated assault. On

January 9, 2015, the trial court sentenced Appellant to 22 to 44 years of incarceration.

On appeal to the Superior Court, Appellant contended inter alia, that: (1) the trial court

violated Batson as a matter of law by listing the races and genders of potential jurors on the

peremptory strike sheet; and (2) the Commonwealth violated Batson by striking four African

American members of the venire with discriminatory intent. Regarding Appellant’s first issue,

the Superior Court held that although it did not countenance the practice of listing the gender

[J-53-2021] - 5 and race of the potential jurors on the juror strike sheet, that listing, in and of itself, did not

violate Batson as a matter of law, as that decision disfavored the adoption of per se rules and,

instead, encouraged consideration of all relevant factors when determining whether a

prosecutor struck a potential juror based upon the juror’s race. Commonwealth v. Edwards,

177 A.3d 963, 972 (Pa. Super. 2018) (citing Batson, 476 U.S. at 96).

In resolving Appellant’s four Batson challenges to the Commonwealth’s use of its

peremptory strikes against Jurors 56, 57, 61 and 67, the intermediate court examined the

following inquiries: (1) whether there was a prima facie showing that the circumstances gave

rise to an inference that the prosecutor struck one or more potential jurors based on race; (2)

whether the Commonwealth offered a race-neutral explanation for its exercise of peremptory

strikes; and (3) whether Appellant carried his burden of proving purposeful discrimination.

Edwards, 177 A.3d at 971-73 (citing Commonwealth v. Watkins, 108 A.3d 692, 708 (Pa. 2014)).

The Superior Court agreed with the trial court that Appellant established a prima facie

case of purposeful discrimination by demonstrating that he is an African American and that the

Commonwealth struck seven African American jurors. Id. at 972-73. The Superior Court also

agreed with the trial court that all of the reasons offered by the Commonwealth for each of the

four challenged strikes were facially race neutral. Id. at 973.

Contrary to the trial court’s finding of no actual purposeful discrimination, however, the

Superior Court held that Appellant did satisfy his burden of demonstrating purposeful

discrimination, at least with regard to Juror 67. Acknowledging the deference owed to a trial

court’s finding in that regard, the intermediate court nevertheless concluded that such finding

was clearly erroneous. Id. at 974. The Superior Court cited the fact that the prospective juror’s

race and gender were identified on the jury strike sheet.4 Id. at 975. Additionally, the court

4 Appellant did not contend that the Commonwealth asked the court crier to include the prospective jurors’ race and gender on the juror strike street, and the prosecutor testified that she made no such request. N.T., 8/15/2018, at 9.

[J-53-2021] - 6 reasoned that the probability of the Commonwealth striking the high number of African

Americans by chance was low and viewed the statistics of exercising all eight peremptory

challenges on minorities as “startling.” Id.

Finally, the Superior Court rejected the trial court’s finding of no purposeful

discrimination based on its conclusion that the Commonwealth’s race-neutral explanation for

striking Juror 67 was “wholly unpersuasive.” Id. The intermediate court explained that the

Commonwealth allegedly struck Juror 67 due to her inattentive posture which suggested that

she would not discharge her duty as a juror in a fair and impartial manner, yet the trial court

encouraged the prospective jurors to “sit back and relax.” Id. at 976 (citing N.T., 10/28/2014,

at 4). The court emphasized that the Commonwealth did not assert that Juror 67 was

disruptive, ignored court instructions, or exhibited a disinclination to discharge her duties in an

impartial manner. Id.

The Superior Court concluded that “[t]he persuasive value of the Commonwealth’s

explanation for striking Juror 67 is so low that, when combined with the other factors listed

above, the totality of the circumstances indicates that the Commonwealth struck Juror 67 with

discriminatory intent.” Id. at 978. Accordingly, finding that a Batson violation took place, the

Superior Court declined to address Appellant’s remaining issues, vacated his judgment of

sentence based entirely upon the discriminatory intent displayed by the Commonwealth in

striking Juror 67, and remanded for a new trial.5

On July 18, 2018, Appellant filed a motion to dismiss his prosecution with prejudice,

alleging that a retrial would violate the Double Jeopardy Clauses of both the United States and

5 Judge Stabile dissented, positing that the majority failed to give sufficient deference to the trial court’s finding of no purposeful discrimination and, instead, made the credibility determination itself. Id. at 986.

[J-53-2021] - 7 Pennsylvania Constitutions.6 He relied upon Commonwealth v. Smith, 615 A.2d 321 (Pa.

1992), for the proposition that the conduct of a prosecutor intentionally undertaken to deny a

defendant a fair trial bars retrial.7 Appellant posited that the Superior Court in this case made

specific findings regarding the intentionality of the prosecutor’s misconduct, which served no

purpose but to deprive him of a fair trial and subvert the truth-determining process; thus, his

motion to dismiss should be granted.

The Commonwealth filed a brief in opposition to Appellant’s motion to dismiss. Therein,

it submitted that to demonstrate a double jeopardy violation under Smith, Appellant must

establish “overwhelming and egregious” misconduct and “deliberate, bad faith” intent on the

part of the prosecutor to deny a fair trial. Brief in Opposition to Motion to Dismiss, 7/23/2018,

at 2 (citing Commonwealth v. Burke, 781 A.2d 1136, 1146 (Pa. 2001) (explaining that Smith

requires “deliberate, bad faith overreaching by the prosecutor intended to provoke the

defendant into seeking a mistrial or to deprive the defendant of a fair trial”); Commonwealth v.

Hockenbury, 701 A.2d 1334, 1339 (Pa. 1997) (stating that “the engine that drove the Smith

decision was the presence of overwhelming and egregious prosecutorial misconduct”)). The

Commonwealth contended that neither factor is present here, where the prosecutor allegedly

exercised a single peremptory challenge with discriminatory intent. Id. at 3. It asserted that

“[a]ny reversible error renders the trial unfair, or it would not be reversible; but not every

reversible error implicates double jeopardy.” Id. at 4.

6 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person may be “twice put in jeopardy” “for the same offence.” U.S. CONST. amend. V. The Double Jeopardy Clause of Article I, Section 10 of the Pennsylvania Constitution provides that “[n]o person shall, for the same offense, be twice put in jeopardy of life or limb[.]” PA. CONST. art. V, § 10. 7This Court’s decision in Johnson, upon which Appellant relies herein, was not decided until nearly two years after Appellant filed his motion to dismiss.

[J-53-2021] - 8 The Commonwealth further argued that because Appellant’s alleged double jeopardy

claim is frivolous, it should be dismissed to prevent further delay of the trial proceedings. Id. at

7. It relied upon the Superior Court’s decision in Commonwealth v. Basemore, 875 A.2d 350,

353 (Pa. Super. 2005) (“Basemore II”), which held that “[n]o state or federal court in any

published or unpublished decision has ever held that a prosecutor’s Batson violation, no matter

the circumstances, constitutes prosecutorial misconduct of such a degree as to implicate

double jeopardy principles.” 8

The trial court conducted an evidentiary hearing on Appellant’s motion to dismiss on

August 15, 2018, during which the Commonwealth introduced into evidence the notes of

testimony of Appellant’s voir dire proceeding. The Commonwealth further presented the

testimony of the assistant district attorney who represented the Commonwealth during jury

selection. The prosecutor outlined the aforementioned jury selection procedure, denied that

she acted with discriminatory intent in exercising peremptory challenges, and reiterated her

reasons for striking the prospective juror at issue.

On September 12, 2018, the trial court issued an order denying Appellant’s motion to

dismiss based on double jeopardy grounds. Appellant thereafter filed an interlocutory appeal

in the Superior Court. In its subsequent Pa.R.A.P. 1925(a) opinion, the trial court held that

Appellant was not entitled to relief as he had cited no case in which a Batson violation barred

retrial on grounds of double jeopardy, and the court’s research likewise revealed none. Trial

Court Opinion, 2/1/2019, at 5. To the contrary, the court held, the Superior Court addressed

the precise issue in Basemore II, supra, and held that a Batson violation, “without more,” does

8 As referenced herein, Commonwealth v. Basemore, 744 A.2d 717 (Pa. 2000) (“Basemore I”), involved the direct capital appeal of William Basemore, decided by this Court in 2000, relating to Basemore’s 1995 PCRA petition, which alleged a Batson violation. Following retrial, Basemore was again convicted. “Basemore II” refers to the Superior Court’s 2005 decision on appeal from Basemore’s subsequent judgment of sentence, challenging the retrial on double jeopardy grounds.

[J-53-2021] - 9 not so “subvert the truth [-] seeking process as to implicate double jeopardy concerns.” Id. at

7 (quoting Basemore II, 875 A.2d at 357.)

The trial court concluded that, consistent with Basemore II, the prosecutor’s Batson

violation should not preclude Appellant’s retrial as the prosecutorial misconduct did not involve

“concealing exculpatory evidence or completely disrupting the trial process,” as occurred in the

double jeopardy cases relied upon by Appellant. Id. at 9 (quoting Basemore II, 875 A.2d at

357). The trial court further concluded that the prosecutor’s misconduct in striking at least one

juror with discriminatory intent did not so “permeate [ ] the presentation of evidence that it was

not possible for a reasonable jury to reach a fair verdict.” Id. Finding that Appellant identified

no reason why the court should depart from the Superior Court’s holding in Basemore II, the

court asserted that it properly denied his motion to dismiss.

The Superior Court affirmed in an unpublished memorandum. Commonwealth v.

Edwards, 3429 EDA 2018, 2020 WL 4346744 (Pa. Super. July 29, 2020) (non-precedential

decision).9 The court explained that the Double Jeopardy Clauses of both the federal and state

constitutions “prohibit retrial where prosecutorial misconduct during trial provokes a criminal

defendant into moving for a mistrial.” Superior Court Opinion, 7/29/2020, at 7 (citing Oregon

v. Kennedy, 456 U.S. 667, 679 (1982); Commonwealth v. Simmons, 522 A.2d 537, 540 (Pa.

9 Prior to resolving the merits of Appellant’s claim, the Superior Court found that it had jurisdiction over the interlocutory appeal as it constituted a collateral order pursuant to Pa.R.A.P. 313(b). Superior Court Opinion, 7/29/2020, at 5 (citing Commonwealth v. Orie, 22 A.3d 1021, 1024 (Pa. 2011) (holding that orders denying a defendant’s motion to dismiss on double jeopardy grounds are appealable as collateral orders, so long as the motion is not found to be frivolous)). The Court observed that Pa.R.Crim.P. 587 directs the trial court to make a specific finding as to frivolousness where it denies a motion to dismiss on double jeopardy grounds. Pa.R.Crim.P. 587(B)(4). The Rule further directs that if the trial court denies the motion to dismiss without finding it frivolous, it shall advise the defendant on the record that the denial is immediately appealable as a collateral order. Pa.R.Crim.P. 587(B)(6). The trial court did not make a finding as to whether Appellant’s double jeopardy claim was frivolous. The Superior Court observed, however, that Appellant did not object to the trial court’s failure to do so, and this omission did not affect the appellate court’s jurisdiction over the appeal. Superior Court Opinion, 7/29/2020, at 6 n.1.

[J-53-2021] - 10 1987)). The court recognized, however, that Article 1, Section 10 of the Pennsylvania

Constitution grants broader protection than its federal counterpart as it prohibits retrial “not only

when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial,

but also when the conduct of the prosecutor is intentionally undertaken to prejudice the

defendant to the point of the denial of a fair trial.” Id., at 7 (quoting Commonwealth v. Smith,

615 A.2d 321, 325 (Pa. 1992)).

The Superior Court further acknowledged this Court’s recent decision in Commonwealth

v. Johnson, upon which Appellant relies herein. As noted, Johnson held that in addition to the

misconduct described in Smith, prosecutorial overreaching sufficient to invoke double jeopardy

protections under the Pennsylvania Constitution includes reckless misconduct that deprives

the defendant of a fair trial. Id. at 8. The Superior Court found that, pursuant to Johnson, the

type of prosecutorial misconduct that qualifies as overreaching under the state charter

encompasses “governmental errors that occur absent a specific intent to deny a defendant his

constitutional rights.” Id.

Keeping in mind this jurisprudence, the Superior Court rejected Appellant’s contention

that the Commonwealth’s Batson violation served no other purpose than to deprive him of a

fair trial and subvert the truth-determining process, thereby prohibiting retrial on double

jeopardy grounds. Id. at 8-9. The intermediate appellate court relied upon that court’s prior

decision in Basemore II, although it acknowledged that a portion of that decision was “no longer

valid” in light of Johnson. Id. at 9 (citing Basemore II, 875 A.2d at 356 (finding no support in

Pennsylvania double jeopardy jurisprudence for the notion that prosecutorial overreaching

encompasses negligent or reckless conduct by a prosecutor)). The Superior Court concluded

that Johnson did not address the overarching holding in Basemore II that “nowhere in the

approximately twenty years of Batson jurisprudence has there been any suggestion that a

Batson violation so subverts the truth-determining process as to implicate double jeopardy

[J-53-2021] - 11 concerns.” Id. at 9 (quoting Basemore II, 875 A.2d at 357). Finding itself bound by Basemore

II in this regard, the Superior Court determined that Appellant was not entitled to relief.10

This Court subsequently granted allowance of appeal to examine whether our reasoning

in Johnson applies to preclude Appellant’s retrial on double jeopardy principles where the

prosecutor acted with discriminatory intent when exercising a peremptory strike of an African

American juror in violation of Batson. An appeal grounded in double jeopardy raises a question

of constitutional law over which our standard of review is de novo. Commonwealth v. Jordan,

256 A.3d 1094, 1104-05 (Pa. 2021). This Court’s scope of review in rendering a determination

on a question of law is plenary. In re Domitrovich, 257 A.3d 702, 711 (Pa. 2021).

II. The Parties’ Arguments

Appellant argues that the Double Jeopardy Clause set forth in Article I, Section 10 of the

Pennsylvania Constitution precludes retrial where prosecutorial misconduct intentionally or

recklessly deprives a defendant of a fair trial. This standard was satisfied here, he argues,

because the prosecutor engaged in intentional misconduct by injecting racial discrimination

into the jury selection process in violation of Batson. Brief for Appellant at 18 (citing Batson at

86) (holding that a prosecutor’s intentional racial discrimination in jury selection “violates a

defendant’s right to equal protection because it denies him the protection that a trial by jury is

intended to secure”). Appellant further asserts that intentional racial discrimination during jury

selection has been held to impact the fundamental fairness of a trial. Brief for Appellant at 18-

19 (citing Basemore I, 744 A.2d at 734 (holding that intentional discrimination on the basis of

race in jury selection invokes the fundamental constitutional right to judgment by a jury of one’s

peers, is not subject to a harmless error or prejudice analysis, and instead constitutes structural

error)).

10Judge Olson joined the memorandum authored by President Judge Panella, and Judge Nichols concurred in the result.

[J-53-2021] - 12 Appellant posits that while all Batson violations impact the fundamental fairness of a

trial, the instant case is particularly egregious considering that the prosecutor exercised all eight

peremptory strikes against minorities, with seven of the eight strikes against African Americans.

He further asserts that the prosecutor attempted to conceal her purposeful discrimination by

offering “brazenly pretextual” reasons for challenging Juror 67. Brief for Appellant at 22. He

concludes that under these circumstances, it was impossible to receive a fair trial and any

retrial is barred by the double jeopardy protections guaranteed by our state charter.11

Recognizing that the United States Constitution sets the constitutional floor for double

jeopardy purposes, Appellant relies on three state cases to define Pennsylvania jurisprudence

on the issue. First, he asserts that in Commonwealth v. Smith, supra, this Court afforded

greater double jeopardy protection under the state charter. In addition to double jeopardy

barring retrial where there was prosecutorial misconduct intended to goad the defendant into

moving for a mistrial as held by the High Court in Oregon v. Kentucky, supra, Appellant

emphasizes that Smith extended Pennsylvania double jeopardy protections to bar a mistrial

where “the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to

the point of the denial of a fair trial.” Brief for Appellant at 14 (citing Smith, 61 A.2d at 325).

Appellant observes that in Smith, the Commonwealth intentionally withheld exculpatory

evidence and falsely denied an agreement with one of the main prosecution witnesses. He

11 Appellant relies upon cases that did not involve Batson challenges but, rather, other prosecutorial misconduct that violated equal protection. Brief for Appellant at 20-21 (citing United States v. Armstrong, 517 U.S. 456, 463-64 (1996) (holding that the decision to prosecute criminal charges against a defendant under a particular law may not be based on an arbitrary classification such as race or religion); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (holding that where a criminal law is enforced by illegally discriminating against persons in similar circumstances in violation of equal protection, those incarcerated under such law shall be discharged); State v. Rogan, 984 P.2d 1231 (Haw. 1999) (precluding retrial under double jeopardy principles where the prosecutor in closing argument attempted to appeal to the racial prejudice of the jury).

[J-53-2021] - 13 argues, however, that the Smith holding is not limited to that type of prosecutorial misconduct,

as this Court in Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), interpreted Smith

“broadly” to encompass “all serious prosecutorial misconduct undertaken with the purpose of

denying the defendant his constitutional right to a fair trial.”12 Brief for Appellant at 14 (citing

Martorano, 741 A.2d at 1223). Appellant relies on Martorano’s explanation that “the holding of

Smith appears to be deliberately nonspecific, allowing for any number of scenarios in which

prosecutorial overreaching is designed to harass the defendant through successive

prosecutions or otherwise deprive him of his constitutional rights.” Brief for Appellant at 15

(citing Martorano, at 1223).

Finally, Appellant relies on Johnson, where this Court held that Pennsylvania’s double

jeopardy protection prohibited retrial not only where the prosecutor engaged in intentional

misconduct, but also where the prosecution engaged in misconduct undertaken recklessly with

a conscious disregard for a substantial risk that the defendant will be deprived of a fair trial.

Appellant’s Brief at 15 (citing Johnson, 231 A.3d at 826). He acknowledges that Johnson

recognized the countervailing need for effective law enforcement, noting that not all forms of

prosecutorial misconduct would trigger double jeopardy protections. Id. at 15-16 Appellant

further observes Johnson’s sentiment that “retrial is only precluded where there is prosecutorial

overreaching,” as “overreaching signals that the judicial process has fundamentally broken

down because it reflects that the prosecutor, as representative of an impartial sovereign is

seeking conviction at the expense of justice.” Brief for Appellant at 16 (citing Johnson, 231

A.3d at 824, 826).

Appellant contends that the Batson violation at issue constitutes the overreaching

precluded by this Court in Johnson. He reiterates that the prosecution did not simply strike a

12 The misconduct engaged in by the prosecutor in Martorano involved the repeated referencing of evidence that was either inadmissible or simply nonexistent.

[J-53-2021] - 14 few African Americans from jury selection, but exercised every peremptory challenge against

racial minorities, a tactic that the Superior Court viewed as “startling.” Brief for Appellant at 21-

22 (citing Edwards, 177 A.3d at 975). Appellant concludes that even if this Court determines

that the prosecutor did not strike Juror 67 with the intentional purpose of denying him a fair trial,

the prosecutor’s racial discrimination demonstrated at least a conscious disregard of the

fundamental fairness of Appellant’s trial so as to bar retrial under Johnson. Brief for Appellant

at 23 (citing Johnson, 231 A.3d at 826 (providing that prosecutorial misconduct, “undertaken

recklessly” with a conscious disregard that the defendant would be deprived of his right to a

fair trial, precludes retrial under Pennsylvania’s Due Process Clause)). In Appellant’s view, the

prosecutor, in contravention of the double jeopardy protections of the state charter and our

jurisprudence interpreting the same, improperly sought his conviction at the expense of justice,

which cannot be countenanced by this Court. Accordingly, Appellant requests that we

reverse the Superior Court’s decision, preclude his retrial, and dismiss the criminal charges

filed against him with prejudice.13

In response, the Commonwealth contends that the lower courts properly held that the

prosecutor’s Batson violation in relation to Juror 67 does not preclude the retrial of Appellant

on double jeopardy grounds. Initially, it acknowledges that Batson violations harm more than

the individual defendant, affect the perception of fairness of the judicial system, and compel a

strong remedy. The Commonwealth maintains, however, that Appellant has not cited a single

13 An amicus curiae brief was filed in support of Appellant by the Atlantic Center for Capital Representation, advocating for a rule that precludes retrial under Pennsylvania’s Double Jeopardy Clause in circumstances where there is an egregious Batson violation that is undertaken as part of a broader pattern of systematic discrimination. An amicus curiae brief was also filed in support of Appellant by the Pennsylvania Association of Criminal Defense and Defender Association of Philadelphia. These amici seek a bright-line rule, to be applied prospectively, barring retrial after a post-sentence finding of a Batson violation to serve as a strong deterrent to racial discrimination in jury selection and to increase trial courts’ vigilance in seeking to prevent race-based peremptory challenges.

[J-53-2021] - 15 case, and its own research has revealed none, where a retrial of a criminal defendant was

precluded on double jeopardy grounds based upon a Batson violation. The Commonwealth

submits that the only relevant Pennsylvania decision on the issue is Basemore II, where the

Superior Court declined to bar retrial on double jeopardy grounds where the prosecutor had

struck nineteen African American venirepersons and created an instructional tape directing

prosecutors to exercise peremptory challenges against African Americans as a trial tactic.14

The Commonwealth maintains that while Batson violations might compel discharge in

the appropriate extreme case, the prosecutor’s Batson violation regarding Juror 67 was

remedied adequately by the grant of a new trial, and dismissal of the charges is not

constitutionally required. See Brief for Appellee at 20 (opining that, in contrast to the single

Batson violation here, the prosecution in Flowers v. Mississippi, 139 S.Ct. 2228 (2019),

engaged in repeated Batson violations and other intentional prosecutorial misconduct in at

least four of Flowers’ six trials for the same murders, which misconduct may have merited

discharge under double jeopardy principles if the double jeopardy issue had been presented

to the Court).

According to the Commonwealth, the prosecutor’s Batson violation serves as the

beginning, not the end of the double jeopardy analysis. It interprets this Court’s decision in

Johnson as precluding retrial only “where a prosecutor commits egregious prosecutorial

misconduct that constitutes overreaching so significant that it outweighs the strong societal

interest in protecting the public from crime, and where a retrial enhances the possibility that an

innocent person will be convicted.” Brief for Appellee at 15-16. To determine this requisite

egregiousness, it posits, the Johnson analysis entails a fact-specific inquiry into whether the

14 The Commonwealth further asserts that five other states offer greater double jeopardy protection under their state charters than the federal counterpart, however, none of those states have declared that a Batson violation bars retrial on double jeopardy grounds. Brief for Appellee at 36 (collecting cases). It maintains that only Hawaii has addressed the precise claim and rejected it in Commonwealth v. Daniels, 122 P.3d 796, 802 (Haw. 2005).

[J-53-2021] - 16 prosecutor overreached at the expense of justice; society’s strong interest in bringing the guilty

to justice; and the economic and psychological effect of retrial on a citizen, as measured with

the possibility that retrial may result in the conviction of an innocent person. The

Commonwealth further contends that we must recognize, as Johnson directs, that jeopardy is

not aimed primarily at penalizing the prosecutor’s misconduct.

The Commonwealth submits that application of those factors to the prosecutor’s

misconduct in the instant case demonstrates that retrial is the appropriate remedy. Examining

the specific circumstances surrounding the prosecutor’s misconduct, it highlights that the trial

court’s voir dire process precluded counsel from questioning the prospective jurors, thereby

constraining counsel’s ability to assess the venirepersons’ ability to serve on the jury. More

significantly, the Commonwealth alleges, Appellant’s focus upon the prosecutor’s exercise of

seven out of eight peremptory challenges on African Americans is misplaced, as Appellant

challenged only four of the seven strikes of African Americans. As to three of those four

challenges, the Commonwealth submits, the Superior Court agreed with the trial court’s finding

of race neutral reasons supporting each strike and did not hold that the prosecutor engaged in

purposeful discrimination in connection with any potential juror other than Juror 67. Thus, it

asserts, the record before this Court on appeal contains only a single Batson violation during

a voir dire proceeding in which the prosecutor accepted the first six of eight African Americans

as jurors. Further, the Commonwealth emphasizes that Appellant does not claim that there

were racial issues in this case or that the prosecutor failed to strike white jurors who shared

similar characteristics with those African American jurors who were alleged to have been struck

with purposeful discrimination. Thus, it contends, the circumstances surrounding the

prosecutor’s misconduct weighs heavily in favor of retrial, as opposed to dismissal.15

15 The Commonwealth discounts Appellant’s contention that because the Superior Court deemed pretextual the prosecutor’s reason for striking Juror 67, such pretext demonstrates the prosecutor’s attempt to conceal her misconduct, which weighs in favor of dismissal of the

[J-53-2021] - 17 The Commonwealth further maintains that society’s strong interest in bringing the guilty

to justice weighs in favor of retrial, not discharge, considering that there was compelling

evidence establishing Appellant’s guilt relating to eight armed robberies and one shooting that

occurred in connection with those offenses. It contends that shortly after the last robbery,

police apprehended Appellant and his conspirators in the getaway car with the guns used in

the robberies, along with some of the property that had been stolen from the victims. Further,

the Commonwealth asserts that at Appellant’s trial, the confession of Thomas was read to the

jury, which implicated Appellant in the crimes. Thus, the Commonwealth avers that the

financial and psychological costs to Appellant of a second trial weigh in favor of retrying him,

as there is little likelihood that a second trial will result in the conviction of an innocent man.

See Brief for Appellee at 33 (asserting that Appellant “is not an innocent citizen caught in the

nightmare scenario of being repeatedly tried for crimes that he did not commit”).

The Commonwealth also argues that the cases in which double jeopardy has precluded

retrial are distinguishable, as they applied the sanction of dismissal only in the most blatant

cases of egregious prosecutorial overreaching. It asserts that in Smith, the prosecutor failed

to disclose that its primary witness testified in exchange for favorable treatment in his own

criminal case, withheld exculpatory evidence, and thereafter accused the witness who revealed

the withheld evidence of fabricating his testimony. Similarly, in Johnson, the Commonwealth

asserts that the prosecutor failed to disclose DNA evidence that undermined the foundation of

his case and falsely asserted that the DNA evidence presented proved the defendant’s guilt

when there was virtually no evidence of guilt.

charges, as opposed to retrial. The Commonwealth believes this contention is unpersuasive, as every Batson violation involves a finding that the prosecutor’s proffered reason for striking a juror was pretextual; thus, dismissal would be required in every case where the prosecutorial misconduct involved a Batson violation.

[J-53-2021] - 18 The Commonwealth emphasizes Johnson’s recognition that not all intentional

prosecutorial misconduct precludes a retrial. Brief for Appellee at 30 (citing Johnson, 231 A.3d

at 822 (holding that “the sanction of dismissal of criminal charges should be utilized in only the

most blatant cases given the public policy goal of protecting the public from criminal conduct”)).

It posits that Johnson distinguished prosecutorial error warranting a new trial from prosecutorial

overreaching, which “signals that the judicial process has fundamentally broken down because

it reflects that the prosecutor, as representative of an impartial sovereign, is seeking conviction

at the expense of justice.” Brief for Appellee at 31 (quoting Johnson, 231 A.3d at 824). The

Commonwealth concludes that for all the aforementioned reasons, the prosecutor’s single

Batson violation in this case does not warrant the ultimate remedy of discharge; rather, it is

constitutionally remedied by the grant of a new trial. 16

In his reply brief, Appellant discounts the Commonwealth’s contention that the record

establishes only a single Batson violation, arguing that while the prosecutor accepted six of the

first eight African American prospective jurors on the morning of voir dire, the prosecutor struck

every African American from the second panel of prospective jurors that afternoon. This

demonstrates, he asserts, that the prosecutor was determined to prevent any more African

Americans from being selected to serve as jurors. Appellant further attempts to relitigate the

justifications for the striking of the other three African American prospective jurors challenged

16 An amicus curiae brief has been filed in favor of the Commonwealth by the Office of the Attorney General (“OAG”), requesting this Court to hold that a Batson violation may never serve to preclude retrial on grounds of double jeopardy because the right involved in a Batson claim belongs to the juror, and a criminal defendant merely has third-party standing to remedy discrimination against jurors. The OAG posits that double jeopardy discharges resulting from Batson violations may deliver an unwarranted windfall to criminal defendants, regardless of whether the defendants suffered discrimination. The Pennsylvania District Attorneys Association also filed an amicus curiae brief in favor of the Commonwealth. It contends that the single Batson violation does not demonstrate that the prosecutor struck a juror recklessly and with a conscious disregard for Appellant’s right to a fair trial, thereby barring retrial under this Court’s decision in Johnson.

[J-53-2021] - 19 on direct appeal that were not addressed by the Superior Court and are not at issue in this

appeal. Finally, he challenges any consideration of a defendant’s guilt of the criminal offenses

in the double jeopardy analysis, positing that there is no authority for the proposition that a

defendant must demonstrate innocence to obtain double jeopardy protections under the state

charter. Thus, he concludes, the strength of the Commonwealth’s case is irrelevant to the

double jeopardy determination.

III. Constitutional Principles

The issue presented in this appeal implicates the double jeopardy protection afforded

by Article I, Section 10 of the Pennsylvania Constitution, as well as our distinct jurisprudence

interpreting that provision. Because the underlying prosecutorial misconduct involves a

violation of Batson v. Kentucky, we begin by examining the United States Supreme Court’s

seminal decision in that case.17

In Batson, the High Court began its discussion by recognizing the longstanding principle

that “the State denies a black defendant equal protection of the laws when it puts him on trial

before a jury from which members of his race have been purposefully excluded.” Batson, 476

U.S. at 85 (citing Strauder v. West Virginia, 100 U.S. 303 (1880)). The Court explained that

while a defendant possesses no right to a jury composed in whole or in part of persons of his

own race, “the defendant does have the right to be tried by a jury whose members are selected

pursuant to non-discriminatory criteria.” Id. at 85-86. The purposeful discrimination in jury

selection violates the defendant’s individual right to equal protection because it “denies him the

protection that a trial by jury is intended to secure.” Id. at 86. The Court recognized that “[t]hose

17 We clarify that our task is not to determine whether a Batson violation occurred, as the Superior Court on direct appeal answered that inquiry in the affirmative, which ruling constitutes the law of the case. This appeal involves only Appellant’s subsequent motion to dismiss his prosecution on double jeopardy grounds based upon that Batson violation. The nature of the Batson violation is relevant to our double jeopardy analysis concerning whether such a violation may constitute prosecutorial overreaching so as to preclude retrial.

[J-53-2021] - 20 on the venire must be ‘indifferently chosen’ to secure the defendant’s right under the Fourteenth

Amendment to ‘protection of life and liberty against race or color prejudice.’” Id. at 86-87

(quoting Strauder, 100 U.S. at 309 (footnote omitted)).

The High Court elucidated that racial discrimination in jury selection harms not only the

criminal defendant, but also the excluded juror who was unconstitutionally discriminated

against on account of the juror’s race. Id. at 87. In fact, the Court reasoned, the harm from

discriminatory jury selection practices is inflicted upon the entire community, as such practices

“undermine public confidence in the fairness of our system of justice.” Id. The Court opined

that “[d]iscrimination within the judicial system is most pernicious because it is “a stimulant to

that race prejudice which is an impediment to securing to [African American citizens] that equal

justice which the law aims to secure to all others.” Id. at 87-88 (quoting Strauder, 100 U.S. at

308).

At issue in Batson was the application of these principles to the State’s exercise of its

privilege to strike individual jurors through peremptory challenges. The Supreme Court

explained that while a prosecutor may generally exercise peremptory challenges for any

reason, the Equal Protection Clause of the Fourteenth Amendment precludes the prosecutor

from challenging potential jurors exclusively on account of their race or based upon an

assumption that African American jurors as a group would be unable to consider impartially the

prosecution’s case against an African American defendant. Id. at 89.

Rejecting the prior evidentiary burden of establishing a prima facie case of purposeful

discrimination in jury selection set forth in Swain v. Alabama, 380 U.S. 202 (1965), the High

Court explained that to establish a Batson violation, a criminal defendant must first demonstrate

that he is a member of a cognizable racial group and that the prosecutor has exercised

peremptory challenges to remove members of the defendant’s race from the venire. Batson,

476 U.S. at 96. Once the defendant makes this prima facie showing, the burden shifts to the

[J-53-2021] - 21 State to provide a race neutral explanation to support its exercise of the challenged peremptory

strike. Id. at 97. Third, the trial court then determines whether the defendant has established

purposeful discrimination. Id. at 98. The Court concluded that “[i]n view of the heterogeneous

population of our Nation, public respect for our criminal justice system and the rule of law will

be strengthened if we ensure that no citizen is disqualified from jury selection because of his

race.” Id. at 99.

We turn now to our examination of double jeopardy principles. The federal Double

Jeopardy Clause, which, as noted, provides that no person shall “be subject for the same

offence to be twice put in jeopardy of life or limb,” U.S. CONST. amend. V, applies to the States

pursuant to the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969).

The federal Double Jeopardy Clause protects a criminal defendant from repeated prosecutions

for the same offense. Kennedy, 456 U.S. at 671. The purposes of the federal Double Jeopardy

Clause include the preservation of the finality and integrity of judgments and the denial to the

prosecution of “another opportunity to supply evidence which it failed to muster in the first

proceeding.” United States v. DiFrancesco, 449 U.S. 117, 128 (1980) (internal quotation marks

and citations omitted).

“[O]ne of the principal threads making up the protection embodied in the Double

Jeopardy Clause is the right of the defendant to have his trial completed before the first jury

empaneled to try him.” Kennedy, 456 U.S. at 673. However, double jeopardy principles were

not generally held to preclude the retrial of a defendant where the defendant terminated his

own prosecution by requesting and obtaining a mistrial due to errors in the proceedings leading

to conviction. United States v. Tateo, 377 U.S. 463, 465 (1964); see id. at 466 (providing that

“[i]t would be a high price indeed for society to pay were every accused granted immunity from

punishment because of any defect sufficient to constitute reversible error in the proceedings

leading to conviction”).

[J-53-2021] - 22 Developing federal jurisprudence recognized that even in circumstances where the

defendant moves for a mistrial, double jeopardy principles may bar retrial, depending upon the

circumstances under which the defendant’s first trial was terminated. Kennedy, 456 U.S. at

673. The articulation of those precise circumstances proved difficult. The High Court first

expressed the limiting principle in terms of prosecutorial overreaching, which it described as

prosecutorial misconduct intended to provoke a defense motion for a mistrial or actions

otherwise taken in bad faith to harass or unfairly prejudice the defendant. Lee v. United States,

432 U.S. 23, 34 (1977).

The High Court in Kennedy subsequently disapproved of the “overreaching” test, finding

that it was unworkable due to the lack of adequate standards for application. Kennedy, 456

U.S. at 675. The Kennedy Court adopted a new standard, providing that the Fifth Amendment

immunizes a defendant from retrial only where the government’s actions were “intended to

‘goad’ the defendant into moving for a mistrial.” Id. at 676.

Historically, the double jeopardy protections offered by Article I, Section 10 of the

Pennsylvania Constitution were coextensive with those of its federal counterpart. 18

Recognizing a similarity of text and policy between the state and federal Due Process Clauses,

this Court in Commonwealth v. Simons, 522 A.2d 537 (Pa. 1987), held that Pennsylvania’s

double jeopardy protections were coterminous with those afforded by the Fifth Amendment. In

Simons, this Court adopted the Kennedy rule, declaring that “double jeopardy will attach only

to those mistrials which have been intentionally caused by prosecutorial misconduct.” Id. at

540.

In Commonwealth v. Smith, this Court, for the first time, interpreted Article I, Section 10

of the Pennsylvania Constitution as affording greater protection than the federal Double

18As noted, Article I, Section 10, provides that “[n]o person shall, for the same offense, be twice put in jeopardy of life or limb[.]” PA. CONST. art. I, § 10.

[J-53-2021] - 23 Jeopardy Clause. Smith involved a scenario where the prosecutor did not engage in outward

misconduct that would goad the defendant into seeking a mistrial; thus, federal due process

protections as set forth in Kennedy would not preclude retrial. Rather, the prosecutor in

Smith concealed his efforts to subvert the truth-determining process by withholding exculpatory

physical evidence during the defendant’s first capital trial and knowingly denying the existence

of an agreement with the Commonwealth’s primary witness, which afforded the witness a

lenient sentence in exchange for his testimony against the defendant.19 Smith, 615 A.2d at

322. Further aggravating the matter, the prosecutor suggested that a police officer was

fabricating testimony when he referenced on cross-examination the existence of the physical

evidence concealed by the prosecutor. Id. at 323. The prosecutor went so far as to recommend

to the deputy executive attorney general that the police officer be investigated for perjury. For

two years while the defendant’s case was on direct appeal, the Commonwealth continued to

suppress the fact that it had the exculpatory evidence in its possession, while arguing to this

Court in connection with the defendant’s direct appeal that his death sentence should be

affirmed. Id. at 323-24.

This Court viewed the prosecutor’s behavior as constituting “prosecutorial misconduct

such as violates all principles of justice and fairness embodied in the Pennsylvania

Constitution’s double jeopardy clause.” Id. at 324. We declared that Article I, Section 10 of the

Pennsylvania Constitution “prohibits retrial of a defendant not only when prosecutorial

misconduct is intended to provoke the defendant into moving for a mistrial, but also when the

conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of

the denial of a fair trial.” Id. at 325.

19The physical evidence that was withheld in Smith was sand discovered in the murder victim’s toes, which contradicted the Commonwealth’s theory that the victim was murdered in Pennsylvania and supported the defense theory that the murder occurred in Cape May, New Jersey. Id. at 323.

[J-53-2021] - 24 This Court in Commonwealth v. Martorano, 741 A.2d 1221 (Pa. 1999), characterized

our Smith holding broadly, opining that “there is no doubt that the Court intended the Smith rule

to be one of general application.” Id. at 1223. In Martorano, this Court precluded retrial on

double jeopardy grounds where the prosecutor repeatedly referred to evidence that the trial

court had ruled inadmissible, defied the trial court’s rulings on objections, and insisted that

there was fingerprint evidence linking the defendants to the crime when the prosecutor knew

that no such evidence existed. Id.

In rejecting the Commonwealth’s contention that the Smith holding should be limited to

its facts, the Martorano Court opined that such holding “appears to be deliberately nonspecific,

allowing for any number of scenarios in which prosecutorial overreaching is designed to harass

the defendant through successive prosecutions or otherwise deprive him of his constitutional

rights.” Id. While not involving the concealment of evidence, we held that the prosecutor’s

misconduct in Martorano satisfied the Smith standard in that it “evinces the prosecutor’s intent

to deprive [the defendants] of a fair trial; to ignore the bounds of legitimate advocacy; in short,

to win a conviction by any means necessary.” Id.

This Court, however, acknowledged limits on the imposition of the ultimate remedy of

dismissal of charges. In Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001), we explained

that “[b]ecause of the compelling societal interest in prosecuting criminal defendants to

conclusion, this Court has recognized that dismissal of charges is an extreme sanction that

should be imposed sparingly and, relevant to the question here, only in cases of blatant

prosecutorial misconduct.” Id. at 1144. Unlike in Smith, the prosecutor in Burke had committed

discovery violations that did not result from deliberate prosecutorial misconduct designed to

coerce the defendant into moving for a mistrial or to deprive the defendant of a fair trial. Id. at

1146. Accordingly, the Court held that the proper remedy was the grant of a new trial, and not

dismissal of the criminal charges. Id.

[J-53-2021] - 25 We considered the scope of protection offered by Pennsylvania’s Double Jeopardy

Clause most recently in Commonwealth v. Johnson, supra, which differed from the double

jeopardy decisions preceding it, as the case did not involve intentional prosecutorial

misconduct. Notwithstanding that the acts and omissions were not made intentionally or with

a specific purpose to deprive the defendant of his rights, the record supported the trial court’s

conclusion that the prosecutorial mistakes were “unimaginable,” suggesting a reckless

disregard for the very real possibility of harm arising from the lack of thoroughness in preparing

for the first-degree murder trial. Id. at 827.

The unimaginable prosecutorial errors involved the Commonwealth’s mishandling of the

most critical pieces of trial evidence, particularly two baseball caps, one red and the other black,

each with a distinct property receipt number. Forensic analysis established that the victim’s

blood was found only on the black cap, which had a bullet hole in it, and that the red cap

contained only the DNA of the defendant. At trial, the Commonwealth proceeded on the

mistaken theory that there was only one baseball cap, the red one, which contained both the

blood of the victim and the DNA of the defendant. The prosecutor repeatedly informed the jury

that the defendant had shot the victim at close range, causing the victim’s blood to appear on

the defendant’s cap, when no evidence supported such claim. Two Commonwealth witnesses

reinforced this erroneous theory in their trial testimony.

The jury convicted the defendant of first degree murder. After the defendant brought

the Commonwealth’s mistaken theory to light on collateral review, the trial court vacated his

conviction. The defendant subsequently filed a motion to bar retrial on double jeopardy

principles, which the trial court denied on the basis that the prosecutor, while reckless, did not

act intentionally to deny the defendant a fair trial. The Superior Court affirmed.

Relying on our previous decision in Smith, we recognized in Johnson the distinction

between mere prosecutorial error and prosecutorial overreaching, as the former is an inevitable

[J-53-2021] - 26 component of the trial process, while the latter indicates that “the judicial process has

fundamentally broken down because it reflects that the prosecutor, as representative of an

impartial sovereign, is seeking conviction at the expense of justice.” Johnson, 231 A.3d at 824

(internal citations omitted). We emphasized that this “overreaching” prerequisite remains firmly

entrenched in Pennsylvania double jeopardy jurisprudence. Id.

The Johnson Court observed that the prohibition against double jeopardy is not intended

primarily to penalize prosecutorial error, but to protect citizens against: (1) the embarrassment,

expense, and ordeal of a second trial for the same offense; (2) the continued state of insecurity

and anxiety arising from a second trial; and (3) the possibility of an innocent person being found

guilty. Id. at 826 (citing Commonwealth v. Ball, 146 A.3d 755, 763 (Pa. 2016)). We reasoned

that when the prosecution engages in improper conduct “sufficiently damaging to undercut the

fairness of a trial, it matters little to the accused whether such course of conduct was

undertaken with an express purpose to have that effect or with a less culpable mental state.”

Id. at 826. Either way, the Court concluded, the prosecutorial misconduct imposes upon the

defendant the impermissible choice that double jeopardy principles seek to prevent, i.e., the

defendant choosing to give up his first jury or continue with that trial knowing that it is tainted

by prejudicial prosecutorial error. Id.

Considering the egregious facts at issue, this Court declared that under “Article I,

Section 10 of the Pennsylvania Constitution, prosecutorial overreaching sufficient to invoke

double jeopardy protections includes misconduct which not only deprives the defendant of his

right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a

substantial risk that such will be the result.” Id. We clarified that double jeopardy is, of course,

also violated under circumstances as occurred in Smith, involving prosecutorial tactics

designed specifically to provoke a mistrial or deny the defendant his right to a fair trial. Id.

Emphasizing that not all circumstances involving serious prosecutorial error implicate

[J-53-2021] - 27 Pennsylvania’s Double Jeopardy Clause, we acknowledged the countervailing societal

interests relating to the necessity for effective law enforcement. See id. (citing State v. Michael

J., 875 A.2d 510, 534 (Conn. 2005) (referring to the need for an “optimal balance between the

defendant’s double jeopardy rights and society’s interest in enforcing its criminal laws”)).

Accordingly, we reversed the Superior Court’s judgment affirming the denial of the defendant’s

motion to bar retrial and remanded for entry of an order granting such motion.20

III. Analysis

Keeping in mind these constitutional rulings, we initially decline to create a per se rule

that all Batson violations constitute prosecutorial overreaching to bar retrial under the state

charter as a matter law. As referenced at length supra, this Commonwealth’s double jeopardy

jurisprudence has not employed per se rules regarding categories of prosecutorial

transgressions. Instead, we have examined prosecutorial misconduct in terms of the level of

egregiousness established in the particular case on appeal. Strikingly absent from our

decisions in Smith, Martorano, and Johnson were any findings that the general type of

misconduct at issue (i.e., the concealment of evidence, the reference to evidence that has

either been ruled inadmissible or is non-existent, or the reckless mishandling of DNA evidence)

categorically governed whether the misconduct constituted prosecutorial overreaching so as

to preclude retrial under our state charter’s double jeopardy provision. As with all forms of

20 Justice Dougherty filed a concurring opinion, in which he opined that although we broadened the double jeopardy standard to include reckless prosecutorial disregard of a substantial risk of denial of a fair trial, “the standard continues to be a stringent one that will be satisfied only in egregious cases.” Johnson, 231 A.3d at 828. Justice Mundy filed a dissenting opinion, which this author joined. The dissent viewed the majority’s expansion of double jeopardy protections as unwarranted, finding that the previous standard protected both a defendant’s constitutional rights and society’s interest in holding offenders accountable Id. at 829. Viewing dismissal of charges as an extreme remedy reserved for the most blatant prosecutorial misconduct, the dissent opined that such category should require some finding of bad faith intentional misconduct. Id. Accordingly, the dissent concluded that the prosecutorial misconduct clearly warranted a new trial, but not the dismissal of charges.

[J-53-2021] - 28 prosecutorial misconduct, each factual predicate has its own unique circumstances and

degrees of seriousness that should be examined on a case-by-case basis when conducting

the double jeopardy analysis.

The same is true of a Batson violation, which, by definition, involves intentional

prosecutorial misconduct that violates the defendant’s individual right to equal protection

because it denies the safeguards that a trial by jury is intended to secure. Batson, 476 U.S. at

86. Deliberate racial discrimination in any form, and most definitely in the jury selection

process, is repugnant to the Equal Protection Clause of the Fourteenth Amendment and cannot

be countenanced. Id. at 89.

It is well-settled, however, that not all serious prosecutorial error that warrants the grant

of a new trial likewise merits double jeopardy protection so as to require the dismissal of

criminal charges. See Johnson, 231 A.3d at 822 (“In spite of the broader protections reflected

in Smith and Martorano, later case law clarified that not all intentional misconduct is sufficiently

egregious to be classified as overreaching and, as such, to invoke the jeopardy bar.”). This is

true due to the countervailing societal interest in enforcing criminal laws by prosecuting criminal

defendants to conclusion. See id. at 826. Thus, we reaffirm that the question for double

jeopardy purposes continues to be one of egregiousness of the challenged prosecutorial

misconduct, as opposed to a categorical finding that a general type of prosecutorial misconduct

constitutes prosecutorial overreaching that precludes retrial as a matter of law.21

21 In Basemore II, a decision that is not binding upon this Court, the Superior Court attempted categorically to distinguish Batson claims from other claims that interfere with the truth- determining process, implying that Batson claims may never establish prosecutorial overreaching and preclude retrial. Basemore II, 875 A.2d at 356. In denying double jeopardy relief in this case, the lower courts relied upon Basemore II’s proclamation that “nowhere in the approximately twenty years of Batson jurisprudence has there been any suggestion that a Batson violation so subverts the truth[-]seeking process as to implicate double jeopardy concerns.” Basemore II, 875 A.2d at 357. While Appellants and amici have failed to discover any cases since Basemore II was decided where double jeopardy barred retrial as a result of a Batson violation, the Commonwealth candidly acknowledges the potentiality for such a claim

[J-53-2021] - 29 In her responsive opinion, Justice Donohue concludes that we are accepting racial

discrimination in jury selection by refusing to declare that Pennsylvania’s Double Jeopardy

Clause requires dismissal of criminal charges in all cases involving a Batson violation. See

Donohue, J., Concurring and Dissenting Opinion, at 9 (opining that any Batson violation

qualifies as prosecutorial overreaching precluding retrial, “[t]he only way to say it does not is to

decide that some unspecified level of racial discrimination is acceptable, when the only

tolerable level is none at all”); id. at 12 (opining that “[w]e cannot make a judgment call that

some racial discrimination is acceptable”).

Respectfully, this unfair characterization is untenable, as it suggests that every state and

federal decision granting a new trial as a remedy for a Batson violation (as opposed to

precluding retrial) affirmatively accepts some unspecified level of racial discrimination in jury

selection. This proposition flies in the face of thirty-six years of jurisprudence that grants a

retrial to remedy the grave denial of equal protection that arises when the dictates of Batson

are violated. Our decision herein makes clear that distinct standards govern Batson claims

and claims alleging violations of double jeopardy under the Pennsylvania Constitution. There

is simply no authority establishing that satisfaction of the former, as a matter of law, satisfies

the latter.

In determining whether a Batson violation qualifies as prosecutorial overreaching,

thereby requiring the dismissal of charges, we first examine the relevant facts and

circumstances surrounding the prosecutor’s misconduct. Here, as noted, the trial court

conducted the voir dire questioning without counsel’s participation and removed six jurors for

in extreme circumstances, unlike the instant case. See Brief for Appellee at 20 (referencing the circumstances that arose in Flowers v. Mississippi, supra, where the prosecutor engaged in repeated Batson violations and other intentional prosecutorial misconduct in at least four of Flowers’ six trials for the same murders, as an example of a Batson violation that could potentially preclude retrial on double jeopardy grounds). Today, we decide only the case before us and hold that the Batson violation at issue here did not constitute prosecutorial misconduct that intentionally or recklessly deprived Appellant of his right to a fair trial.

[J-53-2021] - 30 cause. Counsel thereafter selected jurors using a “pass the pad” method, pursuant to which

each counsel would indicate on the jury strike list whether they accepted or struck each

prospective juror. The jury strike list indicated each prospective jurors’ race and gender.

Significantly, in connection with the morning panel of jurors, the prosecutor accepted six

of the first eight African Americans on the panel, and exercised her peremptory challenges by

striking two African Americans. Jury Strike List, 10/28/2014. Relating to the afternoon panel

of jurors, the prosecutor struck five African Americans and one juror whose race was indicated

as “Other.” Id. Accordingly, the prosecutor utilized all eight peremptory challenges on

individuals of a minority race, with seven of the eight strikes against African Americans.

Notably, Appellant did not challenge all seven peremptory strikes exercised by the

Commonwealth against African Americans during voir dire and did not contend that the seven

strikes were racially driven. Thus, we should not view all seven strikes as though they were

exercised in a racially discriminatory manner. Rather, Appellant challenged only four of the

prosecutor’s peremptory strikes of African Americans, and the trial court, the tribunal that

observed the jury selection process firsthand, accepted as race neutral all the reasons the

prosecutor offered for striking these jurors, and denied the Batson challenge, finding no

evidence of purposeful discrimination.

In reversing the trial court’s ruling, the Superior Court concluded that the record did not

support the trial court’s finding of no purposeful discrimination in relation to Juror 67 because:

(1) the jurors’ race and gender were listed on the jury strike sheet;22 (2) the probability of the

22 While the Superior Court relied upon the designation of the potential juror’s race and gender on the jury strike list to find purposeful discrimination, these designations do not render the prosecutor’s misconduct more egregious for purposes of double jeopardy because the prosecutor played no role in crafting the jury strike sheet. See N.T., 8/15/2018, at 8-9 (responding “No, of course not,” when the prosecutor was asked if she requested the court crier to keep track of the potential jurors’ race and gender); N.T., 10/28/2014, at 89 (indicating that the race and gender designations on the jury strike sheet were made unbeknownst to the trial court).

[J-53-2021] - 31 Commonwealth striking such a disproportionate number of African Americans by chance was

low; and, (3) the prosecutor’s explanation for striking Juror 67 was “wholly unpersuasive,” as

the prosecutor indicated that she struck the juror due to her inattentiveness to the proceedings

as demonstrated by her leaning back in a cavalier manner, after the trial court had instructed

the venire to “sit back and relax.” Edwards, 177 A.3d at 96 (citing N.T., 10/28/2014, at 4).

We conclude that the nature of the Batson violation that occurred here favors retrial,

rather than dismissal of the charges, because Appellant has not demonstrated prosecutorial

overreaching, which signals that the judicial process has fundamentally broken down.

Johnson, 231 A.3d at 824 (distinguishing between mere prosecutorial error and prosecutorial

overreaching, which indicates that the “the judicial process has fundamentally broken down

because it reflects that the prosecutor, as representative of an impartial sovereign, is seeking

conviction at the expense of justice”).

The record before us demonstrates that the prosecutor exercised a single peremptory

challenge with discriminatory intent after having accepted six of the first eight African

Americans on the jury. This misconduct, undeniably warranting a new trial, does not

demonstrate an intentional or reckless disregard of the fundamental fairness of Appellant’s trial,

as occurred in Smith, Martorano, and Johnson, so as to warrant dismissal of criminal charges.

We reach this conclusion in recognition that the prohibition against double jeopardy is not

intended primarily to penalize prosecutorial error. Johnson, 231 A.3d at 826.

V. Conclusion

While reprehensible and certainly worthy of the grant of a new trial, the prosecutorial

misconduct that occurred herein in the form of a Batson violation does not constitute the most

egregious prosecutorial misconduct warranting double jeopardy relief under Article I, Section

10 of the Pennsylvania Constitution. The prosecutor’s Batson violation does not constitute a

prosecutorial tactic designed specifically to provoke Appellant into seeking a mistrial. Further,

[J-53-2021] - 32 the prosecutor’s Batson violation does not demonstrate that the prosecutor intentionally

deprived Appellant of his right to a fair trial. Finally, the prosecutor’s Batson violation was not

undertaken recklessly with a conscious disregard for a substantial risk that Appellant would be

denied a fair trial. Accordingly, we affirm the judgment of the Superior Court, which affirmed

the trial court’s order denying Appellant’s motion to dismiss the criminal charges against him

on double jeopardy grounds.

Justice Todd joins the Opinion Announcing Judgment of the Court.

Justice Mundy files a concurring opinion in which Justice Dougherty joins.

Justice Donohue files a concurring and dissenting opinion in which Justice Wecht joins.

Former Justice Saylor did not participate in the consideration or decision of this matter.

[J-53-2021] - 33