Commonwealth v. Edwards, D., Aplt.

[J-53-2021] [OAJC: Baer, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

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

v. : Order entered on September 11,

: 2018 in the Court of Common Pleas,

: Philadelphia County, Criminal

DERRICK EDWARDS, : Division at Nos. CP-51-CR-0002611-

: 2013, CP-51-CR-0002614-2013, CP-

Appellant : 51-CR-0002617-2013, CP-51-CR-

: 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

CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE DECIDED: April 12, 2022

The Opinion Announcing the Judgment of the Court (“OAJC”) recognizes that a

prosecutor striking a juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986)

(holding that striking even one potential juror for racial reasons violates the Equal

Protection Clause), definitionally involves “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.” OAJC at 30. We granted allowance of appeal to

address whether that intentional racial discrimination justifies barring retrial pursuant to

the Pennsylvania Constitution’s Double Jeopardy Clause.1 I concur with the Court’s

important conclusion that Pennsylvania’s Double Jeopardy Clause can bar retrial for

Batson violations. I respectfully dissent because I find no basis to treat some Batson

violations as more excusable than others. Every Batson violation as an intentional act

of racial discrimination2 which has no place in our justice system. I would hold that

discharge is always required when a Batson violation occurs.

I.

Batson is rooted in a case decided 142 years ago, Strauder v. West Virginia, 100

U.S. 303 (1879), which “explained that the central concern of the recently ratified

Fourteenth Amendment was to put an end to governmental discrimination on account of

race.” Batson, 476 U.S. at 85 (citing Strauder, 100 U.S. at 306-07). Neither the

Nation’s history of racial discrimination nor the efforts to reverse it is amenable to a tidy

summary. It suffices to say that the lofty aim of Strauder was not self-executing and

courts had to maintain vigilance. Batson itself proves the point as that case overruled

parts of Swain v. Alabama, 380 U.S. 202, 219 (1965). In Swain, the defendant argued

that state prosecutors intentionally excluded black jurors. The evidence established that

an average of six to seven black men were in the pool of potential jurors in that county,

1 “No person shall, for the same offense, be twice put in jeopardy of life or limb[.]” PA.

CONST. art. I, § 10.

2 “Equal justice under law requires a criminal trial free of racial discrimination in the jury

selection process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019). Thus, its

protections extend to members of any race. “A defendant of any race may raise

a Batson claim, and a defendant may raise a Batson claim even if the defendant and

the excluded juror are of different races.” Id. at 2243. See also Powers v. Ohio, 499

U.S. 400 (1991) (holding that a white defendant successfully established Batson

violation when prosecutors struck African American jurors based on race).

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but none served as an actual juror since about 1950. In Swain’s case, eight black men

were potential jurors but two were excused and six struck by the prosecutor. Id. at 205.

Swain alleged that (1) the use of peremptory challenges was unconstitutional and (2)

that the consistent and systematic exclusion of black jurors was unconstitutional.

Regarding the systematic exclusion of black jurors, the Court decided that even if Swain

established a prima facie case, “it is readily apparent that the record in this case is not

sufficient to demonstrate that the rule has been violated by the peremptory system as it

operates in Talladega County.” Id. at 224. Swain therefore recognized that the Equal

Protection Clause would be violated if a prosecutor used a peremptory strike for a racial

reason but essentially made it impossible for a defendant to prove it.

Batson entrenched Swain’s Equal Protection Clause holding while overruling its

proof requirements. The cases applying Swain “placed on defendants a crippling

burden of proof,” which “largely immun[ized]” peremptory challenges from constitutional

scrutiny. Batson, 476 U.S. at 92. The inability to prove a constitutional violation was so

pervasive that Justice White, who authored Swain, filed a concurring opinion agreeing

that the proof requirements of Swain should be overruled. The Swain decision “should

have warned prosecutors that using peremptories to exclude blacks on the assumption

that no black juror could fairly judge a black defendant would violate the Equal

Protection Clause,” but the “practice of peremptorily eliminating blacks from petit juries

in cases with black defendants remains widespread, so much so that I agree that an

opportunity to inquire should be afforded when this occurs.” Id. at 101 (White, J.,

concurring). The Batson Court thus allowed defendants to make individual challenges

to peremptory strikes.

[J-53-2021] [OAJC: Baer, C.J.] - 3

II.

In the case before us, Derrick Edwards established a Batson violation and

received a new trial. He now seeks discharge. To resolve this appeal, a critical

question involves how the Equal Protection Clause violation interacts with the Double

Jeopardy Clause contained in our charter. Batson, like the cases before it, was

explicitly grounded in the Fourteenth Amendment and its Equal Protection Clause, not

the Sixth Amendment right to a fair trial. See, e.g., Batson, 476 U.S. at 84 n.4 (“We

agree with the State that resolution of petitioner’s claim properly turns on application of

equal protection principles and express no view on the merits of any of petitioner’s Sixth

Amendment arguments.”); id. at 93 (“As in any equal protection case, the burden is, of

course, on the defendant who alleges discriminatory selection of the venire to prove the

existence of purposeful discrimination.”) (quotation marks and citation omitted); id. at

102 (“The Court’s opinion cogently explains the pernicious nature of the racially

discriminatory use of peremptory challenges, and the repugnancy of such discrimination

to the Equal Protection Clause.”) (Marshall, J., concurring).

It seems clear that the United States Constitution does not compel discharge

upon a finding of a Batson violation. The closing paragraph of Batson stated, “If the trial

court decides that the facts establish, prima facie, purposeful discrimination and the

prosecutor does not come forward with a neutral explanation for his action, our

precedents require that petitioner's conviction be reversed.” Batson, 476 U.S. at 100.

This certainly goes far to explain why the parties do not cite a case in which any court

has barred retrial for a Batson violation. See Commonwealth’s Brief at 16 (“Our

[J-53-2021] [OAJC: Baer, C.J.] - 4

research has uncovered no opinion that has discharged a defendant as the remedy for

a Batson violation, nor do defendant and his amici cite any.”).

But this case does not ask us what the United States Constitution requires.

Instead, Edwards relies on a line of cases interpreting the Pennsylvania Constitution.

Our precedents diverge from the United States Supreme Court regarding what types of

prosecutorial acts warrant discharge instead of retrial. Per Oregon v. Kennedy, 456

U.S. 667 (1982), “[p]rosecutorial conduct that might be viewed as harassment or

overreaching, even if sufficient to justify a mistrial on defendant's motion … does not bar

retrial absent intent on the part of the prosecutor to subvert the protections afforded by

the Double Jeopardy Clause.” Id. at 675-76. It is “[o]nly where the governmental

conduct in question is intended to ‘goad’ the defendant into moving for a mistrial” that a

defendant is permitted to raise the double jeopardy bar. Id. at 676.

This Court departed from Kennedy in Commonwealth v. Smith, 615 A.2d 321

(Pa. 1992), wherein we barred retrial based on the prosecutor’s intentional withholding

of exculpatory evidence. The Smith Court expressed uncertainty as to whether the

Kennedy Court would bar retrial based on federal law. Id. at 325. Instead, the Smith

Court grounded its holding in the Pennsylvania Constitution.

We now hold that the double jeopardy clause 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. Because the prosecutor’s conduct in this case was

intended to prejudice the defendant and thereby deny him a

fair trial, appellant must be discharged on the grounds that

his double jeopardy rights, as guaranteed by the

Pennsylvania Constitution, would be violated by conducting

a second trial.

[J-53-2021] [OAJC: Baer, C.J.] - 5

Id.

As signaled by the Smith Court’s declaration that “our view is that the

prosecutorial misconduct in this case implicates the double jeopardy clause of the

Pennsylvania Constitution,” id., determining whether a prosecutor “overreached”

typically involves judgment calls. Our decision in Commonwealth v. Martorano, 741

A.2d 1221 (Pa. 1999), illustrates that point. Applying Smith, this Court granted

discharge based on the aggregate effect of the prosecutor’s misconduct, which

included: consistent references to evidence that the trial court ruled was inadmissible,

defying other court rulings, and insisting fingerprint evidence linked the defendant to the

crime despite the fact no such evidence existed. Justice Saylor dissented, arguing that

the Smith rule “lacks sufficient definition to serve as a workable standard,” and predicted

“that reviewing courts will have differing interpretations as to whether application of the

bar is warranted, thus resulting in uneven application.” Id. at 1224, 1226 (Saylor, J.,

dissenting). Indeed, the Kennedy Court acknowledged that the high Court’s “earlier

opinions” had “suggest[ed] a broader rule,” and criticized those earlier formulations as

“broad and somewhat amorphous[.]” Kennedy, 456 U.S. at 676-78.

Most recently, in Commonwealth v. Johnson, 231 A.3d 807, 819 (Pa. 2020), we

concluded that under 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. at 826.

This supplements Smith’s holding “relating to tactics specifically designed to provoke a

mistrial or deny the defendant a fair trial.” Id. Simultaneously, those decisions “clarified

[J-53-2021] [OAJC: Baer, C.J.] - 6

that not all intentional misconduct is sufficiently egregious to be classified as

overreaching” to bar retrial. Id. at 822. The remedy largely remains a judgment call.

III.

On the important point of whether “overreaching” encompasses Batson

violations, I concur with the OAJC. We explained in Johnson that Martorano “clarifi[ed]

that Smith’s holding was not limited to its facts, but encompassed any bad-faith

misconduct intended to deprive the defendant of a fair trial.” Johnson, 231 A.3d at 824

n.11. In this regard, “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.” Martorano, 741 A.2d at 1223. A Batson violation, bad faith

conduct intended to deprive the defendant of a fair trial, surely qualifies as prosecutorial

overreaching that deprives the defendant of his constitutional rights. On this point, I

agree with the dissent in Commonwealth. v. Basemore, 875 A.2d 350 (Pa. Super. 2005)

(“Basemore II”), which argued for the outcome advanced by Edwards today:

Batson violations impact upon the “fundamental fairness of a

trial.” Basemore, supra, 744 A.2d at 734. Racial

discrimination in jury selection is more than trial error; it

results in a structural defect, Tankleff v. Senkowski, 135 F.3d

235, 248 (2nd Cir.1998), affecting the framework within

which the trial proceeds, depriving a defendant of the “basic

protections” that a trial is designed to protect, and

undermining the reliability of the verdict. Basemore, 744

A.2d at 734, referring to Neder v. United States, 527 U.S. 1,

119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Active discrimination

by litigants on the basis of minority stereotypes during jury

selection “invites cynicism respecting the jury’s neutrality and

its obligation to adhere to the law.” J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 114 S.Ct. 1419, 1427, 128 L.Ed.2d 89

(1994) citing Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,

113 L.Ed.2d 411 (1991).

[J-53-2021] [OAJC: Baer, C.J.] - 7

Id. at 358 (Joyce, J., dissenting).

A Batson violation is an intentional act and represents a conscious act of racial

discrimination. It is, by definition, a bad faith decision. And the entire point of exercising

a peremptory strike in a racially discriminatory fashion is to remove a juror whom the

prosecutor thinks will be an obstacle to a conviction. It is true that every peremptory

strike by the prosecution is designed to tip the scales towards a conviction, but striking a

juror on the basis of race in violation of Batson is, as a matter of law, not a tool in the

toolbox for seeking an advantage or removing an obstacle.

Our decision in Smith approvingly quoted Commonwealth v. Starks, 416 A.2d

498, 500 (Pa. 1980), which explained that “overreaching is not an inevitable part of the

trial process and cannot be condoned. It signals the breakdown of the integrity of the

judicial proceeding, and represents the type of prosecutorial tactic which the double

jeopardy clause was designed to protect against.” Molding a jury based on race

pollutes the entire proceeding, both from the perspective of the defendant as well as the

unconstitutionally struck juror who suffers the indignity of racial discrimination. But it not

only signals a breakdown of the specific trial. It also harms society. A jury must be

chosen indifferently “to secure the defendant’s right under the Fourteenth Amendment

to ‘protection of life and liberty against race or color prejudice.’ ” Batson, 476 U.S. at 87

(citation omitted). The Powers v. Ohio Court remarked that “[j]ury service preserves the

democratic element of the law, as it guards the rights of the parties and ensures

continued acceptance of the laws by all of the people.” Powers v. Ohio, 499 U.S. at

407. A Batson violation, an intentional act of racial discrimination, is easily

encompassed by Smith and its progeny.

[J-53-2021] [OAJC: Baer, C.J.] - 8

In my view, where the OAJC fatally missteps is by concluding that only some

Batson violations qualify as overreaching. Despite the conclusive finding that Batson

was violated, the OAJC finds that Edwards “has not demonstrated prosecutorial

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

OAJC at 33. Respectfully, I cannot agree with this notion. Any Batson violation causes

a fundamental breakdown. The 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.

The OAJC responds that this is an unfair characterization because “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.” Id. at 31.3 Respectfully, this response

misapprehends our task. We are not choosing a remedy for this Batson violation.

Instead, we are asked to decide whether the Pennsylvania Double Jeopardy Clause’s

enhanced protections extends to Batson violations, and then, if so, what the remedy

should be. The fact that other courts have not recognized a Double Jeopardy Clause

violation and thus have not required discharge for a violation of Batson is irrelevant for

3 The courts to which the OAJC refers did not recognize a Baston violation as a

subversion by the prosecutor of the protections afforded by the Double Jeopardy Clause

and thus, retrial was the established remedy for the violation. Unlike the OAJC, those

courts were not selectively applying alternative remedies for recognized Batson

violations.

[J-53-2021] [OAJC: Baer, C.J.] - 9

purposes of determining whether the Pennsylvania Constitution demands a different

result.4

4 Justice Mundy claims that a per se rule is not warranted because “the error itself”

should determine the remedy, and additionally points out that “[i]n other instances of

prosecutorial misconduct, the remedy is the same whether it is discovered during trial or

post-conviction.” Concurring Op. at 3 (Mundy, J.). For example, the Concurrence notes

that evidentiary errors, whether identified by the trial court or on appeal, result in a new

trial. However, trial errors are simply not comparable to a prosecutor committing a

Batson violation. See Burks v. United States, 437 U.S. 1, 15 (1978) (explaining that

“[v]arious rationales have been advanced to support the policy of allowing retrial to

correct trial error”). Nor is the fact that discharge is unavailable “when the Batson

violation was remedied pretrial,” Concurring Op. at 3, a forceful point as jeopardy has

yet to attach; there cannot be “double jeopardy” when the defendant was never in

jeopardy. This attempt to manufacture an incongruity additionally fails because the

defendant who is judged by a tainted panel has suffered a harm that the defendant who

received a new jury panel has not. To the extent a per se rule encourages trial courts to

be more vigilant in policing Batson claims, all the better. Moreover, the statistics cited

by Justice Mundy highlighting the relatively few successful Batson challenges reported

in Pennsylvania since that case was decided (Id. at 2 n.3) militate in favor of recognizing

discharge for the violation of our Double Jeopardy Clause, not against it.

Additionally, the Concurrence’s weighing Batson violations against society’s interest in

prosecuting crime avoids the question of whether a prosecutor’s intentional racially

discriminatory strike qualifies as “overreaching.” Our Johnson opinion cogently

explained when prosecutorial errors cross the line:

[W]hereas prosecutorial errors are an “inevitable part of the

trial process,” prosecutorial overreaching is not. Just as

important, 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. As such … it is

the very type of “tactic which the double jeopardy clause was

designed to protect against.”

Commonwealth v. Johnson, 231 A.3d 807, 824 (Pa. 2020) (citations omitted). The

Concurrence’s description of a Batson violation as “undoubtedly harmful,” Concurring

Op. at 3 n.3, is simply an alternative way of saying it cannot amount to “overreaching.”

Aligning Batson errors with other errors, like erroneous evidentiary rulings that do not

warrant discharge, treats Batson violations as an inevitable part of our judicial system.

[J-53-2021] [OAJC: Baer, C.J.] - 10

Once the OAJC determined that a Batson violation can violate the Double

Jeopardy Clause warranting discharge, it logically follows that all Batson violations

require discharge. Otherwise, we are requiring courts to engage in the unseemly task

of deciding just how much discrimination is acceptable in the jury selection process as

reflected by the belief that “[t]he nature of the Batson violation is relevant to our double

jeopardy analysis concerning whether such a violation may constitute prosecutorial

overreaching.” OAJC at 21 n.17. The “nature of” every Batson violation is a racially

discriminatory act and thus the OAJC must be saying that some of these acts are more

acceptable than others. Thus, while the OAJC claims its decision “makes clear that

distinct standards govern Batson claims and claims alleging violations of double

jeopardy,” id. at 31, that clarity exists only within that declaration. It is impossible for me

to comprehend the notion that intentional racial discrimination by a prosecutor, a

minister of justice, is ever anything but so reprehensible that it always qualifies as

“overreaching.” Whereas cases like Smith and Martorano quintessentially involve

judgment calls, a finding of a Batson violation is, per se, overreaching and retrial must

be barred.

Instead of accepting, as we must, the unappealed decision of the Superior Court

and its finding of a Batson violation,5 the OAJC attempts to avoid the seemingly

inevitable conclusion that any Batson violation qualifies as overreaching by relitigating

whether the prosecutor really committed a Batson violation. True, the OAJC

acknowledges that the Superior Court’s conclusion that Edwards established a Batson

5No petition for allowance of appeal was filed by the Commonwealth. See Docket, 436

EDA 2015.

[J-53-2021] [OAJC: Baer, C.J.] - 11

violation constitutes the law of the case. However, its opinion then attempts to

undermine the Superior Court’s conclusion:

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.

OAJC at 32 (emphasis added).

This is an apologia for the prosecutor’s use of peremptory challenges and

suggests that the Superior Court may have reached the wrong result.6 If the OAJC is

6 To the extent that the OAJC suggests that the three other peremptory strikes were not

discriminatory, the Superior Court had no need to address those other strikes. The only

thing that the Superior Court found was that the prosecution offered race-neutral

reasons for all four peremptory strikes at issue. Thus, the relitigation is additionally

flawed because it does not address the possibility that the other three strikes were also

racially discriminatory. In this regard, it is important to point out that the Superior Court

pertinently noted the prosecutor’s use of all peremptory challenges to strike black jurors,

stating that “the probability of the Commonwealth striking such a disproportionate

number of African–Americans by chance is extremely low.” Commonwealth v.

Edwards, 177 A.3d 963, 975 (Pa. Super. 2018).

[J-53-2021] [OAJC: Baer, C.J.] - 12

indeed accepting the finding of a Batson violation as the law of this case then I cannot

endorse the implicit notion that Batson violations are somehow less reprehensible if only

one act of racial discrimination took place.7 Respectfully, the OAJC errs by concluding

that Batson violations exist on a spectrum, with some resulting in prosecutorial

overreaching and discharge while other violations do not. “In the eyes of the

Constitution, one racially discriminatory peremptory strike is one too many.” Flowers v.

Mississippi, 139 S. Ct. 2228, 2241 (2019).

IV.

All Batson violations should result in discharge. Each such violation represents

an act of intentional racial discrimination that has no place in our judicial system. We

cannot make a judgment call that some racial discrimination is acceptable. Just as

Justice White agreed in Batson that the time had come to overrule portions of the Swain

case that he penned, the time has come for this Court to declare that, under the

Pennsylvania Constitution, a mere retrial is not enough. Batson exists because Swain

failed to stamp out racial discrimination in the jury selection process. And thirty-five

years later, we see that Batson violations still occur. If discharge is warranted for

Batson violations—and the OAJC agrees that it is—it is warranted in all Batson cases. I

cannot endorse the notion that the judicial system should decide, as a matter of law, just

how much racial discrimination by a prosecutor is tolerable in jury selection on a case-

by-case basis. The only acceptable answer is none. I would therefore adopt a rule

where a defendant is tried by a jury tainted in composition by any Batson violation,

7 In a criminal trial where a unanimous verdict is required for conviction, the impact of

any one juror has an obvious material effect.

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Pennsylvania’s Double Jeopardy Clause would be violated by retrial and thus the

defendant must be discharged.

Justice Wecht joins this concurring and dissenting opinion.

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