[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-
Appellant : 2013, CP-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 OPINION
JUSTICE MUNDY DECIDED: April 12, 2022
As the remedy for a Batson violation has always been the grant of a new trial, I
concur in the result reached in the opinion announcing the judgment of the court but stay
distanced from its analysis. In my view, while Commonwealth v. Johnson, 231 A.3d 807
(Pa. 2020) expanded double jeopardy protections from solely intentional conduct to also
include reckless prosecutorial misconduct, it has no impact on the remedy for a Batson
violation.
In Johnson, this Court discussed the varying degrees of prosecutorial misconduct
that can occur during trial, and to what extent such conduct implicates the truth-seeking
process, depriving a defendant of a fair trial, and thus implicating double jeopardy. A
Batson violation is a wholly separate violation with a prescribed analysis and set remedy.1
The opinion announcing the judgment of the court engages in separate discussions
regarding the constitutional principles of Batson violations and double jeopardy
implications of prosecutorial misconduct during trial; this separation illustrates the
distinctiveness of these two principles. I would decline the invitation to comingle these
disparate principles by assessing the egregiousness of the prosecutorial misconduct after
the finding of a Batson violation on appeal in an attempt to assign a degree of
egregiousness to the prosecutor’s discriminatory intent.
Notably, Appellant did not cite, and the Commonwealth could not find through its
own research, a single case where a retrial was precluded based on a Batson violation.
This underscores what the Superior Court recognized on remand in Basemore II, that
“nowhere in the [decades] of Batson jurisprudence has there been any suggestion that a
Batson violation so subverts the truth[-]seeking process as to implicate double jeopardy
concerns.” Commonwealth v. Basemore, 875 A.2d 350, 357 (Pa. Super. 2005).
It is unsurprising that the double jeopardy bar does not apply in the Batson context,
because Batson claims must be raised during voir dire and jeopardy does not attach
until after a jury is fully seated and sworn. Downum v. United States, 372 U.S. 734
(1963). The analysis adopted in the opinion announcing the judgment of the court would
only apply in the limited number of cases, such as here, where the appellate court,
reviewing the record of voir dire, disagrees with the factual finding of the trial court that
1 As noted in the opinion announcing the judgment of the court, we are not tasked with
assessing whether a Batson violation occurred. This appeal solely deals with whether
the remedy for such violation should be to dismiss the charges on double jeopardy
grounds.
[J-53-2021] [OAJC: Baer, C.J.] - 2
observed the proceeding, rendered credibility assessments, and concluded in the first
instance that the strike in question was race neutral and a Batson violation did not occur.2
Thus, providing a double jeopardy bar for some Batson violations would lead to
inconsistent results, in that this prescribed remedy simply would not apply in many
categories of cases, such as when the Batson violation was remedied pretrial, was
committed by the defense, or happened in the civil context. See, e.g., Edmonson v.
Leesville Concrete Co., Inc., 500 U.S. 614, 618-19 (1991) (finding Batson applies in civil
cases). In fact, the retrial bar would potentially only apply in the instance presented here
— where an alleged Batson violation was not remediated pretrial — such that the
repercussion for the intentional discrimination Batson condemned would depend not on
the fact of the violation, but on the circumstance and posture of the aggrieved party's
case. It should be the error itself, and not the procedural posture that determines the
remedy. In other instances of prosecutorial misconduct, the remedy is the same whether
it is discovered during trial or post-conviction. Similarly, the remedy for an evidentiary
challenge is the same whether it was granted by the trial court or remedied later on
appeal: the defendant is given a trial untainted by the evidentiary error. In my view, in all
situations where Batson has been violated the defendant should be afforded a trial before
an appropriately selected jury.3
2The situation presented here occurs in only a small subset of cases, as Batson violations
are typically remedied pretrial. Indeed, appellant's amici notes that, in the thirty-five
years since Batson was decided, there have been a total of three hundred and fourteen
post-trial Batson challenges reported in Pennsylvania — an average of less than ten per
year — and of those, only twenty-three proved successful. See Brief for Amici Curiae,
PA Association of Criminal Defense Lawyers and Defender Association of Philadelphia,
at 12-13.
3Justice Donohue reaches the opposite conclusion and would instead bar retrial in every
case where a defendant is tried by a jury composed in violation of Batson. Concurring
and Dissenting Op. at 13-14. However, this Court has recognized that “the jeopardy
[J-53-2021] [OAJC: Baer, C.J.] - 3
As such, I would adhere to the long-standing precedent that the remedy for a
Batson violation is a new trial. Accordingly, I would affirm the Superior Court, which
affirmed the trial court’s denial of Appellant’s motion to dismiss the charges on double
jeopardy grounds.
Justice Dougherty joins this concurring opinion.
prohibition is not intended to penalize prosecutorial error[.]” Johnson, 231 A.3d at 826.
Moreover, a key limitation to the jeopardy bar is “the strong societal interest in bringing
the guilty to justice[.]” Id at 822. While Batson violations are undoubtedly harmful, a new
trial vindicates the defendant’s interest in a fair trial while respecting society’s overarching
interests and the public policy goal of protecting the public from criminal conduct.
[J-53-2021] [OAJC: Baer, C.J.] - 4