DISSENTING OPINION BY
JOYCE, J.:¶ 1 I disagree with the Majority’s finding that the double jeopardy clause of the Fifth Amendment of the United States Constitution and Article 1, Section 10 of the Pennsylvania Constitution does not bar Appellant’s retrial when the prosecutor engaged in egregious prosecutorial misconduct. The Majority states that “Appellant has provided no persuasive legal support for his claim that a Batson violation, which is not addressed until after jeopardy attaches 12, without more, constitutes the type of prosecutorial misconduct that Smith, Martorano, Breit and Rogan were designed to remedy.” Majority opinion, at 10. It is my opinion that because of the very nature of a Batson violation, that more need not be provided to establish egregious prosecutorial misconduct to warrant the application of the double jeopardy clause and bar retrial.
¶2 There is a dearth of case law that specifically discusses the interplay between the equal protection and double jeopardy clauses of the United States or Pennsylvania Constitutions. Indeed, most decisions involve a variance of alleged prosecutorial misconduct stemming from a discovery violation or some prosecutorial tactic taken during the course of the trial. These matters mostly constitute due process questions, the establishment of which will then spawn a double jeopardy issue. Nonetheless, the standard for ascertaining whether prosecutorial misconduct exists so to mandate the protections of the double jeopardy clause applies to the due process and equal protection clauses equally. See Commonwealth v. Martorano, 559 Pa. 533, 741 A.2d 1221, 1223 (1999) (Smith’s [infra] holding is not limited to cases of concealment of evidence but allows for a number of scenarios of prosecutorial overreaching so to apply double jeopardy).
¶ 3 The substantive law as it pertains to Batson states that
although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason related to his or her view concerning the outcome of the case, the equal protection clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the state’s case against the black defendant. [Batson] at 87, 106 S.Ct. at 1718, 90 L.Ed.2d at 81. Racial discrimination in selection of jurors, the court said, harms not only the accused and the potential jurors and but also the public's confidence in the fairness of our system of justice. Id.
*358Commonwealth v. Rico, 551 Pa. 526, 711 A.2d 990, 992 (1998). Batson violations impact upon the “fundamental fairness of a trial.” Basemore, supra, 744 A.2d at 784. 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). Where the Commonwealth successfully sought the imposition of the death penalty, the sentence of death is also rendered unreliable. Basemore, 744 A.2d at 734. I now turn to the issue of whether a prosecutor who abuses these principles commits the type of prosecutorial misconduct that would bar retrial.
¶ 4 In Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), our Supreme Court set forth the test for determining when the double jeopardy clause prevents an accused from being subject to a second trial.13 The Court státed:
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.
Smith, 615 A.2d at 325. “In order to raise double jeopardy implications, prosecutorial misconduct must be deliberate, undertaken in bad faith and with a specific intent to deny the defendant a fair trial.” Commonwealth v. Santiago, 439 Pa.Super. 447, 654 A.2d 1062, 1085 (1994). Additionally, “[t]he double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant subjected to the kind of prose-cutorial misconduct intended to subvert a defendant’s constitutional rights.” Commonwealth v. Lambert, 765 A.2d 306, 327 (Pa.Super.2000) citing Smith, supra. “In contrast to prosecutorial error, 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.” Martorano, supra, 741 A.2d *359at 1222 (citation omitted). In reviewing this claim, I am also mindful of the compelling societal interest in prosecuting criminal defendants to conclusion. To this end, our Supreme 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.” Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1144 (2001).
¶ 5 In this case, the prosecutorial misconduct which forms the basis of the double jeopardy claim was the prosecutor’s exercise of preemptory challenges to exclude African-Americans from the jury. Upon review of the transcript of the “McMahon” videotapes, our Supreme Court described McMahon’s teachings as follows:
We have reviewed the transcript presented to determine the extent to which its contents, if established as accurate, would support such a [Batson ] claim. In the document: the purpose of voir dire, namely, to select a fair and impartial jury, is denigrated as “ridiculous,” in favor of the selection of jurors who will be biased in favor of conviction; various racial and gender stereotypes are described and offered as reasons to discriminate in the selection of jurors; techniques for accomplishing such discrimination are described in detail, including the maintenance of a running tally of the race of the venire panel and the invention of pretextual reasons for exercising peremptory challenges; and a willingness to deceive trial courts to manipulate jury panels to these ends is also expressed.
Basemore, supra, 744 A.2d at 729. The Supreme Court found that “[t]here can be no question that the practices described in the transcript support an inference of invidious discrimination on the part of any proponent” and that the “practices described in the transcript ... flout constitutional principles in a highly flagrant manner.” Id. at 731 and fn. 12. However, since no evidence was presented on the Batson claim, the case was reversed and remanded in order for the PCRA court to conduct an evidentiary hearing. After receiving evidence and testimony on the Bat-son claim, the PCRA court found that “the jury selection procedure manifested a conscious pattern of discrimination and denied [Appellant] equal protection of the law, thus, fatally prejudicing the proceedings.” PCRA court opinion, 12/19/01, at 2.
¶ 6 Presently, the record establishes that the prosecutor engaged in a systematic and discriminatory method of excluding potential jurors because of their race. His intentions were not to seek a fair and impartial jury, but one that was most likely to do what he wanted them to do, in essence, convict. His conduct evidenced his desire to deny Appellant his constitutional right to equal protection and to a fair trial.
¶ 7 The law pertaining to prosecutorial misconduct egregious enough to bar retrial requires that the prosecutor intentionally provoke a defendant into requesting a mistrial or “must be deliberate, undertaken in bad faith and with a specific intent to deny the defendant a fair trial.” Smith, supra. When the underlying conduct in question involves a Batson claim of discrimination in violation of the equal protection clause, proof of such by its very definition would fall within the scope of prosecutorial misconduct so egregious that double jeopardy applies. This is so because the intentional conduct prohibited by Batson is designed to impugn on the fundamental fairness of the proceeding and specifically deny the defendant a fair trial. Indeed, such a constitutional violation permeates the proceedings so perva*360sively that it is not subject to a harmless error or prejudice analysis. Basemore, 744 A.2d at 734.14 Selecting a jury in a discriminatory manner corrupts the very principle upon which criminal jurisprudence is based — that an accused is innocent until found guilty by a fair and impartial jury of his/her peers. Thus, by its very nature, any Batson violation will be so egregious, will flout constitutional principles so flagrantly, it neatly falls into the definition of prosecutorial misconduct and warrants the protection of the double jeopardy clause. Indeed, given that the underlying proofs establishing a Batson violation are coextensive with the standard for finding prosecutorial misconduct of the type to bar retrial, it is difficult to foresee a situation where the establishment of a Batson violation would not compel a finding of prosecutorial misconduct and an application of double jeopardy, should a defendant seek the remedy.
¶ 8 Having said that, I do not believe that such a black and white application of these principles ultimately serves justice. Such is true in the case at bar where the proof of Appellant’s guilt is overwhelming, as is evidenced by the fact that he was again convicted upon retrial by a fair and impartial jury. Nonetheless, I conclude that I am bound by precedent, and, should Appellant exercise his judgment to petition for allowance of appeal to the Pennsylvania Supreme Court, I respectfully urge the Court to grant the petition and provide its guidance.15
¶ 9 Accordingly, I dissent.
. I am doubtful that this statement is true. Often times, a defendant makes a Batson challenge prior to the completion of jury selection. See, e.g, Black v. State of Texas, 845 S.W.2d 368 (Tx Ct.App.1992).
. Prior to Appellant’s trial, Pennsylvania followed federal law in recognizing the two forms of prosecutorial misconduct (described here in Smith) which would compel double jeopardy protection. See Commonwealth v. Stories, 490 Pa. 336, 416 A.2d 498 (1980). However, when the United States Supreme Court decided Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), which held that double jeopardy barred retrial only when the prosecutor goaded the defendant into seeking a mistrial, Pennsylvania conformed its standard accordingly. Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537, 540 (1987). Several years later, in Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), Pennsylvania reverted to the former standard enunciated in Starlts.
The Oregon/Simons standard was the one in practice when Appellant was first tried. Nonetheless, it is the Starks/Smith standard that controls the disposition of this case since it is the current law. See Simons, supra, 522 A.2d at 541 (although Simon’s trial occurred when Starks applied, Oregon’s standard was the law at the time of appeal and was controlling).
. Just as a harmless error or prejudice analysis is inappropriate, so is an analysis that is partly premised on the strength of the Commonwealth’s case. See Majority opinion, at 355.
. The Majority has noted several cases wherein the interplay between Batson and double jeopardy were "discussed.” Majority opinion, at 353, n.7. Although there is only an intimation that these cases may be dispositive, I am compelled to comment as to why they are not.
In Black v. State of Texas, 845 S.W.2d 368 (Tex.Ct.App.1992), and United States v. Jimenez, 111 Fed.Appx. 901 (9th Cir.2004), the Oregon standard was controlling. Thus, unlike the case at bar, the only standard by which to judge the double jeopardy claim was whether the prosecutor committed a Batson violation in an effort to provoke the defendant into requesting a mistrial. Clearly, these two cases are distinguishable since here we also may consider whether the prosecutor’s Bat-son violations were intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial. Smith, 615 A.2d at 325.
In United States v. Sammaripa, 55 F.3d 433 (9th Cir.1995), the defendant committed Bat-son violations and the prosecutor was granted a mistrial over defendant’s objection. The court stated that "[a]fter jeopardy attaches, the court's declaration of a mistrial — over the defendant’s objection — does not bar retrial where the mistrial was declared because of manifest necessity.” Id. at 434. The court found that manifest necessity did not exist and barred retrial. Of course, this case is not applicable instantly since the issue was not prosecutorial misconduct, but whether the standard for granting a mistrial was met.
The Majority also cites to United States v. Bishop, 959 F.2d 820 (9th Cir.1992). The Bishop Court found that the district court erred in denying defendant’s Batson claim, and reversed the defendant’s drug trafficking convictions. The defendant never raised or even argued that the double jeopardy clause prohibited retrial. Since the issue was not before the court, the one sentence contained in a footnote regarding double jeopardy is merely dicta.