Commonwealth v. Edwards, 6 EAP 2021

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtCHIEF JUSTICE BAER
Citation272 A.3d 954
Parties COMMONWEALTH of Pennsylvania, Appellee v. Derrick EDWARDS, Appellant
Docket Number6 EAP 2021
Decision Date12 April 2022

272 A.3d 954

COMMONWEALTH of Pennsylvania, Appellee
v.
Derrick EDWARDS, Appellant

No. 6 EAP 2021

Supreme Court of Pennsylvania.

Argued: December 7, 2021
Decided: April 12, 2022


Jason Christopher Kadish, Susan Mon-Yi Lin, Esqs., Kairys, Rudovsky, Messing, Feinberg & Lin, LLP, Philadelphia, for Appellant Derrick Edwards.

Marc Alan Bookman, Esq., Philadelphia, for Appellant Amicus Curiae Atlantic Center for Capital Representation.

Jules Epstein, Peter E. Kratsa, West Chester, Donna Ann Walsh, Esqs., Myers, Brier & Kelly, LLP, Scranton, for Appellant Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.

Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office, Philadelphia, for Appellee Commonwealth of Pennsylvania.

Ronald Eisenberg, Philadelphia, Michelle Ann Henry, Harrisburg, Jennifer Creed Selber, Pittsburgh, Joshua D. Shapiro, Esqs., Pennsylvania Office of Attorney General, Harrisburg, for Appellee Amicus Curiae Pennsylvania Office of Attorney General.

Catherine Banner Kiefer, Philadelphia, Michael F. J. Piecuch, Esqs., PA District Attorneys Institute, for Appellee Amicus Curiae Pennsylvania District Attorneys Association.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CHIEF JUSTICE BAER

In Commonwealth v. Johnson, ––– Pa. ––––, 231 A.3d 807 (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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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

272 A.3d 957

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.

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

272 A.3d 958

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

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.

272 A.3d 959

On November 4, 2014, the jury convicted Appellant...

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