Com. v. Sailor, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILIP AURTHUR SAILOR :
:
Appellant : No. 970 MDA 2019
Appeal from the Judgment of Sentence Entered January 8, 2019
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000724-2015
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 18, 2020
Philip A. Sailor appeals from the judgment of sentence imposed after a
jury convicted Sailor of, among other offenses, aggravated assault by vehicle
while driving under the influence, see 75 Pa.C.S.A. § 3735.1, aggravated
assault by vehicle, see 75 Pa.C.S.A. § 3732.1, and three distinct counts of
driving under influence of alcohol or controlled substance, see 75 Pa.C.S.A.
§§ 3028(d)(1)(i), 3028(d)(1)(iii), 3028(d)(2). The trial court sentenced Sailor
to two to five years of incarceration.
In this appeal, Sailor challenges certain ex parte communications made
by the trial court during his trial and the permissibility of the trial court’s
subsequent testimony about those communications. Moreover, Sailor raises
two challenges to the sufficiency of the evidence supporting two of his
convictions. As the court was, under the circumstances here, incompetent to
testify to factual issues germane to Sailor’s motion for extraordinary relief, we
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remand.
While Sailor was driving at dusk, his vehicle struck a pedestrian,
causing her serious bodily injury. At the time of the accident, the woman was
wearing dark clothing and crossing the street without the aid of a crosswalk.
Sailor remained at the scene until law enforcement and emergency medical
services arrived.
The law enforcement officer who approached Sailor noticed signs of
impairment, which included bloodshot eyes and slow responsiveness and
movement. During this interaction, Sailor agreed to a field sobriety test.
Ultimately, a search of Sailor’s vehicle yielded a half-smoked marijuana
cigarette.
The case proceeded to trial, and a jury found Sailor guilty.1 After the
jury rendered its verdicts but before sentencing, the Commonwealth sent
Sailor an email indicating that it had become aware of ex parte
communications between the court and at least one juror during the trial. 2
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1 During the trial, the court excused juror number three due to a commitment
and replaced that juror with the first alternate juror. In addition, the court
released the second alternate juror pre-verdict.
2 The conversation was between the court and the second alternate juror, but
within potential earshot of other jurors. There is ambiguity over when this
conversation occurred. See Appellant’s Brief, at 18 (identifying that the
second alternate juror was the juror known personally by the court, that the
juror was released just prior to deliberations, and that the transcript reflects
that only two jurors in total were excused); but see Trial Court Opinion and
Order, 5/13/19, at 2-3 (explaining that the court responded to the second
alternate juror’s question, asked on “likely the second or third day of trial,”
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Although “[t]here were several emails between the parties and the court
regarding the fact of the communication, the nature of the communication,
[and] how many jurors were present during the communication[, n]one of the
emails were made part of the record in this matter.” Appellant’s Brief, at 16.
Upon receipt of this email, Sailor filed a motion to recuse, asserting that
the trial court should recuse itself in order to eventually become a fact witness.
The trial court denied the recusal motion without a hearing. Instead, the trial
court identified that it would place on the record the nature of the ex parte
communication.
Almost two months later, Sailor orally moved for extraordinary relief.
He asserted that the verdict should be set aside due to the court’s ex parte
communications. The trial court also denied the motion for extraordinary
relief.
Just prior to that point, Sailor called the court as a witness. The judge
unrobed and, from the witness booth and in the absence of any other judge
presiding over the hearing, proceeded to testify. The court illuminated that
one juror, in the presence of other jurors, asked when the sentencing would
be in this case. After presenting this recollection of the court’s communication
with a juror, the trial court then immediately proceeded to sentencing.
One week after sentencing, Sailor timely filed a post-sentence motion.
After a hearing, the court denied Sailor’s motion. Sailor then timely filed a
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but that “the juror did not remain until the close of the trial” and “was excused
for a different reason either later that day or the next day.”).
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notice of appeal. Both Sailor and the trial court have complied with the dictates
of Pa.R.A.P. 1925.
Sailor presents four issues for our review:
1. Did the trial court err in denying his request for a new
trial where the court engaged in ex parte
communications with one or more jurors during the
course of the trial regarding when the sentencing would
be and where the court failed to inform the parties of the
communications until after a verdict was rendered in the
case?
2. Did the trial court err in denying his request for a new
trial where the court did not recuse itself, but instead
proceeded to testify as a fact witness on his motion for
extraordinary relief, which challenged those ex parte
communications?
3. Was the evidence insufficient to support a guilty verdict
for aggravated assault by vehicle while driving under the
influence?
4. Was the evidence insufficient to support a guilty verdict
for aggravated assault by vehicle?
See Appellant’s Brief, at 9-10.3
Preliminarily, we note that Sailor’s first two issues are intertwined. While
we do not reach the merits of his first issue, a discussion of his claim is
relevant to the resolution of his second issue. As we determine that Sailor’s
second issue necessitates remand, we do not reach the merits of his other
arguments.
In his first two issues, Sailor contends he is entitled to a new trial due
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3 The Commonwealth did not file a brief in this appeal.
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to the trial court’s ex parte communications with one or several jurors.
Pennsylvania law generally prohibits a presiding judge from communicating
ex parte with jurors during a trial. See Commonwealth v. Bradley, 459 A.2d
733, 739 (Pa. 1983). This rule is intended to prevent undue influence of the
jury and to provide the parties with the opportunity to correct any errors in,
or prejudice caused by, the communication. See id. However, a new trial is
only required if the appellant has established that the communication
prejudiced the appellant. See id. Importantly, the “failure to maintain an
accurate and reviewable contemporaneous record of all instructions and
communications between the court and a jury may force an implication of
prejudice where arguably none exists.” Id.Here, the only record of the communications between the judge and the
jury comes from the testimony of the judge who not only presided over the
trial, but also over the hearing on the motions for recusal and a new trial.4
Under our rules of evidence, “[t]he presiding judge may not testify as a
witness at the trial or other proceeding.” Pa.R.E. 605. Specifically, “Pa.R.E.
605 makes a judge absolutely incompetent to be a witness on any matter in
any proceeding at which the judge presides.” Id. 605, Comment (emphasis
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4 The court’s judicial intern also testified. The exact nature of the intern’s
relationship with the court is not clear. However, we conclude that the
absolute testimonial incompetency of a presiding judge to testify in a matter
necessarily applies to any person who was or is directly supervised by the
judge. Similarly, this testimonial incompetency can be cured by having a judge
who does not have a supervisory role over the witness preside.
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added).
Although a trial court may summarily dismiss charges of bias or improper
conduct raised against the presiding judge without a hearing if the court
deems those charges to be fabricated or frivolous, if “a judge concludes that
the allegations justify an evidentiary hearing in which he will testify, it then
becomes incumbent upon that judge to step aside for the appointment of
another judge to hear and rule upon the issue of disqualification.” Municipal
Publications, Inc. v. Court of Common Pleas of Philadelphia County,
489 A.2d 1286, 1290 (Pa. 1985). A court’s failure in summarily dismissing a
charge of bias or improper conduct may support the conclusion that the
allegations are not frivolous. See Commonwealth v. McCullough, 201 A.3d
221, 240 (Pa. Super. 2018).
In response to Sailor’s motion for recusal stemming from the court’s ex
parte communications, the court indicated that it would “repeat on the record
what occurred[,]” and denied the motion. Court of Common Pleas, Lycoming
County, Pennsylvania Motion Cover Sheet, 11/15/18. Subsequently, just prior
to sentencing, the court took under consideration Sailor’s motion for
extraordinary relief, which materially asserted similar themes to those
included in the original motion for recusal. At that point, the presiding judge
took off his robe and, without another judge assuming control of the bench,
began to testify as to his recollection of the events surrounding the ex parte
communications. See Sentencing Hearing, 1/8/19, at 26. After the judge was
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sworn, the Commonwealth stated: “Judge, we don’t have a judge presiding
over the hearing if you’re taking your robe off and you’re a witness.” Id. The
court responded, seemingly in agreement: “[t]hat’s a good point.” Id.By assuming the witness stand without the appointment of a new presiding
judge, the court inherently became a fact witness while still retaining the
status of presiding judge. This action is explicitly prohibited by our rules of
evidence and left both the Commonwealth and Sailor without proper recourse
if either party were to have lodged an objection to any of the court’s
testimony. Therefore, there is no record for us to review in addressing either
Sailor’s contention that the court erred in denying recusal or Sailor’s
contention the court erred in denying his motion for a new trial.
At this point, we are left in circumstances where no one is currently
disputing that an ex parte communication with one or more jurors occurred.
However, there is no record evidence of what was communicated. Nor is there
an agreement between the parties capable of establishing the content of the
communication. In order to create a proper record, we must remand to allow
the parties to participate in a proper hearing. If Sailor seeks to have the trial
judge, or a judicial intern supervised by the trial judge, testify, another judge
must be appointed to preside over the hearing.
The hearing must be held and the decision of the presiding judge filed
with this Court within sixty days of the date of this memorandum.
Case remanded. Jurisdiction retained. The presiding judge must file a
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decision with this Court within sixty (60) days of the date this memorandum
is filed and provide notice to the parties of the filing. The parties are directed
to file any supplemental briefs within thirty (30) days of the date the presiding
judge provides record notice of filing the decision with this Court.
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