J-A27028-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PHILIP ARTHUR SAILOR : : Appellant : No. 83 MDA 2024
Appeal from the PCRA Order Entered December 29, 2023 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000724-2015
BEFORE: LAZARUS, P.J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 3, 2025
Philip Arthur Sailor appeals from the order dismissing his Post Conviction
Relief Act petition. See 42 Pa.C.S.A. §§ 9541-46. He claims that trial and
direct appeal counsel were ineffective. We affirm.
The trial court set forth the following factual history:
At dusk on November 21, 2014, Sailor was driving his vehicle at approximately 50-53 miles per hour in a 35 mile per hour zone on Northway Road when he struck a pedestrian who was crossing Northway Road. The pedestrian was seriously injured. The pedestrian was wearing dark clothing. Sailor stayed with the pedestrian until medical personnel and law enforcement arrived.
Trooper Douglas Hoffman investigated the incident and spoke to Sailor at the scene. Trooper Hoffman noticed a strong odor of burnt marijuana as he approached the rear of Sailor’s vehicle. He also observed that Sailor seemed impaired. He noticed that Sailor had bloodshot eyes and that Sailor was sluggish and lethargic. Trooper Hoffman asked Sailor to perform field sobriety tests, which Sailor did and he showed clues of imbalance. Sailor told Trooper Hoffman J-A27028-24
that he was traveling at 35 miles per hour and struck the pedestrian who was crossing Northway Road from right to left. Trooper Hoffman determined, however, that the pedestrian was crossing Northway Road from left to right. Based on his observations, Trooper Hoffman concluded that Sailor was driving his vehicle while he was incapable of safely driving due to ingestion of marijuana.
Trooper Hoffman asked Sailor for consent to search his vehicle. Sailor agreed and signed a consent to search form. Trooper Hoffman found a half-smoked marijuana cigarette under the driver’s floor mat and a marijuana kit in the center console. The kit contained a small baggie of marijuana and various items of drug paraphernalia such as grinders, and a lighter.
Sailor was taken to the hospital for a blood test. Sailor agreed to have his blood drawn. The blood test revealed marijuana metabolites in Sailor’s system.
Corporal Steven Schmit, an accident reconstructionist with the Pennsylvania State Police, determined that Sailor was going about 50 miles per hour in a 35 mile an hour zone.
Trial Court Opinion, filed Dec. 29, 2023, at 1-2.
At trial, the Commonwealth elicited testimony regarding Sailor’s
demeanor at the scene of the accident. Trooper Hoffman testified that when
he approached Sailor, Sailor was “very calm, really displayed no emotion at
all.” N.T. Oct. 30, 2018, at 31. He further stated Sailor was “extremely calm .
. . even indifferent,” “never really asked about the victim,” and “[d]idn’t show
any emotion.” Id. at 34. Sailor objected based on relevance, stating that
“[u]nless they can relate it to one of the things they’re trying to prove people
act --” Id. at 34-35. The trial court overruled the objection reasoning it
“assume[d] [the Commonwealth’s] going to use that as a basis for an
opinion,” and the Commonwealth replied, “Yes.” Id. at 35. The trooper then
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stated that people react differently after striking something, “but in almost
every case there’s some emotion, even over a crunched bumper.” Id. He
agreed that Sailor’s behavior was different than the behavior he normally
observed. Id. Trooper Hoffman stated it was his opinion that Sailor was under
the influence of marijuana based on the field sobriety test results and Sailor’s
“extreme calmness,” lethargy, slow reactions, lack of emotion, and bloodshot
eyes. Id. at 41-42. On cross-examination, Trooper Hoffman agreed that it was
possible that some people remain calm and quiet during traumatic situations.
Id. at 87.
Corporal Adam Kirk testified he first met Sailor at the hospital, and he
observed that Sailor was walking slowly and seemed relaxed. N.T., Oct. 31,
2018, at 15-16. He testified that typically when people are involved in a crash
they are “very upset.” Id. at 28. He further testified that when an accident
involves a person getting injured, people usually ask how the person was
doing, but Sailor did not ask about the victim. Id. at 29. He said that Sailor
did ask about himself, and Corporal Kirk told him that in “the worst case the
child dies and [Sailor] was found at fault for the crash, he was looking at
homicide by motor vehicle.” Id. The corporal then said “that the best case is
that the child lived, and he was found not at fault, . . . and he was just looking
at a DUI.” Id. Corporal Kirk stated that Sailor’s demeanor never changed. Id.
at 30. He testified that based on the totality of the circumstances he believed
Sailor was under the influence of marijuana, which made him incapable of
safely operating a vehicle. Id. at 32. He based this opinion on the crash, the
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strong odor of marijuana in the car, the tests at the scene, his own tests,
Sailor’s admission, his red eyes, and Sailor’s lack of emotion. Id. at 33.
Sailor presented the video deposition of an expert in accident
reconstruction, Steven W. Rickard. On cross-examination, the expert admitted
he had incorrectly calculated Sailor’s speed and now agreed Sailor had been
speeding at the time of the accident. N.T. Dep. of Steven W. Rickard, Oct. 11,
2018, at 76-80. The expert also testified about Sailor’s inability to see the
pedestrian because of poor lighting and her dark clothing. He also said that
Sailor’s stopping distance was consistent with that of a sober person. Id. at
21, 41-47, 49-50.
A jury convicted Sailor of aggravated assault by vehicle while DUI,
aggravated assault by vehicle, DUI of controlled substance, possession of
small amount of marijuana, and possession of drug paraphernalia.1 The court
found him guilty of obedience to traffic-control devices, driving vehicle at safe
speed, and careless driving.2
At sentencing, Sailor made a motion for extraordinary relief seeking the
trial judge’s recusal. Sailor cited a communication between the trial judge and
a juror that had not been disclosed until after the verdict. 3 A juror had asked ____________________________________________
1 75 Pa.C.S.A. §§ 3735.1(a), 3732.1(a), 3802(d)(2), 35 P.S. §§ 780- 113(a)(31)(i), and 780-113(a)(32), respectively.
2 75 Pa.C.S.A. §§ 3111(a), 3361, and 3714(a), respectively.
3 Prior to sentencing, Sailor filed a motion to recuse because he anticipated
that the trial judge would be a witness as to the motion for extraordinary relief. The court denied this motion.
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when the sentencing would be, and the court responded that that “jurors have
no involvement in sentencing and that the issue of guilt first has to be
decided.” See Remand Hearing, 11/12/20, Ex. D1. The court denied the
motion and sentenced Sailor to two to five years’ incarceration.
Sailor filed a post-sentence motion, which the court denied. Sailor
appealed and we remanded for an evidentiary hearing on the issue of the ex
parte communication between the juror and the court. On appeal after
remand, we summarized the communication and proceedings and concluded
Sailor was not prejudiced by the ex parte communication:
Both the trial court and trial court’s prior legal intern agree that the relevant conversation dealt with sentencing. See Remand Hearing, 11/12/20, at 10, 22-23. In addition, there is agreement that at least one other individual, potentially another juror, was present at that time. See id., at 10, 23 (the legal intern did not recall whether it was a juror or courthouse employee that was present beyond that of the court, the intern, and the known juror).
At the remand hearing, the email sent to the parties one day after the jury rendered its verdict apprising them of the nature of the communication between the court and the juror was entered into the record. See Remand Hearing, 11/12/20, Ex. D1. In that email, which is the most proximate account of the ex parte event, the court states that a juror “asked when the sentencing would be.” Id. Acknowledging the juror’s misunderstanding that she would somehow be needed for sentencing purposes, the court responded that “jurors have no involvement in sentencing and that the issue of guilt first has to be decided.” Id. As made clear in the email, the court thought this question to be procedural in nature rather than specific to Sailor and therefore used that opportunity to educate that juror. See id.
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The court materially reaffirmed its testimony in the remand hearing. The court considered the conversation between the juror and itself to be “ministerial at best.” Remand Hearing, 11/12/20, at 10. The court then indicated that it candidly responded to the juror’s question asking when sentencing would be by unequivocally stating that the jurors do not decide that issue. The court also emphasized that the juror in question was excused at some point thereafter. See id., at 11.
We perceive no inconsistencies in the testimonies and evidence describing the fundamental nature of the communication between the juror and the court. With the email serving as the most contemporaneous account of the communication, the court makes clear that it was quick to dismiss any notion that guilt had been adjudicated at that point or that any of the jurors would have involvement with sentencing. The court perceived the juror’s question as generically asking about court procedure, and there have been no facts uncovered or suggested that are specific to Sailor and his case or that could possibly serve as a basis for prejudgment. Furthermore, none of the conversation’s content is contradicted by the prior legal intern’s testimony. While there remains some level of ambiguity as to the identity of the juror and discongruity as to the exact moment that juror was specifically dismissed, we can find no basis for concluding the trial court abused its discretion in finding that Sailor was not prejudiced by the conversation.
Commonwealth v. Sailor, No. 970 MDA 2019, 2021 WL 387195, at *3
(Pa.Super. filed Feb. 3, 2021).
This Court affirmed the judgment of sentence, and the Pennsylvania
Supreme Court denied allowance of appeal. In February 2022, Sailor filed a
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timely PCRA petition. The PCRA court4 held a hearing, where trial counsel,
appellate counsel, and Sailor testified.5
Trial counsel testified that at trial he objected to testimony about Sailor’s
lack of emotion at the scene as irrelevant and he tried to counter it in his
closing. N.T., Sept. 1, 2022, at 16-18. He agreed that he had included in the
motion in limine an objection to the testimony as prejudicial and not probative,
but had withdrawn that portion of the motion. Id. He did not recall why he
withdrew it. Id. at 19.
Trial counsel further testified that he had conversations with the
accident reconstruction expert Rickard, who prepared two reports. Id. at 19.
Trial counsel testified that he found out during the questioning of Rickard that
Rickard had not done the calculation correctly. Id. at 20. He stated that prior
to the deposition he had asked Rickard if he was sure the calculations were
accurate, and Rickard responded yes, and counsel stated that he had gone
over his outline for trial with the expert. Id. at 20-21. When asked if he found
the miscalculation, trial counsel stated that he “[didn’t] do that type of math.”
Id. at 21. Trial counsel agreed that at trial the expert was “fact checked in
real time” on the speed calculation. Id.
____________________________________________
4 The Honorable Marc Lovecchio presided at trial. He retired prior to the PCRA
proceedings, which were before the Honorable Kenneth D. Brown.
5 Sailor’s testimony related to his claim that counsel was ineffective regarding
the advice not to testify. He does not raise this issue on appeal.
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Trial counsel further testified that after the verdict he learned that the
trial judge had had a conversation with a member of the jury. Id. at 26. He
was involved with the motion for extraordinary relief and initial hearing, but
another attorney at his firm handled the appeal.
Appellate counsel testified that she had two theories to challenge the ex
parte communications: (1) the juror was unfairly biased and the parties did
not have an opportunity to question the juror to see whether bias existed such
that he or she should have been removed; and (2) the trial judge had erred
by not telling the parties about the conversation until after the verdict. Id. at
35. Appellate counsel agreed that her original and supplemental briefs did not
say that failure to maintain an accurate contemporaneous record of the
communication with the juror was prejudicial per se. Id. at 42, 47. On cross-
examination, she agreed that there were three occasions where there was
testimony about the communication—the hearing on extraordinary relief, the
hearing on the post-sentence motion, and the remand hearing. Id. at 51. She
stated that the statements from the trial judge did not match the trial
transcript. Id.
The PCRA court denied the PCRA petition. Sailor appealed. He raises the
following issues:
1. Did Senior Judge Brown err in rejecting Sailor’s claim that trial counsel was ineffective in failing to seek the exclusion of evidence that, after crashing into the victim, he lacked emotion and failed to inquire into her condition, among other affect evidence, as less probative of a drug- recognition expert's opinion that he was under the influence
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of marijuana than risking unfair prejudice by painting him as cold and unsympathetic to his conduct and her injuries?
2. Did Senior Judge Brown err in rejecting Sailor’s claim that trial counsel was ineffective in failing to prepare and/or offering testimony from an accident reconstructionist as to Sailor's speed at the time of the crash whose calculations the Commonwealth disproved in real time?
3. Did Senior Judge Brown err in rejecting Sailor’s claim that trial counsel’s aforementioned errors, cumulatively, caused him prejudice by painting him as cold and unsympathetic to his conduct and the victim’s injuries and making Sailor’s defense team appear inept, or, worse, like they were attempting to put false evidence before the jury?
4. Did Senior Judge Brown err in rejecting Sailor’s claim that appellate counsel was ineffective in failing to properly advance a claim that Judge Lovecchio’s failure to maintain an accurate and contemporaneous record of his ex parte communications with a juror warranted a presumption of prejudice and a new trial as a matter of law?
Sailor’s Br. at 4-5 (suggested answers omitted).
“When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order is supported by the record and free of legal
error.” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020)
(citation omitted).
Sailor’s claims challenge counsel’s effectiveness. Counsel is presumed
effective. A petitioner may overcome this presumption by showing that: “(1)
his underlying claim is of arguable merit; (2) counsel had no reasonable basis
for his action or inaction; and (3) the petitioner suffered actual prejudice as a
result.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “To
establish the third, prejudice prong, the petitioner must show that there is a
reasonable probability that the outcome of the proceedings would have been
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different but for counsel’s ineffectiveness.” Commonwealth v. Chmiel, 30
A.3d 1111, 1127-28 (Pa. 2011).
Sailor argues the PCRA court erred in denying his claim that counsel was
ineffective because he did not raise a Rule 403 objection to testimony
regarding Sailor’s failure to inquire into the victim’s condition, alleged lack of
emotion, and other affect evidence. He argues his underlying claim that the
evidence was inadmissible had arguable merit, as a reasonable trial judge
could conclude that the probative value of the evidence was outweighed by
the risk it would paint Sailor as cold and unsympathetic. He argues that the
observations of Sailor’s affect were minimally probative of the trooper’s
opinion that Sailor was intoxicated and that any probative value was
outweighed by unfair prejudice. He further maintains counsel had no
reasonable basis for failing to object to the evidence and that the error was
prejudicial, as it allowed the Commonwealth to bolster its weak case by
“painting Sailor as cold and unsympathetic to his conduct and the victim’s
injuries.” Sailor’s Br. at 21-22. He further claims that at the PCRA hearing,
trial counsel misremembered the objection he made, and could not explain
why he withdrew a motion in limine raising the Rule 403 objection.
Regarding prejudice, he argues the PCRA court’s conclusion that the trial
court would have admitted it with a cautionary instruction, and that the
general instruction provided to the jury informed it not to make decisions
based on prejudice, was speculative and ignored that Sailor would have been
entitled to a specific instruction. Sailor claims the Commonwealth had
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“virtually no evidence to suggest” intoxication or speeding caused the
accident, noting Sailor did not testify and the victim did not remember what
happened. Id. at 40-41. He argues it was not an overwhelming case on
causation and it would have been reasonable for the jury to find Sailor’s
alleged intoxication and speeding correlated with, but did not cause, the
accident. He further claims that “the vast bulk of research on the subject
suggests that drivers under the influence of marijuana are less likely to speed,
and tend to give more of a berth to others using the road.” Id. at 42 (emphasis
omitted). Sailor further claims the trial court did not find that if the testimony
had not been admitted or if it had been appropriately limited, he would have
been convicted anyway.
The PCRA court concluded the claim lacked merit, reasoning that Sailor’s
conversations with Trooper Hoffman and Corporal Kirk and his affect or
demeanor were relevant to whether he was under the influence of marijuana:
[T]he evidence was presented in the context of Sailor’s conversations with the troopers and his demeanor to show that his reactions, demeanor, and judgment were impacted by his ingestion of marijuana. The evidence showed that Sailor was calm, relaxed, sluggish and lethargic immediately after a serious traffic incident. Sailor showed imbalance during standard field sobriety tests. Sailor’s vehicle reeked of the odor of marijuana; the strongest Trooper Hoffman had smelled in his 20-year career. Trooper Hoffman found a half-smoked marijuana cigarette under the driver’s side floor mat and a marijuana kit containing marijuana and paraphernalia to ingest marijuana in the center console. Sailor initially told Trooper Kirk that he had not smoked marijuana in a few days. When Trooper Kirk indicated he would not observe the signs if he last smoked days ago and he told Sailor that he needed to be honest about it, Sailor
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changed his statement to indicate that he had smoked some of a joint the previous night around 10:30 p.m. N.T., 10/31/2018, at 27.
Trooper Kirk also testified that typically when people are involved in a crash they are very upset. If there are injuries involved, people generally are upset about that and ask if the other person is going to be okay. He testified that Sailor was not upset and he never asked about how the pedestrian was doing. Trooper Kirk noted that Sailor did ask what the worst case and best case he was looking at with the crash. Trooper Kirk explained that in the worst case the child dies and he was found at fault for the crash, he was looking at homicide by motor vehicle. If the child lived and Sailor was not at fault, Sailor would just be looking at a DUI. N.T., 10/31/2018, at 28-29. This information was considered by the troopers when considering the totality of the circumstances in formulating their opinion that Sailor was under the influence of marijuana to a degree that he was incapable of safely driving.
Trial Ct. Op. at 11-12.
The court found that even if counsel had objected based on Rule 403,
the trial court likely would have instructed the jury not to base its verdict on
sympathy for or prejudice against the party. Id. at 13. The court noted that
the court gave such an instruction in its final instructions, and the jury is
presumed to have followed the instructions. Id. It thus concluded Sailor failed
to establish prejudice.
The court did not err. The challenged evidence was admissible because
it was probative of whether Sailor was under the influence of marijuana at the
time of the accident and the prejudicial impact did not outweigh the probative
value, and therefore his underlying claim lacked merit. Further, if counsel had
objected to the evidence as prejudicial, the court at most would have issued
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a cautionary instruction, similar to that which was included in the final
instructions. Sailor therefore cannot establish a reasonable probability that
the outcome of the trial would have been different had counsel raised a Rule
403 objection.
Sailor next contends that he established trial counsel was ineffective for
failing to prepare and for offering testimony from an accident reconstructionist
as to Sailor’s speed where the Commonwealth disproved the
reconstructionist’s calculations. He argues the underlying claim that counsel
should have prepared and not presented the testimony had arguable merit.
He further maintains counsel did not have a reasonable basis for presenting
it, but rather counsel testified that he did not review the calculations and relied
on the expert. He argues an attorney who advances an expert opinion without
understanding it runs a risk of not reasonably advancing his client’s interests.
He further maintains counsel’s actions caused prejudice because it bolstered
the Commonwealth’s case by “fact-checking Sailor’s expert in real time,
making Sailor’s expert and his defense appear inept, or, worse, dishonest,
before the jury.” Sailor’s Br. at 23. He argues the error undermined the
expert’s credibility and that counsel did not need to present the testimony to
also admit other helpful testimony.
The trial court concluded the expert did not only provide testimony as
to speed but also evidence that the pedestrian’s clothing and the lighting
impacted the ability to see and that his stopping time was similar to that of a
sober person:
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Speeding is a summary offense punishable by a fine. While the speeding was also a component of the aggravated assault by vehicle charge, the defense was focused on the lack of causation. The defense expert accident reconstructionist, Steven Rickard, presented additional testimony to show that the accident was not caused by Sailor’s speeding but rather was due to the victim’s dark clothing and poor illumination at or near the point of impact and that Sailor’s stopping distance was consistent with a sober person. Therefore, even though the defense expert made a math error (he put a decimal in the wrong place and failed to recalculate Sailor’s speed with the correct number- -2.966 seconds, rather than 29.66 seconds) which was not caught by either the expert or trial counsel before the expert testimony, there were valid reasons to still call the expert witness. Trial counsel also testified that he relied on the expert to do the calculations and trial counsel did not do that type of math; that’s what the expert was for. PCRA Transcript, 09/01/2022, at 20-22.
Although it would have been better if the expert had the correct speed calculation prior to testifying, the court does not find that Sailor was prejudiced. If trial counsel had not called Mr. Rickard as a witness, he would have lost important testimony regarding Sailor’s inability to see the pedestrian due to the poor lighting and her dark clothing, as well as Rickard’s testimony that Sailor’s stopping distance was consistent with a sober person. There still would have been testimony from Corporal Schmit regarding Sailor’s speeding and it would have been uncontested. What would not have occurred and would have been detrimental to the defense would be the important testimony Mr. Rickard provided relating to causation, i.e., there would not have been a defense that the incident was caused by the pedestrian or that speeding was not a factor in causation because Sailor stopped in essentially the same stopping distance as a sober person.
Trial Ct. Op. at 13-14.
We find no error. We cannot say that Sailor carried his burden to prove
that counsel lacked a reasonable basis for admitting the expert testimony.
Defense counsel could not have admitted only the portion of the video
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deposition with the favorable testimony – that the pedestrian’s clothing and
poor lighting caused the accident – without showing the Commonwealth’s
cross-examination. If defense counsel had opted not to show the expert’s
testimony at all, Sailor would have been left with little defense other than
challenging the troopers’ credibility, which Sailor has not attempted to show
was suspect. Further, Sailor did not establish prejudice. Therefore, counsel
was not ineffective for admitting the expert testimony.
In his third issue, Sailor maintains that “even if one of the two above
missteps was insufficient to cause him prejudice, together, they did so by
allowing the Commonwealth to bolster its weak case on causation with
evidence that would serve to inflame the jury against him and to make his
expert on causation, and his defense team as a whole, appear inept or
dishonest.” Id. at 23. He claims the errors were cumulative and the
Commonwealth’s case on causation was minimal.
Here, Sailor’s claim that counsel was ineffective for failing to raise a Rule
403 objection lacked merit and his claim that counsel was ineffective regarding
the expert testimony failed because counsel had a reasonable basis for his
actions. Because the claims failed on prongs other than the prejudice prong,
they cannot collectively warrant relief based on cumulative prejudice. See
Spotz, 84 A.3d at 321 n. 22 (where counsel ineffectiveness claims fail because
of “lack of merit or arguable merit,” “no number of failed [] claims may
collectively warrant relief if they fail to do so individually” (alteration in
original)). Further, there is no cumulative prejudice here requiring a finding of
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ineffectiveness. The claims “are independent factually and legally, with no
reasonable and logical connection warranting a conclusion that the cumulative
effect was of such moment as to establish actual prejudice.” See id.
In his last claim, Sailor maintains that appellate counsel was ineffective
for failing to properly advance a claim that the trial judge’s failure to maintain
an accurate and contemporaneous record of the judge’s ex parte
communications with a juror warranted a presumption of prejudice and a new
trial as a matter of law. He claims that his underlying claim that he was entitled
to a retrial as a matter of law had arguable merit. Sailor argues the trial court’s
failure to disclose the ex parte communication and develop a record was
injurious and prejudice should be presumed. He claims the trial court did not
inform the parties of the communication, did not schedule a hearing, and, two
months later after Sailor had raised the issue, “made the unorthodox decision
to testify at” a hearing over which he presided. Sailor’s Br. at 68. Sailor claims
court precedent requires the court presume prejudice here and counsel was
ineffective to not invoke the presumption. He maintains that if appellate
counsel had adequately argued the issue, this Court may not have concluded
an evidentiary hearing was needed. He further argues his counsel had no
reasonable strategic basis for forgoing the argument, and there is a
reasonable likelihood the argument would have persuaded this Court.
The PCRA court found the claim lacked merit and Sailor failed to
establish prejudice:
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Sailor’s final claim is that appellate counsel was ineffective for failing to properly argue on appeal that the trial court’s failure to maintain and disclose an accurate and contemporaneous record of its ex parte contacts with jurors warranted a presumption of prejudice and the award of a new trial as a matter of law. The court disagrees with Sailor’s interpretation of Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1979). In Bradley, the Court overruled the civil case that imposed a prophylactic rule that any communication between a judge and a deliberating jury, no matter how innocuous, had in the absence of counsel mandates the grant of a new trial even in the absence of prejudice to either party. The Court instead adopted the Chief Justice Roberts’ dissent in Yarsunas v. Boros, 233 A.2d 696, 698 (Pa. 1966) wherein he stated:
The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court’s action may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.[]
Kersey Mfg. Co. v. Rozic, supra [422 Pa.] at 572, 222 A.2d at 716.
The Bradley Court then reminded trial courts that the failure to maintain accurate and contemporaneous records of all communications between the court and the jury may force an implication of prejudice where arguably none exists. Bradley, 459 A.2d at 739. In other words, generally a party must either establish that the trial court gave erroneous directions or instructions to the jury or that the court actually influenced the jury with the ex parte communication. If an accurate and contemporaneous record of the communication is not maintained by the trial court, the appellate courts may but are not required to imply prejudice where arguabl[y] none exists. Therefore, Sailor was not entitled to a presumption of prejudice and a new trial as a matter of law.
The court also finds that Sailor was not prejudiced. The Superior Court was aware of Bradley and, in fact, cited to
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it in its decision rejecting Sailor’s claim regarding the communications with Alternate Juror # 2. 2021 WL 387195, *2. The Superior Court quoted the portion of Bradley related to the implication of prejudice but instead found that any error was harmless. In addition, PCRA counsel filed a petition for reargument on this specific issue. The Superior Court denied the reargument petition, and the Pennsylvania Supreme Court denied Sailor’s petition for allowance of appeal.
Trial Ct. Op. at 24-25.
We agree with the PCRA court’s assessment of Bradley. There, the
Pennsylvania Supreme Court held that ex parte communications between a
court and jury will require reversal only where they are likely to prejudice a
party. Bradley, 459 A.2d at 734. As the trial court noted, the Supreme Court
pointed out that the reason trial judges are prohibited from communicating ex
parte with a jury to “prevent the court from unduly influencing the jury” and
to ensure counsel is aware and correct any potential error and found the rule
was not needed where the court did not influence the jury or provide
erroneous instructions. Id. at 739 (quotation marks and citations omitted).
The Supreme Court reminded trial courts that “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. at 739.
We agree with the trial court that Bradley does not require a finding of
per se prejudice where a court does not create a contemporaneous record.
Rather, Bradley states that failure to maintain a contemporaneous record
may require a finding of prejudice; it does not require such a finding. Here,
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on appeal, this Court found the record developed regarding the
communications established that no prejudice occurred. The alternate
argument advanced on PCRA, that the court must find per se prejudice under
Bradley, would not have changed this outcome, particularly as this Court
cited Bradley when disposing of the claim. This claim lacks merit.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 04/03/2025
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