J-A16011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

PHILIP AURTHUR SAILOR 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 FEBRUARY 03, 2021

Phillip A. Sailor appeals from the judgment of sentence imposed after a 

jury convicted him 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 separate 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 an aggregate term of two to five years of incarceration.

In our first review of this case, we remanded the matter so that 

competent testimony could be placed on the record regarding certain 

alleged ex parte communications that occurred between the trial court and a

juror. The court, having now properly conducted that hearing, concluded that 

those communications were, at most, harmless error and did not 

impact Sailor’s convictions. Having now independently reviewed the record, 
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we affirm the trial court’s harmless error determination and conclude that 

Sailor’s remaining issues merit no relief. 

Sailor was driving at dusk when he struck and seriously injured a 

pedestrian. The pedestrian was wearing dark clothing while crossing the street 

without the aid of a crosswalk. Sailor stayed with the injured pedestrian until 

law enforcement and emergency medical services arrived.

A law enforcement officer noticed that Sailor appeared impaired, 

observing his bloodshot eyes as well as slow responsiveness and movement. 

Sailor subsequently agreed to a field sobriety test. Thereafter, a search of 

Sailor’s vehicle uncovered a half-smoked marijuana cigarette. A blood test 

revealed marijuana metabolites in his system.

Ultimately, a jury found Sailor guilty of several vehicular- and drugrelated crimes. However, prior to those verdicts, the court, apparently within 

earshot of other jurors, had an ex parte conversation with the second 

alternate juror. The juror asked the Judge about when Sailor’s sentencing, if 

it were to be necessary, would occur, and the Judge answered. The court 

excused the second alternate juror prior to deliberations.

After the trial but before sentencing, the court informed the parties of 

the general nature of the communication between it and that second alternate

juror. The court characterized its dialogue with that juror as a procedural 

discussion of the judicial process, rather than a discussion of the particulars 

of the case against Sailor. 

Following this characterization, Sailor filed a motion to recuse, asking 
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the trial court to recuse itself in all subsequent proceedings so that it could 

become a fact witness to further develop the content of this conversation 

between it and the juror. The trial court denied this motion, indicating that it 

would place on the record what had occurred.

Sailor then orally moved for extraordinary relief. The court denied the 

oral motion and responded by testifying, on the record, about its 

communication with the alternate juror. During this testimony, no other judge 

was present to preside during the testimony. Following this testimony as well 

as the testimony of the trial court’s then legal intern who was also privy to 

this conversation, it sentenced Sailor.

After sentencing, Sailor filed several post-sentence motions, but all were 

denied. Sailor then filed a timely notice of appeal, and both he and the trial 

court have compiled with the respective dictates of Pa.R.A.P. 1925.

After our remand, the court held a new hearing with an independent 

presiding judge. This moots Sailor’s second issue, challenging the court’s 

testimony in the absence of an independent presiding judge. We therefore 

need not address this issue further. Sailor presents three remaining 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. Was the evidence insufficient to support a guilty verdict for 
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aggravated assault by vehicle while driving under the influence?

3. Was the evidence insufficient to support a guilty verdict for 

aggravated assault by vehicle?

See Appellant’s Brief, at 9-10.1

The primary thrust of Sailor’s first argument is that he is entitled to a 

new trial as a result of the ex parte conversation between the court and the 

alternate juror. As we have previously indicated, 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. Nonetheless, 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.

Prejudice is determined through consideration of whether or not the 

alleged error is harmless, i.e, harmless error. See Commonwealth v. 

Elmore, 494 A.2d 1050, 1052 (Pa. 1985). “[A]n error cannot be held 

harmless unless the appellate court determines that the error could not have 

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1 The Commonwealth did not file a brief in this appeal.
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contributed to the verdict.” Commonwealth v. Story, 383 A.2d 155, 164 

(Pa. 1978). Importantly, questions regarding influence on jurors “are deemed 

to be within the sound discretion of the trial judge,” Commonwealth v. 

Richardson, 383 A.2d 510, 516 (Pa. 1978), and judicial determinations in 

that domain will not be overturned absent an abuse of discretion. 

As best can be discerned, Sailor’s argument centers on the lack of a 

contemporaneous record of the court/juror communication, given: 1) the 

delayed dissemination to the parties of this event having taken 

place; and 2) that two months had elapsed before any testimony was taken 

on this issue. See Appellant’s Supplemental Brief, at 2. Moreover, 

Sailor highlights several ambiguities arising from the trial court’s and 

intern’s testimonies. In particular, he notes that the testimony is conflicted 

regarding the identity of the juror involved, as well as the exact date on which 

the conversation occurred. See id. These inconsistencies, he concludes, raise

the specter of undue influence over not only the juror who asked the question, 

but also the jury as a whole. Because Sailor did not find out about this 

conversation until after the verdict was rendered, he contends he lost the 

opportunity to question the jurors or build a record when evidence of the 

communication was more immediate in the court and other witnesses’ 

minds. 

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, 
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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. 

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 
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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. Sailor’s claim merits no relief.

Sailor’s remaining issues deal with the sufficiency of the evidence used 

to maintain his aggravated assault by vehicle while DUI and aggravated 

assault by vehicle convictions. We review challenges to the sufficiency of the 

evidence with great deference to the credibility determinations of the jury: 

The standard we apply in reviewing the sufficiency of evidence is 

whether, viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact[-]finder to find every element of the crime 
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beyond a reasonable doubt. In applying the above test, we may 

not weigh the evidence and substitute our judgment for that of 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth may not 

preclude every possibility of innocence. Any doubts regarding a 

defendant's guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence. Moreover, in applying 

the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the trier 

of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none 

of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014–15 (Pa. Super. 

2002) (citations omitted).

An individual is guilty of aggravated assault by vehicle while driving 

under the influence if he or she “negligently causes bodily injury to another 

person as a result of ... driving under the influence of alcohol or controlled 

substance[.]” 75 Pa.C.S.A. § 3735.1(a). Sailor contends that “[t]he evidence 

presented by the Commonwealth did not establish that [his] conduct was a 

direct and substantial factor in the accident as required to support a 

conviction.” Appellant’s Brief, at 25. Instead, Sailor asserts that the trial 

evidence only demonstrated that his vehicle struck a pedestrian who “did not 

cross at a crosswalk” while at dusk and “was wearing dark shoes, dark 

peacoat, and burgundy pants at the time of the accident.” Id., at 

26. Accordingly, he contends the Commonwealth failed to demonstrate 

that Sailor was the “proximate and substantial cause of [the] accident” as 
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there was no demonstration that he could have seen the victim prior to 

her being “directly in front of his vehicle.” Id., at 27.

“In order to be a direct cause of [an] accident and injuries, the 

[d]efendant’s conduct must be a direct and substantial factor in bringing 

about [an] accident and injuries. There can be more than one direct cause of 

[an] accident and injuries.” Commonwealth v. Ketterer, 725 A.2d 801, 805 

(Pa. Super. 1999) (emphasis added). “[A] victim’s contributory negligence, if 

any, is not a defense ... if the defendant’s conduct was a direct and substantial 

factor in causing the accident.” Id. (citation omitted) (alteration in 

original). In addition, “a factfinder can reasonably find a person’s intoxication 

to be the cause of unsafe driving leading to bodily injury.” Commonwealth 

v. Sullivan, 864 A.2d 1246, 1250-51 (Pa. Super. 2004) (explaining, too, 

that remorse does not vitiate otherwise sufficient evidence).

Sailor does not dispute the fact that his vehicle striking the victim 

resulted in her sustaining serious injuries. Nor does he explicitly challenge 

the mens rea required for his conviction. Finally, he does not challenge that 

the evidence was sufficient to establish he was intoxicated. Instead, Sailor 

appears to exclusively argue either that his intoxication did not cause the 

accident or that it was solely the victim’s own negligence that caused her 

injuries. However, as stated above, as long as a defendant’s conduct is a direct 

and substantial factor, that adjudication alone is sufficient to support a 

conviction. See id. 
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When viewing the record in its totality, we find there to have 

been enough support for a jury to conclude that Sailor’s intoxication played 

a direct and substantial role in his vehicle striking the victim. When the 

accident occurred, the weather conditions were cold and dry, suggesting that 

the incident was not attributable to the weather. See N.T., 10/30/18, at 

37. The trooper assigned to the accident’s location testified that Sailor was 

“[i]ndifferent, displayed no emotion.” Id., at 35. Sailor had “bloodshot eyes” 

and “later on in the field sobriety tests[,] he displayed an imbalance.” Id., at 

36. Sailor was “[s]luggish. Lethargic almost.” Id. Sailor also incorrectly stated 

that he had “observed the victim walking from right to left in front of his car,” 

when, in fact, the victim had been walking in the opposite direction. Id., at 

32.

As he approached Sailor’s vehicle, the trooper noticed “a strong smell 

of burnt marijuana.” Id., at 32. Sailor then proceeded to fail multiple field 

sobriety tests. See id., at 36-42. After that, the trooper searched his vehicle 

and “found a half smoked marijuana cigarette underneath the floor-mat.” Id., 

at 42. Ultimately, that trooper concluded, based on all of the circumstances, 

both physically observable and corroborated though physical evidence, that 

“he was under the influence of marijuana.” Id.

The court also highlighted that a Commonwealth expert apprised the 

jury “as to the effects marijuana might have on an individual, which included 

causing relaxation, impacting judgment and impairing an individual’s ability to 
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drive safely.” Trial Court Opinion, 5/13/19, at 10 (citation to the notes of 

testimony omitted). As the Commonwealth may prove its case purely through 

use of circumstantial evidence and given that we, as an appellate court, are 

prohibited from reweighing the jury’s credibility determinations, the jury could 

certainly have inferred that regardless of the victim’s own actions, Sailor’s 

intoxication directly and substantially led to him ultimately hitting her with his 

vehicle. 

Similarly, Sailor challenges the sufficiency of the evidence used to 

convict him of aggravated assault by vehicle. That offense indicates a person 

is guilty if he or she “recklessly or with gross negligence causes serious bodily 

injury to another person while engaged in the violation of any law of this 

Commonwealth or municipal ordinance applying to the operation or use of a 

vehicle or to the regulation of traffic[.]” 75 Pa.C.S.A. § 3732.1(a). The 

culpability for recklessness or gross negligence is defined as follows:

A person acts recklessly with respect to a material element of an 

offense when he consciously disregards a substantial and 

unjustifiable risk that the material element exists or will result 

from his conduct. The risk must be of such a nature and degree 

that, considering the nature and intent of the actor's conduct and 

the circumstances known to him, its disregard involves a gross 

deviation from the standard of conduct that a reasonable person 

would observe in the actor's situation.

18 Pa.C.S.A. § 302(b)(3); see also Commonwealth v. Huggins, 86 A.2d 

862, 868 (Pa. 2003) (indicating that “grossly negligent” is equivalent to the 

term “recklessness”). Conversely, proof of the commission of a 

summary offense under the Vehicle Code alone does not, by itself, establish 
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the mens rea of recklessness. See Commonwealth v. Karner, 193 A.3d 

986, 993 (Pa. Super. 2018).

The gravamen of Sailor’s argument is that “mere speeding is not 

sufficient to establish recklessness or gross negligence.” Appellant’s Brief, at 

28. Sailor admits that evidence was presented indicating he was speeding at 

the time of the accident. See id. 

In Commonwealth v. Moyer, we found that appellant’s behavior to be 

reckless when, instead of coming to a complete stop, she “drove at a speed 

of 12 miles per hour past a stop sign onto a busy street with a building 

obstructing her view of the cross traffic as she approached the intersection.” 

171 A.3d 849, 854 (Pa. Super. 2017). Although there was arguably only one 

violation of the Vehicle Code present in that case, the appellant’s speed while 

entering the intersection, the volume of traffic on the adjacent cross street, 

her obstructed vision from the nearby building, and her preexisting knowledge 

about the peculiarities of that intersection constituted sufficient evidence to 

support a finding of reckless behavior. See id. 

Sailor argues that the circumstantial evidence presented by the 

Commonwealth does not support a finding of recklessness. More specifically, 

he focuses on the fact that “ordinary” or “common” speeding does not 

necessarily establish recklessness. However, depending on the attendant 

circumstances, speed can imply a reckless state of mind. See 

Commonwealth v. Bullick, 830 A.2d 998, 1005 (Pa. Super. 2003). 

Moreover, while Sailor’s drug impairment is not reckless per se, it is a relevant 
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circumstance to be considered when determining whether he acted recklessly. 

See Commonwealth v. Miller, 955 A.2d 419, 423 (Pa. Super. 2008). In 

Miller, our Court determined that marijuana usage, speeding, ignoring traffic 

signals, and generally unsafe driving practices “allowed the trier-of-fact to find 

appellant guilty ... because of his sustained recklessness in the face of an 

obvious risk of harm to his victims.” Id.

Here, the trier of fact heard testimony indicating that Sailor was driving 

fifteen to twenty miles an hour over the speed limit, was voluntarily impaired 

due to his consumption of marijuana, was driving at dusk, was driving in a 

school zone, was slow to utilize his brakes upon impact with the victim, and 

was unable to truthfully recall general facts regarding the victim’s route of 

travel across the road. Accordingly, we find that the circumstances established 

by the Commonwealth’s evidence were sufficient to allow the jury to find that 

Sailor’s actions evidenced a conscious disregard of the substantial and 

unjustified risk that he would be involved in a traffic accident causing serious 

bodily injury. As such, Sailor is due no relief on this sufficiency of the evidence 

challenge.

As we find none of Sailor’s issues to be meritorious, we affirm his 

judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/03/2021