Commonwealth v. Davis, 1049 EDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY STEVENS, P.J.E.
Citation273 A.3d 1228
Parties COMMONWEALTH of Pennsylvania v. Charles DAVIS, Appellant
Docket Number1049 EDA 2021
Decision Date20 April 2022

273 A.3d 1228

COMMONWEALTH of Pennsylvania
Charles DAVIS, Appellant

No. 1049 EDA 2021

Superior Court of Pennsylvania.

Submitted March 7, 2022
Filed April 20, 2022

Nicholas J. McIntyre, Milford, appellant.

Raymond J. Tonkin, District Attorney, Milford, for Commonwealth, appellee.

Jamie L. Wagenhoffer, Assistant District Attorney, Milford, for Commonwealth, appellee.



Appellant, Charles Davis, appeals from the judgment of sentence entered in the Court of Common Pleas of Pike County

273 A.3d 1231

following his conviction by a jury on the charge of driving while under the influence of alcohol ("DUI")-high rate of alcohol 4th offense or subsequent, 75 Pa.C.S.A. § 3802(B).1 After a careful review, we affirm.

The relevant facts and procedural history are as follows: On March 2, 2020, the Commonwealth filed an Information charging Appellant with numerous offenses in connection with driving while under the influence of alcohol on March 23, 2019. Appellant, who was represented by counsel, proceeded to a jury trial on November 12, 2020.

Prior to the selection of the jury, defense counsel noted this "is going to be the first jury that is selected in Pike County after the whole Covid [pandemic2 ] started. In other words, nobody else [has] picked a jury here." N.T., 11/12/20, jury selection, at 37 (footnote added). Accordingly, outside the presence of the prospective jurors, defense counsel informed the trial court that Appellant had questions about the court procedures, which would be used in response to the Covid-19 pandemic. Specifically, the following relevant exchange occurred in the trial court's chamber:

[DEFENSE COUNSEL]: Next Your Honor, we have questions. My first question is where would the jurors be deliberating? Once the jurors are picked and this goes to a deliberation where are they going to be deliberating?

THE COURT: In the main Courtroom.

[DEFENSE COUNSEL]: So, my second question is as I understand it the jurors are going to be in the gallery in the first three rows of the gallery?

THE COURT: [C]onceivably yes, but conceivably they can walk around in the gallery area.

[DEFENSE COUNSEL]: And some of those jurors during the Trial are going to be behind my back, is that—am I correct in that Your Honor?

THE COURT: Well, I think to the side.

[DEFENSE COUNSEL]: Well, if where my table is and where the jurors are going to be sitting [is] in that second part of the gallery, they are going to be behind my back, and I am not going to be able to see them.

THE COURT: I would say they are to your side. That would be my belief. You could angle your chair and be to the side. It would be more, there would be more of an issue for the Commonwealth I think from where their table is positioned.

[DEFENSE COUNSEL]: In all fairness[,] I think for both of us Your Honor.

THE COURT: It may be both.

[DEFENSE COUNSEL]: If I'm in my chair and I have a witness, and the
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witness is going to be sitting where the jury used to sit as I understand, now I'm not sitting up in front, so I'll be focusing on [sic ]. So those jurors as I understand it are going to be up to a hundred feet away from the witness during the Trial.

THE COURT: I haven't measured it. You may be close to accurate.

[DEFENSE COUNSEL]: I just kind of paced it out. But it looks like about a hundred feet away from the jury, they are not going to be able to see. I'll get into my objection.

THE COURT: Okay. Well, we're doing the best we can with our Covid preparation, and you could note whatever of record in terms of if there is going [sic ] any Appellate issues on it.

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: We're going to go forward with it, and we think we've made the best decision we can.

[DEFENSE COUNSEL]: Will the jurors, Your Honor, be provided with face shields or [will] they not be provided with face shields once we settle on fourteen?

THE COURT: Once we have the fourteen, I didn't envision requiring face shields, for the witnesses I think we did. We had planned on the witness, right or were we planning on the jurors also?

COURT ADMINISTRATOR: It was up to you, Your Honor. We did discuss the witness removing a homemade mask or wearing the shield. Whatever you are comfortable for our witness to testify. We do have face shields available for the jury panel if it was something that was requested and we would accommodate, but it would just depend on the fourteen and the motions of counsel.

THE COURT: I don't even envision the witness wearing a face shield if [sic ] necessary.

[DEFENSE COUNSEL]: Your Honor, I would like to place my objections on the record.


[DEFENSE COUNSEL]: First[,] Your Honor, if the jurors are wearing masks during jury selection and then during Trial, I'm going to be unable to see their facial expressions whatsoever, and in fact some of them will be sitting in the back of me, so I won't be able to see them anyway during Trial. If they are wearing these face masks and are seated in the gallery as opposed to our normal jury areas, again I won't be able to see their facial expressions whatsoever. I'll have no idea if they are sticking their tongue out at me when I ask a question, and that is an integral part of what happens in jury selection and during the Jury Trial because I'm able to see their faces to see how they're reacting to certain questions they are being asked; answers that are being asked during selection and Trial. Next, I have specific objections to where the jurors are sitting during jury selection because some of them are in the very back of the Courtroom. I can't even see their faces. So, even if they weren't wearing masks[,] I can't see their faces. I can't see their body language. I'm not even sure they are going to be able to hear me, hear my questions and how we're going to be able to do that, and once they're seated some of them are going to be up to potentially a hundred feet away from the witness, and I'll get into later how that's key but so, again when we
273 A.3d 1233
are in a Trial we're not going to be able to see body language, facial expressions because they are so far away. That also goes into the fact that when they are so far away from the witness, they are not going to be able to see. They are the judges of credibility. They are going to be judging the credibility of that witness, that goes to body language, that goes to facial expressions, it goes to minute changes in voice and details. They are not going to be able to see them[,] and I fear they are not going to be able to hear them very well, having been in this Courtroom very often and knowing that the people who are sitting back in the back can barely hear when people are on the witness stand. So, they as the judges of credibility are not going to be able to judge the credibility of the witness, to their body language and everything else, and they are going to be so far away they are not going to be able to see those minute changes.

We also have video and audio which is extremely important during this case and potentially exhibits, pictorial exhibits that are extremely important in this case. I don't see how in conjunction with that people sitting in the back row and third row normally are going to be ten feet away from the video screen or fifteen feet away from the video screen, and the speaker is right there, are going to be able to judge what is said on the video because some of this is very low murmuring voices [of] the trooper talking to my client. I don't see how they are actually even going to be able to see that whatsoever, and they're certainly not going to be able to judge again credibility, and I can't judge credibility for what's happening with the jurors at this point in time. So, while I appreciate the Court's attempting to do it's [sic ] best to get the jurors in there and seated, I would suggest to the Court that had the Court put into place face masks; having the jurors not be wearing any kind of face masks on their face instead wear a clear plastic shield, at least we'll be able to see their faces at that point in time to be able to judge some of them. At the same time as I understand it, maybe the witness will be wearing some kind of plastic face shield, but again if they are a hundred feet away, I don't see how we're supposed to judge the credibility. Normally, they are ten to fifteen feet away from a witness. Credibility in this case is going to be a large issue, as well as the video in this case being a large issue, as well as the sound from the video being a large issue, the things that are said and done, and we just don't believe at this point in time that we're going to be able to do that with the jurors sitting where they are now going to be seated, in jury selection seated well over a hundred feet away from me. They are all in the back in the Courtroom wearing masks. We don't know how my client can get a fair and Constitutional verdict [with a] jury decision in this matter.


I believe[,] Your Honor, with all of those objections on the record we're asking that we not hold this Trial under these circumstances.

THE COURT: Do you want to respond at all [Assistant District Attorney ("ADA")]?

[ADA]: Your Honor, it is my impression in the Commonwealth the Court has gone through a lot of planning in terms of socially distancing the jurors for the

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