Com. v. Sperl, S.

J-A13004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

SEAN CHRISTOPHER SPERL

Appellant No. 2065 EDA 2016

Appeal from the Judgment of Sentence April 15, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0005172-2013

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 29, 2017

Sean Christopher Sperl appeals from the judgment of sentence, entered

in the Court of Common Pleas of Montgomery County, after a jury convicted

him of homicide by vehicle1 and accident involving death or personal injury.2

After careful review, we affirm.

On April 22, 2013, Sperl, Ryan Benner, Ted Stoler and Ryan Petrille

attended a Philadelphia Phillies baseball game at Citizens Bank Park; during

the game, Sperl consumed several alcoholic beverages, including beer and

whiskey. Afterward, Stoler drove Sperl, Benner and Petrille back to his home

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

75 Pa.C.S.A. § 3732.

2

75 Pa.C.S.A. § 3742.

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in Landsdale, Montgomery County. At approximately 11:30 p.m., Sperl,

Benner and Petrille left Stoler’s home to drive to a nearby gentleman’s club;

Sperl was driving the vehicle. After discovering the club was closed, the three

men detoured to a convenience store before continuing to a different

gentleman’s club in Harleysville, Montgomery County. Sperl was still driving

the vehicle on the way to Harleysville; Benner sat in the front seat and Petrille

sat in the back seat. Shortly after 12:00 a.m., on April 23, 2012, the vehicle

Sperl was operating struck a telephone poll while traveling at approximately

80 miles per hour. The collision separated the front of the vehicle from the

rear, with the front of the vehicle coming to rest approximately 100 feet from

the telephone pole and the rear portion coming to a stop 100 feet away from

the telephone pole opposite of the front portion.

After the collision, Sperl and Benner exited the front portion of the

vehicle; Sperl did not remain at the scene of the accident. Ryan Petrille did

not survive the collision. At approximately 12:12 a.m., police responded to a

radio dispatch of a one-car accident. At approximately 3:30 a.m., during the

course of the investigation, police received a report of a disturbance at a

residence at 31 Sugar Hill Lane, located approximately 100 to 200 feet from

the collision scene. The residence at 31 Sugar Hill Lane reported that Sperl

had knocked on the door after awakening inside a shed located on the

property. When police arrived, Sperl indicated that he thought he might have

been in a crash that killed someone. Sperl was visibly injured, his eyes were

glassy and bloodshot, and he had a strong odor of alcohol coming from his

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person and breath, but police did not perform a field sobriety test for safety

purposes. After being transported to a local hospital, Sperl’s blood was drawn

at 4:44 a.m., which revealed a blood alcohol content of 0.175 percent.

On July 10, 2013, Sperl was charged with homicide by vehicle, accident

involving death or personal injury, homicide by vehicle while driving under the

influence,3 driving under the influence (DUI)4 and other related summary

offenses, including careless driving5. A jury trial commenced on November 2,

2015. On the morning of the trial, over Sperl’s objection, the Commonwealth

was granted permission to amend the homicide by vehicle charge to include

careless driving as the underlying Motor Vehicle Code violation. The original

criminal information charged driving under the influence as the underlying

offense. The jury convicted Sperl of all but the DUI-related offenses. On April

15, 2015, the trial court sentenced Sperl to an aggregate sentence of three to

six years’ imprisonment. Sperl timely filed a motion for reconsideration of

sentence and for a new trial, which the trial court denied by order on June 20,

2016. Sperl timely appealed and filed a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, Sperl

raises the following issues:

1. Did the court err by allowing the Commonwealth to amend

count 3 of the information, homicide by vehicle, on the first day

____________________________________________

3

75 Pa.C.S.A. § 3735.

4

75 Pa.C.S.A. § 3802.

5

75 Pa.C.S.A. § 3714.

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of testimony in violation of Rule 564 and causing substantial

prejudice to [Sperl]?

2. Did the court err by refusing [Sperl’s] motion to dismiss the

Commonwealth’s case pursuant to Pa.R.Crim.P. 600 after the

Commonwealth failed to bring [Sperl] to trial [within] 365 days?

3. Even when viewing the evidence in the light most favorable to

the Commonwealth[,] was the evidence lacking as a matter of law

to sustain a conviction for accidents involving death or bodily

injury as there was insufficient evidence tending to show that

[Sperl] failed to remain at the scene of the accident?

4. Did the court err in sentencing by failing to consider the

rehabilitative needs of [Sperl] or the gravity of the offense,

instead imposing a lengthy state sentence for careless and

negligent conduct?

Brief of Appellant, at 5.

Sperl first claims that the trial court substantially prejudiced his defense

by allowing the Commonwealth to amend the homicide by vehicle charge.

Specifically, Sperl avers the trial court erred in allowing the Commonwealth to

change the underlying offense of his homicide by vehicle charge from DUI to

careless driving.

Pennsylvania Rule of Criminal Procedure 564 provides as follows:

The court may allow an information to be amended when

there is a defect in form, the description of the offense(s), the

description of any person or any property, or the date charged,

provided the information as amended does not charge an

additional or different offense. Upon amendment, the court may

grant such postponement of trial or other relief as is necessary in

the interests of justice.

Pa.R.Crim.P. Rule 564 (emphasis added). “The purpose of Rule 564 is to

ensure that a defendant is fully apprised of the charges, and to avoid prejudice

by prohibiting the last minute addition of alleged criminal acts of which the

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defendant is uninformed.” Commonwealth v. Sinclair, 897 A.2d 1218,

1221 (Pa. Super. 2006). Accordingly, this court must determine

[w]hether the crimes specified in the original indictment or

information involve the same basic elements and evolved out of

the same factual situation as the crimes specified in the amended

indictment or information. If so, then the defendant is deemed to

have been placed on notice regarding his alleged criminal conduct.

If, however, the amended provision alleges a different set of

events, or the elements or defenses to the amended crime are

materially different from the elements or defenses to the crime

originally charged, such that the defendant would be prejudiced

by the change, then the amendment is not permitted.

Id. (citation omitted). In determining whether an amendment is prejudicial,

we consider the following factors:

(1) whether the amendment changes the factual scenario

supporting the charges; (2) whether the amendment adds new

facts previously unknown to the defendant; (3) whether the entire

factual scenario was developed during a preliminary hearing; (4)

whether the description of the charges changed with the

amendment; (5) whether a change in defense strategy was

necessitated by the amendment; and (6) whether the timing of

the Commonwealth's request for amendment allowed for ample

notice and preparation.

Commonwealth v. Mentzer, 18 A.3d 1200, 1203 (Pa. Super. 2011). In

short, in reviewing an order granting a motion to amend charges, we must

look to determine whether the defendant is fully apprised of the charges

against him. See Commonwealth v. Picchianti, 600 A.2d 597 (Pa. Super.

1991). Where charges involve the same basic elements and arise out of the

same factual situation as the crimes specified in the amended charges, a

defendant is deemed to have been placed on notice regarding his alleged

criminal conduct and no prejudice to defendant results. Id.

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Here, the trial court granted the Commonwealth’s request to amend the

charge of homicide by vehicle, which provides, in relevant part, as follows:

(a) Offense.--Any person who recklessly or with gross

negligence causes the death of 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 except section 3802 (relating to driving under

influence of alcohol or controlled substance) is guilty of homicide

by vehicle, a felony of the third degree, when the violation is the

cause of death.

75 Pa.C.S.A. § 3732(a). To establish the offense of homicide by vehicle the

Commonwealth must establish only that: (1) the defendant deviated from

standard of care established by the underlying traffic regulation; (2) the

defendant knew or should have known he engaged in conduct claimed to be

in violation of the underlying traffic violation; and (3) a death occurred, and

that death was at the very least a probable consequence of defendant’s

violation of the underlying traffic violation. See Commonwealth v.

Richardson, 452 A.2d 1379 (Pa. Super. 1982). Initially, Sperl’s criminal

information reflected DUI as the underlying offense for homicide by vehicle.

Generally, “an individual may not drive . . . a vehicle after imbibing a sufficient

amount of alcohol such that the individual is rendered incapable of safely

driving.” 75 Pa.C.S.A. § 3802(a). However, on the first day of Sperl’s jury

trial, the Commonwealth requested to change the underlying offense from DUI

to careless driving. Any person who drives a vehicle in careless disregard for

the safety of another person is guilty of careless driving, which is a summary

offense. See 75 Pa.C.S.A. § 3714.

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Here, the Commonwealth sought to remedy a defect in the criminal

information; the underlying offense for homicide by vehicle was incorrect. The

Commonwealth’s amendment of the charge did not serve to change the factual

scenario supporting the charges of homicide by vehicle, DUI or careless

driving. Sperl had been placed on notice of the underlying charge of careless

driving, as it was included in the original criminal information and arose out

of the same factual situation. Picchianti, supra. Further, the

Commonwealth’s request did not deprive Sperl of ample notice and/or

preparation. Sperl was charged with careless driving in a separate count on

July 10, 2013, more than two years before his jury trial, and thus, Sperl had

reasonable notice that careless driving was a Motor Vehicle offense that the

Commonwealth could potentially use to prove homicide by vehicle. See

Commonwealth v. Wilkinson, 420 A.2d 647 (Pa. Super. 2008) (criminal

complaint which informed defendant that she was charged with homicide by

vehicle and gave details of incident and also charged defendant with driving

under influence gave defendant fair notice of Commonwealth’s theory that her

driving under influence caused death). Additionally, amending Sperl’s charges

to reflect a different underlying Motor Vehicle Code violation for homicide by

vehicle did not fundamentally alter the elements of the crime the

Commonwealth had the burden of proving. The offense underlying a charge

of homicide by vehicle has no bearing on the elements necessary to prove it.

In fact, it is not necessary at all for the Commonwealth to separately charge

a violation of the motor vehicle code to establish the elements of homicide by

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vehicle. See Commonwealth v. Gbur, 474 A.2d 1151 (Pa. Super. 1984).

In light of the foregoing, we discern no error in the trial court’s granting of the

Commonwealth’s request to amend Sperl’s charges.

Next, Sperl claims the Commonwealth failed to comply with

Pa.R.Crim.P. 600, and thus the trial court erred in denying his motion to

dismiss. Rule 600 provides, in relevant part, as follows:

Trial in a court case in which a written complaint is filed against

the defendant, when the defendant is at liberty on bail, shall

commence no later than 365 days from the date on which the

complaint is filed.

Pa.R.Crim.P. 600(A)(3). Our standard and scope of review in reviewing a Rule

600 issue are both well settled.

In evaluating Rule 600 issues, our standard of review of a trial

court’s decision is whether the trial court abused its discretion.

Judicial discretion requires action in conformity with law, upon

facts and circumstances judicially before the court, after hearing

and due consideration. An abuse of discretion is not merely an

error of judgment, but if in reaching a conclusion the law is

overridden or misapplied or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill will,

as shown by the evidence or the record, discretion is abused.

The proper scope of review . . . is limited to the evidence on the

record of the Rule 600 evidentiary hearing, and the findings of the

trial court. An appellate court must view the facts in the light most

favorable to the prevailing party.

Additionally, when considering the trial court’s ruling, this Court is

not permitted to ignore the dual purpose behind Rule 600. Rule

600 serves two equally important functions: (1) the protection of

the accused’s speedy trial rights, and (2) the protection of society.

In determining whether an accused’s right to a speedy trial has

been violated, consideration must be given to society’s right to

effective prosecution of criminal cases, both to restrain those

guilty of crime and to deter those contemplating it. However, the

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administrative mandate of Rule 600 was not designed to insulate

the criminally accused from good faith prosecution delayed

through no fault of the Commonwealth.

So long as there has been no misconduct on the part of

the Commonwealth in an effort to evade the fundamental speedy

trial rights of an accused, Rule 600 must be construed in a manner

consistent with society’s right to punish and deter crime. In

considering these matters . . ., courts must carefully factor into

the ultimate equation not only the prerogatives of the individual

accused, but the collective right of the community to vigorous law

enforcement as well.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(citations omitted). The Commonwealth bears the burden of proving, by a

preponderance of the evidence, that it acted with due diligence throughout

the proceedings. Commonwealth v. Kearse, 890 A.2d 388, 393 (Pa. Super.

2005).

We embark on our review of the instant Rule 600 claim by calculating

Sperl’s mechanical run date. See Commonwealth v. Lynn, 815 A.2d 1053,

1056 (Pa. Super. 2003) (mechanical run date is date by which trial must

commence under Rule 600). The Commonwealth charged Sperl with the

foregoing crimes on July 10, 2013, and thus, Rule 600 required his trial begin

no later than July 10, 2014, absent periods of delay not attributable to the

lack of due diligence by the Commonwealth. Here, Sperl filed a motion to

dismiss under Rule 600 on August 20, 2015, 771 days after his mechanical

run date. On September 18, 2015, the trial court held an evidentiary hearing

on Sperl’s Rule 600 motion. The Honorable Gary S. Silow aptly summarized

the findings of the evidentiary hearing as follows:

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[F]ollowing the filing of the criminal complaint, defendant

waived his arraignment and trial counsel entered his appearance

on August 12, 2013. Defendant filed a petition for writ of habeas

corpus on August 28, 2013. The motion was denied on September

10, 2013. The intervening 13 days are not attributable to the

Commonwealth. [Sperl] subsequently executed a Rule 600 waiver

on October 29, 2013, and the pre-trial conference [(PTC)]

scheduled for that day was continued. Pre -trial conferences again

were continued at defendant's request on February 10, 2014, and

April 8, 2014, at which time the case was placed on the Call of the

Trial List [(COT list)]. The matter appeared on the COT list on

June 5, 2014, and was continued by defense request. Defense

counsel subsequently filed a petition to withdraw as counsel on

June 25, 2014. The petition was withdrawn July 2, 2014. [Sperl]

then waived Rule 600 on August 7, 2014, when the matter again

appeared on the COT list. Similar listings were continued by

defense request on October 9, 2014, and December 1, 2014. The

combined period of time counted against [Sperl] from the original

Rule 600 waiver until December 1, 2015, is 398 days.

The case subsequently was transferred to the undersigned,

who issued an Order on April 6, 2015, scheduling a five -day trial

to begin on September 9, 2015. Two days later, defense counsel

again filed a petition to withdraw as counsel on April 8, 2015.

Defense counsel remained in the case following the advice of the

Public Defender's Office that defendant did not qualify for

representation. This court subsequently issued an Order on

September 8, 2015, rescheduling the trial until November 2,

2015. The Order also granted defendant 45 days to obtain a cell

phone expert due to recently disclosed evidence from the

Commonwealth and counted that 45 day period against the

Commonwealth. Based upon the above, even without including

the period of delay occasioned by the second petition to withdraw

filed by defense counsel, approximately 559 days are not

attributable to the Commonwealth.

Trial Court Opinion, 9/21/16, at 7-8.

The trial court attributed 559 days to Sperl, whose trial began on

November 2, 2015, and thus, only 212 days attributable to the Commonwealth

had elapsed. Additionally, the trial court found no evidence that demonstrated

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a lack of due diligence by the Commonwealth in bringing the case to trial.

Kearse, supra. Accordingly, it found no Rule 600 violation occurred. In light

of the foregoing, we discern no abuse of discretion by the trial court in denying

Sperl’s motion to dismiss.

Sperl next claims the evidence of record was insufficient to prove Sperl

failed to remain at the scene of the collision, and thus, lacking as a matter of

law to sustain a conviction for accident involving death or personal injury.

The standard we apply in reviewing the sufficiency of the 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

beyond a reasonable doubt. In applying the above test, we may

not weigh the evidence and substitute our judgment for the fact–

finder. In addition, we note that the facts and circumstances

established by the Commonwealth need 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 finder 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. Williams, 744 A.2d 745, 751 (Pa. Super. 2016).

Section 3742 of the Motor Vehicle Code provides, in part, as follows:

(a) General rule.--The driver of any vehicle involved in an

accident resulting in injury or death of any person shall

immediately stop the vehicle at the scene of the accident or as

close thereto as possible but shall then forthwith return to and in

every event shall remain at the scene of the accident until he has

fulfilled the requirements of section 3744 (relating to duty to give

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information and render aid).[6] Every stop shall be made without

obstructing traffic more than is necessary.

75 Pa.C.S.A. § 3742(a).

____________________________________________

6

75 Pa.C.S.A. § 3744 provides, in relevant part, as follows:

(a) General rule.--The driver of any vehicle involved in an

accident resulting in injury to or death of any person or damage

to any vehicle or other property which is driven or attended by

any person shall give his name, address and the registration

number of the vehicle he is driving, and shall upon request exhibit

his driver's license and information relating to financial

responsibility to any person injured in the accident or to the driver

or occupant of or person attending any vehicle or other property

damaged in the accident and shall give the information and upon

request exhibit the license and information relating to financial

responsibility to any police officer at the scene of the accident or

who is investigating the accident and shall render to any person

injured in the accident reasonable assistance, including the

making of arrangements for the carrying of the injured person to

a physician, surgeon or hospital for medical or surgical treatment

if it is apparent that treatment is necessary or if requested by the

injured person.

(b) Report of accident to police.--In the event that none of the

persons specified are in condition to receive the information to

which they otherwise would be entitled under subsection (a) and

no police officer is present, the driver of any vehicle involved in

the accident after fulfilling all other requirements of section 3742

(relating to accidents involving death or personal injury) and

subsection (a), in so far as possible on his part to be performed,

shall forthwith report the accident to the nearest office of a duly

authorized police department and submit to the police department

the information specified in subsection (a).

75 Pa.C.S.A. § 3744.

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Sperl crashed a vehicle into a telephone pole while traveling at

approximately 80 miles per hour; the collision fatally injured Petrille. Sperl

did not attempt to render Petrille aid, notify authorities or seek help from

nearby persons. In fact, Sperl fled the area and did not report the accident

until after police responded to the disturbance at 31 Sugar Hill Lane. The

evidence of record supports the jury’s finding that Sperl violated section

3751(a).

Lastly, Sperl avers the trial court abused its discretion by failing to

consider Sperl’s rehabilitative needs when it fashioned his sentence.

An appellant challenging the discretionary aspects of his sentence

must invoke this Court’s jurisdiction by satisfying a four-part test:

(1) whether appellant has filed a timely notice of

appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was

properly preserved at sentencing or in a motion to reconsider and

modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there

is a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015), quoting

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

Sperl filed a timely motion to reconsider and modify sentence on April

25, 2016, which the trial court denied; on June 6, 2016, Sperl timely appealed.

Sperl, in complying with Rule 2119(f), argues the trial court abused its

discretion in sentencing by failing to consider his rehabilitative needs and/or

the gravity of his offense. See Brief of Appellant, at 12-13. Thus, Sperl has

raised a substantial question for our review. See Commonwealth v.

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Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005) (indicating substantial

question raised when issue raises question of whether trial court sentenced in

aggravated range without considering mitigating circumstances). However,

we find this issue to be meritless.

The trial court sentenced Sperl to a standard-range sentence of 1-2

years’ imprisonment for homicide by vehicle and a consecutive aggravated-

range sentence of 2-4 years’ imprisonment for accident involving death or

personal injury. The standard-range sentence for accident involving death or

personal injury is 9-16 months’ imprisonment. Where the sentencing court

had the benefit of a presentence investigation (PSI) report, it is presumed that

it was aware of the information regarding the defendant’s character and

weighed those considerations with mitigating statutory factors. See

Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004). A trial court

judge has wide discretion in sentencing and can, on the

appropriate record and for the appropriate reasons, consider any legal factor

in imposing a sentence in the aggravated range. See Commonwealth v.

Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). The record clearly reflects

that the trial court, in fashioning Sperl’s sentence, considered Sperl’s

presentence investigation report, Boyer, supra, his personal background and

circumstances and the evidence of the circumstances of the offense. N.T.

Sentencing, 4/15/16, at 118-121. Thus, the trial court did not abuse its

discretion in fashioning Sperl’s sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2017

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