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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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