J-S37024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN CHRISTOPHER SPERL,                    :
                                               :
                       Appellant.              :   No. 542 EDA 2019


            Appeal from the PCRA Order Entered, January 25, 2019,
             in the Court of Common Pleas of Montgomery County,
             Criminal Division at No(s): CP-46-CR-0005172-2013.


BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED NOVEMBER 26, 2019

        Sean Christopher Sperl appeals from the order dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In Sperl’s direct appeal, this Court set forth the factual background of

the case as follows:

               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 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
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1   42 Pa.C.S.A. §§ 9541-9546.
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        back seat. Shortly after 12:00 a.m., on April 23, 2012, the
        vehicle Sperl was operating struck a telephone pole 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 [residents] 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 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.

Commonwealth v. Sperl, 178 A.3d 207, at **1-3 (Pa. Super. 2017)

(unpublished memorandum).

        Sperl was arrested and charged with homicide by vehicle,2 accident

involving death or personal injury,3 homicide by vehicle while driving under




____________________________________________


2   75 Pa.C.S.A. § 3732(a).

3   75 Pa.C.S.A. § 3742(a).




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the influence,4 driving under the influence,5 careless driving,6 and other

related offenses. The case proceeded to trial, and, on November 6, 2015, a

jury found Sperl guilty of all but the DUI-related charges. On April 15, 2016,

the trial court sentenced Sperl to a term of one to two years of imprisonment

for the charge of homicide by vehicle, and two to four years of imprisonment

for the charge of accident involving death or personal injury. The trial court

ordered that Sperl serve these sentences consecutively; therefore, Sperl

received an aggregate sentence of three to six years of incarceration.

        Sperl filed post-trial motions seeking reconsideration of his sentence and

a new trial; the trial court denied both motions. On September 29, 2017, this

Court affirmed Sperl’s judgment of sentence. See Sperl, supra. He did not

seek further review from our Supreme Court. Accordingly, Sperl’s judgment

of sentence became final on or about October 29, 2017.

        On March 14, 2018, Sperl filed a timely pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition alleging that (1)

Sperl’s trial counsel was ineffective for failing to raise a claim that the trial

court engaged in double-counting of sentencing factors when imposing a

sentence in the aggravated range for the offense of accident involving death

or personal injury; and (2) Sperl’s appellate counsel was ineffective for failing
____________________________________________


4   75 Pa.C.S.A. § 3735(a).

5   75 Pa.C.S.A. § 3802(a)(1).

6   75 Pa.C.S.A. § 3714.


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to raise the issue of whether the trial court impermissibly considered the fact

that Sperl exercised his right to remain silent and his right to a jury trial in

determining his sentence. The PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss the petition without a hearing. Sperl did not respond to

the PCRA court’s notice, and on January 25, 2019, the PCRA court entered an

order dismissing the petition. Sperl filed a timely notice of appeal. Both Sperl

and the PCRA court complied with Pa.R.A.P. 1925.

       Sperl raises one issue in his statement of questions involved: “Did the

PCRA    court   err    when   it   dismissed   the   petition   without   a   hearing

notwithstanding the multiple instances of ineffective assistance of counsel

asserted in [Sperl’s] PCRA petition?” Sperl’s Brief at 6.

       Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

         When the PCRA court has dismissed a petitioner’s PCRA
         petition without an evidentiary hearing, we review the PCRA
         court’s    decision   for    an    abuse     of   discretion.
         Commonwealth v. Roney, 79 A.2d 595, 604 (Pa. 2013).
         The PCRA court has discretion to dismiss a petition without
         a hearing when the court is satisfied that there are no

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         genuine issues concerning any material fact, the defendant
         is not entitled to post-conviction collateral relief, and no
         legitimate purpose would be served by further proceedings.
         Id. To obtain a reversal of a PCRA court’s decision to
         dismiss a petition without a hearing, an appellant must show
         that he raised a genuine issue of material fact which, if
         resolved in his favor, would have entitled him to relief, or
         that the court otherwise abused its discretion in denying a
         hearing.

Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      In support the above issue, Sperl asserts two claims of ineffectiveness

of prior counsel that involve the failure to raise and/or preserve certain

challenges to the discretionary aspects of his sentence.      More specifically,

Sperl first claims that appellate counsel was ineffective for failing to preserve

the claim that the trial court, in concluding that he lacked remorse for his

crimes, “impermissibly punished [him] for exercising his constitutional right

to a trial by jury and to remain silent when accused of a crime.” Sperl’s Brief

at 21. Second, Sperl claims that trial counsel was ineffective for failing to

preserve for appeal his claim that the trial court erred in “double-counting

factors which were already contemplated by the sentencing guidelines” when

the court imposed an aggravated range sentence for his accident involving

death or personal injury conviction. Sperl’s Brief at 23.

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

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counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.”   Id.   This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) counsel’s act or omission

prejudiced the petitioner. Id. at 533.

       As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”      Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).

       As to the second prong of this test, counsel's strategic decisions cannot

be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).       Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine




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confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).

      Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may   proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner has failed to meet the

prejudice prong, the court may dispose of the claim on that basis alone,

without a determination of whether the first two prongs have been met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).

      Both of Sperl’s ineffective assistance claims involve the discretionary

aspects of his sentence. Our standard of review is well settled:

         Sentencing is a matter vested in the sound discretion of the
         sentencing court, and a sentence will not be disturbed on
         appeal absent a manifest abuse of discretion, which in this
         context, is not shown merely be an error in judgment;
         rather the appellant must establish by reference to the
         record, that the sentencing court ignored or misapplied the
         law, exercised its judgment for reasons of partiality,
         prejudice, bias or ill will, or arrived at a manifestly
         unreasonable decision.

 Commonwealth v. Shull, 148 A.3d 820, 831-32 (Pa. Super. 2016) (citation

omitted).

      Because Sperl’s sentence for accident involving death or personal injury

was in the aggravated range, the trial court was required to articulate its


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reasons for choosing to do so. See 42 Pa.C.S.A. § 9721(b). After hearing

witnesses for the parties, and the argument of counsel, the sentencing court

stated:

             I have heard many good things about [Sperl’s] work
          ethic, his tremendous politeness and likability. He appears
          to have the ability to become a very successful human
          being. But I am truly troubled by the following aggravating
          factors:

             I, too, do not believe [Sperl] is remorseful for his conduct
          that caused the death of [the victim].

              [Sperl], you were speeding excessively late that night
          while a passenger begged you to slow down. But it was too
          late. You were unable to negotiate that curve. And the rest
          is history.

             Then, [Sperl], you ran from the scene knowing [the
          victim] was dead. Ryan Benner yelled to you to stay there.
          You knew [the victim] was dead, but you left the scene.

             What more can I say.

N.T., 9/15/16, at 119.

     In his first claim of ineffectiveness, Sperl asserts appellate counsel was

ineffective for failing to preserve on appeal his claim that the trial court

improperly considered his decision to go to trial and remain silent as an

indication that he lacked remorse for his crimes. In essence, Sperl claims the

trial court relied upon an impermissible factor.         Such a claim raises a

substantial question. See generally, Commonwealth v. Macias, 968 A.2d

773 (Pa. Super. 2009).

     The PCRA court found no merit to Sperl’s claim:



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         [Sperl] cannot prove counsel ineffectiveness because this
         court did not hold against [Sperl] his invocation of his rights
         to jury trial and to remain silent. This court is well aware of
         the sanctity of those rights and did not, as [Sperl] contends
         in the memorandum attached to his amended PCRA petition,
         “adopt” the statements of witnesses at the sentencing
         hearing regarding [Sperl’s] decision to proceed to a jury trial
         and to remain silent. Rather, [Sperl’s] own words at
         sentencing demonstrated his lack of remorse. He did not
         take responsibility for his actions and insinuated during
         allocution, as had been the defense at trial, that Ryan
         Benner had been driving at the time of the crash. Thus,
         because this court did not find [Sperl] lacked remorse on
         the basis of improper considerations, this issue is meritless
         and appellate counsel cannot be found ineffective for failing
         to raise it.

PCRA Court Opinion, 4/3/19, at 8-9 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions.       In

arguing to the contrary, Sperl improperly relies upon comments by the victim’s

mother at sentencing. He then argues that when the sentencing court stated,

“I, too, do not believe [Sperl] is remorseful,” N.T. 4/15/16, at 19, the court

“adopted the views of these family members and [sentenced Sperl] in the

aggravated range for these impermissible and unconstitutional reasons.”

Sperl’s Brief at 22. The PCRA court’s comments cited above readily indicate

that the court, at sentencing, did not adopt the victim’s statements, but

rather, only agreed that Sperl did not demonstrate remorse. Thus, Sperl’s

first ineffectiveness claim fails.

      In his second issue, Sperl contends that trial counsel should have raised

the claim that the trial court erred in “double-counting” sentencing factors

already incorporated into the sentencing guidelines.      We find this claim to


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raise a substantial question.   See Pa.R.A.P. 2119(f); Commonwealth v.

Walls, 926 A.2d 957, 967 (Pa. 2007).

     In rejecting this claim, however, the PCRA court explained:

           [T]his court did not double-count conduct when
        fashioning the sentence for the offense of accident involving
        death or personal injury, as alleged by [Sperl]. This offense,
        codified at 75 Pa.C.S. § 3742(a), provides that:

           [t]he 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
           information and render aid). Every stop shall be made
           without obstructing traffic more than is necessary.

        Id.

            Here, while aware of the applicable sentencing
        guidelines, this court set forth on the record the bases for
        the sentence imposed for [Sperl’s] violation of § 3742(a).
        See N.T., 4/15/16, pp. 118-120. In particular, this court
        noted that the accident from which [Sperl] fled occurred as
        a result of his speeding late at night while a passenger
        begged him to slow down. Id. at 119. This court further
        acknowledged that [Sperl] not only left the scene, but he
        also did so despite pleas from Ryan Benner to return. Id.
        These statements provide an appropriate basis for the
        aggravated-range sentence imposed, and [Sperl] cannot
        demonstrate that he would have achieved a reduced
        sentence on direct appeal had the issue been preserved by
        trial counsel. This issue, therefore, is meritless and trial
        counsel cannot be deemed ineffective for having failed to
        include it in a post-sentence motion.

PCRA Court Opinion, 4/3/19, at 6-7.




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      Our review of the record supports this conclusion. Sperl claims that the

trial court “double-counted” as sentencing factors, elements of the crime

because “he must have known that there had been an accident and that

someone was injured or dead,” and because he was driving at an excessive

speed. Sperl’s Brief at 24. We disagree. A review of the comments above

readily indicates that the trial court properly considered the particular facts

that caused the accident, and the fact that Sperl fled the scene despite his

companion’s request that he stay. See Commonwealth v. Dotter, 589 A.2d

726, 731-32 (Pa. Super. 1991) (explaining that facts regarding the nature and

circumstances of the offense that are not elements of the crime are properly

considered when determining whether to depart from the guidelines).

      In sum, because Sperl has not established his ineffective assistance of

counsel claims, the PCRA court did not err in denying his PCRA petition without

a hearing. Blakeney, supra. We therefore, affirm the court’s order denying

Sperl post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/19



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