Com. v. Speakman, M.

• Court: Superior Court of Pennsylvania
• Decided: July 18, 2025
• Docket: 1110 EDA 2024
• Status: Unpublished

Opinion

J-S12010-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL JAY SPEAKMAN : : Appellant : No. 1110 EDA 2024

Appeal from the Judgment of Sentence Entered September 21, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000170-2022

BEFORE: STABILE, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 18, 2025

Appellant, Michael Jay Speakman, seeks review of the judgment of

sentence entered by the Court of Common Pleas of Chester County (trial

court). In 2022, following a non-jury trial, Appellant was found guilty of

driving under the influence of a controlled substance (75 Pa.C.S.A. §

3802(d)(2)); driving under the influence of alcohol, general impairment (75

Pa.C.S.A. § 3802(a)(1)); and parking in a prohibited place (75 Pa.C.S.A. §

3353(a)(1)(iv)).1 The trial court sentenced him to an aggregate prison term

of 24 hours, with the two DUI counts being merged for sentencing purposes.

Appellant now argues that the evidence was legally insufficient to sustain his

two DUI convictions; he contends further that the trial court erred in allowing

the Commonwealth to amend the charges just prior to trial, adding the general ____________________________________________

1Appellant was acquitted of one count of careless driving (75 Pa.C.S.A. § 3714(a)). J-S12010-25

impairment DUI count under subsection 3802(a)(1). Finding no merit in

Appellant’s claims, we affirm.

The relevant case facts are as follows. On September 22, 2021, at about

2:45 p.m., Appellant arrived at an elementary school to pick up his daughter,

H.S. He parked his truck directly in front of the school’s entrance, with the

front tires resting over a marked crosswalk.

Appellant left his truck’s engine running, entering the school on foot

without a face mask. The school’s principal, Sharon Ray, quickly encountered

Appellant in the main hallway to notify him that face masks were required in

the building. Principal Ray thought that Appellant was behaving erratically,

and that he smelled of alcohol. Appellant went back to his truck to retrieve a

mask, and when he returned, Principal Ray continued speaking with him to

help her determine if he was indeed intoxicated.

After further contact with Appellant, Principal Ray became convinced

from his behavior, and the persistent odor of alcohol, that he was impaired.

She then informed Appellant that she would be contacting the Pennsylvania

State Troopers to relay those suspicions. Officers quickly responded, as their

barracks were located a few blocks away from the school.

The officers first made contact with Appellant, Principal Ray, and other

school administrators in the lobby of the school’s front entrance. They

immediately noticed that Appellant was exhibiting bloodshot, dilated, and

glassy eyes; slurred speech; and signs of nervousness and paranoia, such as

profuse sweating despite it being a cool day in mid-September. It was difficult

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for them to communicate with Appellant, finding much of what he said to be

incoherent and hard to follow.

The officers were concerned that Appellant, who had driven to the school

to pick up his daughter, was under the influence of drugs or alcohol. Appellant

was then made to perform a series of field sobriety tests which were intended

to detect both drug and alcohol-related impairment. One of the officers who

administered the tests, Trooper Kyle G. Schiltz, had received Advanced

Roadside Impaired Driving Enforcement (ARIDE) training, though at the time

of his encounter with Appellant, he was not qualified as an expert in this area.

Based on Appellant’s performance on the tests, the officers believed that

he was impaired to the point that he could not safely operate his vehicle. The

officers did not smell the odor of alcohol on Appellant as Principal Ray did, but

they had him blow into a portable breathalyzer, which detected no alcohol in

his system.2 The officers then transported him to a nearby hospital, where he

refused to submit to blood testing.

The Commonwealth initially charged Appellant on September 9, 2021,

with driving under the influence of a controlled substance while in actual or

physical control of a vehicle, under 75 Pa.C.S.A. § 3802(d)(2). He was also

charged with the summary offenses of careless driving and parking his vehicle

in a prohibited place.

____________________________________________

2 The breathalyzer test result was admitted into evidence at the suppression

hearing, but not at the trial. See N.T. Suppression Hearing, 11/28/2022, at 8.

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On September 27, 2022, Appellant filed a pretrial motion to suppress

the evidence obtained by police between the time in which they encountered

him at his daughter’s school and when they arrested him on suspicion of DUI.

The motion was denied after a hearing, and the Commonwealth indicated that

it would not be charging Appellant with any alcohol-related DUI offenses at

that point.

However, just prior to the subsequent non-jury trial, the Commonwealth

sought to amend the charges to add one count of DUI-general impairment due

to alcohol, under 75 Pa.C.S.A. § 3802(a)(1). See N.T. Trial, 1/27/2023, at 4.

Appellant objected to the amendment, but the trial court overruled the

objection, finding that he had been on notice as to the factual basis for that

charge. See id. Specifically, Appellant knew that Principal Ray had contacted

the police to report that he smelled of alcohol and appeared to be drunk. See

id. After the Commonwealth amended the charges to include the additional

offense, Appellant did not seek a continuance, and the non-jury trial

commenced.

Principal Ray and Officer Schiltz then testified to the above facts. A

recording of the entire incident taken from the officer’s patrol vehicle was

played in court to corroborate their accounts. Appellant also took the stand

on his own behalf, attributing his behavior on the day of the incident to the

effects of a COVID-19 infection, as well as a recent shoulder injury he had

sustained at work. He admitted to being nervous when speaking with the

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officers at his daughter’s school, but he insisted that he was not impaired from

consuming alcohol or drugs.

On January 27, 2023, the trial court found Appellant guilty of the above-

enumerated offenses and sentenced him on September 21, 2023, to an

aggregate term of three days to six months. After he was sentenced, on

September 27, 2023, Appellant filed a “Motion for Reconsideration” in which

he sought to have his sentence reduced to a term of restrictive punishment.

The trial court granted reconsideration on September 27, 2023, and scheduled

a hearing for October 31, 2023, stating in the order that the effective date of

the sentence would be deferred until the hearing. The hearing was continued

and took place on February 29, 2024. At the hearing, Appellant was

resentenced pursuant to the restrictive punishment program, with a prison

term of one day.

Appellant filed a notice of appeal on March 29, 2024. In his brief, he

now raises the following three issues for our consideration:

1. Was the evidence insufficient to support Appellant's conviction for driving under the influence — general impairment, 75 Pa.C.S.A. § 3802(a)(1), where the Commonwealth failed to prove that he imbibed a sufficient amount of alcohol that rendered him incapable of safely driving?

II. Was the evidence insufficient to support Appellant's conviction for driving under the influence, 75 Pa.C.S.A. § 3802(d)(2), where the Commonwealth failed to prove that he was under the influence of a drug or combination of drugs to a degree that impaired his ability to safely drive a vehicle?

III. Did the trial court err by allowing the Commonwealth to amend the criminal information immediately prior to trial by adding the

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charge of driving under the influence — general impairment, 75 Pa.C.S.A. § 3802(a)(1), since section 3802(a)(1), which relates to alcohol impairment, is materially different from the original charge of section 3802(d), which relates to drug impairment?

Appellant’s Brief, at 5 (suggested answers omitted).

Before addressing Appellant’s claims, we must consider the

Commonwealth’s argument that this appeal should be quashed as untimely

because Appellant did not file it within 30 days from the date on which the

trial court entered its initial sentencing order on September 21, 2023. See

Appellee’s Brief, at 10-13.

The timeliness of an appeal implicates the jurisdiction of this Court to

entertain the merits of appellate claims. See Commonwealth v. Yarris, 731

A.2d 581, 587 (Pa. 1999). The timely filing of a notice of appeal will vest

jurisdiction with the Superior Court. See Commonwealth v. Miller, 715

A.2d 1203, 1205 (Pa. Super. 1998). A defendant has 30 days to file a notice

of appeal following the imposition of the sentence if no post-sentence motion

is timely filed. See Pa.R.Crim.P. 720(A)(3).

But where a post-sentence motion is timely filed within 10 days after

the imposition of sentence, the appellate filing periods are different. See

Pa.R.Crim.P. 720(A)(2). A defendant may file a notice of appeal within 30

days of the date on which an order is entered either deciding the motion or

denying the motion by operation of law. See id.

A post-sentence motion is deemed denied by operation of law if the trial

judge does not decide it within 120 days, or within 150 days if an extension

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is granted. See Pa.R.Crim.P. 720(B)(3)(a).3 At that point, the clerk of courts

“shall forthwith enter an order on behalf of the court” and then serve notice

of it to the parties, giving the defendant in a criminal case 30 days from the

date of the order’s entry to file an appeal. See Pa.R.Crim.P. 720(B)(3)(c).

There is no final, appealable order until the clerk of courts has performed these

functions. See generally Commonwealth v. Lamont, 308 A.3d 304, 308

n.3 (Pa. Super. 2024).

Under subsection 720(B)(1)(v), a motion requesting a modification of a

sentence is a post-sentence motion that must be filed no later than 10 days

after the imposition of sentence. See Pa.R.Crim.P. 720(A)(1); Pa.R.Crim.P.

720(B)(1)(a)(v). Appellant filed a post-sentence motion requesting

modification of his sentence within 10 days of the date on which the initial

judgment of sentence was entered. Although the trial court did not rule on

the merits of Appellant’s post-sentence motion within 120 days of its filing,

and did not grant an extension, the clerk of courts never entered or served an

order indicating that the motion was denied by operation of law.

In cases where the trial court has denied a post-sentence motion beyond

the 120-day period; the clerk of courts has not entered or served the order of

denial by operation of law; and the notice of appeal is filed within 30 days of

3 The rule allows for a one-time extension of 30 days, at the discretion of the

trial court upon a showing of good cause. See Pa.R.Crim.P. 720(B)(3)(b). A motion is deemed denied by operation of law at the end of the 120-day period if no decision is made, and no extension has been granted. See id.

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the trial court’s belated decision on the motion, the appeal is deemed to be

timely. See generally id. This Court has explained that the clerk of courts’

failure to enter such an order amounts to a breakdown in court operations

which extends the filing period for an appeal. See id.; see also

Commonwealth v. Perry, 820 A.2d 732, 735 (Pa. Super. 2003) (same).

Accordingly, Appellant’s appeal must be deemed timely filed. 4

Turning now to the merits, we consider Appellant’s first claim – that the

evidence was legally insufficient to sustain his conviction for driving under the

influence of alcohol, general impairment (75 Pa.C.S.A. § 3802(a)(1)). He

argues that the Commonwealth failed to present any evidence that he

consumed any alcohol, much less an amount of alcohol that could impair his

ability to drive.

On review of a claim that the evidence supporting a conviction is legally

insufficient, the following standard applies:

[W]hether viewing all of the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence ____________________________________________

4 In response to this Court’s order to show cause why the appeal should not

be quashed, the trial court entered a supplemental 1925(a) opinion, stating that its order resentencing Appellant was a nullity, requiring this appeal to be quashed as untimely. See Supplemental 1925(a) Opinion, 1/14/2025, at 2- 3. The trial court reasoned that since over 120 days had elapsed after the filing of Appellant’s post-sentence motion, on January 25, 2024, and Appellant did not file a motion for an extension, or a praecipe requesting the entry of an order denying his motion, the notice of appeal was untimely filed over 30 days after that latter date. We reject this reasoning because it conflicts with the controlling authorities discussed above, and neither the procedural rules, nor our decisional law, impose such a requirement in order to preserve appellate rights under these circumstances.

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

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en

banc) (citation omitted).

Moreover, although the fact finder may make reasonable inferences

from the evidence, the “inferences must flow from facts and circumstances

proven in the record, and must be of such volume and quality as to overcome

the presumption of innocence and satisfy the jury of an accused's guilt beyond

a reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.

Super. 1991). “The trier of fact cannot base a conviction on conjecture and

speculation and a verdict which is premised on suspicion will fail even under

the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency

is a question of law, our standard of review is de novo and our scope of review

is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

Subsection 3802(a)(1), the general impairment statute, provides in

relevant part that a person “may not drive . . . a vehicle after imbibing a

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

safely driving[.]” 75 Pa.C.S.A. § 3802(a)(1). A person is incapable of safe

driving when “alcohol has substantially impaired the normal mental and

physical faculties required to safely operate the vehicle.” Commonwealth v.

Palmer, 751 A.2d 223, 228 (Pa. Super. 2000); see also Commonwealth v.

Segida, 985 A.2d 871, 876 (Pa. 2009).

“Substantial impairment, in this context, means a diminution or

enfeeblement in the ability to exercise judgment, to deliberate or to react

prudently to changing circumstances and conditions.” Commonwealth v.

Montini, 712 A.2d 761, 768 (Pa. Super. 1998); see also Palmer, 751 A.2d

at 228 (same). Mere consumption of alcohol, without more, is insufficient to

establish that a defendant is incapable of safely driving. See

Commonwealth v. Rosko, 509 A.2d 1289, 1291 (Pa. Super. 1986).

Subsection 3802(a)(1) imposes “no specific restraint upon the

Commonwealth in the manner in which it may prove that an accused operated

a vehicle under the influence of alcohol to a degree which rendered him

incapable of safe driving.” Segida, 985 A.2d at 879 (quoting

Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006)). A

defendant’s impairment may therefore be proven in several ways:

The types of evidence that the Commonwealth may proffer in [such cases] include[,] but are not limited to . . . the offender's actions and behavior, including manner of driving and ability to pass field sobriety tests; demeanor, including toward the investigating officer; physical appearance, particularly bloodshot

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eyes and other physical signs of intoxication; odor of alcohol, and slurred speech.

Segida, 985 A.2d at 879.

“Evidence that the driver was not in control of himself, such as failing to

pass a field sobriety test, may establish that the driver was under the

influence of alcohol to a degree which rendered him incapable of safe driving,

notwithstanding the absence of evidence of erratic or unsafe

driving.” Palmer, 751 A.2d at 228.

In the present case, there was sufficient evidence from which the trier-

of-fact could conclude that Appellant was impaired from consuming alcohol on

the day in question. He was first seen parking his truck on the crosswalk

directly in front of his daughter’s elementary school, leaving the engine

running as he entered the building. When he went inside the school, the

principal smelled alcohol on his person, and responding officers noticed that

he had bloodshot, glassy eyes, and slurred speech. Both the principal and the

arresting officers described Appellant’s behavior as erratic and consistent with

intoxication. Appellant also performed poorly on a number of field sobriety

tests, further evidencing his impairment.

All of these circumstances, if accepted by the finder of fact, were

sufficient to establish the elements of the general alcohol impairment statute,

subsection 3802(a)(1).5 Accordingly, viewed in the light most favorable to

5 The conflicting evidence, which tended to show that Appellant had not consumed alcohol, was not dispositive. The arresting officers did not detect (Footnote Continued Next Page)

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the Commonwealth, there was sufficient proof beyond reasonable doubt that

Appellant could not safely driving his vehicle due to alcohol-related

impairment. Thus, Appellant’s first claim has no merit.

Appellant’s second claim is that the evidence was legally insufficient to

sustain his conviction for driving under the influence of drugs (75 Pa.C.S.A. §

3802(d)(2)). In his brief, Appellant stresses that no such substances were

found on his person or in his truck; the Commonwealth did not identify any

particular drug as the cause for impairment; and the Commonwealth

introduced no expert opinion that his behavior was indicative of drug use.

“Section 3802(d)(2) does not require that any amount or specific

quantity of the drug be proven in order to successfully prosecute under that

section.” Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super.

2008). The Commonwealth only must prove that the defendant operated a

vehicle while under the influence of a drug or combination of drugs to a degree

that his or her ability to operate the vehicle was impaired. See id.

“[E]xpert testimony is not necessary to establish impairment under

subsection 3802(d)(2) where there exists other independent evidence of

the smell of alcohol on Appellant’s person, and the breathalyzer test he took yielded a result of .000 blood-alcohol concentration. But this inconsistent evidence did not refute the evidence of guilt or render it legally insufficient, as it, at most, raised a question for the fact-finder to resolve. Further, due to their unreliability, breathalyzer tests are only admissible at trial to establish whether an officer had probable cause to arrest a motorist for a DUI offense; such results, even where exculpatory, may not be admitted for the purpose of proving a defendant’s innocence. See generally Commonwealth v. Myrtetus, 580 A.2d 42, 47 (Pa. Super. 1990).

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impairment.” Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super.

2017) (en banc) (citing Commonwealth v. Griffith, 32 A.3d 1231, 1238 (Pa.

2011)). “Instead, impairment evidence should be drawn from the totality of

the factual circumstances.” Commonwealth v. Spence, 290 A.3d 301, 309

(Pa. Super. 2023). A witness “with the requisite observations and experience

may offer lay opinion to establish DUI – controlled substance impairment

under section 3802(d)(2).” Commonwealth v. Nestor, 314 A.3d 863, 870

(Pa. Super. 2024).

“In any . . . criminal proceeding in which the defendant is charged with

a [DUI] . . ., the fact that the defendant refused to submit to chemical testing

. . . may be introduced in evidence along with other testimony concerning the

circumstances of the refusal.” 75 Pa.C.S.A. § 1547(e). No presumption of

guilt automatically arises from the refusal, but the finder of fact may consider

the refusal “along with other factors concerning the charge.” Id.

Here, as discussed above, the evidence established that Appellant was

in control of a vehicle while exhibiting physical signs of impairment. To link

that impairment with Appellant’s use of a drug or combination of drugs, the

trial court detailed the following evidence:

[The arresting officer] described [Appellant’s] mannerisms as "excited" and stated that he "appeared very nervous." He also described [Appellant] as " paranoid" and emotionally labile. [Appellant] failed the walk-and-turn test, displaying seven (7) of the eight (8) clues that test offers on the issue of impairment.

[Appellant] failed the one-leg stand test, displaying two (2) of the four (4) indicators of impairment explored by that test. In addition

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to failing these field sobriety tests, [Appellant] failed both of the ARIDE tests . . . , which are designed to test for impairment due to controlled substances. In addition to his physical and emotional demeanor, his inability to perform the field sobriety tests and the indicia of drug impairment revealed by the ARIDE tests, including his eyelid tremors, lack of convergence, and truncated estimation of the passage of thirty (30) seconds on the modified Romberg balance test, [Appellant] refused to submit to chemical testing of his blood.

[Appellant’s] refusal of chemical testing, as we discussed in connection with his claim against his Driving Under the Influence of Alcohol--General Impairment conviction, is evidence of his consciousness of guilt of the offense of Driving Under the Influence of Controlled Substance under 75 Pa. C.S.A. § 3802(d)(2). His refusal, together with the other evidence of record demonstrating impaired mental and physical faculties described above, led the undersigned to conclude that [Appellant’s] ability to safely operate a motor vehicle was substantially impaired by his ingestion of a controlled substance or substances that day.

Trial Court 1925(a) Opinion, at 36-37.

Viewing the evidence in the light most favorable to the Commonwealth,

as the verdict winner, the record supports the trial court’s determination that

Appellant was impaired by drugs. The officers observed several signs of

Appellant’s impairment, including his general demeanor and performance on

field sobriety tests designed to detect drug-related impairment. Officer Schiltz

opined, based on his training and observations, that Appellant’s use of drugs

had impaired his driving ability.6 Moreover, the finder of fact could infer from

6 In Commonwealth v. Caraballo, 325 A.3d 1025, 1030 (Pa. Super. 2024),

this Court held that an officer’s lay opinion linking the defendant’s conduct with drug use could be used to establish the defendant’s guilt, even if the officer was not qualified as an expert in drug impairment identification. We reasoned that the officer’s qualifications as an expert on that topic “goes to (Footnote Continued Next Page)

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Appellant’s refusal to take a drug test that he knew he had taken a drug or

drugs, and he sought to conceal that fact. See Commonwealth v.

Caraballo, 325 A.3d 1025, 1030 (Pa. Super. 2024) (“Where, as here, the

finder of fact draws the reasonable inference that a defendant was conscious

of his own guilt and hoped to escape culpability by refusing chemical testing,

that refusal is legally sufficient evidence that the defendant was DUI.”).

Thus, the evidence was sufficient to sustain Appellant’s conviction under

subsection 3802(d)(2).

Appellant’s third and final claim is that the trial court erred in permitting

the Commonwealth to amend its complaint just prior to trial by adding the

above-discussed count of DUI – general impairment from alcohol (75

Pa.C.S.A. § 3802(a)(1)), because that offense is materially different from the

original charge under subsection 3802(d).

A trial court's decision to grant or deny a motion to amend an

information is subject to an abuse of discretion standard of review. See

Commonwealth v. Small, 741 A.2d 666, 681 (Pa. 1999). “An abuse of

discretion is not merely an error of judgment, but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by

the admissibility of his opinion, not its legal sufficiency to prove causation under Section 3802(d)(2).” 325 A.3d at 1030. Since the defendant in that case had not objected to the officer’s opinion on admissibility grounds, the opinion could be considered by the trier of fact and relied upon to establish that the evidence of the defendant’s guilt was legally sufficient. See id.

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the evidence of record.” Commonwealth v. Belknap, 105 A.3d 7, 10 (Pa.

Super. 2014) (quoting Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa.

Super. 2013)).

Pennsylvania Rule of Criminal Procedure 564 governs when the

Commonwealth may amend the charges against a defendant. See

Pa.R.Crim.P. 564. The rule provides that “an information may be amended,

provided that the information as amended does not charge offenses arising

from a different set of events and that the amended charges are not so

materially different from the original charge that the defendant would be

unfairly prejudiced.” Id. Where an amendment is permitted, “the court may

grant such postponement of trial or other relief as necessary in the interests

of justice.” Id.

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 defendant is uninformed. See

Commonwealth v. Duda, 831 A.2d 728, 732 (Pa. Super. 2003). But even

where the amendment is deemed improper, relief is only merited to remedy

the resulting prejudice, if any. See e.g., Commonwealth v. Brown, 727

A.2d 541 (Pa. 1999). In evaluating prejudice, we consider:

(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

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necessitated by the amendment; and (6) whether the timing of the Commonwealth's request for amendment allowed for ample notice and preparation.

Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa. Super. 2006). The

test is “whether 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.” Id. at

1221.

This Court has routinely affirmed the amendment of an information at

various stages of a trial when prejudice cannot be shown. See e.g.,

Commonwealth v. Beck, 78 A.3d 656 (Pa. Super. 2013) (upholding

amendment after Commonwealth's case-in-chief); Commonwealth v.

Mentzer, 18 A.3d 1200 (Pa. Super. 2011) (upholding amendment at

sentencing); Commonwealth v. Page, 965 A.2d 1212 (Pa. Super. 2009)

(upholding amendment at close of evidence); Commonwealth v. Roser, 914

A.2d 447 (Pa. Super. 2006) (upholding amendment of information after

appellant testified in his own defense).

Moreover, this Court has held that the defendant’s failure to request a

continuance after an information is amended may establish that the

amendment caused the defendant no prejudice. See Commonwealth v.

Tyler, No. 1681 MDA 2023, at *9 (Pa. Super. filed July 2, 2024) (unpublished

memorandum) (citing Commonwealth v. Fowler, 393 A.2d 844, 847 (Pa.

Super. 1978)).

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In the present case, the amendment of the information comported with

Rule 564. The new charge of DUI, general impairment from alcohol, under 75

Pa.C.S.A. § 3802(a)(1), arose from the same events as the original charges,

and the amended charge is not so materially different from the original

charges that Appellant was unfairly prejudiced. Appellant knew long before

the date of the trial that Principal Ray had allegedly smelled the odor of alcohol

on his person and relayed to the police her suspicion of his intoxication.

Further, Appellant did not request a continuance of the trial after the

amendment was permitted. Thus, the trial court did not abuse its discretion

in permitting the Commonwealth to amend, no relief is due on this claim, and

the judgment of sentence must stand.

Judgment of sentence affirmed.

Date: 7/18/2025

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