J-S29028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN SHIPLEY                               :
                                               :
                       Appellant               :   No. 2480 EDA 2018

          Appeal from the Judgment of Sentence Entered July 23, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0007834-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 06, 2019

        John Shipley appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, after he was convicted in a

nonjury trial of driving under the influence of alcohol.1 Shipley argues the

evidence was insufficient to find him guilty. Upon careful review, we affirm.

        The trial court set forth the facts of this case as follows:

        Captain Marilyn Lee has been employed with the City of Chester
        Police Department as the Captain of the Nightshift Patrol for the
        past 24 years. During the course of her training and employment,
        Captain Lee has come into contact with individuals under the
        influence of alcohol, and has previously made several DUI arrests.
        When determining whether an individual is under the influence of
        alcohol, Captain Lee looks for slurred speech, glazed eyes,
        staggering, and failure to comprehend instructions.

        On the morning of November 26, 2016, Captain Lee was on
        nightshift patrol in Chester; at approximately 5:00 a.m., she was
        patrolling the area of 12th and Edgemont in Chester City, Delaware
____________________________________________


1   75 Pa.C.S. § 3802(a)(1).
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     County. During her patrol, Captain Lee observed a truck on
     Providence Avenue slowly drifting into oncoming traffic, and
     eventually hit the concrete barrier just before the I-95 entrance
     ramp.      When Captain Lee approached the vehicle, she
     immediately recognized Defendant John Shipley, as she has
     known [him] all her life. Captain Lee observed that [Shipley’s]
     head was down, as if he were asleep or unconscious, so she went
     to the driver’s side door and attempted to []rouse him. Captain
     Lee noticed that [Shipley] was groggy and disoriented when
     awakened.

     Captain Lee asked [Shipley] to turn the car off all together
     because it was still running; instead, [Shipley] put the car in
     reverse, backed up, and turned onto Edgemont Avenue towards
     his residence on Providence Avenue. Captain Lee subsequently
     followed the vehicle to [Shipley’s] residence. When [Shipley]
     exited the vehicle, Captain Lee could smell the odor of alcohol
     emanating from his person. Captain Lee has previously observed
     [Shipley] when he was both sober and intoxicated, and believed
     [Shipley] was intoxicated on the morning of November 26, 2016,
     to the point where he could not safely operate a motor vehicle.
     Due to [Shipley] falling asleep at the wheel, not being able to wake
     himself, and being abruptly []roused by someone else and acting
     disoriented, Captain Lee determined that it was unsafe for
     [Shipley] to operate a motor vehicle.

     When Captain Lee examined the interior of the vehicle, she
     observed both open and closed containers of beer. Following her
     observation of [Shipley,] Captain Lee advised Officer Christopher
     Senkow of the situation.       When Officer Senkow arrived at
     [Shipley’s] residence, he observed that [Shipley] was stumbling
     and walking away from police. Officer Senkow asked [Shipley] if
     he had been drinking, and [Shipley] slurred his response and
     stated ‘yes’, that he [had] ‘maybe more than one beer’.
     Pennsylvania [s]tate [t]roopers eventually arrived on the scene
     and attempted to conduct a portable breath test, but [Shipley]
     failed to follow the [t]roopers directions and was not able to
     register a reading on the PBT machine. Due to [Shipley’s] inability
     to stand on his own, [trooper’s] determined that it was unsafe to
     perform any field sobriety tests. [Shipley] additionally refused to
     submit to a blood alcohol test. Following this conduct, Officer
     Senkow advised [Shipley] that he was under arrest for [d]riving
     [u]nder the [i]nfluence of alcohol, and for fleeing and eluding
     police.


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Trial Court Opinion, 9/28/18, at 2-3 (citations omitted).

      On July 23, 2018, the trial court convicted Shipley of driving under the

influence of alcohol and the trial court sentenced him to time served to six

months’ confinement. Shipley filed a timely notice of appeal on August 21,

2018. Shipley’s sole issue on appeal is whether the evidence was sufficient

to convict him of driving under the influence. Specifically, he argues that the

evidence was insufficient to show he consumed alcohol.

      We review his sufficiency of the evidence claim under the following

standard:

      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 [that of] 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 trier 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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(citation omitted).




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       For   the   crime   of driving   under   the   influence   of   alcohol,   the

Commonwealth must prove two elements: “(1) the defendant was operating

a motor vehicle, (2) after imbibing a sufficient amount of alcohol such that the

individual is rendered incapable of safely [operating the motor vehicle].”

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

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

later sections of 75 Pa.C.S. § 3802, section (1)(a) does not limit the type of

evidence the Commonwealth may use to prove its case. Segida, 985 A.2d at

879.

       The types of evidence that the Commonwealth may proffer in a
       subsection 3802(a)(1) prosecution include, but are not limited to,
       the following: 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 eyes and other physical signs
       of intoxication; odor of alcohol, and slurred speech.

Id. Furthermore, the occurrence of a one-car accident can be used to

infer that a defendant was driving under the influence.                   See

Commonwealth v. Mahaney, 540 A.2d 556, 559 (Pa. Super. 1988).

       Here, Captain Lee saw Shipley drive his car into the concrete

barrier before the I-95 entrance ramp.          When she approached the

vehicle, Shipley put the car in reverse and drove back to his house.

Captain Lee witnessed Shipley operating the vehicle, thus, there was

sufficient evidence of the first prong, operating a motor vehicle. See

Segida, 985 A.2d at 876. Next, we must determine if the evidence was



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sufficient to show Shipley imbibed enough alcohol to render himself

incapable of safely operating a motor vehicle.

       Captain Lee testified that Shipley drove off the road, fell asleep at

the wheel of the car, took several attempts to awaken, had open

containers of alcohol in his vehicle, and smelled of alcohol. Furthermore,

Captain Lee had 24 years of experience as captain of the Nightshift

Patrol and was familiar with Shipley; she knew how he behaved when

he was under the influence of alcohol as well as when he was sober.

These facts, combined with the fact that Shipley caused a one-car

accident, are sufficient to find Shipley drank enough alcohol to render

himself incapable of safely operating a motor vehicle. See Segida, 985

A.2d at 889; Mahoney, 540 A.2d at 559; see also Commonwealth v.

Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (evidence may be entirely

circumstantial as long as it links accused to crime beyond reasonable

doubt). While no blood alcohol test was performed on Shipley, section

3802(a)(1) does not require a specific BAC level like the other

subsections of 3802.        See 75 Pa.C.S. § 3802.2      We find there was




____________________________________________


2 Shipley testified at trial that he drove erratically as a result of not
taking his blood pressure medication and smelled of alcohol because
someone spilled beer on him earlier in the evening. However, the judge,
sitting as fact finder, “is free to believe all, part or none of the evidence.”
Vargas, 108 A.3d at 868.


                                           -5-
J-S29028-19


sufficient evidence for the fact finder to find Shipley had driven under

the influence of alcohol.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/19




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