Com. v. Shipley, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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