J-S29028-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN SHIPLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 factfinder. 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