J-A29022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RHONDA LYNN MUNKO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 450 WDA 2022

Appeal from the Judgment of Sentence Entered February 9, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0002441-2017

BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED: FEBRUARY 3, 2023

Appellant, Rhonda Lynn Munko, appeals from the February 9, 2022 

judgment of sentence entered in the Court of Common Pleas of Allegheny 

County, imposing an aggregate sentence of two to four days’ incarceration

and a concurrent six months’ probation, after the trial court, in a non-jury

trial, convicted Appellant of, inter alia, driving under the influence of alcohol 

or controlled substance (“DUI”) – high rate of alcohol (Count 1).

1

 We affirm.

The trial court summarized the factual and procedural history as follows:

The evidence adduced at [the non-jury] trial established that on 

December 7, 2016, Officer Brian Kocian [(“Officer Kocian”)] was 

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1 75 Pa.C.S.A. § 3802(b). Appellant was also convicted of two counts of 

DUI – general impairment (Counts 2 and 3), as well as the summary offenses 

of driving on roadways laned for traffic – driving within single lane and 

careless driving. 75 Pa.C.S.A. §§ 3802(a)(1), 3309(1), and 3714(a), 

respectively. Appellant was found not guilty of driving vehicle at safe speed. 

75 Pa.C.S.A. § 3361.
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called to a vehicle accident on private property located [in 

Oakdale, Pennsylvania]. At the time, Officer Kocian was a 

twelve-year veteran employed with the North Fayette Township 

Police Department. The call came from the property owner at 

approximately 8:17 p.m.[,] and Officer Kocian arrived at 

8:21 p.m. [Officer Kocian] described that it was dark outside and 

that he observed a vehicle over an embankment. The subsequent 

accident investigation determined that the vehicle was driving 

northbound on the roadway at which time [the driver] failed to 

negotiate a left turn, instead continuing to the right, striking a 

telephone pole, traveling over the property owner's driveway 

whereafter [the vehicle] struck multiple trees before coming to 

rest at the bottom of an embankment. As Officer Kocian began to 

approach the disabled vehicle, a male [individual] was walking up 

the [embankment]. He displayed signs of intoxication and

informed Officer Kocian that he was a passenger in the vehicle 

and that the driver was still inside the [vehicle].

As Officer Kocian approached the vehicle[,] he observed heavy 

damage to the entire passenger side [of the vehicle]. Appellant 

was in the driver's seat [of the vehicle] wearing a seatbelt, 

however, Officer Kocian could not recall whether [the] fact she 

was belted into the seat was based on his own observation or a 

statement from Appellant. Appellant was coherent, offering to 

Officer Kocian that she was the driver of the vehicle and was 

unfamiliar with the area, and that prior to the accident she had

been in a verbal argument with [the male individual]. Officer 

Kocian testified that he observed signs of alcohol impairment 

consistent with his training and experience with investigating 

[DUI] incidents. These signs included: bloodshot eyes, slurred 

speech, [detecting] an odor of alcohol from [the suspect’s] breath, 

and [observing the suspect having] difficulty formulating answers 

to his questions. Appellant complained of knee pain, and Officer 

Kocian observed that her knees were close to the steering column

[of the vehicle]. Appellant removed herself from the vehicle[,]

and Officer Kocian assisted her up the [embankment]. When 

asked if she [] consumed any alcohol[,] Appellant initially stated 

she had two drinks, later modifying the number to three.

Paramedics called to the scene transported Appellant to a local 

hospital. As it was an active DUI investigation, Officer Kocian 

followed Appellant to the hospital for the purpose of requesting a 

blood draw. At approximately 9:13 p.m., Officer Kocian located 

Appellant at the hospital at which time she stated she was not the

driver and that [the male individual] had[,] in fact[,] been driving 
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the vehicle. After Officer Kocian read the blood draw consent form 

(DL-26B) to her, Appellant consented to the [blood] draw which 

occurred at 9:53 p.m. Subsequent testing revealed a blood 

alcohol content ([“BAC”]) of [0].139 percent. It was later 

determined that Appellant was the registered owner of the vehicle.

Based on events that occurred on December 7, 2016, Appellant 

was charged with the [aforementioned] offenses. On September 

19, 2017, a bench warrant was issued for Appellant after she failed 

to appear for trial on the previous day. The warrant was cleared 

on October 19, 2021. Appellant proceeded to a non[-]jury [trial]

on January 21, 2022, resulting in the convictions referenced

[supra]. On February 9, 2022, the [trial] court conducted a 

sentencing hearing whereafter Appellant was sentenced at Count 

1 [] to [two] to [four] days[’ incarceration] and a concurrent 

six-month period of probation, with permission to serve the 

incarceration portion of her sentence in the DUI Alternative to Jail 

program. No sentence was imposed at Counts 2 and 3, which 

merged with Count 1 [for purpose of sentencing]. A $25.00 fine 

was imposed at each summary [offense] conviction. Appellant 

was permitted a comply date of May 13, 2022[,] for the 

incarceration portion of her sentence.

On February 17, 2022, Appellant filed a timely post[-]sentence 

motion seeking a new trial based on a claim that the verdict was 

against the weight of the evidence. [The trial court denied] this 

motion [] on March 22, 2022. On February 19, 2022, Appellant

filed an application to stay [her] sentence pending appeal[,] which 

[the trial court] granted on March 22, 2022.

Trial Court Opinion, 7/13/22, at 3-5 (footnotes, record citations, and 

extraneous capitalization omitted; paragraph formatting modified). This 

appeal followed.2

Appellant raises the following issue for our review:

Where credible testimony was presented that [Appellant] was not 

the driver [of the vehicle involved in the incident] and the physical 

evidence corroborated such testimony, whether the trial court 

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2 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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abused its discretion in denying [Appellant’s] post-sentence 

motion for a new trial based on the weight of the evidence?

Appellant’s Brief at 5 (formatting and extraneous capitalization omitted).

Appellant’s issue raises a claim that the verdict was against the weight 

of the evidence, for which our standard and scope of review is as follows:

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial [court] 

had the opportunity to hear and see the evidence presented, an 

appellate court will give the gravest consideration to the findings 

and reasons advanced by the trial [court] when reviewing a trial 

court’s determination that the verdict is [or is not] against the 

weight of the evidence. One of the least assailable reasons for 

granting or denying a new trial is the [trial] court’s conviction that 

the verdict was or was not against the weight of the evidence and 

that a new trial should be granted in the interest of justice.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). A trial court abuses 

its discretion “where the course pursued represents not merely an error of 

judgment, but where the judgment is manifestly unreasonable or where the 

law is not applied or where the record shows that the action is a result of 

partiality, prejudice, bias[,] or ill-will.” Horne, 89 A.3d at 285-286 (citation 

omitted); see also Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) 

(stating, “[t]he term ‘discretion’ imports the exercise of judgment, wisdom[,]

and skill so as to reach a dispassionate conclusion within the framework of the 

law, and is not exercised for the purpose of giving effect to the will of the [trial 

court]”). For an appellant to prevail on a weight of the evidence claim, “the 

evidence must be so tenuous, vague[,] and uncertain that the verdict shocks 
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the conscience of the [trial] court.” Commonwealth v. Sullivan, 820 A.2d 

795, 806 (Pa. Super. 2003) (citation and internal quotation marks omitted), 

appeal denied, 833 A.2d 143 (Pa. 2003).

When the challenge to the weight of the evidence is predicated on 

the credibility of trial testimony, our review of the trial court's 

decision is extremely limited. Generally, unless the evidence is so 

unreliable [or] contradictory as to make any verdict based thereon 

pure conjecture, these types of claims are not cognizable on 

appellate review.

Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super. 2012), appeal 

denied, 64 A.3d 630 (Pa. 2013).

Here, Appellant challenges the weight of the evidence to support her 

aforementioned convictions, asserting that both her trial testimony, as well as 

the evidence presented at trial of the injuries she sustained in the accident, 

demonstrated she was not the driver of the vehicle. Appellant’s Brief at 12-15. 

Appellant argues that the trial court “made much of the fact that Officer Kocian 

observed [Appellant] in the driver’s seat [of the vehicle] and [Appellant] 

initially told [Officer Kocian] that she was the driver.” Id. at 15. Appellant 

contends that, while she initially informed Officer Kocian that she was the 

driver of the vehicle, she did so because she feared the male individual, who 

was present at the investigation scene. Id. at 13-14. Appellant further 

contends that she later told the emergency medical technician (“EMT”), who 

was with her during the ambulance transport to the hospital, and Officer 

Kocian, at the hospital, that she was not the driver of the vehicle once she no 

longer felt threatened by the male individual. Id. at 14-15. Appellant also 
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asserts the evidence of her wrist and knee injuries, sustained as a result of 

the accident, “was consistent with sitting in the passenger seat” rather than 

sitting in the driver’s seat of the vehicle. Id. at 14.

In denying Appellant’s post-sentence motion challenging the weight of 

the evidence to support her convictions, the trial court explained,

As evidenced by Appellant's claim and the record, it is uncontested 

that on December 7, 2016[,] Appellant consumed alcohol, 

exhibited signs of intoxication, had a BAC of [0].139% within two 

hours of the accident, and was located in the driver's seat [of the 

vehicle] when Officer Kocian approached the vehicle. Thus, the 

only contested element of the DUI [convictions] was whether 

Appellant was driving, operating, or in actual physical control of 

the vehicle at the time of the accident.

Simply put, the [trial] court did not find Appellant's testimony 

credible in light of her changing statements to police during the 

course of the DUI investigation and the Commonwealth's

evidence. Appellant changed her statements regarding two 

facts[:] the amount of alcohol consumed and operating the 

vehicle. Appellant first informed law enforcement that she had 

two alcoholic drinks when questioned, and then later modified it 

to three. Additionally, she admitted to driving the [vehicle], then 

later den[ied] the same when it became clear that a blood draw 

[would be] requested. The [trial] court found the explanation for 

her contrary statements to be unbelievable in light of the 

Commonwealth's testimonial evidence from Officer Kocian and 

[the EMT], which the [trial] court deemed credible.

As reflected by the record, the majority of Officer Kocian's 

testimony was uncontested by Appellant. Moreover, Officer 

Kocian's testimony regarding the physical state of Appellant was 

supported by [the EMT’s] testimony.

Collectively the evidence established that Appellant was operating 

the vehicle when the accident occurred on December 7, 2016. 

Within minutes of the 911 [emergency] call[,] Appellant was 

observed in the driver's seat, in a [vehicle] registered to her, that 

she admitted to driving. Officer Kocian's inability to recall the 

source for the notation in his report regarding Appellant wearing 
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a seat belt did not impact his credibility. The four-year lapse of 

time between the offense date and [the non-jury] trial was

attributable to Appellant's failure to appear for her trial scheduled 

on September 18, 2017. Officer Kocian identified how [the]

information [of Appellant wearing a seat belt] would have been 

sourced, i.e.[,] his own observation or from Appellant herself.

Thus, it is reasonable that, absent a specific notation in his report, 

he would not recall the origin of this one fact. He was unequivocal 

in his testimony that Appellant was belted into the driver's seat 

[of the vehicle,] and the [trial] court does not deem this inability 

to identify the source of the information as a reason to discredit 

this portion of his testimony.

As the remaining elements related to her level of impairment and 

BAC are neither contested [nor] implicated by [Appellant’s weight 

of the evidence] claim[,] the [aforementioned] convictions are not

so contrary to the evidence that it shocks one's sense of justice[.]

Trial Court Opinion, 7/13/22, at 8-9 (extraneous capitalization omitted).

Critical to finding Appellant guilty of the aforementioned criminal 

offenses and subsequently denying Appellant’s post-sentence motion raising 

a weight of the evidence claim, was the trial court’s determination of witness 

credibility. Here, the trial court considered the credibility of the witnesses and 

explained its rationale for finding the testimony of Officer Kocian and the EMT 

credible. Id.; see also N.T., 1/21/22, at 63-64. In particular, the trial court 

found Officer Kocian’s testimony regarding Appellant’s physical state when he

first encountered her at the accident scene – Appellant was discovered in the 

driver’s seat of the vehicle, the vehicle was registered to Appellant, and 

Appellant admitted to being the driver – to be credible, supported by the 

testimony of the EMT, and largely uncontradicted by Appellant. Trial Court 

Opinion, 7/13/22, at 9; see also N.T., 1/21/22, at 64. The trial court further 

explained the reasons it found Appellant’s contradictory testimony – first 
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stating she was not the driver of the vehicle then explaining why she falsely 

told Officer Kocian she was the driver - was not credible. Trial Court Opinion, 

7/13/22, at 8-9; see also N.T., 1/21/22, at 63-64. In addition to changing 

her statement to Officer Kocian concerning the number of alcoholic beverages 

she consumed prior to the accident, the trial court found Appellant informed 

the EMT that she was not the driver of the vehicle after she learned that a 

blood draw would be performed as part of a DUI investigation and that she 

was enroute to the hospital for that purpose. Trial Court Opinion, 7/13/22, at 

9; see also N.T., 1/21/22, at 64 (stating, Appellant’s statement she was not 

the driver of the vehicle can be looked upon “with some degree of caution 

because [she has] a vital interest in the outcome of the proceedings”). 

Appellant’s assertion that the trial court erred by denying her weight claim 

based upon her testimony and the physical evidence of her injuries invites this 

Court to do nothing more than reassess the witnesses’ credibility and reweigh 

the evidence in an attempt to convince us to reach a result different than the 

one reached by the trial court, as fact-finder. We decline Appellant’s invitation 

since the fact-finder, while passing on the credibility of the witnesses and 

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

Commonwealth v. Dunkins, 229 A.3d 622, 631 (Pa. Super. 2020), aff’d, 

263 A.3d 247 (Pa. 2021), cert. denied, 142 S.Ct. 1679 (2022). Based upon 

our review of the record and the trial court’s rationale for denying Appellant’s 

post-sentence motion raising a weight of the evidence claim, we discern no 
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error of law or abuse of discretion in the trial court’s determination that the

verdict was not against the weight of the evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/3/2023