J-S09006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH KUZNICKI, III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1058 WDA 2022

Appeal from the Judgment of Sentence Entered April 12, 2022

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001830-2020

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: May 25, 2023

Appellant, Joseph Kuznicki, III, appeals from the judgment of sentence 

of six months’ probation, imposed after he was convicted, following a non-jury 

trial, of driving under the influence of alcohol – general impairment (“DUI”), 

75 Pa.C.S. § 3802(a)(1), and five summary traffic offenses. Appellant solely 

challenges the weight of the evidence to sustain his conviction. After careful 

review, we affirm.

The trial court set forth a detailed summary of the facts and procedural 

history of Appellant’s case, as follows:

FACTUAL HISTORY

The charges in this case arose from a traffic stop and subsequent 

investigation of a vehicle driven by [Appellant] in New Alexandria 

Township, Westmoreland County. The evidence presented at a 

non[-]jury trial established that on October 1, 2019, while on 

patrol in a marked state police unit, Trooper Stephen Rowe, of the 

Pennsylvania State Police Troop A Kiski Valley barracks, observed 

a vehicle traveling northbound on State Route 981 in Derry 
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Township traveling into New Alexandria Borough towards Route 

22. Trooper Rowe testified that he observed the vehicle cross over 

the double yellow line and the fog line two to three times over the 

course of two to three miles as well as travel 60 miles per hour in 

a 40-mile-per-hour zone. Additionally, Trooper Rowe stated that 

he observed the vehicle make a left-hand turn onto State Route 

22 Westbound from a lane marked for straight travel and decrease 

its speed to 20 miles an hour in a 40 and 45-mile-an-hour zone. 

Based upon his observations, Trooper Rowe indicated that he 

initiated a traffic stop of the vehicle and identified the driver as 

[Appellant] ... by his Pennsylvania driver’s license. The passenger 

was also identified as the owner of the vehicle. Trooper Rowe 

testified that he observed [Appellant’s] speech to be “very 

slurred[,”] and he detected an odor of an alcoholic beverage 

emanating from [Appellant’s] person, breath, and from within the 

vehicle. Trooper Rowe stated that he asked [Appellant] to step 

out of the vehicle and perform standardized field sobriety tests[,]

at which time he observed [Appellant] walking with a staggered 

gait. Trooper Rowe indicated that the area was a flat, clean, and 

dry asphalt surface. Trooper Rowe testified that he attempted to 

perform the Horizontal Gaze Nystagmus test as well as explain 

and demonstrate the One-Leg Stand test[,] however, [Appellant]

displayed “verbal resistance” and “lack of cooperation” and 

indicated to Trooper Rowe that he was not going to perform any 

additional tests. Trooper Rowe stated that despite [Appellant’s]

verbal resistance, he was compliant for the most part. Trooper 

Rowe testified that [Appellant] submitted to a Preliminary Breath 

Test, and he received a positive indicator. Believing that

[Appellant] was under the influence of alcohol to a degree that 

rendered him incapable of safe driving, Trooper Rowe indicated 

that he detained [Appellant] and placed him in the rear of the

marked patrol vehicle to transport him to Latrobe Hospital for a 

blood draw. 

Trooper Rowe testified that [Appellant] refused to consent to a 

blood draw and he was released after securing alternate 

transportation. Trooper Rowe testified that he is [i]n his 14th year 

working as a state trooper and [i]n his 17th year working for the 

state police. Additionally, Trooper Rowe stated that through[out]

his career, he has made hundreds of DUI arrests. 

On cross-examination, Trooper Rowe testified that although his 

police cruiser was equipped with a mobile video recording (MVR) 

device and it was active for a portion of the stop, the MVR video 

was not available at the time of trial. Further, Trooper Rowe
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confirmed that before administering the standardized field 

sobriety tests, he asked [Appellant] whether he had any medical 

conditions that would prevent him from being able to perform the

tests[.] ... [A]lthough he did not recall [Appellant’s] response, in 

his personal and professional opinion, Trooper Rowe determined 

that [Appellant] would have been able to complete the tests. 

[Appellant] also elected to testify at the non[-]jury trial. 

[Appellant], who is employed as a registered nurse and nurse 

supervisor, testified that on the night prior to the incident, he 

began working at 11 p.m. and arrived back home at 3:30 p.m. At 

approximately 8:00 p.m., on September 30, 2019, he stated that 

his friend, Abraham Powell, came over and[,] on the condition that 

Mr. Powell agree to drive, they went out. [Appellant] testified that

they arrived at the Oasis bar where they met a couple of high 

school friends, and [Appellant] consumed three beers and two Red 

Bulls over a six-hour period. [Appellant] testified that he was 

undergoing chemotherapy for leukemia at this time[,] and he was 

“a little nauseated” so he ate a light supper prior to going out. 

[Appellant] indicated that he and Mr. Powell stayed at the Oasis 

bar until it closed at approximately 2 a.m. [Appellant] stated that 

Mr. Powell began throwing up, and he attempted to call Uber, Lyft, 

his wife, and his dad for a ride[. H]owever, when he could not get 

ahold of anyone, he decided to drive Mr. Powell’s vehicle home 

because he was exhausted. [Appellant] denied speeding or 

swerving while driving in route to his home; however, he agreed 

that he may have made a left-hand turn from the center straight 

lane as he was contemplating whether to drive to his home or his 

father’s, who lived three or four miles up the road. [Appellant]

testified that he was “definitely driving slow” because he was 

“delirious at that time” as he had been awake for “32, 34 hours 

with minimum sleep that week[.” Appellant] testified that he did 

not perform the standardized field sobriety tests or submit to a 

blood draw because he was “angry as hell” and tired and just 

wanted to go home. [Appellant] stated that he “probably couldn’t 

walk right” as he just had a lumbar puncture. 

On cross-examination, [Appellant] testified that he believed that 

Mr. Powell lived out of state, and he was surprised to learn that 

his vehicle was registered to an address in Greensburg,

Pennsylvania. Further, [Appellant] stated that he specifically was 

aware that he consumed three beers and two Red Bulls on the 

night in question because Mr. Powell informed him of such after 

he looked at his receipt[. H]owever, no receipt was produced at 

trial.
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PROCEDURAL HISTORY

As a result of the investigation, [Appellant] was charged with ... 

[DUI], in violation of 75 Pa.C.S.[] § 3802(a)(1)[,] and five related 

summary offenses.

On January 10, 2022, a non[-]jury trial was held before this 

[c]ourt. ... At the conclusion of the non[-]jury trial, this [c]ourt 

found [Appellant] guilty of [DUI] and found him not guilty of the 

remaining summary counts. Upon motion of [Appellant], 

sentencing was deferred 90 days. On April 12, 2022, the [c]ourt 

sentenced [Appellant] [for his DUI conviction] to six (6) months[’]

probation and ordered him to pay costs and fees.

On April 14, 2022, [Appellant] filed [p]ost-[s]entence [m]otions 

before the [c]ourt; however, due to an inadvertent error, a 

hearing was never scheduled in this matter. On September 8, 

2022, after being apprised of this matter by [d]efense [c]ounsel, 

this [c]ourt entered an [o]rder finding that[, because] the matter 

was not disposed of within 120 days and the Westmoreland 

County Clerk of Courts had failed to notify [Appellant] by entering 

an order on behalf of the [c]ourt, as provided in Pa.R.Crim.P 

720(B)(3)(c) and Rule 114, the [p]ost-[s]entence [m]otion was 

deemed denied by operation of law pursuant to Pa.R.Crim.P. 720. 

The [c]ourt informed [Appellant] that he had thirty (30) days to 

file an appeal to the Pennsylvania Superior Court, if he elected to 

do so. On September 13, 2022, [Appellant] filed a timely [n]otice 

of [a]ppeal to the Pennsylvania Superior Court. On September 

15, 2022, this [c]ourt ordered [Appellant] to file a [Pa.R.A.P. 

1925(b) c]oncise [s]tatement of [e]rrors [c]omplained of on 

[a]ppeal. On October 3, 2022, [Appellant] filed said statement. 

Trial Court Opinion (TCO), 10/31/22, at 1-5 (footnote and citations to the 

record omitted). The trial court filed its Rule 1925(a) opinion on October 31, 

2022. 

Herein, Appellant states one issue for our review: “Whether ... 

Appellant’s conviction is supported by the weight of the evidence when ... 

Appellant’s testimony presents an equally plausible explanation for his 

behavior – tiredness – as opposed to intoxication?” Appellant’s Brief at 2.
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Initially, we recognize that,

[a] claim alleging the verdict was against the weight of the 

evidence is addressed to the discretion of the trial court. 

Accordingly, an appellate court reviews the exercise of the trial 

court’s discretion; it does not answer for itself whether the verdict 

was against the weight of the evidence. It is well settled that the 

jury is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses, and a new trial based 

on a weight of the evidence claim is only warranted where the 

jury’s verdict is so contrary to the evidence that it shocks one’s 

sense of justice. In determining whether this standard has been 

met, appellate review is limited to whether the trial judge’s 

discretion was properly exercised, and relief will only be granted

where the facts and inferences of record disclose a palpable abuse 

of discretion.Commonwealth v. Houser, 18 A.3d 1128, 1135-

36 (Pa. 2011) (citations and internal quotation marks omitted).

Presently, Appellant claims that the trial court’s verdict was contrary to 

the weight of the evidence because there were “two ... plausible explanations 

for ... Appellant’s behavior – intoxication and tiredness.” Appellant’s Brief at 

13. He argues that,

[c]onsumption of alcohol alone is not proof positive that ... 

Appellant’s level of intoxication rendered him incapable of safe

driving. ... Appellant readily admitted he was nearly delirious at

the time of his stop, having been awake for thirty-two (32) to

thirty-four (34) consecutive hours and suffering the effects of

chemotherapy. See [N.T. Trial, 1/10/22,] at 40-41, 46 

(describing his physical state at that time including the effects of 

chemotherapy including nausea, dizziness, and fatigue). These 

symptoms, in conjunction with his back pain from chemotherapy 

injections, are an equally plausible explanation for his appearance 

and behavior as intoxication. Indeed, even his refusal for 

chemical testing is understandable given his anger for being 

placed in the position he found himself in. See [id.] at 47 

(describing his anger toward Powell). 
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Id. at 12-13. Stressing that “a guilty verdict cannot be based on surmise or 

conjecture[,]” id. at 13 (citing Commonwealth v. Karkaria, 625 A.2d 1167, 

1170 (Pa. 1993)), Appellant insists that the court’s verdict in this case must 

be vacated because it was “premised on surmise regarding the cause of ... 

Appellant’s apparent inability to conform to traffic laws.” Id. Specifically, the 

court ignored the equally likely possibility that Appellant’s behavior stemmed 

from his exhaustion, rather than intoxication. Accordingly, Appellant 

maintains that his conviction for DUI “is a miscarriage of justice that should 

shock the conscience of the Court.” Id. at 13-14.

We disagree. The trial court found Trooper Rowe’s testimony to be 

credible, and Appellant’s testimony “to be self-serving, inconsistent, and 

illogical.” TCO at 7. It then explained:

Through the duration of the non-jury trial, the [c]ourt considered 

the evidence presented by the Commonwealth, namely the 

testimony of Trooper Rowe, who testified that he observed the 

vehicle driven by [Appellant] commit multiple traffic violations. 

[Appellant] displayed indicia of intoxication. Based upon Trooper 

Rowe’s training, experience, and observations[,] Trooper Rowe 

opined that [Appellant] was incapable of safely driving a motor 

vehicle. The [c]ourt afforded great weight to Trooper Rowe’s 

testimony because he was a credible witness. Based upon this 

[c]ourt’s review of the entire record, this [c]ourt does not find that 

the verdict is inconsistent or so contrary to the evidence as to 

shock this [c]ourt’s sense of justice.

Id. at 8.

We discern no abuse of discretion in the court’s decision. Appellant 

essentially asks us to reweigh the evidence and find that his testimony was 

more credible and weighty than that of Trooper Rowe. We cannot do so. The 
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trial court was well within its discretion to place more weight on the testimony 

of Trooper Rowe, given his training and experience in handling DUI cases and

the evidence indicating that Appellant was intoxicated, such as his slurred 

speech, staggered gait, positive Preliminary Breath Test, poor performance on 

the field sobriety tests, and refusal to consent to a blood draw. Accordingly, 

Appellant’s weight-of-the-evidence claim does not warrant relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/25/2023