J-A18036-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK EDWARD NEBERDOSKY JR.,
Appellant No. 1590 MDA 2015
Appeal from the Judgment of Sentence July 21, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0004466-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED NOVEMBER 18, 2016
At Appellant’s criminal trial, the jury viewed a security video of
Appellant stealing beer from the West Nanticoke Grove. Taken from a
distance, the video captures a circumspect Appellant scanning in all
directions before he looks up in the direction of the surveillance camera,
holds this position momentarily, and leaves the scene. In its exclusive role
as finder of fact, the jury interpreted Appellant’s fixed gaze as a reaction to
spotting the camera, and it determined that his motive to return and
confiscate potentially incriminating security equipment was, therefore,
established.
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*
Former Justice specially assigned to the Superior Court.
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Based on its observation of the same video, however, the Majority
substitutes its own finding of fact for that of the jury, overrides the jury’s
exclusive role as finder of fact, and concludes the video did not allow the
inference that Appellant saw what he at least suspected was a camera.
Because the jury could not see Appellant’s eyes in the video and heard no
testimony as to the size of the surveillance camera, it could not reasonably
infer that he spotted the camera, the Majority opines. It follows, the
Majority concludes, that the Commonwealth’s case fails for insufficient
evidence that Appellant “knew” he was being recorded.
I find the Majority’s decision problematic for two reasons. First, it fails
to assess the evidence in a light most favorable to the verdict winner as
required by our standard of appellate review.1 On the question of whether
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1
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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
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
(Footnote Continued Next Page)
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Appellant saw the surveillance camera, Trooper Brogan’s narration during
the video playback provided a fair account of Appellant’s movements when
she testified “when you look at the video, you saw it, he actually, when he’s
leaving, he pauses. And that’s -- right then and there, he sees the
camera….” N.T. 7/21/15 at 76. Setting aside her conclusions that Appellant
actually saw the camera and knew he was caught, her testimony otherwise
accurately describes a departing Appellant as pausing when he looks in the
direction of the security camera. 2
Importantly, the jury viewed the video for itself while the trooper
testified, and it was free to reject her narration based on its own
_______________________
(Footnote Continued)
all evidence actually received must be considered. Finally, the
finder 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. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)
(emphasis added), “This standard is equally applicable to cases where the
evidence is circumstantial rather than direct so long as the combination of
the evidence links the accused to the crime beyond a reasonable doubt.”
Antidormi, 84 A.3d at 756 (citation omitted). “Although a conviction must
be based on more than mere suspicion or conjecture, the Commonwealth
need not establish guilt to a mathematical certainty.” Id. (citation omitted).
To reiterate, credibility and weight of the evidence are both matters that are
in the sole purview of the jury. Specifically, when considering whether or
not the evidence was sufficient to prove each element of each charge
beyond a reasonable doubt, we cannot assume the task of weighing
evidence and making independent conclusions of fact. Commonwealth v.
Lewis, 911 A.2d 558, 563 (Pa.Super. 2006) (citations omitted).
2
The trial court’s account of the evidence likewise states that the individual
depicted in the surveillance video “looks up and sees a video surveillance
system. The video shows [Mr. Neberdosky] looking directly at the video
surveillance system as he hustled away.” Trial Court Opinion, at 4.
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observations. However, it clearly agreed that Appellant’s pause represented
a lawbreaker’s natural, anxious reaction to spotting a surveillance camera
pointing his way. In my view, this was a reasonable inference from the
videographic evidence, and the Majority usurps the fact-finding role of the
jury by deciding that Appellant’s actions could not be understood to mean
what the jury interpreted them to mean.3
Second, the Majority appears to hold that a conviction depended upon
proof that Appellant knew or realized he was being recorded. See
memorandum decision at 5. To place a burden upon the prosecution to
establish Appellant’s certitude about being recorded exceeds what is
sufficient to prove his motive to return to the crime scene, namely, evidence
that he suspected a security camera captured his crime. In this respect, the
video depiction of Appellant’s gaze up at the security camera provided the
necessary and sufficient basis from which to infer he possessed a reason to
suspect he was under electronic surveillance.
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3
For example, the Majority discounts the significance of Appellant’s turning
his head and looking in the direction of the security camera because he “had
just perused the whole pavilion; he was bound to eventually look in the
direction of the security camera.” Memorandum decision at 6. Even
assuming Appellant was, in fact, bound to look in all directions still does not
diminish the reality that he thus placed himself in the position to see and
identify the security camera. Moreover, the jury observed Appellant’s entire
perusal of the grounds during the course of his crime, but it clearly discerned
something distinctive about the look in question that led it to conclude he
suspected he may have been caught on film.
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Here, a security video depicted Appellant fixing his attention in the
direction of the camera as he was leaving the grove with stolen beer in
hand. Less than forty-eight hours later, the security equipment required to
play the surveillance recording was also stolen. Acting in its exclusive role
as finder of fact, the jury viewed the video and determined that Appellant’s
conduct while looking straight in the direction of the camera established his
awareness that he may have been captured on video. In light of the totality
of such circumstances, which included Appellant’s unique motive to return to
the grove and confiscate potentially incriminating video equipment, I would
deem the evidence sufficient to support the jury’s verdict of guilt entered
below. Accordingly, I dissent.
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