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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY BENDER, P.J.E.:                     FILED NOVEMBER 18, 2016

        Appellant, Mark Edward Neberdosky Jr., appeals from the judgment of

sentence of four (4) to eight (8) months’ incarceration followed by two (2)

years’ probation, imposed after he was convicted of Theft by Unlawful

Taking-Movable Property, Receiving Stolen Property, and Criminal Mischief-

Tampering with Property.            On appeal, Mr. Neberdosky challenges the

sufficiency of the evidence to support his convictions. For the reasons stated

herein, we reverse Mr. Neberdosky’s convictions and vacate his judgment of

sentence.

        Mr. Neberdosky’s convictions arose from the theft of a $2050 security

system that went missing from a picnic grove. Before the security system
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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was taken, it recorded video footage of Mr. Neberdosky taking beer from the

picnic    grove’s   refrigerator.       The    Commonwealth   then   charged   Mr.

Neberdosky with the crimes connected to the missing security system cited

supra.1     It contended that Mr. Neberdosky returned, approximately 36-48

hours after the beer theft, to steal the security camera that he knew had

recorded his prior theft. At trial, a jury found Mr. Neberdosky guilty of the

above-stated offenses.        After his sentencing, Mr. Neberdosky filed a post-

sentence motion, which the trial court denied on August 11, 2015.              Mr.

Neberdosky subsequently filed a timely notice of appeal on September 9,

2015.

         On appeal, Mr. Neberdosky raises a single issue for our review:

            1. Was there sufficient evidence established at trial to support
               convictions related to any offense premised upon Mr.
               Neberdosky taking and/or damaging security equipment?

Mr. Neberdosky’s Brief at 3.

         Initially, we set forth our standard of review:

                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
____________________________________________


1
  Mr. Neberdosky was charged with Count 1, Theft by Unlawful Taking-
Movable Property in an amount in excess of $2,000; Count 2, Receiving
Stolen Property in an amount in excess of $2,000; and Count 3, Criminal
Mischief-Tampering with Property in an amount in excess of $1,000. See
Trial Court Opinion (TCO), 12/15/15, at 1; Commonwealth’s Brief at 3.



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     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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted).   Further, “[w]hile a criminal conviction may rest upon wholly

circumstantial evidence, it may not be based upon mere surmise or

conjecture.” Commonwealth v. Stores, 463 A.2d 1108, 1112 (Pa. Super.

1983) (citations omitted). “Evidence of mere presence at or near the scene

of a crime is precisely the kind of circumstantial evidence that does require

surmise or conjecture.” Id. (citations omitted). Accordingly, “[w]here the

only evidence is evidence of presence at or near the scene of a crime, we

have consistently held the evidence insufficient to establish guilt beyond a

reasonable doubt.” Id. (citations omitted).

     Mr. Neberdosky challenges the sufficiency of the evidence to support

his convictions.   “A person is guilty of theft if he unlawfully takes, or

exercises unlawful control over, movable property of another with intent to

deprive him thereof.” See 18 Pa.C.S. § 3921(a) (defining Theft by Unlawful

Taking or Disposition-Movable Property).      Relatedly, a person is guilty of



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Receiving Stolen Property “if he intentionally receives, retains, or disposes of

movable property of another knowing that it has been stolen, or believing

that it has probably been stolen, unless the property is received, retained, or

disposed with intent to restore it to the owner.”      18 Pa.C.S. § 3925(a).

“Receiving” is defined as “acquiring possession, control or title, or lending on

the security of the property.”     18 Pa.C.S. § 3925(b).        Finally, criminal

mischief occurs when a person “intentionally or recklessly tampers with

tangible property of another so as to endanger person or property[.]”         18

Pa.C.S. § 3304(a)(2).

      In the case sub judice, the trial court summarized the totality of

evidence presented at Mr. Neberdosky’s jury trial as follows:

             During the trial, a video was produced showing the
      property being removed by an individual that the Commonwealth
      alleged was [Mr. Neberdosky]. In addition two (2) witnesses
      identified Mr. Neberdosky and testified that it was Mr.
      Neberdosky that took the property. [The picnic grove’s owner]
      testified that his property was taken without his permission.

            There were witnesses who identified [Mr. Neberdosky]
      along with video that showed that an individual walked onto the
      grove property, went into a gazebo, went into a refrigerator of
      the gazebo, opened it and found an unopened twelve (12) pack
      of beer. The video also shows the individual took the beer [and]
      began leaving. The twelve (12) pack of beer did not belong to
      the individual and he had no right to be there.

             In addition, the testimony at trial shows that as he is
      about to walk away, the individual looks up and sees a video
      surveillance system. The video shows [Mr. Neberdosky] looking
      directly at the video surveillance system as he hustled away.

            Within the next forty-eight (48) hours[,] an individual
      returned to the same picnic area … and stole the entire camera
      system. There is no video of this theft because the camera

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      system was taken. At trial[,] witnesses testified that the man on
      the video and in the photographs taking the beer was Mr.
      Neberdosky.

TCO at 3-4.

      Mr. Neberdosky argues that “the evidence was insufficient to hold

[him] culpable for any conduct related to the video security system.”     Mr.

Neberdosky’s Brief at 10.   Specifically, he asserts that “there is less than

mere presence at the time of the offense.         At most, there was mere

presence at some time as much as two (2) days before the offense….” Id.

We agree.

      The crux of the Commonwealth’s case was that Mr. Neberdosky

returned to the picnic grove to steal the security system because he knew it

had recorded him swiping the beer.      However, the security video of Mr.

Neberdosky stealing beer does not contain sufficient evidence demonstrating

that he realized he was being recorded. In fact, after closely viewing the

recording, a reasonable juror could not have concluded that Mr. Neberdosky

knew he was being recorded at all.        The video shows Mr. Neberdosky

generally scanning the picnic grove, as he walks through the pavilion and

peers into an unlocked container and refrigerator. As he is leaving the picnic

grove, Mr. Neberdosky momentarily turns his head in the direction of the

video camera. Mr. Neberdosky was too far from the camera to clearly see if

his eyes made contact with the camera.        Moreover, the Commonwealth

presented no evidence as to the size of the camera and whether it was easily

visible to a passerby. Therefore, to say that this head turn establishes that


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Mr. Neberdosky “knows he’s caught” is specious when viewing the security

video in its entirety.    See N.T Jury Trial, 6/8/15, at 79 (testimony of

Pennsylvania State Trooper Lisa Ann Brogan).        Mr. Neberdosky had just

perused the whole pavilion; he was bound to eventually look in the direction

of the security camera.     That alone does not support a finding that Mr.

Neberdosky knew the security system existed in order for him to

subsequently steal it.

      Furthermore, the testimony at trial indicates that other individuals

could have accessed the picnic grove in the time period between the beer

theft and the subsequent theft of the surveillance system. The owner of the

picnic grove, Joseph P. Hudock, testified as follows:

      [The Commonwealth:] [] Do you own a picnic area in Plymouth
      Township?

      [Mr. Hudock:] Yes….

      [The Commonwealth:] And what’s the purpose of that picnic
      area?

      [Mr. Hudock:] We rent it out for mostly graduation parties,
      clambakes, that type of thing.

      [The Commonwealth:] And where is the location of this picnic
      area? Is it off the side of the road? It is near the road?

      [Mr. Hudock:] It’s right behind Route 11 behind Pulver’s
      Trucking Garage in West Nanticoke.

      [The Commonwealth:] So is that a sort of secluded area?

      [Mr. Hudock:] No, it’s pretty open.

      [The Commonwealth:] Would somebody know where it is?         Or
      would someone need directions to get there?



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      [Mr. Hudock:] There’s a sign right on Route 11 pointing down
      the road towards it.

N.T. Jury Trial, at 40 (emphasis added).      Additionally, Lisa Ann Brogan, a

trooper for the Pennsylvania State Police, testified to the following:

      [The Commonwealth:] Can you describe the grove to the jury[?]

      [Trooper Brogan:] The West Nanticoke Grove is a picnic area
      that sits -- it’s kind of parallel to Route 11. However, it sits back
      by the river. It’s an open picnic area, and there are really no
      houses. It’s just like a pavilion and a grassy area for parties.
      It’s very secluded … you would really have to know your way to
      get back there.

N.T. Jury Trial, at 73 (emphasis added). While their testimony conflicts in

some aspects, it is undisputed that the picnic grove was “open,” signifying

that anyone could have accessed it.

      We therefore conclude that there was insufficient evidence to

establish, beyond a reasonable doubt, that Mr. Neberdosky stole the security

system. An inference that Mr. Neberdosky would steal the security camera

in order to cover up his theft of the beer is nothing more than mere surmise

and conjecture. See Stores, 463 A.2d at 1112 (citations omitted). At trial,

the Commonwealth only proved that Mr. Neberdosky had been present at

the picnic grove roughly 48 hours prior to the theft of the surveillance

system.   It is well-settled that evidence of presence cannot prove guilt

beyond a reasonable doubt. Id. Further, the Commonwealth failed to prove

that the circumstances here “fit so tightly together as to exclude beyond a

reasonable doubt the possibility that someone else” could have taken the

surveillance system. See id. at 1110 (citations omitted). Consequently, Mr.


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Neberdosky’s convictions must be reversed and his judgment of sentence

vacated.

     Judgment of sentence reversed. Jurisdiction relinquished.

     President Judge Emeritus Ford Elliott joins this memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2016




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