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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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