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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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