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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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