J-A25007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
SVYATOSLAV BURIK,                         :
                                          :
                   Appellant              : No. 228 EDA 2015

          Appeal from the Judgment of Sentence December 16, 2014,
                    Court of Common Pleas, Bucks County,
              Criminal Division at No. CP-09-CR-0003246-2014

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED December 18, 2015

       Svyatoslav Burik (“Burik”) appeals from the judgment of sentence

entered following his convictions of two counts each of stalking, harassment,

terroristic threats, and threat to use weapons of mass destruction (“weapons

of mass destruction”).1 Following our review, we affirm.

             The trial court summarized the facts underlying
             Burik’s convictions as follows: This case arises from
             Defendant's     continued     and   repeated   threats
             communicated verbally and posted publicly on the
             Internet directed at Joshua Aybinder and employees
             of a local hospital, St. Mary Medical Center.

             St. Mary Medical Center is situated in Langhorne,
             Bucks County, PA and has between twenty -six
             hundred (2,600) and three thousand employees
             (3,000). Trial N.T., 41, 57.1 It is equipped with a
             24/7 trauma emergency department. Id.




1
    18 Pa.C.S.A. §§ 2709.1(a)(2), 2709(a)(4), 2706(a)(1), 2715(a)(4).


*Former Justice specially assigned to the Superior Court.
J-A25007-15


          In 2009, Joshua Aybinder was employed as an
          emergency medical technician (“EMT”) at St. Mary
          Medical Center. Trial N.T., 41. On February 16, 2009,
          while he was working in the emergency department
          of the hospital, he came into contact with Defendant.
          Id. at 42. He was previously acquainted with [Burik]
          because the two were in the same graduating high
          school class. Id. Mr. Aybinder was assigned to assist
          with the safety of the staff members during an
          ordered catheterization procedure. Id. at 43-44. As
          he    was    assisting,   [Burik’s]   demeanor     was
          threatening,     although   Mr.     Aybinder  testified
          truthfully that there were words spoken but he could
          not specifically recall which words were being
          directed at him. Id. at 44-45. Mr. Aybinder did not
          come into contact with Defendant for the next year.
          Id. at 46. However, in 2010 Mr. Aybinder received a
          Facebook message from [Burik] that was threatening
          in nature. Id. at 45 -46. Again, Mr. Aybinder could
          not specifically recall the exact words that were
          uttered, but could only remember their alarming
          effect. Id. Again, Mr. Aybinder did not receive any
          communication from [Burik] again until July 14,
          2013, when [Burik] sent him the following Facebook
          message:

              You do realize that you and your staff team
              deserve to be rotting in a jail cell now, right? I
              pray, everyday [sic], that St. Mary’s medical
              center is demolished while you are still in it. I
              pray everyone that you wronged comes back to
              you at night with a [sic] insatiable thirst for
              vengeance. Enjoy your life. As short as I hope
              that it is. You deserve less.

          Trial N.T. 49; See Exh. C -2. Shortly after receipt of
          all of these statements and/or messages, Mr.
          Aybinder brought them to the attention of the nurse
          manager for the emergency department of St. Mary
          Medical Center. Trial N.T., 47, 50, 52-53.

          On March 29, 2014, the Counter-Terrorism OPS Unit
          of the Philadelphia Police Department received



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          information through a tip line that an individual, later
          identified as [Burik], made numerous threats
          through Facebook. Trial N.T., 10. Detective Lawrence
          Richardson of this unit conducted an independent
          investigation and, in doing so, verified and preserved
          this information. Id. at 10-11; See Exh. C-1.
          Detective Richardson discerned that “posts” made by
          [Burik] to the Facebook website from as recently as
          the day before the tip- March 28th were of concern
          and necessitated immediate law enforcement action.
          Trial N.T., 13, 17.

          In referencing the relevant posts, Detective
          Richardson recited, verbatim, their contents,
          including “Threatened by a cop? Don’t think twice.
          Kill em before he/she kills you. Try to do that job,
          pussies. It should’ve been a gun. And it should’ve
          fucked you all to death long ago. These people
          should be armed and they should be pulling their
          triggers down your throat. Go ahead. Stop me. I’ll
          fucking stop you forever, honey pie!” Trial N.T., 24;
          See Exh. C-1, p. 7. To this particular posting
          displayed on February 21, 2014, [Burik] further
          commented that he had a “wire saw” that fit in his
          wallet and proclaimed that “... Dude this shit cuts
          people in half in seconds,” “Also shreds through
          Kevlar, [G]ortex, flannel, lace, etc.,” “If you don’t
          shoot first ... Ah, well you’re just stupid,” etc. Trial
          N.T., 24 -25; See Exh, C-1, p. 7.

          Approximately a month later, on March 24th, [Burik]
          posted “If you like cops then you are still a whore.
          You are not a man until you've killed a cop.” Trial
          N.T., 23; See C-1, p. 5. Later that day, he also
          posted “Life goal: kill all cops in cold blood,” followed
          by his own comment that "[t]hey serve themselves.
          And they can continue to do so in hell. Drown em,
          bum em, electrocute em, starve em, cut em, hang
          em ... Do whatever ... Just exterminate them all. .. K
          ?” Id.

          On March 25th, [Burik] posted “Another wonderful
          day to kill cops on site,” followed by additional



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          comments made in response to another individual’s
          criticism of this previous declaration, including, but
          not limited to “It is my duty to kill cops on sight,”
          “Bloody police badges are very well prized here;” “I'd
          collect testicles but since they possess none … ;” and
          “They want pain. We fucking give it to em!” Trial
          N.T., 20 -22; See Exh. C-1, p. 4.

          The posts made just one day prior to the tip that
          precipitated this investigation proved even more
          concerning as, on March 28th, [Burik] posted[,]
          “When you kiss your cop husband and go to work to
          St. Mary’s medical center, make sure that kiss
          means something. For there are those waiting for
          that right moment. Go to work. Do your flicking job.
          And die.” Trial N,T., 14; See Exh. C-1, page 1.
          Following this first post, [Burik] immediately posted,
          verbatim, as follows: “Put a flicking pipe bomb in St.
          Mary’s cunt. Remember my name.” Trial N,T,, 14;
          See Exh, C-1, p. 2. Following this statement, the
          post “goes through a series of R’s and A’s in which
          [Defendant] is simulating an explosion," Id.

          Detective Richardson described additional posts
          [Burik] made which were disconcerting, including the
          “comments” he made in response to his own post,
          which appear directly below, Trial N.T., 15-19; See
          Exh. C-1, p. 3. The post reads[,] “I wish to make
          hamburger meat out of all those who hold any
          minute association with St. Mary’s medical center.
          How many hale Mary’s? I think I’ve used all mine
          up.” Trial N.T. 17; See Exh. C-1, p. 3. [Burik’s] own
          replies to this post are documented sequentially as
          follows, verbatim:

          1. A pipe bomb with rosary beads. Metal ones of
          course. Where’s the Unabomber when you need him.
          I'll show em a little home grown.

          2. Turn that fucking place into a graveyard.

          3. It’ll be federal, but it’ll be worth it for the screams
          of anguish and the message conveyed.



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J-A25007-15



          4. Have fun at work Monday, cocksuckers! Mother
          Mary gonna have a miscarry.

          5. Who will cover their asses when they’re all
          burning alive? Who will corroborate their false claims
          and statements? When shrapnel is sent hurling
          through their skulls.

          6. Coming after me won’t make you any less dead
          and forgotten.

          7. How well is that picture illustrated?

          8. Could use a little more red. Black. Gray.

          9. Still working on training your empaths [sic] for
          that pre -crime dream? Not soon enough. Help only
          comes when the last tune's been played, No one will
          save you!

          10. Not Jesus. Not Mary. Not the Holy Ghost. Not the
          Spirit, Not the Father. Go ahead. God to work. You’re
          fucking dead.

          11. Maybe make it a Sunday thing. More suiting ...
          The darkness will swallow you whole!!!

          12. 98.1 wogl better stop hocking their shit, Pay
          them a nice little visit. Hahahahahaha!!!

          13, Put a fucking pipe bomb in St. Mary’s cunt.
          Remember my name!!! ...

          Trial N.T. 17 -19; See Exh. C-1, p. 3.

          Mr. Aybinder was aware of the existence of these
          posts and comments and their contents. Trial N.T.,
          50. Significantly, although Mr. Aybinder is no longer
          employed by St. Mary Medical Center, his wife
          continues to work as a nurse in their emergency
          department. Id. at 50 51.




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J-A25007-15


          Following review of the posts, Detective Richardson
          informed St. Mary Medical Center and the
          Middletown Township Police Department (“MTPD”),
          the township in which St. Mary Medical Center is
          situated, of the threats. Id. at 27-28. St. Mary
          Medical Center’s staff members were in turn advised
          of the threats. Id. at 58.

          Detective Richardson then attempted to locate
          [Burik], and he, along with other officers, “used a
          police system in which we run a person’s name
          through and it gave us a ... cell phone number for
          [Burik].” Trial N.T., 26. It was then determined,
          based on the cell phone number, that T-Mobile was
          the carrier. Id. T-Mobile was able to “ping” the cell
          phone to determine it’s [sic] exact location- which
          was 8100 Algon Avenue, Apartment 305, in the
          Northeast Section of Philadelphia. Id. at 26-27, 28.
          Law enforcement responded to that residence,
          secured the property, and thereafter knocked on the
          door and [Burik] answered. Id. at 28-29, 62-63.
          [Burik] gave consent for officers to search. Id. at 30.
          Officers conducted a search to determine whether
          there were any bombing materials or weapons in the
          apartment. Id. The search came back negative. Id.
          Thereafter, custody of [Burik] was turned over to
          Detective David Strother of the MTPD during the
          early morning hours of March 30, 2014, Id. at 31-
          32, 64-65, 69.

          At MTPD, Detective Strother apprised [Burik] of his
          rights pursuant to Miranda v. Arizona, and [Burik]
          agreed to waive those rights and speak to the
          detective. Trial N.T., 65-68; see C-3. [Burik]
          admitted that he made all of the aforementioned
          posts from his cellular telephone. Trial N.T., 69-70.
          [Burik] explained that he was antiestablishment and
          anti-Catholic Church. Id. at 70-71.

          As a result of these threats, security at St. Mary was
          heightened and additional security guards were
          added. Id. at 56-57. Furthermore, although security
          guards at St. Mary are not ordinarily armed, private



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J-A25007-15


           armed security was hired on a 24/7 basis for one (1)
           month. Id. at 57-58.

           [Burik] was arrested on March 30, 2014 and charged
           with two (2) counts of [s]talking, five (5) counts of
           [t]erroristic  [t]hreats,  five    (5)    counts   of
           [h]arassment, and three (3) counts of [t]hreat to
           [u]se [w]eapons of [m]ass [d]estruction (originally
           titled “[b]omb [t]hreats” and referred thereto
           throughout the Criminal Information).

           A waiver trial took place on August 19, 2014, and,
           following presentation of evidence and argument,
           [the trial court] found [Burik] guilty of the [two
           counts of each crime]. Sentencing was deferred
           pending a pre-sentence investigation and mental
           health evaluation.

           [Burik] was sentenced on December 16, 2014. On
           Count 1- [s]talking, he was sentenced to not less
           than eleven (11) months and twenty-nine (29) days
           nor more than twenty-three (23) months and
           twenty-nine (29) days[] [of] incarceration.      On
           Count 3- [t]erroristic [t]hreats, [Burik] was
           sentenced to a five (5) year period of probation, to
           be served consecutively to his parole. Additionally,
           on Count 13- [threat to use weapons of mass
           destruction], [Burik] was sentenced to a second five
           (5) year period of probation, to be served
           consecutively to the period of probation imposed on
           Count 3. No further penalty was imposed on
           remaining counts.

Trial Court Opinion, 4/20/15, at 1-7 (footnotes omitted).

     This timely appeal follows, in which Burik challenges the sufficiency of

the evidence as to each of his convictions. When reviewing a sufficiency of

the evidence claim, “we must determine whether the evidence admitted at

trial, as well as all reasonable inferences drawn therefrom, when viewed in




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J-A25007-15


the light most favorable to the verdict winner, are sufficient to support all

elements of the offense.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa.

Super. 2013) (quoting Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.

Super. 2011)).    When performing this review, “we may not reweigh the

evidence or substitute our own judgment for that of the fact finder.” Id.

      Burik begins with his stalking convictions. The particular subsection of

the stalking statute of which Burik was convicted provides that “[a] person

commits the crime of stalking when the person … engages in a course of

conduct or repeatedly communicates to another person under circumstances

which demonstrate or communicate either an intent to place such other

person in reasonable fear of bodily injury or to cause substantial emotional

distress to such other person.” 18 Pa.C.S.A. § 2709.1(a)(2).

      Burik was convicted of two counts of this crime, which alleged the

stalking of Mr. Aybinder and St. Mary’s, respectively.         See Criminal

Information, 6/26/14, at 1. With regard to the conviction relating to Burik’s

contact with Mr. Aybinder, Burik argues that there was no evidence that he

engaged in a course of conduct intending to place Mr. Aybinder in reasonable

fear of bodily injury or to cause substantial emotional distress, as there was

no evidence as to what he said to Mr. Aybinder in the hospital or evidence of

the content of one of the Facebook messages he sent to Mr. Aybinder.

Burik’s Brief at 19-21.




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J-A25007-15


        For this offense, the “course of conduct” element and the intent

element are inextricably linked, as in order to establish the requisite course

of conduct, one must establish that the communications at issue were made

with the requisite intent (i.e., the intent to place a person in reasonable fear

of bodily injury or to cause substantial emotional distress).     As such, this

Court cannot decide whether the evidence is sufficient to establish a course

of conduct without considering an appellant’s intent.

        In Commonwealth v. D’Collanfield, 805 A.2d 1244 (Pa. Super.

2002), the appellant sent nine emails to a psychologist who performed a

court-ordered evaluation of the appellant for a separate criminal matter.

The emails were not offered into evidence and there was no testimony as to

the content of the emails.       The evidence established only that appellant

began sending the emails after the psychologist evaluated the appellant, and

that they “were harassing and frankly a bit bizarre in nature, and they did

cause [the psychologist] a great amount of concern and alarm.”           Id. at

1248.    This Court concluded that the simple fact that the appellant sent

multiple emails that caused the psychologist concern and alarm was

sufficient to establish a course of conduct. This Court further held that the

appellant’s intent in sending those messages may be determined by the

totality of the circumstances:

             [T]he Commonwealth stated at the sentencing
             hearing that Appellant sent various bizarre [e]-mails
             to Dr. Dattilio over the course of a month. The



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J-A25007-15


           Commonwealth presented evidence at Appellant’s
           hearing that indicated Dr. Dattilio felt “great concern
           and alarm” due to the harassing e-mails. It is also
           clear from Appellant’s testimony that he was enraged
           and out of control due to Dr. Dattilio’s diagnosis of
           him as a paranoid schizophrenic.

           We are convinced that this evidence was sufficient to
           indicate to the trial court that Appellant intended to
           cause substantial emotional distress to the victim. It
           is clear that simply because Appellant did not state
           specifically that he wished to cause “great concern
           and alarm” or “substantial emotional distress” to Dr.
           Dattilio that he did not intend to do so. We have held
           consistently that intent may be inferred from the
           words or actions of the defendant in light of all
           attendant     circumstances.     Commonwealth        v.
           Pasley, 743 A.2d 521, 524 (Pa. Super. 1999) (citing
           Commonwealth v. Chance, [] 458 A.2d 1371 ([Pa.
           Super.] 1983)). Here, the trial court was able to infer
           the malevolent intent required to convict on a charge
           of stalking by communication because Appellant,
           incensed by Dr. Dattilio’s diagnosis, engaged in a
           repetitive course of harassment of Dr. Dattilio, the
           intent of which was to cause great concern and
           alarm.

Id. at 1249 (footnote omitted).

     Similarly, in the present case, Burik contacted Mr. Aybinder after an

interaction at St. Mary’s during which Burik believes he was sexually

assaulted. See N.T., 12/16/14, at 21. Mr. Aybinder testified that although

he could not recall the exact words used, the first message he received from

Burik, in 2010, was “threatening in nature.”    N.T., 8/19/14, at 46.   Burik

subsequently sent another Facebook message in 2013, the content of which

is reproduced above.   See also Commonwealth’s Ex. C-1.        D’Collanfield




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J-A25007-15


instructs that we need not know the exact content of Burik’s 2010 Facebook

message, as in consideration of the totality of the circumstances, specifically

Mr. Aybinder’s interpretation of the message (that it was threatening in

nature) and response to it (alerting his supervisor at St. Mary’s, id. at 47),

coupled with his interpretation and response to the subsequent Facebook

message (again alerting his supervisor at St. Mary’s, id. at 50), is sufficient

to establish that Burik engaged in a course of conduct with the intent to

cause Mr. Aybinder substantial emotional distress.2

      With regard to his conviction for stalking of St. Mary’s, Burik argues

that because he made the Facebook posts about St. Mary’s “within a

relatively short period of time (March 28 and 29, 2014), [they] should be

considered one act as they were so close in time and are one Facebook

thread.” Burik’s Brief at 21. He also argues that the conviction cannot stand

because St. Mary’s in not a person. Burik makes both of these “arguments”

without citation to or discussion of a single supportive authority. Our Rules

of Appellate Procedure require that each issue an appellant raises must be

supported by discussion and analysis of relevant authority. See Pa.R.A.P.

2119. Burik has failed to do meet these requirements. It is well established

that this court will not become the counsel for an appellant and develop

arguments on an appellant’s behalf.     Commonwealth v. Kane, 10 A.3d



2
  Tellingly, Burik does not discuss or attempt to distinguish D’Collanfield in
his argument on this issue.


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J-A25007-15


327, 331 (Pa. Super. 2010). Accordingly, Burik has waived this issue. See

Commonwealth v. Hunzer, 868 A.2d 498, 516 (Pa. Super. 2005) (holding

that an appellant waived a claim where he failed to cite any legal authority

in support of an argument in his appellate brief); Commonwealth v. Ellis,

700 A.2d 948, 957 (Pa. Super. 1997) (holding waiver results if an appellant

fails to properly develop an issue or cite to legal authority to support his

contention in his appellate brief).3

      We reach the same conclusion with regard to Burik’s challenges to his

harassment convictions, which also are based on the 2010 and 2013

Facebook messages to Mr. Aybinder.4 After setting forth the definition of the

crime, Burik baldly states that because we do not know the content of his

2010 Facebook message to Mr. Aybinder, there is insufficient evidence to


3
  Even if we were not to find this issue waived, it would not prevail. The
record contains evidence of numerous Facebook posts and comments made
by Burik in which he threatened to kill anyone affiliated with St. Mary’s and
to deploy a pipe bomb to destroy St. Mary’s. Commonwealth’s Exhibit C-1.
For purposes of stalking, a “course of conduct” is “pattern of actions
composed of more than one act over a period of time, however short,
evidencing a continuity of conduct.” Commonwealth v. Leach, 729 A.2d
608, 611 (Pa. Super. 1999) (emphasis added). Furthermore, we find Burik’s
statements that he wants to destroy “all of those who hold any minute
association with St. Mary’s” and “to make sure that kiss [goodbye to a
spouse who works at St. Mary’s] means something. … Go to work. Do your
fucking job. And die,” see Commonwealth’s Exhibit C-1, sufficient to support
a finding that he was threatening the individuals that work for St. Mary’s,
not St. Mary’s the corporate entity, as Burik suggests.
4
  “A person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person: … (4) communicates to or about such
other person any lewd, lascivious, threatening or obscene words, language,
drawings or caricatures.” 18 Pa.C.S.A. § 2709(a)(4).


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J-A25007-15


support a finding that he threatened him. Burik’s Brief at 24-25. He further

argues that the 2013 Facebook message (the content of which is in

evidence) “was not a threat.   [It] does not state anywhere that [Burik] is

going to harm [Mr. Aybinder]. Essentially, [Burik] simply communicated his

wishes that bad things happen to [Mr. Aybinder].” Id. at 25. Burik’s entire

discussion as to both of these convictions, which he is challenging on

different grounds, is eleven lines long, and he has failed to support his

arguments with citation to, much less discussion of, supportive authority. As

such, they are waived. Hunzer, 868 A.2d at 516; Ellis, 700 A.2d at 957.5

      We now consider Burik’s convictions of terroristic threats.         The

relevant statute provides that “[a] person commits the crime of terroristic

threats if the person communicates, either directly or indirectly, a threat to

… commit any crime of violence with intent to terrorize another.”

18 Pa.C.S.A. § 2706(a)(1). Burik begins from the premise that his

convictions were based on the 2010 and 2013 Facebook messages, and



5
  Again, we note that even if not waived, these issues would not provide
relief. To begin, harassment is a lesser-included offense of stalking. See
Commonwealth v. Reese, 725 A.2d 190, 192 (Pa. Super. 1999). As such,
our discussion regarding whether it is critical to know the content of the
2010 Facebook message in context of stalking applies equally to Burik’s
harassment convictions. Second, Burik’s argument that the 2013 Facebook
message was not threatening is challenging the trial court’s characterization
of the message as such. Burik’s challenge is therefore truly to the weight,
rather than the sufficiency, of the evidence. As he did not raise a challenge
to the weight of the evidence in the trial court or in his Rule 1925(b)
statement of matters complained of on appeal, he could not raise it on
appeal. Pa.R.Crim.P. 607; Pa.R.A.P. 1925(b)(4)(vii).


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argues that his convictions are unsound because the Commonwealth failed

to establish, in either message, the intent to commit any crime of violence

against Mr. Aybinder. Burik’s Brief at 22-24.

     Preliminarily, we note that the criminal information and criminal

complaint do not specify these Facebook messages as the bases for these

charges or allege that the threats were made only against Mr. Aybinder.

Both the criminal complaint and the criminal information charge Burik with

five counts of terroristic threats, all of which allege that between 2010 and

March 29, 2014, Burik “communicated, either directly or indirectly, a threat

to commit a crime of violence with intent to terrorize another, namely,

Joshua Aybinder and/or St. Mary Medical Center.”        Criminal Complaint,

3/30/14, at 2; Criminal Information, 6/26/14, at 1. Burik was convicted of

Counts Three and Four.    During its closing argument, the Commonwealth

explained that Count Three was based solely on Burik’s February 16, 2010

Facebook message to Mr. Aybinder and Count Four was based solely on the

July 14, 2013 Facebook message. N.T., 8/19/14, at 92-93. By virtue of this

clarification, the Commonwealth effectively orally amended the criminal

information regarding these two counts, narrowing their scope.           See

Pa.R.Crim.P. 564; Commonwealth v. Sinclair, 897 A.2d 1218, 1224 (Pa.

Super. 2006) (holding that amendment of criminal information on day of

trial is permissible if there is no showing of prejudice).   The trial court

permitted this amendment and Burik did not object, and so we accept that



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J-A25007-15


Counts Three and Four are based, respectively, on the 2010 and 2013

Facebook messages to Mr. Aybinder.6

      The relevant statute provides that “[a] person commits the crime of

terroristic threats if the person communicates, either directly or indirectly, a

threat to … commit any crime of violence with intent to terrorize another.”

18 Pa.C.S.A. § 2706(a)(1). With respect to the 2010 Facebook message to

Mr. Aybinder, Burik argues that his conviction cannot stand because there is

no evidence as to the content of this message. Burik’s Brief at 22-23. Burik

does not cite any authority to support his claim that the content of the

communication must be known in order to support a conviction of terroristic

threats. To the contrary, the law provides that elements of this offense may

be inferred from the totality of the circumstances. See Commonwealth v.

Butcher, 644 A.2d 174, 176 (Pa. Super. 1994); Commonwealth v.

Ferrer, 423 A.2d 423, 425 (Pa. Super. 1980).         The evidence establishes

that Mr. Aybinder assisted in an emergency room procedure on Burik in



6
  The trial court indicates that Burik’s terroristic threats convictions were
based on two specific incidents; the 2009 emergency room encounter
between Burik and Mr. Aybinder (Count Three) and the Facebook messages
from 2010 and 2013 (Count Four). Trial Court Opinion, 4/20/15, at 13-14.
This is incorrect. As we have just explained, the Commonwealth based
these counts specifically on the 2010 and 2013 Facebook messages to
Aybinder. However, as we explain infra, there are other bases upon which
we rely to conclude that the trial court’s rejection of Burik’s claims was
proper. See Commonwealth v. Singletary, 803 A.2d 769, 772-73 (Pa.
Super. 2002) (“It is well settled that where the result is correct, an appellate
court may affirm a lower court's decision on any ground without regard to
the ground relied upon by the lower court itself.”).


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2009, during which Burik threatened Mr. Aybinder.      N.T., 8/19/14, at 45.

One year later, Burik sent Mr. Aybinder an “alarming” message on Facebook

that was “threatening in nature.” Id. at 46. Mr. Aybinder could not recall

the exact words used by Burik in this message, but he was sufficiently

concerned by its content that he informed the nurse manager of St. Mary’s

emergency department of it. Id. at 47. In consideration of the totality of

these circumstances, it is reasonable to infer that the content of the 2010

Facebook message contained a threat of violence, as Mr. Aybinder

characterized it as “threatening”; the nature of the message prompted Mr.

Aybinder to tell his supervisor about it; and Burik previously threatened Mr.

Aybinder. Further, we can infer that Burik intended to terrorize Mr. Aybinder

with the threat, as Burik believed Mr. Aybinder participated in a sexual

assault against him. We therefore conclude that the evidence is sufficient to

support Burik’s conviction on this count.

      With regard to the 2013 Facebook message, Burik argues that the

evidence was insufficient because the message did not threaten Mr. Aybinder

with a crime of violence.    Burik’s Brief at 23-24.   Burik is attempting to

advance this issue for the first time on appeal.        In his court-ordered

Pa.R.A.P. 1925(b) statement of matters complained of on appeal, Burik first

alleged that the evidence was insufficient to support this conviction because

“the Commonwealth failed to prove beyond a reasonable doubt the intent

elements of such offenses[.]” Concise Statement of Matters Complained of



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on Appeal, 2/4/15, ¶ 1.       He also alleged that that the evidence was

insufficient to support this conviction because Mr. Aybinder could not recall

specifically what Burik said to him prior to July of 2013. Id. ¶ 2. He did not

include the issue he now seeks to raise on appeal. It is axiomatic that issues

not included in a court-ordered statement of matters complained of are

waived for purposes of appeal. Commonwealth v. Jackson, 10 A.3d 341,

347 n.4 (Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court

has repeatedly reiterated that this is a bright-line rule and that “in order to

preserve their claims for appellate review, appellants must comply whenever

the trial court orders them to file a [s]tatement of [m]atters [c]omplained of

on [a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.” Commonwealth v. Castillo,

888 A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d

484, 494 (Pa. 2011). Here, as the lower court ordered Burik to file a Rule

statement of matters complained of on appeal, see Trial Court Order,

1/15/15, and he failed to include this issue therein, we must find that it has

been waived.

      Finally, we turn to Burik’s claim that the evidence was insufficient to

support his convictions of threat to use weapons of mass destruction, which

is defined as follows: “A person who intentionally … threatens by any means

the placement or setting of a weapon of mass destruction; commits an

offense under this section. A separate offense shall occur for each report or



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threat to place or set a weapon of mass destruction.”         18 Pa.C.S.A. §

2715(a)(4). Burik argues that this evidence was insufficient because it did

not establish an explicit threat that Burik, himself, would place a bomb at St.

Mary’s. Burik’s Brief at 26.

      We disagree.    The evidence against Burik includes a Facebook post

from March 29, 2014 in which Burik states, “Put a fucking pipe bomb in St.

Mary’s cunt. Remember my name!!!”        Commonwealth Exhibit C-1.         Burik

then comments immediately under this statement, “Watch me!”          Id.    The

evidence also included a Facebook post by Burik from March 28, 2014, in

which he stated, “I wish to make hamburger meat out of all those who hold

any minute association with St. Mary’s medical center.”     N.T., 8/19/14, at

17; see also Commonwealth Exhibit C-1.          Under this statement, Burik

commented, “A pipe bomb with rosary beads.            Metal ones of course.

Where’s the Unabomber when you need him. I’ll show em [sic] a little home

grown.”   Id.   Viewing these statements in the light most favorable to the

Commonwealth, we have no hesitancy in concluding that it established

threats by Burik to place bombs in St. Mary’s Medical Center. Of note, Burik

states that he wants to make “hamburger meat” out of anyone affiliated

with St. Mary’s, and then immediately references a pipe bomb and states

that in the absence of the Unabomber (the notorious manufacturer of

homemade bombs), he’ll “shown em [sic] a little home grown.” Similarly,

the use of the phrases “remember my name” and “watch me” after the



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statement, “Put a fucking pipe bomb in St. Mary’s cunt” also supports the

conclusion that Burik threatened to bomb St. Mary’s Medical Center himself.

We therefore find no merit to his claim.

      Judgment of sentence affirmed.

      Mundy, J. joins the Memorandum.

      Fitzgerald, J. files a Concurring and Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2015




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