J-A25007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    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, J.*

CONCURRING AND DISSENTING STATEMENT BY FITZGERALD, J.:

                                                 FILED DECEMBER 18, 2015

        I agree with the majority that Appellant’s communications were

sufficient to sustain his convictions for stalking, harassment, and terroristic

threats against St. Mary’s. I also concur in the majority’s decision to find

waiver of Appellant’s sufficiency challenge to his conviction on Count Four for

terroristic threats against Joshua Aybinder. However, I respectfully disagree

with the majority’s conclusion that the evidence was sufficient to sustain the

conviction on Count Three for terroristic threats based on his February 16,

2010 message to Aybinder.




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


      It is undisputed that Aybinder testified only that the February 16, 2010

message was “alarming” and “threatening in nature.” The Commonwealth

presented no further evidence regarding what the message said.            The

majority affirms the conviction based on the totality of the circumstances,

namely, Appellant’s prior behavior while undergoing a catheterization in

February 2009 and Aybinder’s responses to the Appellant’s February 16,

2010 message.

      As to the February 2009 incident, Aybinder was unable to recall any

detail regarding Appellant’s conduct, the content of Appellant’s statements,

or which statements Appellant directed at him. As to Appellant’s February

16, 2010 message, Aybinder testified he reported the message to hospital

administrators.    However, he deleted the message after the hospital

informed him it would not take action against Appellant.

      Without further evidence, I am of the view that the totality of the

circumstances does not support the inferences that the February 16, 2010

message threatened Aybinder with a crime of violence or that Appellant

conveyed such a threat with the intent terrorize.          See 18 Pa.C.S. §

2706(a)(1) & cmts. (“[T]he purpose of the section is to impose criminal

liability on persons who make threats which seriously impair personal

security or public convenience.”).   Accordingly, I would vacate Appellant’s

terroristic threats conviction under Count Three.

      Thus, I respectfully concur in part and dissent in part.



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