Com. v. Burik, S. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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.
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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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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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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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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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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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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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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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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
2Tellingly, Burik does not discuss or attempt to distinguish D’Collanfield in
his argument on this issue.
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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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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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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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