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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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