J-S02011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT EDWARD ZAGATA 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1097 MDA 2022

Appeal from the Judgment of Sentence Entered August 2, 2022

In the Court of Common Pleas of Schuylkill County 

Criminal Division at No(s): CP-54-CR-0001586-2021

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 24, 2023

Robert Zagata appeals his judgment of sentence imposed by the 

Schuylkill County Court of Common Pleas after he was convicted of, among 

other crimes, stalking and harassment. He raises an evidentiary challenge, 

which we find to be without merit. However, Zagata also raises the 

nonwaivable claim that his harassment conviction should have merged with 

his stalking conviction for sentencing purposes. As we are constrained to 

agree, we vacate Zagata’s judgment of sentence and remand to the trial court 

for resentencing.

As the trial court stated, “the basic facts of this case are undisputed and 

clear from the record.” Trial Court Opinion, 9/9/2022, at 2. Shana Stefanick, 

a director at an inpatient drug and alcohol rehabilitation facility named the 

Silver Pines Treatment Center (“Silver Pines”), met Zagata when he was a 
J-S02011-23

- 2 -

patient at Silver Pines in the summer of 2018. After Zagata was discharged, 

he showed up at Silver Pines looking for Stefanick, then attempted to call and 

text Stefanik, and subsequently wrote what can only be described as very 

disturbing letters to Stefanick from prison. Stefanick contacted the police, and 

Zagata was ultimately charged with two counts of stalking, one count of 

terroristic threats and two counts of harassment.

The matter proceeded to a jury trial. As an initial matter, defense 

counsel asked for an offer of proof regarding the testimony of Julie Brown, the 

records clerk at Wyoming County Correctional Facility, and Lauren Mailen, a 

lieutenant of the records department at Lackawanna County Prison. The 

Commonwealth explained that it would be presenting their testimony to 

establish Zagata was in prison at the respective times he sent the letters to 

Stefanick and to authenticate those letters. Defense counsel refused to 

stipulate that Zagata was in the prison when he wrote the letters, and instead 

objected to the testimony on the basis that it was irrelevant and unduly 

prejudicial. The court overruled the objection, making a specific finding that 

the testimony was not unduly prejudicial and noting the fact that Zagata was 

in jail at the time he wrote the letters was invariably going to be revealed. 

See N.T. Jury Trial, 6/14/2022, at 7. Brown then testified as to the dates 

Zagata was in Wyoming County Correctional Facility and Mailen testified as to 

the dates Zagata was in Lackawanna County Prison after he had been 

transferred there.
J-S02011-23

- 3 -

Stefanick also testified at trial. She recounted that Zagata had been a 

patient at Silver Pines in the summer of 2018. After he was discharged, 

Stefanick testified Zagata broke into Silver Pines and tried to kiss her while 

staff was waiting for the police to arrive. See id. at 28. Then, in March 2019, 

Stefanick received a letter from Zagata with a return address of the 

Lackawanna County Prison. See id. at 30. The letter contained profanities and 

vulgarities, and Zagata expressed his love for Stefanick. See id. at 31-32. 

Stefanick testified she received but refused flowers from Zagata at Silver 

Pines, and that after Zagata was released from Lackawanna County Prison, he 

again showed up at Silver Pines, but Stefanick was not there. See id. at 33.

Stefanick also testified Zagata attempted to call and text her, and she 

blocked him. See id. at 33-34. Zagata also contacted Stefanick’s husband. 

See id. at 34. 

In May 2021, Stefanick received a second letter from Zagata, this time 

in an envelope with a return address of Wyoming County Correctional Facility. 

It contained “rambling threats, curses, racist and derogatory words, lewd 

sexual contact, and statements indicating [Zagata] loved and was obsessed 

with Stefanick.” Trial Court Opinion. 9/9/2022, at 3; see also N.T. Jury Trial, 

6/14/2022, at 36-41. Stefanick testified she was “petrified,” not the least 

because the “letter says in there, you know, he’s going to beat me to death.” 

N.T. Jury Trial, 6/14/2022, at 42.
J-S02011-23

- 4 -

Stefanick contacted the police as well as the Wyoming County 

Correctional Facility to request that Zagata be precluded from sending her 

more letters. Nonetheless, Stefanick received a third letter from Zagata, also 

with a return address of Wyoming County Correctional Facility. In the letter, 

Zagata again rambled and extensively used profanities and lewd language. He 

added that he has murdered women and children, and stated “I will bury you 

next to the courthouse because no one will know.” Id. at 46. 

Stefanick contacted the police. She testified she is petrified and afraid 

of Zagata even though she knows he is in jail, and panics that Zagata may be 

released. See id. at 47-48.

Zagata testified in his own defense. He confirmed he had been in prison 

for DUI and defiant trespass. He also testified he had gone to Silver Pines on 

the day he was released from prison, looking for Stefanick. See id. at 91. He 

agreed he had sent a letter to Stefanick from Lackawanna County Prison, see 

id. at 80, and agreed he had written the letters Stefanik had read in court, 

see id. at 86-87, 93. When asked why he would write that he was violent and 

murdered several women and children, he replied it was a “reverse psychology 

kind of thing. If something is one way, then the opposite of that would be 

funny.” Id. at 96.

The jury convicted Zagata of one count of stalking, one count of 

terroristic threats and one count of harassment. The court sentenced Zagata 

to 12 to 24 months’ incarceration for the stalking conviction, a concurrent 
J-S02011-23

- 5 -

term of six to 12 months’ incarceration for the terroristic threats conviction, 

and a consecutive 12-month probationary term for the harassment conviction. 

Zagata filed a timely notice of appeal. Both Zagata and the trial court complied 

with Pa.R.A.P. 1925 and Zagata now raises the following two issues for our 

consideration:

1. Did the trial court err in admitting, over objections, the 

testimony of Julie Brown and Lauren Mailen?

2. Did the Commonwealth fail to produce sufficient evidence to 

establish the commission of the crime of harassment?

Appellant’s Brief at 5 (suggested answers omitted).

In his first issue, Zagata summarily argues that the court erred by 

admitting the testimony of Brown and Mailen because it was irrelevant and 

unduly prejudicial in that it was used to show his propensity to commit crimes. 

This claim fails. 

We review a trial court’s ruling on the admission of evidence for an abuse 

of discretion. See Commonwealth v. Urrutia, 653 A.2d 706, 709 (Pa. Super. 

1995). Generally, the threshold question with the admission of evidence is 

whether the evidence is relevant. See Commonwealth v. DiStefano, 236 

A.3d 93, 98 (Pa. Super. 2020). Pursuant to our Rules of Evidence, evidence is 

relevant if it has any tendency to make a fact more or less probable than it 

would be without the evidence and that fact is of consequence in determining 

the action. See id.; Pa.R.E. 401. Even if evidence is relevant, however, the 

court can still exclude the evidence if it concludes that the probative value of 
J-S02011-23

- 6 -

the evidence is outweighed by, among other things, a danger of unfair 

prejudice. See Pa.R.E. 403. 

When evidence involves “a crime, wrong, or other act,” it is inadmissible 

to prove a person’s character in order to show that the person acted in 

accordance with that character. Pa.R.E. 404(b)(1). Such evidence may be 

admissible, however, when relevant for another purpose such as proving 

motive, intent, or course of conduct. See Pa.R.E. 404(b)(2); Urrutia, 653 

A.2d at 709. It is only admissible for such a purpose in criminal cases, though, 

when the trial court determines that the probative value of the evidence 

outweighs its potential for unfair prejudice. See id. In this context, unfair 

prejudice means a “tendency to suggest decision on an improper basis or to 

divert the jury’s attention away from its duty of weighing the evidence 

impartially.” Pa.R.E. 403 cmt. 

In rejecting Zagata’s claim below, the trial court stated that it had 

properly admitted the testimony as it authenticated the letters sent by Zagata 

while in prison. The court continued: 

[T]he challenged testimonial evidence was relevant, admissible 

and necessary in order to prove that [Zagata] was the individual 

who authored and sent the letters to [Stefanick], thus engaging 

in a course of conduct prohibited by the stalking statute.

Trial Court Opinion, 9/9/2022, at 9.

The court then found that Zagata had not shown he was unfairly 

prejudiced by the admission of the testimony confirming the dates he was in 

prison. The court noted that the probative value of the testimony was high, 
J-S02011-23

- 7 -

that Stefanick testified the letters’ envelopes had a return address of either 

Lackawanna County Prison or Wyoming County Correctional Facility, the 

Commonwealth had admitted the envelopes showing the return addresses into 

evidence, and Zagata himself testified he sent the letters while in prison. Given 

these circumstances, the court found that the introduction of the limited 

testimony by Brown and Mailen corroborating that Zagata sent the letters from 

prison was more probative than prejudicial, and had been properly admitted.

The Commonwealth argues that the trial court properly found that it had 

not abused its discretion in admitting the challenged evidence, and in support, 

the Commonwealth relies on the trial court’s reasoning in its opinion. Like the 

Commonwealth, we can discern no abuse of discretion in the trial court’s 

conclusion that the limited testimony of Brown and Mailen was relevant and 

not unfairly prejudicial. Zagata’s summary assertions to the contrary do not 

convince us otherwise. No relief is due on the basis of this claim.

In the second claim presented in his statement of questions involved, 

Zagata challenges the sufficiency of the evidence for his harassment 

conviction. However, in the argument section of his brief, Zagata argues the 

completely different claim that his harassment conviction should have merged 

with his stalking conviction for sentencing purposes. Given Zagata’s failure to 

develop his sufficiency claim in any way, that claim is waived. See Pa. R.A.P. 

2119(a); Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) 

(stating that arguments that are not sufficiently developed are waived).
J-S02011-23

- 8 -

Zagata’s merger claim, in contrast, goes to the legality of his sentence 

and cannot be waived. See Commonwealth v. Parham, 969 A.2d 629, 631 

(Pa. Super. 2009). While his merger claim is far from well developed, and 

teeters on being insufficient so as to prevent our review, Zagata does cite to 

a case which explicitly holds that harassment is a constituent offense of 

stalking. See Commonwealth v. Reese, 725 A.2d 190, 192 (Pa. Super. 

1999) (stating that “stalking is simply a more serious form of harassment”). 

Although not cited by Zagata, our Judicial Code provides:

[n]o crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the court 

may sentence the defendant only on the higher graded offense. 

42 Pa. C.S.A. § 9765.

In light of Reese, the remaining question under Section 9765 is whether 

Zagata’s harassment charge was based upon the same criminal act as the 

stalking charge. Again, Zagata does not argue that it was, but the criminal 

informations filed by the Commonwealth do not provide any indication that 

the two charges were not based on the same course of conduct. Accordingly, 

Zagata’s harassment conviction should have merged into his stalking 

conviction for sentencing purposes. Because it did not, we are constrained to 

vacate his judgment of sentence. We remand to the trial court to resentence 

Zagata on his stalking and terroristic threats convictions, as our disposition 

upsets the sentencing court’s original sentencing scheme given that the 
J-S02011-23

- 9 -

probationary sentence for the harassment conviction ran consecutive to the 

sentence for the terroristic threats conviction. See Commonwealth v. Ali, 

197 A.3d 742, 759 (Pa. Super. 2018) (stating that remanding for resentencing 

is appropriate where an appellate court’s disposition upsets the trial court’s 

original sentencing scheme). 

Judgment of sentence vacated. Matter remanded to the trial court for 

resentencing in accordance with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/24/2023