Com. v. Zagata, R. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT EDWARD ZAGATA :
:
Appellant : 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
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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.
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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.
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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
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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
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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,
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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).
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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
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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
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