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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    LAMONT ZAMICHIELI                          :
                                               :
                       Appellant               :   No. 794 MDA 2019

          Appeal from the Judgment of Sentence Entered May 9, 2019
    In the Court of Common Pleas of Huntingdon County Criminal Division at
                       No(s): CP-31-CR-0000418-2017


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                           FILED DECEMBER 20, 2019

        Appellant, Lamont Zamichieli, appeals from the judgment of sentence

entered on May 9, 2019, in the Huntingdon County Court of Common Pleas.

After review, we affirm.

        The record reflects that in April of 2017, while Appellant was

incarcerated at the State Correctional Institution (“SCI”) at Huntingdon on

unrelated charges, he mailed letters to two individuals outside of the

institution. N.T., Trial, 3/18/19, at 33, 44, 51, and 129. One of the letters

was delivered to its intended victim; the other was marked undeliverable and

returned to the SCI. Id. at 44, 57, and 91. The letters were sexually explicit,

and DNA testing confirmed that both letters were stained with Appellant’s

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*   Retired Senior Judge assigned to the Superior Court.
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seminal fluid. Id. at 131. In the letters, Appellant directed the recipients to

lick hand-drawn hearts on the paper; testing revealed that these hearts were

smeared with semen. Id. at 144-145.

        Appellant was charged with two counts each of aggravated harassment

by prisoner, indecent assault, and harassment.1 Criminal Complaint, 7/18/17.

The case proceeded to a jury trial on March 18, 2019. Before the jury entered

the courtroom on the day trial began, Appellant became argumentative with

the trial court. N.T., Trial, 3/18/19, at 7. The judge warned Appellant that if

he continued to engage in disruptive behavior, he would be removed from the

courtroom, and the trial would proceed without him. N.T., Trial, 3/18/19, at

7. Despite this warning, Appellant began pounding his head on the counsel

table and rendered himself unconscious. Id. at 9. After Appellant injured

himself, he was removed from the courtroom and returned to the prison

during this one-day trial. Id. at 51. After Appellant was removed, the jury

entered the courtroom, and Appellant was tried in absentia. Id. at 9-11. At

the conclusion of the one-day trial, the jury found Appellant guilty of two

counts of aggravated harassment by prisoner, one count of indecent assault,

and one count of harassment. Id. at 195.

        On May 9, 2019, the trial court sentenced Appellant to an aggregate

term of fifty-four to 168 months of incarceration. N.T., Sentencing, 5/9/19,



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1   18 Pa.C.S. §§ 2703.1, 3126(a)(1), and 2709(a)(4), respectively.

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at 9. On May 14, 2019, Appellant filed a timely appeal. Both the trial court

and Appellant complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issues for this Court’s

consideration:

      1. Should [Appellant] have been granted a verdict of acquittal,
      given that the evidence presented at trial failed to prove the
      elements of the crime charged?

      2. Should [Appellant] have been excluded from trial, without being
      afforded the opportunity to demonstrate that he would behave
      properly?

      3. Should [Appellant] have been allowed to attend his sentencing
      hearing in person, when more than seven weeks had passed since
      his disruptive behavior?

Appellant’s Brief at 3.

      In his first issue, Appellant presents a general challenge to the

sufficiency of the evidence. Appellant’s Brief at 3. Similarly, in his statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), Appellant

vaguely stated: “This [c]ourt should have entered a directed verdict of

acquittal, given that the evidence adduced at trial was insufficient to support

a conviction.”   Pa.R.A.P. 1925(b) Statement, 5/15/19.        However, in the

argument section of his appellate brief, Appellant asserts that the evidence

was insufficient to convict him of the crimes of aggravated harassment by

prisoner and/or indecent assault. Appellant’s Brief at 8-9.

      In Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), this

Court stated, “If [an a]ppellant wants to preserve a claim that the evidence


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was insufficient, then the [Pa.R.A.P.] 1925(b) statement needs to specify the

element or elements upon which the evidence was insufficient. This Court can

then analyze the element or elements on appeal.” Id. at 1257.

        In the instant case, we conclude that the specificity required by

Williams is lacking relative to indecent assault and deem this issue waived.

Id. However, because the trial court addressed Appellant’s challenge to his

convictions for aggravated harassment by prisoner,2 we conclude that our

review is not precluded, and we decline to find waiver regarding this aspect of

Appellant’s first issue. See Commonwealth v. Rodriguez, 141 A.3d 523,

525 (Pa. Super. 2016) (declining to find waiver under Williams where the

trial court addressed the claim of error); see also Commonwealth v. Smith,

955 A.2d 391, 393 (Pa. Super. 2008) (en banc) (concluding that a vague

Pa.R.A.P. 1925(b) statement does mandate waiver of the claim where the trial

court filed an opinion meaningfully addressing the issue).

        The standard of review for a challenge to the sufficiency of evidence is

well settled:

               The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact-finder to find every element of the
        crime beyond a reasonable doubt. In applying the above test, we
        may not weigh the evidence and substitute our judgment for the
        fact-finder[’s].  In addition, we note that the facts and
        circumstances established by the Commonwealth need not
        preclude every possibility of innocence. Any doubts regarding a
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2   Trial Court Opinion, 6/17/19, at 3.

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      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the finder
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      The crime of aggravated harassment by prisoner is defined as follows:

      A person who is confined in or committed to any local or county
      detention facility, jail or prison or any State penal or correctional
      institution or other State penal or correctional facility located in
      this Commonwealth commits a felony of the third degree if he,
      while so confined or committed or while undergoing transportation
      to or from such an institution or facility in or to which he was
      confined or committed, intentionally or knowingly causes or
      attempts to cause another to come into contact with blood,
      seminal fluid, saliva, urine or feces by throwing, tossing, spitting
      or expelling such fluid or material.

18 Pa.C.S. § 2703.1 (emphasis added).

      Appellant avers that the evidence was insufficient to convict him of

aggravated harassment by prisoner because the victims were outside of the

prison; he claims the statute was intended only to protect individuals within

the prison. Appellant’s Brief at 8. In support of his argument, Appellant cites

Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000). We disagree

with Appellant’s assertion, and we conclude Clark is inapplicable.

      In Clark, this Court stated, “The purpose of the statute is to protect

officers, law enforcement personnel, or other persons from harassment as

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described in the statute.” Clark, 761 A.2d at 193 (emphasis added). One of

the issues in Clark was the location of the perpetrator, i.e., does the statute

apply only to inmates who are in prison, or does it also apply to individuals

who are merely detained in a police holding cell?     Id. at 192.    This Court

concluded that Section 2703.1 applied to perpetrators who are confined in or

committed to any local or county detention facility, jail, prison, or any State

penal or correctional facility in Pennsylvania.   Id. at 192-193.     However,

nothing in Clark requires the victim to be within the confines of a prison,

detention facility, or holding area.

      We conclude that Section 2703.1 criminalizes a confined or committed

person from causing or attempting to cause “another” to come into contact

with certain enumerated bodily fluids or materials. 18 Pa.C.S. § 2703.1. The

location of the victim is not an element of the crime, and we reject Appellant’s

restrictive reading of the statute.

      As noted, the record reflects that the letters Appellant mailed contained

seminal fluid matching Appellant’s DNA.        N.T., Trial, 3/18/19, at 131.

Appellant mailed the letters to two women outside of the prison at a time when

Appellant was confined at SCI Huntingdon, and the mailings bore Appellant’s

name and inmate number. Id. at 57, 83. Additionally, the letters requested

the recipients to lick specific areas on the paper where Appellant had smeared

semen. Id. at 144-145. One of Appellant’s letters was returned to the prison,

id. at 44, 91; however, Appellant’s attempt to have this letter reach its


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intended victim satisfies the elements of the first count of aggravated

harassment by prisoner.     Moreover, the second letter was mailed to and

received by the intended victim. Id. at 57. Thus, we conclude that the facts

satisfy the elements of the second count of aggravated harassment by

prisoner.

      In    sum,   the   Commonwealth    established   that   Appellant,   while

incarcerated, expelled seminal fluid onto sheets of paper, mailed the papers

to two victims, and the jury concluded that Appellant intended the victims to

come into contact with the seminal fluid because he directed the victims to

lick the stained letters. Accordingly, the elements of the crime are satisfied

at each count of aggravated harassment by prisoner. See 18 Pa.C.S. § 2703.1

(“A [prisoner or detainee] … commits a felony of the third degree if he, while

so confined … intentionally or knowingly causes or attempts to cause another

to come into contact with … seminal fluid … by … expelling such fluid or

material.”). We conclude that Appellant is entitled to no relief.

      Next, Appellant avers that he should not have been excluded from the

trial without being afforded the opportunity to demonstrate good behavior.

Appellant’s Brief at 9. After review, we conclude that this issue is meritless.

      “A criminal defendant has both a rule-based right to be present for trial,

Pa.R.Crim.P. 602, as well as a constitutional right. The United States Supreme

Court has explained that this right stems from the Confrontation Clause of the

Sixth Amendment to the United States Constitution.”        Commonwealth v.


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Tejada, 188 A.3d 1288, 1293 (Pa. Super. 2018). “One of the most basic of

the rights guaranteed by the Confrontation Clause is the accused’s right to be

present in the courtroom at every stage of his trial.” Id. (quoting Illinois v.

Allen, 397 U.S. 337, 338 (1970)). However, the Supreme Court of the United

States explained:

      a defendant can lose his right to be present at trial if, after he has
      been warned by the judge that he will be removed if he continues
      his disruptive behavior, he nevertheless insists on conducting
      himself in a manner so disorderly, disruptive, and disrespectful of
      the court that his trial cannot be carried on with him in the
      courtroom. Once lost, the right to be present can, of course, be
      reclaimed as soon as the defendant is willing to conduct himself
      consistently with the decorum and respect inherent in the concept
      of courts and judicial proceedings.

Allen, 397 U.S. at 343. Therefore, trial judges have the discretion to manage

disruptive, contumacious, and stubbornly defiant defendants.             Id.   The

Supreme Court of Pennsylvania has similarly held that it is within the trial

court’s discretion to remove a disruptive defendant from the courtroom.

Commonwealth v. Basemore, 582 A.2d 861, 867-868 (Pa. 1990).

      In its opinion, the trial court addressed this issue as follows:

      [Appellant] forfeited his right to be present since he had been
      warned about his disruptive behavior. This Court chose not to
      reward [Appellant] with a continuance of the trial, as the jury had
      been selected and the trial was about to begin when [Appellant]
      chose to engage in his antics. Additionally, [Appellant’s] medical
      condition after he assaulted himself and the counsel table
      rendered him incapable of participating in the proceedings on that
      day.

Trial Court Opinion, 6/17/19, at 4-5.




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      The record reveals that Appellant was warned he would be removed

from the courtroom and tried in absentia if he continued his disruptive

outbursts. N.T., Trial, 3/18/19, at 7. However, Appellant opted to ignore the

trial court’s admonishment, pounded his head on the counsel table, and

rendered himself unconscious. Id. at 9. Although the United States Supreme

Court discussed providing an opportunity for a defendant to correct his

behavior and subsequently return to the courtroom, this “opportunity” is not

a mandate. Allen, 397 U.S. at 343.

        Appellant was removed from the courtroom and returned to the prison

during his one-day trial. Appellant caused the circumstances that led to his

removal.    There is no authority that required the trial court to delay the

proceedings when Appellant purposely injured himself, wait for Appellant to

regain consciousness and composure, and hope that Appellant could behave

during trial, when Appellant had illustrated that he was unwilling to do so. We

discern no error or abuse of discretion in the trial court removing Appellant

from the courtroom due to Appellant’s outrageous and intentionally disruptive

behavior.

      In his final claim of error, Appellant avers that he should have been

permitted to attend his sentencing hearing in person rather than by way of

video conference. Appellant’s Brief at 11-12. After review, we conclude that

Appellant is entitled to no relief.




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       As discussed above, Appellant was disruptive, removed from the

courtroom, tried in absentia, and convicted of the aforementioned crimes.

After Appellant was found guilty and prior to sentencing, the Commonwealth

filed a motion to have Appellant sentenced via video conferencing. Motion,

3/22/19.     In the motion, the Commonwealth referred the trial court to a

psychological evaluation that was conducted following Appellant’s removal

from the trial and Appellant’s disturbing comments recorded therein. Id. at

¶¶ 4-5, and attachment. During this evaluation, Appellant relayed, “The next

time I go back to court I’m going to snatch the gun from the sheriff and either

shoot someone or myself. Someone getting killed. They ain’t making me stay

here for another 30 years.” Id. The Commonwealth also cited Pa.R.Crim.P.

602 and noted Appellant’s right to be present; however, the Commonwealth

asserted that Appellant’s behavior and threats were a risk to SCI personnel,

court staff, and Appellant himself.            Id. at ¶¶ 7-11.   The Commonwealth

concluded that Appellant, through his behavior and threats, continued to

waive his right to be physically present at sentencing. Id. at ¶ 12. Appellant

did not file a counseled response to the Commonwealth’s motion.3             After


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3 Despite being represented by counsel, Appellant filed pro se motions with
the trial court requesting a psychiatric evaluation and a continuance of his
sentencing hearing pending a psychiatric evaluation.        Motion, 4/12/19;
Motion, 4/17/19. We do not consider these filings. See Commonwealth v.
Ali, 10 A.3d 282, 293 (Pa. 2010) (hybrid representation is not permitted, and
pro se documents that are filed while an appellant remains represented are
legal nullities).


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review, the trial court agreed with the Commonwealth and filed an opinion

and order granting the Commonwealth’s motion to sentence Appellant via

video conference. Opinion and Order, 3/25/19.

       In his brief, Appellant correctly points out that as a general rule, two-

way video communication is not permitted at sentencing because the

defendant has the right to be present in the courtroom. Appellant’s Brief at

11 (citing Pa.R.Crim.P. 119(A)(5)). However, as discussed in our disposition

of Appellant’s second issue, a defendant can waive that right by engaging in

disruptive behavior. Tejada, 188 A.3d at 1293; see also Pa.R.Crim.P. 119,

Cmt. (noting that the right to be present may be waived).4 The trial court

opined:

             [Appellant’s] final argument is that he should have been
       permitted to participate in the Sentencing in person rather than
       by video. Based on the incident at trial, the [c]ourt made a
       determination that [Appellant] could not be trusted to refrain from
       detrimental and extreme conduct if he was brought to the
       courthouse. As such, it was appropriate to proceed by video.

Trial Court Opinion, 6/17/19, at 5.

       After review, we discern no abuse of discretion in the trial court’s ruling.

Appellant’s continued disruptive behavior constituted a waiver of his right to


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4 The Comment to Pa.R.Crim.P. 119 provides, in relevant part, as follows:
“Nothing in this rule is intended to limit any right of a defendant to waive his
or her presence at a criminal proceeding in the same manner as the defendant
may waive other rights. See, e.g., Rule 602 Comment.” The Comment to
Pa.R.Crim.P. 602 cites Illinois v. Allen, 397 U.S. 337, 338 (1970), and
explains that a defendant can waive his right to be present if his behavior is
disruptive.

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be present, and the Commonwealth’s unrebutted assertion that Appellant

remained a risk to himself and others supported the trial court’s decision to

sentence Appellant via video conference.

     For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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