J-S35039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAMAR L. ZAMICHIELI A/K/A JAMES
ZAMICHIELI,

                            Appellant                  No. 6 EDA 2015


                Appeal from the PCRA Order November 24, 2014
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0509371-2003;
                            CP-51-CR-0509381-2003
                            CP-51-CR-0509391-2003
                            CP-51-CR-0509401-2003
                            CP-51-CR-0509411-2003
                            CP-51-CR-0509611-2003
                            CP-51-CR-0902651-2003
                            CP-51-CR-0903491-2003
                            CP-51-CR-0903581-2003
                            CP-51-CR-0903591-2003

BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 17, 2015

        Appellant, Lamar L. Zamichieli a/k/a James Zamichieli, appeals from

the order dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        This Court previously summarized the factual and procedural history of

this case as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           Between February 23, 2003, and March 27, 2003,
     [Appellant] committed sexual assaults on ten children, between
     the ages of [ten] and [fifteen], in the Frankford and Germantown
     neighborhoods of Philadelphia.        [Appellant] approached the
     young males and females as they were walking alone. He would
     attempt to convince the youngsters to accompany him. When
     several refused, he then threatened them.          Following each
     attack[,] the victims were able to give police a description of
     their attacker. Following one of the attacks, a crossing guard
     noticed [Appellant] walking with a crying victim. The victim,
     fearing [Appellant] would assault the crossing guard, remained
     silent until he entered his school. Later, when the Special
     Victims Unit realized there had been nine attacks over the course
     of [twelve] days, all within a one-mile radius, they contacted the
     crossing guard, Shonda Washington.           Ms. Washington was
     shown photographs of potential suspects.            Although Ms.
     Washington stated the perpetrator’s picture was not there, she
     did pick out a picture of an individual who strongly resembled
     him. The photo chosen was of [Appellant’s] brother, Virgil . . . .

            On March 27, 2003, [Appellant] approached Detective
     Harry Young who was patrolling the Frankford neighborhood.
     [Appellant] asked Detective Young, “Hey, you got a copy of them
     photos, the guy that’s wanted for them rapes?”            Detective
     Young, noticing [Appellant’s] strong resemblance to the picture
     of Virgil, told him that he was investigating the assaults, asked
     him for his name and a DNA sample. [Appellant] identified
     himself as Lamar Soto and authorized the detective to swab his
     mouth for a saliva sample.          [Appellant] then accompanied
     Detective Young to the Special Victim’s Unit to be photographed.
     While at the police station, [Appellant’s] photograph, contained
     in a photo array, was shown to the ten victims. Nine out of ten
     identified [Appellant] as their attacker [from the photos and the
     tenth victim identified Appellant in a lineup.] That same day,
     [Appellant] was arrested and charged with multiple crimes in
     connection with the sexual assaults he committed on the ten
     children.      On July 12, 2004, pursuant to negotiations,
     [Appellant] pled guilty to four counts of rape, [eleven] counts of
     terroristic threats, and [thirteen] counts of corruption of minors;
     as to all remaining counts, he pled nolo contendere. Prior to
     sentencing, a Megan’s Law assessment was ordered by the court
     and on January 12, 2005, [Appellant] was found to be a sexually
     violent predator.


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(Commonwealth           v.   Zamichieli,       No.   1660   EDA   2009,   unpublished

memorandum at *1-3 (Pa. Super. filed Nov. 15, 2010)) (citation and

footnote omitted).

       Appellant withdrew his guilty pleas on June 14, 2005. (See Docket, at

15-17).    On August 2, 2005, a jury convicted Appellant of two counts of

rape, two counts of involuntary deviate sexual intercourse, one count of

criminal attempt (sexual assault), two counts of criminal attempt (rape),

four counts of kidnapping, eight counts of making terroristic threats, six

counts of corrupting the morals of a minor, one count of indecent assault,

one count of simple assault, and one count of possessing an instrument of

crime.1 That same day, the court sentenced Appellant to an aggregate term

of not less than ninety-one nor more than 182 years’ incarceration.

       Appellant filed a motion for reconsideration on August 10, 2005, which

the trial court denied. On August 24, 2005, Appellant timely appealed. This

Court concluded that Appellant waived all issues because of his failure to file

a Rule 1925(b) statement timely and affirmed the judgment of sentence on

March 6, 2007.       (See Commonwealth v. Zamichieli, 927 A.2d 660 (Pa.

Super. 2007) (unpublished memorandum)).                 The Pennsylvania Supreme

Court denied leave to appeal on October 11, 2007. (See Commonwealth

v. Zamichieli, 934 A.2d 74 (Pa. 2007)).

____________________________________________


1
  18 Pa.C.S.A. §§ 3121, 3123, 3124.1, 3121, 2901, 2706, 6301, 3126,
2701, and 907, respectively.



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       On March 7, 2008, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel who filed an amended PCRA petition on

October 1, 2008 requesting that Appellant’s post sentence rights be

reinstated nunc pro tunc. On May 21, 2009, the court reinstated Appellant’s

rights and directed him to file a notice of appeal within thirty days.

       Appellant timely filed a notice of appeal on June 5, 2009. The court

did not order Appellant to file a Rule 1925(b) statement nor did it file a Rule

1925(a) opinion; instead relying on its March 29, 2006 opinion. On June 1,

2010, this Court remanded the matter, and directed the trial court to order

Appellant to file a Rule 1925(b) statement. Additionally, this Court ordered

the trial court to file a supplemental Rule 1925(a) opinion addressing

Appellant’s issues of a speedy trial and severance of cases. The trial court

timely complied.

       On November 15, 2010, this Court remanded the matter to resentence

Appellant on the attempted sexual assault conviction that had a maximum

allowable sentence of ten years’ imprisonment2 and affirmed all other

aspects of sentencing. (See Zamichieli, No. 1660 EDA 2009, at *20). In

accordance with our remand, the court resentenced Appellant to not less

than five nor more than ten years’ incarceration on the attempted sexual


____________________________________________


2
  We note that the parties and the court agreed that the sentence imposed
of not less than ten nor more than twenty years’ incarceration was illegal.
(See Zamichieli, No. 1660 EDA 2009, at *14).



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assault conviction. Appellant’s aggregate sentence of not less than ninety-

one nor more than 182 years’ incarceration remained unchanged.           The

Pennsylvania Supreme Court denied leave to appeal on May 25, 2011. (See

Commonwealth v. Zamichieli, 21 A.3d 1194 (Pa. 2011)).

       Appellant timely filed a pro se PCRA petition on September 6, 2011.

On January 7, 2013, the PCRA court denied the petition as untimely.

Appellant timely filed a notice of appeal on February 4, 2013. On February

25, 2013, the PCRA court requested the matter be remanded because “[t]he

[PCRA] court was under the mistaken belief that [Appellant’s] underlying

PCRA petition was his second PCRA filing in which no qualifying exceptions

applied.” (Order, 2/25/13, at 1). This Court remanded the matter to the

PCRA court on May 8, 2013.

       The PCRA court appointed counsel who filed an amended PCRA petition

on November 28, 2013. On September 15, 2014, the PCRA court notified

Appellant of its intention to dismiss his petition without a hearing pursuant

to Pennsylvania Rule of Criminal Procedure 907.      See Pa.R.Crim.P. 907.

Appellant did not respond.

       The PCRA court dismissed the petition on November 24, 2014.

Appellant timely appealed on December 23, 2014.3
____________________________________________


3
  Pursuant to the PCRA court’s order, Appellant filed a timely Rule 1925(b)
statement on January 29, 2015. The court entered its Rule 1925(a) opinion
on February 4, 2015. See Pa.R.A.P. 1925.




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       Appellant raises the following question for our review: “Should PCRA

relief have been granted where trial counsel failed to preserve the

Appellant’s speedy trial rights and failed to have the Appellant’s cases

severed from one another?” (Appellant’s Brief, at 8).4

       Our standard of review is well-settled:

              [A]n appellate court reviews the PCRA court’s findings of
       fact to determine whether they are supported by the record, and
       reviews its conclusions of law to determine whether they are free
       from legal error. The scope of review is limited to the findings of
       the PCRA court and the evidence of record, viewed in the light
       most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

       A PCRA petitioner is eligible for relief if the claim is cognizable under

the PCRA. See 42 Pa.C.S.A. § 9543. Cognizable claims include those that

allege ineffectiveness of counsel that undermined the truth-determining

process. See 42 Pa.C.S.A. § 9543(a)(2)(ii).

              We also note that a PCRA petitioner is not automatically
       entitled to an evidentiary hearing. We review the PCRA court’s
       decision dismissing a petition without a hearing for an abuse of
       discretion.

                    [T]he right to an evidentiary hearing on a post-
              conviction petition is not absolute. It is within the
              PCRA court’s discretion to decline to hold a hearing if
              the petitioner’s claim is patently frivolous and has no
____________________________________________


4
   We note that Appellant has raised two instances of counsel’s
ineffectiveness. (See Appellant’s Brief, at 12, 14, 16). Therefore, we will
treat them as two separate issues.



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            support either in the record or other evidence. It is
            the responsibility of the reviewing court on appeal to
            examine each issue raised in the PCRA petition in
            light of the record certified before it in order to
            determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without conducting an evidentiary hearing.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

      It is well-settled that “[a] criminal defendant has the right to effective

counsel . . . during trial.” Commonwealth v. Rathfon, 899 A.2d 365, 369

(Pa. Super. 2006) (citation omitted). Further, counsel is presumed effective,

and   an    appellant   bears   the   burden   to   prove   otherwise.     See

Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

      To succeed on an ineffective assistance of counsel claim, a petitioner

must overcome the presumption that counsel is effective and demonstrate

that counsel’s deficient performance prejudiced him.        See Strickland v.

Washington, 466 U.S. 668, 687 (1984). Pennsylvania has further refined

the Strickland test into a three-prong inquiry.             An appellant must

demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

appellant suffered actual prejudice as a result.     See Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). A failure to satisfy any prong of the

Pierce test will require rejection of the claim.     See Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). Any reasonable basis for the course of



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action selected proves effectiveness, not a hindsight evaluation to determine

the best strategic alternative.   See Commonwealth v. Charleston, 94

A.3d 1012, 1027 (Pa. Super. 2014), appeal denied, 104 A.3d 523 (Pa.

2014).

     In Appellant’s first issue, he claims that trial counsel was ineffective

because he “failed to file a motion to dismiss the prosecution pursuant to

[Pa.R.Crim.P.] 600 and [] Appellant’s right to a speedy trial . . . .”

(Appellant’s Brief, at 12). We disagree.

     Rule 600 provides, in relevant part:

     (A) Commencement of Trial; Time for Trial

     (1) For the purpose of this rule, trial shall be deemed to
     commence on the date the trial judge calls the case to trial, or
     the defendant tenders a plea of guilty or nolo contendere.

     (2) Trial shall commence within the following time periods.

           (a) Trial in a court case in which a written complaint
           is filed against the defendant shall commence within
           365 days from the date on which the complaint is
           filed.

                                  *    *    *

           (d) When a trial court has granted a new trial and no
           appeal has been perfected, the new trial shall
           commence within 365 days from the date on which
           the trial court’s order is filed.

Pa.R.Crim.P. 600(A)(1), (2)(a), and (d). Further, the comment states that

“[t]he withdrawal of, rejection of, or successful challenge to a guilty plea




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should be considered the granting of a new trial for purposes of paragraph

(A)(2)(d) of this rule.” Pa.R.Crim.P. 600, comment.

      Here, the record reflects that the criminal complaints were filed on

March 27, 2003 and Appellant entered guilty pleas on July 12, 2004.           On

June 14, 2005, Appellant withdrew his guilty pleas prior to sentencing,

thereby requiring his trial to commence on or before June 14, 2006. On July

14, 2005, Appellant’s jury trial timely commenced.             See Pa.R.Crim.P.

600(A)(2)(d). Accordingly, there is no arguable merit to Appellant’s speedy

trial claim.     Therefore, the record supports the PCRA court’s dismissal of

Appellant’s PCRA petition where he has failed to plead and prove the

arguable merit prong of the Pierce test.         Appellant’s first issue does not

merit relief.

      In his second issue, Appellant claims that trial “[c]ounsel was

ineffective for failing to try and prevent these matters from being tried

together.” (Appellant’s Brief, at 16). Specifically, he argues that the “ten

sexual assaults on ten minors . . . were independent of each other and

should not have been consolidated with each other.” (Id.). We disagree.

            Our Supreme Court has established a three part test . . .
      for deciding the issue of joinder versus severance of offenses
      from different informations. The court must determine

                whether the evidence of each of the offenses would
                be admissible in a separate trial for the other;
                whether such evidence is capable of separation by
                the jury so as to avoid danger of confusion; and, if
                the answers to these inquiries are in the affirmative,



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            whether the defendant will be unduly prejudiced by
            the consolidation of offenses.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005), appeal

denied, 989 A.2d 917 (Pa. 2010) (quoting Commonwealth v. Lark, 543

A.2d 491, 497 (Pa. 1988)); see also Pa.R.Crim.P. 582(A)(1)(a).

      Further, “[o]ur Supreme Court previously has held that consolidation

was appropriate where the ages and races of the victims were similar, where

the assaults occurred close in time and at similar locations, where the

assaults were achieved through similar means, and where the assaults

involved similar crimes.” Commonwealth v. Smith, 47 A.3d 862, 869 (Pa.

Super. 2012), appeal denied, 60 A.3d 536 (Pa. 2012) (citations omitted).

      Here, the record reflects that the ten victims were between the ages of

ten and fifteen; the sexual assaults occurred within a one-mile radius

between February 23, 2003 and March 27, 2003; and the victims positively

identified Appellant.   (See Zamichieli, No. 1660 EDA 2009, at *1-3).

Appellant baldly states that “[t]here was a very real threat that the jurors

may be prejudiced against him[.]”      (Appellant’s Brief, at 17).   However,

Appellant has not developed this argument; thus, he has not demonstrated

that he suffered actual prejudice. Therefore, consolidation was proper. See

Thomas, supra at 260.

      Furthermore, the PCRA court explained that “the evidence of each of

the offenses would be admissible in a separate trial for the other; [the trial]

court gave proper jury instructions to avoid [any] danger of confusion to the



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jurors; and[] no resulting prejudice resulted by the consolidation of

offenses[.]” (PCRA Court Opinion, 2/04/15, at 5). Upon review, we agree

and conclude that the record supports the court’s dismissal of Appellant’s

PCRA petition where he has failed to plead and prove the arguable merit and

prejudice prongs of the Pierce test. Accordingly, Appellant’s second issue

does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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