Commonwealth v. Zamichieli

• Docket Number: 896 MDA 2022,J-S08041-23
• Decision Date: 21 June 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. LAMONT A. ZAMICHIELI Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. LAMONT A. ZAMICHIELI Appellant

No. 896 MDA 2022

No. J-S08041-23

Superior Court of Pennsylvania

June 21, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the Judgment of Sentence Entered May 31, 2022 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000560-2021

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Lamont A. Zamichieli, appeals pro se from the judgments of sentence imposed after a jury found him guilty in absentia of indecent exposure, unsworn falsification to authorities, false reports to law enforcement authorities (falsely incriminated another), false reports to law enforcement authorities (reported an offense that did not occur), and open lewdness.^[1] He alleges that the trial court erred by denying his motion to dismiss pursuant to Pa.R.Crim.P. 600 and violating his rights to a speedy trial and self-representation. He also raises related claims challenging the effectiveness of his trial counsel. Upon review, we affirm.

The facts underlying Appellant's convictions involved him exposing himself to a correctional officer and then falsely accusing that officer of assaulting him. The trial court has summarized those facts as follows:

[Appellant] was incarcerated in SCI[-]Camp Hill. On September 3, 2019, he appeared in Lieutenant Mihal's interview room as a purported victim in a Prison Rape Elimination Act ("PREA") investigation. Lieutenant Mihal and [Appellant] were the only two persons present during the interview due to the confidential nature of the investigation. About three to four minutes into the interview, [Appellant] exposed his penis and began masturbating. Lieutenant Mihal immediately ended the interview and left the room.

Trooper Bierzonski, as the prison liaison for the Pennsylvania State Police, was assigned to investigate the incident. During an interview with the trooper, [Appellant] reported that Lieutenant Mihal assaulted him both physically and sexually. He went into great detail about what she did to him and the injuries he sustained. Those details, which included allegations of her aggressively biting his genitals became increasingly inconsistent the more [Appellant] explained. The trooper asked [Appellant] to provide a signed, written statement of the events, which he did.

Trooper Bierzonski further investigated the assault claim by reviewing the report from [Appellant]'s medical / rape examination. There was no evidence of physical injury or foreign DNA on [Appellant].

Trial Court Opinion, 12/1/22, 4-5 (omitting footnotes).

Appellant was charged with the offenses in this case on May 5, 2020. Criminal Complaint, 5/5/20, 1-6. On August 18, 2021, Appellant filed a counseled motion requesting a preliminary hearing and dismissal of the case based on a violation of Pa.R.Crim.P. 600. Motion to Dismiss or Remand, 8/18/21, ¶¶ 4-9. On the next day, Appellant filed, inter alia, a pro se motion seeking to waive his appointed counsel and proceed pro se. Motion to Voluntarily Waive Appointment of Counsel, 8/19/21, 1-3.

On August 30, 2021, the trial court presided over a hearing on the pending motions. Trooper Bierzonski testified that a preliminary hearing scheduled for July 13, 2020, could not take place due to technical issues with coordinating video conferencing equipment during the ongoing Covid-19 pandemic, see N.T. 8/30/21, 3 ("I believe due to the COVID pandemic, and also I know there were issues with Polycom coordinating with Zoom which was used by the magistrate."), and because Appellant could not be available in-person for a hearing due to a moratorium preventing the transfer of inmates between state correctional facilities. Id. at 3-4. He then testified that the same issues prevented a rescheduled hearing from taking place on December 14, 2020. Id. at 4. The trooper confirmed that Appellant would have been able to attend another rescheduled hearing on March 2, 2021, via videoconferencing, but, on that date, the hearing was held in absentia after Appellant refused to "come out of his cell for the video hearing." Id. at 6-7. Appellant testified and denied receiving any notices for any dates scheduled for the preliminary hearing. Id. at 10-11.

As for the Rule 600 motion, the trial court ruled that there was no basis for dismissal because the Commonwealth proved, by a preponderance of the evidence, that the time from the filing of the charges (May 5, 2020), until the second rescheduled preliminary hearing date (December 14, 2020), were excludable time "as a result of [Appellant's] unavailability due to the COVID pandemic." N.T. 8/30/21, 11-12; Order, 8/30/21, 1. The court ruled that the subsequent time was not excludable because the Commonwealth failed to prove that it had proceeded with due diligence. N.T. 8/30/21, 12; Order, 8/30/21, 1. The court disregarded the evidence concerning Appellant's "opportunity to participate in a preliminary hearing" in March of 2021 as hearsay and ordered that he was entitled to a new preliminary hearing. N.T. 8/30/21, 12; Order, 8/30/21, 1. As for the motion concerning Appellant's representation, the court conducted a colloquy to ascertain the voluntariness of his request to proceed pro se, during which Appellant declined the request. Id. at 13-14. The court ordered that the pro se motion was withdrawn. Order, 8/30/21, 1. It subsequently presided over a preliminary hearing on September 21, 2021. Order, 9/21/21, 1.

On October 21, 2021, Appellant's counsel filed a motion to withdraw from representation in response to a pro se motion that Appellant attempted to file three days earlier, in which he requested the removal of counsel due to a conflict and requested the appointment of a new attorney. Motion to Withdraw as Counsel, 10/21/21, ¶ 6. After a pre-trial conference, the lower court denied that motion. Order, 10/25/21, 1 ("the Court finds that the allegations made by [Appellant] to remove [trial counsel] lack credibility.

Therefore, [trial counsel] shall remain in this case and this matter shall proceed to trial this term.").^[2]

Appellant failed to appear for a pre-trial conference scheduled on March 15, 2022, and the trial court issued an order reflecting that "the prison ha[d] not provided an explanation for [Appellant's] nonappearance." Order, 3/15/22, 1. Trial was then scheduled for March 25, 2022, because Appellant's counsel indicated that the case was ready to be tried. Id. On March 18, 2022, Appellant filed pro se motions seeking to give notice of his intention to present an insanity defense and to proceed pro se or request the appointment of a new attorney. Appellant subsequently failed to appear for trial and the Commonwealth presented the testimony of Detective Jeremy Matas who asserted that Appellant had refused transportation to court for the scheduled trial. N.T. 3/29/22, 5-7. Detective Matas also confirmed that he informed Appellant that he would be tried in absentia if he refused to appear for trial. Id. at 7. Based on that testimony, the trial court agreed to permit the Commonwealth to try Appellant in absentia. Id. at 8; Order, 3/29/22, 1.

After the trial in absentia, during which the Commonwealth presented the testimony of Lieutenant Mahal and Trooper Bierzonski, a jury found Appellant guilty of the above charges.^[3] N.T. 3/30/22, 57-58; Verdict Slips, 3/30/22; Order 3/30/22, 1. On May 31, 2022, the trial court sentenced Appellant (then present for the proceedings by video conferencing) to an aggregate term of one to two years' imprisonment to be served consecutive to any sentence that Appellant was then already serving. N.T. 5/31/22, 3-4; Sentencing Order, 5/31/22, 1-2. At the conclusion of the sentencing hearing, Appellant stated that he wanted his attorney to appeal the denial of his pre-trial Rule 600 motion. N.T. 5/31/22, 4. Appellant subsequently filed three pro se motions requesting to proceed pro se, two pro se notices of appeal, and a voluntary concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).^[4] On July 5, 2022, the trial court held a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and granted Appellant leave to proceed pro se on appeal. Order, 7/6/22, 1.

Appellant presents the following questions for our review:

1. Whether the trial court abused [its] discretion by denying [the] motion to dismiss pursuant to [Pa.R.Crim.P.] 600 and committed further error by improperly excluding time from May 5, 2020 to December 14, 2020 from the Rule 600 clock although [the] Commonwealth failed to exercise due diligence throughout pendency of [the] case and failed to bring [Appellant to] a speedy trial within 365 nonexcludable days [where] Zoom video service [was] available?

2. Whether [t]rial [c]ounsel was ineffective for failing to properly argue and litigate [the] motion to dismiss/Rule 600 motion and failed to present to the court and argue such evidence discovered [in] existence relating that [Pennsylvania Department of Corrections] Secretary John E Wetzel's memo[randums] signed by [Secretary] Wetzel[,] addressed to all [PA DOC] inmates in all [PA DOC] institutions dated March 17, 2020 stating that Zoom video service was available and being used to co[n]duct [prison] visits[ and] court proceedings from March 17, 2020 to December 14, 2020; had counsel argued this and presented [it] to the trial court as he knew existed having received [it] from [Appellant] and [the Department of Corrections] website, [the] Rule 600 [motion] would have been granted and [the] case [would have been] fully dismissed?

3. Whether [t]rial [c]ounsel and [the] Commonwealth violated [Appellant's] 6^th [A]mendment right of [the United States] constitution by lack

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