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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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’ imprisonment2and 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 ninetyone 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 postconviction 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