Com. v. Galli, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
HELEN LUCY GALLI :
:
Appellee : No. 1336 MDA 2016
Appeal from the PCRA Order July 19, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000828-2011
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Luzerne County Court of Common Pleas, which granted
Appellee, Helen Lucy Galli’s, first petition brought pursuant to the Post
Conviction Relief Act (“PCRA”)1 and awarded her a new trial. We affirm.
The relevant facts of this case are as follows. Dawn Simyan (“Victim”)
spent the night at Victor Galli’s house on March 30, 2010. Victim had been
dating Mr. Galli for approximately three years. Appellee is Mr. Galli’s
mother. Victim woke up in the morning feeling sick and asked Mr. Galli for
something to drink. Mr. Galli had only water in his refrigerator, which Victim
declined. As a result, Mr. Galli told Victim he was going next door to
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1
42 Pa.C.S.A. §§ 9541-9546.
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*Former Justice specially assigned to the Superior Court.
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Appellee’s house for breakfast and would return with a drink. Ten minutes
later, Mr. Galli returned with a glass of juice for Victim. Victim took a few
sips of the juice, which tasted sweeter than usual, and then went back to
sleep. Victim finished the glass of juice around 11:00 a.m.
Shortly after ingesting the juice, Victim became dizzy. Victim’s
symptoms progressed throughout the day and, by 7:00 p.m., Victim had
difficulty walking and breathing. On April 1, 2010, the following morning,
Victim went to the hospital because she was vomiting and had difficulty
moving and breathing. The doctors at the hospital diagnosed Victim’s illness
as ethylene glycol poisoning, a main ingredient of anti-freeze. Trooper
Brogan interviewed Victim at the hospital. Victim told Trooper Brogan that
when Mr. Galli handed Victim the glass of juice, Mr. Galli said, “Drink this,
[Appellee] said it will make you feel better.” Victim told Trooper Brogan that
Victim did not ingest the anti-freeze purposefully; only Appellee and Mr. Galli
knew Victim was at Mr. Galli’s house; Mr. Galli and Victim were in love; and
Appellee despised Victim.
Procedurally, Appellee was arrested and charged with aggravated
assault, simple assault, and recklessly endangering another person (“REAP”)
for the poisoning. At trial, Victim testified that when Mr. Galli handed Victim
the glass of juice, Mr. Galli said, “Drink this, [Appellee] said it will make you
feel better.” Victim said that after being poisoned, she did not have any
relationship with Appellee because “[Appellee] tried to kill me.” Victim also
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testified that after the poisoning, Mr. Galli threatened her and said, “If you
put my mother in jail, I’ll kill you dead.” Trooper Brogan testified Victim
said, “[Mr. Galli] told me, [Appellee] said drink this; it will make you feel
better.” Trooper Brogan also provided her opinion as to Appellee’s possible
motives for poisoning Victim. Trial counsel did not move to preclude the
admission of these statements at trial or object or request a curative
instruction regarding these statements.
A jury convicted Appellee of aggravated assault, simple assault, and
REAP on October 10, 2013. The court sentenced Appellee to an aggregate
term of sixty six (66) to one hundred and forty four (144) months’
imprisonment on December 5, 2013. Appellee filed post-sentence motions,
which the court denied. This Court affirmed the judgment of sentence on
April 30, 2015. See Commonwealth v. Galli, 121 A.3d 1146 (Pa.Super.
2015) (unpublished memorandum).
Appellee timely filed a counseled PCRA petition on November 3, 2015,
a supplemental PCRA petition on January 28, 2016, and an amendment to
the PCRA petition on February 5, 2016. In her combined petitions, Appellee
alleged trial counsel was ineffective for failing to object to the testimony of
Victim and Trooper Brogan at trial, some of which constituted inadmissible
hearsay and improper opinion testimony. Appellee insisted trial counsel
should have filed a motion in limine to preclude these hearsay and opinion
statements at trial, made timely objections to the testimony, and requested
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a curative instruction for Trooper Brogan’s testimony. Appellee claimed the
hearsay statements were highly prejudicial because they were the only
evidence linking Appellee directly to the poisoning, and Trooper Brogan’s
opinion testimony was irrelevant to the charges against Appellee and highly
prejudicial to Appellee. Additionally, Appellee claimed Trooper Brogan’s
testimony violated Appellee’s 6th Amendment confrontation rights. Appellee
asserted the combined effect of the questionable testimony at issue lacked a
reasonable basis and but for counsel’s omissions, the trial outcome would
have been different. The court held a PCRA hearing on June 1, 2016. On
July 19, 2016, the court granted Appellee PCRA relief, vacated her
convictions, granted her a new trial, and released her on bail pending
appeal. The Commonwealth timely filed a notice of appeal on August 2,
2016. The court did not order the Commonwealth to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b).
The Commonwealth raises one issue for our review:
WHETHER THE PCRA COURT ERRED WHEN IT GRANTED
[APPELLEE] A NEW TRIAL BECAUSE TRIAL COUNSEL HAD
A REASONABLE STRATEGY IN NOT MAKING CERTAIN
OBJECTIONS [AND APPELLEE] [SUFFERED NO]
PREJUDICE?
(Commonwealth’s Brief at 4).
For purposes of disposition, we combine the Commonwealth’s
arguments. The Commonwealth’s overarching complaint is that Appellee
received effective representation at trial. The Commonwealth first argues
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Trooper Brogan’s testimony, “[Victim] said, [Mr. Galli] told me, [Appellee]
said drink this; it will make you feel better” did not violate Appellee’s 6 th
Amendment confrontation right because trial counsel extensively cross-
examined Victim about the statement. Additionally, both parties called Mr.
Galli as a witness, and he was cross-examined each time. The
Commonwealth asserts Appellee’s 6th Amendment confrontation claim lacks
arguable merit. Appellee concedes in her brief on appeal that her
confrontation claim lacks arguable merit. (See Appellee’s Brief at 17.)
Therefore, we give the confrontation claim no further attention.
The Commonwealth likewise concedes Appellee’s remaining issues
have arguable merit. The Commonwealth next argues trial counsel had a
reasonable basis for failing to object to the “hearsay” and “opinion”
testimony at issue. The Commonwealth insists PCRA counsel conveniently
ignored the litany of additional evidence linking Appellee to the poisoning,
which was more than sufficient for a conviction. The Commonwealth avers
trial counsel looked at the whole picture and developed a strategy to
compare Victim as an eccentric, unstable, crazy, drunk, suicidal girlfriend, to
Appellee as a loving, caring mother. The Commonwealth admits Victim’s
statement, “[Mr. Galli] said drink this, [Appellee] said it will make you feel
better,” was the prosecution’s chief operative fact against Appellee;
however, the Commonwealth maintains trial counsel’s strategy to impugn
Victim’s character and credibility placed trial counsel in a position to argue
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the chief operative fact did not exist because Victim had lied. The
Commonwealth asserts trial counsel’s “whole picture” strategy suggested
Victim had poisoned herself. The Commonwealth concludes there was a
reasonable basis for trial counsel’s strategy and an objection to the
testimony at issue would not have offered Appellee a substantially greater
potential for success.
In a related argument, the Commonwealth concedes Victim’s
statement, [Mr. Galli] said, “drink this, [Appellee] said it will make you feel
better” was inadmissible hearsay, but argues that Victim’s testimony would
have been admissible to impeach Mr. Galli’s testimony if he had testified
before Victim. The Commonwealth maintains that if Victim had not made
the statement before Mr. Galli testified, Victim could have been recalled as a
witness to testify about Mr. Galli’s “prior inconsistent statement.” 2
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2
The PCRA court rejected the Commonwealth’s original arguments that Mr.
Galli’s statement, “Drink this, [Appellee] said it will make you feel better”
was an “instruction,” not an assertion, and that Mr. Galli’s statement
qualified as a present sense impression. The Commonwealth has abandoned
these arguments on appeal. To the extent the Commonwealth argues
Victim’s testimony inevitably would have been admitted at trial, for the first
time on appeal, this argument is waived. See Pa.R.A.P. 302(a) (stating
issues not raised before trial court are waived and cannot be raised for first
time on appeal). Additionally, the Commonwealth’s “inevitability” claim is
undeveloped and vague, consisting of a few conclusory statements which
lack any cogent nexus between relevant law and the facts of this case.
Thus, the Commonwealth’s “inevitability” claim is waived on this ground as
well. See Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915(2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010)
(explaining appellant waives issue on appeal where he fails to present claim
(Footnote Continued Next Page)
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The Commonwealth further argues the forensic evidence presented at
trial confirmed Victim ingested the poison while she was at Mr. Galli’s
apartment on March 31, 2010. The Commonwealth avers the prosecution
would have used an elimination approach to establish Appellee poisoned
Victim by eliminating Victim and Mr. Galli as suspects. The Commonwealth
insists Appellee would have been convicted even if Victim’s statement, “[Mr.
Galli] said drink this, [Appellee] said it will make you feel better,” had been
excluded. The Commonwealth asserts Appellee suffered no prejudice. For
these reasons, the Commonwealth concludes Appellee was not entitled to
PCRA relief. We disagree.
Our standard of review of a grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We exercise de novo review over
the PCRA court’s legal conclusions. Commonwealth v. Spotz, 610 Pa. 17,
44, 18 A.3d 244, 259 (2011). Traditionally, credibility issues are resolved by
_______________________
(Footnote Continued)
with citations to relevant authority or develop issue in meaningful fashion
capable of review).
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the trier of fact who had the opportunity to observe the witnesses’
demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).
Where the record supports the PCRA court’s credibility resolutions, they are
binding on this Court. Id.Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made
the statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801(a)-(c)(1-2). Hearsay is generally inadmissible unless: (1) an
exception applies; or (2) the statement qualifies as “non-hearsay.” Pa.R.E.
802; Commonwealth v. Puksar, 559 Pa. 358, 368, 740 A.2d 219, 225
(1999), cert. denied, 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 42 (2000). A
hearsay exception cannot serve merely “as a conduit to support the
admission of fact-bound evidence to be used for a substantive purpose.”
Commonwealth v. Moore, 594 Pa. 619, 637, 937 A.2d 1062, 1073 (2007),
cert. denied, 555 U.S. 969, 129 S.Ct. 452, 172 L.Ed.2d 326 (2008).
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“The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance
of counsel, a petitioner must show, by a preponderance of the evidence,
ineffective assistance of counsel, which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa.Super. 2007), appeal
denied, 596 Pa. 707, 940 A.2d 365 (2007). The petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2) counsel
lacked a reasonable strategic basis for his action or inaction; and (3) but for
counsel’s errors and omissions, there is a reasonable probability the
outcome of the proceedings would have been different. Id. “The petitioner
bears the burden of proving all three prongs of the test.” Id. Counsel is
presumed to be effective, and the failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail. Commonwealth v. Williams,
597 Pa. 109, 950 A.2d 294 (2008).
“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Once this
threshold is met we apply the ‘reasonable basis’ test to determine whether
counsel’s chosen course was designed to effectuate his client’s interests.”
Id. at 524, 645 A.2d at 194-95. “A chosen strategy will not be found to
have lacked a reasonable basis unless it is proven that an alternative not
chosen offered a potential for success substantially greater than the course
actually pursued.” Williams, supra at 312, 899 A.2d at 1064 (internal
quotes and citation omitted). If there is no reasonable basis for counsel’s
action, we move to the final point of the Strickland/Pierce analysis—
prejudice. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
In determining prejudice, a court “must consider the totality of the evidence
before the judge or jury.” Commonwealth v. Simmons, 569 Pa. 405, 430,
804 A.2d 625, 640 (2001).
A defendant is entitled to a fair trial, not a perfect trial.
Commonwealth v. Robinson, 583 Pa. 358, 375, 877 A.2d 433, 443
(2005). The actual prejudice required under Strickland/Pierce is a higher
standard than the harmless error analysis typically applied when assessing
allegations of trial court errors. Commonwealth v. Gribble, 580 Pa. 647,
676, 863 A.2d 455, 472 (2004). A defendant raising an ineffectiveness
claim is required to show counsel’s ineffectiveness was of such magnitude
that it “could have reasonably had an adverse effect on the outcome of the
proceedings.” Pierce, supra at 162, 527 A.2d at 977. In other words,
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there must be a reasonable probability that, but for counsel’s error, the
outcome of the proceeding would have been different. Commonwealth v.
Cox, 581 Pa. 107, 125, 863 A.2d 536, 546 (2004). “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d
872, 883 (2002).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Fred A.
Pierantoni, we conclude the Commonwealth’s issue merits no relief. The
PCRA Court opinions comprehensively discuss and properly dispose of the
question presented. (See PCRA Court Opinions, filed July 19, 2016, at 15-
30, and April 17, 2014, at 7-39) (finding: Mr. Galli’s statement to Victim,
“Drink this, [Appellee] said it will make you feel better,” was offered by
Victim to prove truth of matter asserted; present sense impression exception
does not apply because Victim was not present when Appellee purportedly
made this statement; objection in this case would have precluded
Commonwealth from directly demonstrating what trial counsel admitted was
“chief operative fact” of case; Victim’s hearsay statement went to core of
Commonwealth’s case and was essential, foundational piece of evidence
directly implicating Appellee in alleged criminal conduct; statement at issue
was hearsay, without any exception, that Commonwealth permitted and
encouraged jury to consider as substantive evidence of Appellee’s guilt; this
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statement could have been eliminated from jury’s consideration by motion in
limine or objection during trial; trial counsel made no request for court to
instruct jury not to consider this statement as substantive evidence of
Appellee’s guilt; additionally, Victim’s testimony about Mr. Galli’s threats to
Victim post-incident was irrelevant to charges against Appellee; Trooper
Brogan’s testimony recounting Victim’s statement about what Mr. Galli told
her constituted triple hearsay; Trooper Brogan also expressed opinion
regarding Appellee’s alleged motive for poisoning Victim; trial counsel
admitted he should have objected at trial to opinion testimony used to
bolster Victim’s credibility; trial counsel’s theory of case cannot ignore rules
of evidence to his client’s detriment; simply identifying conduct as “trial
strategy” does not preclude ineffectiveness or establish reasonable basis
prong of ineffectiveness test; trial counsel was ineffective for failing to object
to hearsay statements attributed to Appellee; trial counsel had no
reasonable basis for failing to object to challenged statements; trial
counsel’s errors cumulatively established prejudice sufficient to warrant new
trial).
We affirm based on the PCRA court’s opinions except we respectfully
disagree with the court that Trooper Brogan’s testimony violated Appellee’s
6th Amendment confrontation rights. Trial counsel extensively cross-
examined Victim and Mr. Galli regarding Trooper Brogan’s statement at trial.
See Commonwealth v. Mollett, 5 A.3d 291, 308 (Pa.Super 2010) (stating:
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“The Confrontation Clause does not bar a prior testimonial statement when
the witness is available to defend or explain the statement”). Also, Appellee
concedes this “confrontation” claim has no arguable merit. Therefore, we do
not adopt that aspect of the court’s opinions.
Order affirmed.
President Judge Emeritus Bender joins this memorandum.
President Judge Emeritus Stevens files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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