J-S19008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


_____________________________

*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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