J-S11009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

HELEN LUCY GALLI

                        Appellant                  No. 786 MDA 2014


         Appeal from the Judgment of Sentence December 5, 2013
             In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0000828-2011


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED APRIL 30, 2015

     Appellant, Helen Lucy Galli, appeals from the judgment of sentence

entered after she was convicted of aggravated assault, simple assault, and

recklessly endangering another person. The primary issue in this appeal is

the effect of double hearsay testimony to which no objection was entered at

trial. We conclude that the hearsay nature of these statements is irrelevant

to the sufficiency and weight of the evidence.   Furthermore, we conclude

that the trial court’s decision to await collateral review before addressing

Galli’s ineffective assistance of counsel claim is not reviewable on direct

appeal absent special circumstances not present here. Thus, we affirm.

     Galli was charged with aggravated assault, simple assault, and

recklessly endangering another person arising from the ethylene glycol

poisoning of Dawn Simyan.     Simyan was the girlfriend of her son, Victor
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Galli. At trial, the Commonwealth presented voluminous evidence regarding

the strained, bordering on hostile, relationship between Appellant and Ms.

Simyan.     Of note, Ms. Simyan testified without objection that, on the

morning of the day she was poisoned, Victor Galli gave her a glass of juice,

saying “my mother said drink this, it will make you feel better …”       The

defense argued that Ms. Simyan poisoned herself, either in attempt to

commit suicide or in a failed attempt to poison Victor Galli.        At the

conclusion of the trial, the jury convicted Appellant on one count of

aggravated assault, one count of simple assault and one count of recklessly

endangering another person.

     The trial court subsequently sentenced Appellant to an aggregate term

of imprisonment of 66 to 144 months. Appellant filed post-sentence motions

challenging the sufficiency and weight of the evidence at trial, the

appropriateness of sentence, and trial counsel’s failure to object to the

double hearsay nature of Ms. Simyan’s testimony regarding what Appellant

had told Victor Galli. The trial court denied the motions, while noting that

the Commonwealth’s argument that Ms. Simyan’s testimony was not offered

for the truth of the matter asserted was implausible.    This timely appeal

followed.

     On appeal, Appellant raises four issues for our review. First, Appellant

asserts that, absent the hearsay testimony from Ms. Simyan, the evidence

at trial was insufficient to sustain the convictions as it consisted of mere


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speculation that Appellant caused the poisoning. Next, Appellant presents a

similar argument regarding the weight of the evidence at trial. In her third

issue on appeal, Appellant contends that the trial court abused its discretion

in refusing to address her claims of ineffective assistance of counsel prior to

collateral review.   Finally, Appellant asserts that the trial court abused its

discretion in imposing an excessive sentence.

      Regarding Appellant’s first two issues, we merely note that in the

absence of a timely objection, hearsay testimony is competent evidence.

See Commonwealth v. Faruharson, 354 A.2d 545, 552 (Pa. 1976);

Commonwealth v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002). As

a result, Appellant’s challenges to the sufficiency and weight of the evidence

supporting her verdicts, which center on the lack of reliability inherent in Ms.

Simyan’s testimony, fail. In the absence of an objection, the jury was free

to find Ms. Simyan’s testimony credible, and this evidence was more than

sufficient to support a finding that Appellant had caused the poisoning.

      Turning to Appellant’s third issue, we observe that generally, claims of

ineffectiveness of counsel are not ripe until collateral review.           See

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013).               However, in

extraordinary cases where the trial court determines that the claim of

ineffectiveness is “both meritorious and apparent from the record,” it may

exercise its discretion to consider the claim in a post-sentence motion. Id.,

at 577.


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      Here, Appellant requested that the trial court exercise its discretion to

review her ineffectiveness claims, arguing that the failure to assert a

hearsay objection to Ms. Simyan’s testimony constituted a meritorious claim

of ineffective assistance that was apparent from the record. The trial court

concluded that the testimony at issue was hearsay. However, the trial court

denied the post-sentence motion, reasoning that it could not determine

whether counsel was ineffective in the absence of evidence of trial strategy.

      On appeal, Appellant contends that this reasoning constitutes an abuse

of the discretion granted to the trial court under Holmes.             Appellant

contends that Ms. Simyan’s testimony “was the crux of the Commonwealth’s

case,” and that “there was no strategic reason for trial counsel’s failure to

object to this double hearsay.”

      We have reviewed the post-Holmes case law and found no authority

on our standard of review in reviewing a trial court’s denial of unitary review

based upon the “meritorious and apparent from the record” exception to the

general rule.   Generally speaking, we review claims that a trial court has

abused its authorized discretion pursuant to the following standard.

      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.




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Commonwealth v. Winger, 957 A.2d 325, 328 (Pa. Super. 2008)

(citations omitted).

      However, we conclude that our review of a decision denying unitary

review of ineffectiveness claims is even more limited than the general review

of discretionary action.    In Holmes, the Supreme Court of Pennsylvania

explicitly identified ineffectiveness claims as “presumptively reserved for

collateral attack[.]”   79 A.3d at 577 n.10.   The Court warned against trial

courts appointing “new counsel post-verdict to search for ineffectiveness

claims.” Id. Thus, while the trial court retains discretion in addressing such

claims, the presumption weighs heavily in favor of deferring such claims to

collateral review.

      Further, the Court justified the creation of the “meritorious and

apparent from the record” exception by explaining that “[t]he administration

of criminal justice is better served by allowing trial judges to retain the

discretion to consider and vindicate such distinct claims of ineffectiveness[.]”

Id., at 577.   This statement implicates issues of time and efficient use of

judicial resources.

      The one explicit concern the Supreme Court has identified under its

exceptions to the presumption of deferral to collateral review are instances

of short sentences, where a defendant may be entirely deprived of an

opportunity to raise a collateral claim.     See id., at 564 n.1.     Where a

defendant receives a short sentence sufficient to call into question whether


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the defendant has a realistic opportunity to raise a collateral claim, trial

courts have a duty to consider this circumstance in applying Holmes. See

Id.   However, this circumstance does not apply in the current case, as

Appellant’s sentence calls for a minimum imprisonment of five and one-half

years. As the present case does not raise the specter of a complete denial

of an opportunity to litigate Appellant’s ineffectiveness claim, her third issue

on appeal merits no relief.

      In her final issue on appeal, Appellant argues that the trial court

abused its discretion in imposing a sentence that is “excessive.” This claim

raises a challenge to the discretionary aspects of the sentence imposed.

See Commonwealth v. Hornaman, 920 A.2d 1282, 1284 (Pa. Super.

2007).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a




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concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted).   That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.”       Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast

to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

      In the present case, Appellant filed post-sentence motions challenging

her sentence and her appellate brief contains the requisite Rule 2119(f)

concise statement, and, as such, is in technical compliance with the

requirements to challenge the discretionary aspects of her sentence. In her

statement, Appellant alleges that the trial court abused its discretion in

failing to consider her advanced age, 82, and her poor health.

      In her argument, Appellant acknowledges that the sentence imposed is

a standard range guideline sentence.       Preliminarily, we note that a bald

assertion that the sentence imposed by the trial court was excessive fails to

raise a substantial question. See Commonwealth v. Trippett, 932 A.2d


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188, 202 (Pa. Super. 2007).         In addition, “where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.” Commonwealth v. Moury, 992

A.2d 162, 171 (Pa. Super. 2010) (internal citations omitted).

       However, “this Court has held that an excessive sentence claim – in

conjunction with an assertion that the trial court failed to consider mitigating

factors – raises a substantial question.” Commonwealth v. Samuel, 102

A.3d 1001, 1007 (Pa. Super. 2014) (citation omitted).                We therefore

conclude that Appellant has raised a substantial question and will review her

arguments on their merits.

       Appellant argues that the sentence imposed does not consider her life

expectancy, advanced age, physical infirmities and the potential effect of

incarceration on all of these circumstances.       We note that counsel did not

present independent evidence of these issues at sentencing, and did not

challenge or amend the contents of the pre-sentence investigation report

submitted to the trial court.       Where the court had the benefit of a pre-

sentence investigation report, there is a presumption that the court was

aware of information relating to the defendant’s character, and considered

that   information   along   with     the   mitigating   statutory   factors.   See

Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005);

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004), aff'd,

891 A.2d 1265 (Pa. 2006).


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      Appellant argues on appeal that the pre-sentence investigation report

was defective in that it failed to set forth her life expectancy or the effect

incarceration would have on her. However, this argument is waived due to

counsel’s failure to raise the issue at sentencing when asked to address the

pre-sentence investigation report. We therefore conclude that the trial court

did not abuse its discretion in imposing sentence, and Appellant’s final issue

on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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