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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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                           :   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, and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                 FILED JUNE 09, 2017

         On October 10, 2013, Appellee, Defendant Helen Lucy Galli, was

convicted by a jury of aggravated assault, simple assault and recklessly

endangering another person.           Appellee is not entitled to a new trial and

should be returned to a correctional facility to serve her sentence.

         An order entered in the Luzerne County Court of Common Pleas

granted Appellee’s petition under the Post Conviction Relief Act (PCRA) 1 and

awarded her a new trial. The Majority memorandum affirms that order. I

respectfully dissent and would reverse the lower court order and deny a new

trial.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
J-S19008-17



         At      trial,   admissible      evidence      overwhelmingly          implicated

Defendant/Appellee as the only person possessing both motive and

opportunity to poison the victim with a potentially lethal dose of anti-freeze.

Specifically,      the    Commonwealth      established        that   Defendant/Appellee

prepared breakfast for her son, Victor, before he began his workday, as was

their daily custom. When Victor finished, he walked back to his home next

door with a large glass of juice for the victim, his girlfriend, as she

requested.        The victim testified the juice tasted very sweet, a description

consistent with expert testimony as to the “very sweet-tasting” properties of

ethylene glycol in anti-freeze. See N.T., 10/7/13, at 337. It was also the

victim’s testimony that the juice was normally kept at Defendant/Appellee’s

house. By the end of that day, the victim was gravely ill.

         The jury clearly rejected unsupported defense theories that the victim

either        attempted   suicide   or   harmed      herself    to    falsely   incriminate

Defendant/Appellee, and there was no suggestion that Defendant/Appellee’s

son, Victor, was responsible.            Other properly admitted evidence from a

disinterested neighbor detailed how Defendant/Appellee loathed the victim,

wished her harm, and repeatedly asked the neighbor to arrange for the

victim’s car to explode with the victim inside.                 Defendant/Appellee also

revealed her animus for the victim during an interview with a Pennsylvania

State Police investigator.

         Clearly, the hearsay testimony that “my mother said this [juice] will

make you feel better” is largely cumulative of properly admitted evidence

                                           -2-
J-S19008-17



that Defendant/Appellee prepared the breakfast food and drink from her

kitchen that morning as she did every other morning. The failure of defense

counsel to object to that hearsay did not taint the jury, and the verdict

would have remained guilty whether that statement was objected to or not,

admitted into evidence or not.

      Thus, Defendant/Appellee failed to establish a reasonable probability

that the outcome of her trial would have been different but for defense

counsel’s failure to object to the hearsay statement in question.      See

Commonwealth v. Charleston, 94 A.3d 1012, 1026 (Pa.Super. 2014)

(holding PCRA petitioner establishes actual prejudice only by showing a

reasonable probability that, but for counsel's error or omission, result of

proceeding would have been different). Here, the result of the proceeding

would not have been different.

      Accordingly, I respectfully dissent from the Majority’s decision to

uphold the lower court decision to grant Appellee a new trial.




                                    -3-
