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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 J-S11009-15
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
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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 J-S11009-15
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
-2- J-S11009-15
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.
-4- J-S11009-15
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
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/30/2015
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