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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
TORRAL PHILEARIA SCOTT,                   :         No. 1639 EDA 2016
                                          :
                         Appellant        :


                    Appeal from the PCRA Order, May 2, 2016,
                 in the Court of Common Pleas of Lehigh County
                Criminal Division at No. CP-39-CR-0000321-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 22, 2017

        Torral Philearia Scott appeals from the order of May 2, 2016,1 denying

her PCRA2 petition. After careful review, we affirm.

        The trial court has summarized the procedural history of this matter as

follows:

                     The relevant facts are as follows: After a jury
              trial, [appellant] was found guilty on all charges
              proceeded to at trial on September 12, 2013.
              Specifically, [appellant] was found guilty of
              eleven (11) counts of Retail Theft (18 Pa.C.S.A.
              § 3929(a)(1)), two (2) counts of Attempted Retail
              Theft (18 Pa.C.S.A. § 3929(a)(1) [& 18 Pa.C.S.A.
              § 901(a)]), one (1) count of Organized Retail Theft
              (18 Pa.C.S.A. § 3929.3(a)), and one (1) count of

1
  The PCRA court’s opinion and order were dated April 29, 2016; however,
they were not time-stamped and docketed until May 2, 2016. We have
corrected the caption accordingly.
2
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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           Conspiracy to Commit Organized Retail Theft
           (18 Pa.C.S.A. § 3929.3(a) [& 18 Pa.C.S.A.
           § 903(a)]).[3] Thereafter, on December 16, 2013,
           [appellant] was sentenced to an aggregate term of
           imprisonment in a state correctional institution of not
           less than six (6) years nor more than twelve and a
           half (12-½) years.[4] The sentences imposed were
           within the standard range of the guidelines. Then,
           on December 24, 2013, [appellant] filed a Notice of
           Appeal with the Superior Court of Pennsylvania. On
           February 4, 2015, [appellant] retained Vivian Zumas,
           Esquire, to represent her in the post trial appeal.
           Subsequently, on March 23, 2015, [appellant]
           discontinued and withdrew her appeal. Thereafter,
           on March 11, 2016, [appellant] filed a Motion for
           Post Conviction Collateral Relief.     A hearing on
           [appellant]’s Motion for Post Conviction Collateral
           Relief was conducted on April 28, 2016. Then, on
           [May 2], 2016, this Court denied [appellant]’s
           requested relief.   The within appeal followed on
           May 27, 2016.

                 On June [2], 2016, this Court instructed
           [appellant] to file of record and serve upon this
           Court a concise statement of errors complained of on
           appeal no later than June 22, 2016, in accordance
           with Pennsylvania Rule of Appellate Procedure
           1925(b).     [Appellant] timely complied with said
           Order.     However, all of the matters within
           [appellant]’s concise statement of errors complained
           of on appeal have been addressed by this Court’s
           Opinion of [May 2], 2016. Consequently, this Court
           relies on said Opinion of [May 2], 2016, and
           incorporates it herein.

3
  As described in more detail below, the charges related to appellant’s theft
of ink cartridges and hard drives from numerous Target stores throughout
eastern Pennsylvania over the course of five months.
4
  From our review of the record, appellant actually received an aggregate
sentence of 6 to 16 years’ incarceration. (Notes of testimony, sentencing,
12/4/13 at 20; amended sentencing order, 12/16/13 at 1; docket #43.)
Appellant was also ordered to make restitution to Target in the amount of
$28,307.17.


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PCRA court opinion, 6/21/16 at 1-2.

      Appellant has raised the following issues for this court’s review,

challenging the effectiveness of trial counsel, Jacob Gurwitz, Esq.:

            A.     Attorney Gurwitz was ineffective for admitting
                   to the elements of the crime of retail theft to
                   the jury without authority to do so from
                   [appellant].

            B.     Attorney Gurwitz was ineffective for failing to
                   consult with and interview eye witnesses prior
                   to trial and ultimately [not] calling them to
                   testify during trial.

            C.     Attorney Gurwitz was ineffective for failing to
                   consult with [a]ppellant prior to trial
                   [regarding] any offers made by the District
                   Attorney[’s] Office and for failing to advise
                   [a]ppellant [of] the risk she was assuming by
                   having a trial.

Appellant’s brief at 4.

      Initially, we recite our standard of review:

            This Court’s standard of review regarding an order
            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            “To    prevail on a claim alleging counsel’s
            ineffectiveness, Appellant must demonstrate (1) that


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            the underlying claim is of arguable merit; (2) that
            counsel’s course of conduct was without a
            reasonable basis designed to effectuate his client’s
            interest; and (3) that he was prejudiced by counsel’s
            ineffectiveness.” Commonwealth v. Wallace, 555
            Pa. 397, 407, 724 A.2d 916, 921 (1999), citing
            Commonwealth v. Howard, 538 Pa. 86, 93, 645
            A.2d 1300, 1304 (1994) (other citation omitted). In
            order to meet the prejudice prong of the
            ineffectiveness standard, a defendant must show
            that there is a “‘reasonable probability that but for
            counsel’s unprofessional errors, the result of the
            proceeding     would     have     been     different.’”
            Commonwealth v. Kimball, 555 Pa. 299, 308, 724
            A.2d 326, 331 (1999), quoting Strickland v.
            Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
            80 L.Ed.2d 674 (1984). A “‘[r]easonable probability’
            is defined as ‘a probability sufficient to undermine
            confidence in the outcome.’” Id. at 309, 724 A.2d at
            331, quoting Strickland, 466 U.S. at 694, 104 S.Ct.
            2052.

Commonwealth v. Jones, 811 A.2d 1057, 1060 (Pa.Super. 2002), appeal

denied, 832 A.2d 435 (Pa. 2003).       “We presume counsel is effective and

place upon Appellant the burden of proving otherwise. Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004)

(citations omitted).

      In her first issue on appeal, appellant argues that Attorney Gurwitz

was ineffective for conceding to the jury that she was guilty of retail theft.

Attorney Gurwitz’s strategy, given the videotape surveillance evidence and

inculpatory statements made by appellant, was to admit the lesser charges

but try to obtain an acquittal on the greater charges of organized retail



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theft/conspiracy to commit organized retail theft. Appellant argues that this

was without her permission and violated her Fifth Amendment right against

self-incrimination. No relief is due.

            In Commonwealth ex rel. Washington v.
            Maroney, [427] Pa. [599], 235 A.2d 349 (1967),
            [overruled on other grounds by Commonwealth
            v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987),] we
            held that before a claim of ineffectiveness can be
            sustained, it must be determined that, in light of all
            the alternatives available to counsel, the strategy
            [a]ctually employed was so unreasonable that no
            competent lawyer would have chosen it.

Commonwealth v. Hill, 235 A.2d 347, 349 (Pa. 1967). “If a reasonable

basis exists for the particular course, the inquiry ends and counsel’s

performance is deemed constitutionally effective.”      Commonwealth v.

Abdul-Salaam, 808 A.2d 558, 561 (Pa. 2001), citing Commonwealth v.

Derk, 719 A.2d 262, 266 (Pa. 1998) (opinion in support of affirmance).

            Nor can a claim of ineffective assistance generally
            succeed through comparing, by hindsight, the trial
            strategy employed with alternatives not pursued. A
            finding that a chosen strategy lacked a reasonable
            basis is not warranted unless it can be concluded
            that an alternative not chosen offered a potential for
            success substantially greater than the course
            actually pursued.

Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002), cert. denied,

540 U.S. 827 (2003) (citation omitted).

      Joseph Perrins (“Perrins”), an asset protection team leader for Target,

testified at trial and identified appellant on the videotape.        (Notes of

testimony 9/11/13 at 38, 54.) Perrins described in detail how appellant and


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her accomplice would clear the shelves of ink cartridges and external hard

drives, place the merchandise in a cart, and then leave the cart inside the

store, near an exit. (Id. at 52-54.) At that point, a third individual would

retrieve the cart and push it outside to a waiting car. (Id. at 54.) Perrins

also testified that before an individual can be detained, certain criteria have

to be met.     (Id. at 57.)    They are required to give a customer every

opportunity to pay for the merchandise before leaving the store.          (Id. at

58.)

       Tyler Colon (“Colon”), a senior protection specialist for Target, testified

that security is not permitted to chase a shoplifter outside of the store. (Id.

at 81.) In addition, before any suspect can be apprehended, a checklist of

five specific steps has to be satisfied, including concealment, continuous

observation and failure to pay. (Id. at 82.) Colon explained that because

these individuals traded off the merchandise from one to another, the

requisite five steps were not going to be completed and store security would

be unable to stop them. (Id.)

       At the PCRA hearing, Attorney Gurwitz testified that this was damaging

circumstantial evidence of appellant’s intent:

                   We saw the case differently. I have – I look at
             things in their – more than just the discrete actions.
             You have to look at the various interactions between
             one action and another at some times to see what
             the circumstances would dictate. When you have,
             essentially the same modeled conduct over
             13 different incidents, if you have – it shows some
             level of organization, some level of sophistication.


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             You have testimony relative to the – the security
             steps, the protocols where there were I believe it
             was five or six protocols, and at some critical
             number, three of them I believe it was, that they
             act. And you see consistently one factor or indicator
             is met; two factors. And then that person doesn’t hit
             the critical number, and just walks out of the store,
             and then someone comes in, that suggests a level of
             coordination, and sophistication, and that you are; in
             fact, working in concert for all of a variety of criminal
             conspiracy charges relative to retail theft. So even if
             you could hypothetically beat the retail theft charge
             itself, you have still got the criminal conspiracy
             liability.

Notes of testimony, 4/28/16 at 33-34.

      Attorney Gurwitz explained at the PCRA hearing that with the

extensive video surveillance footage from multiple Target stores, the only

plausible trial strategy was to try to paint appellant as a mere “pawn” in the

operation,   not   the   “boss”   of   the   shoplifting   ring.   In    this   way,

Attorney Gurwitz was hoping to get appellant acquitted of the more serious

second-degree felony charges of organized retail theft.

      Appellant was adamant that she did not commit retail theft where she

did not actually take the merchandise out of the store. However, as detailed

above by Perrins and Colon, the modus operandi of the group was that

appellant and another woman would load up the cart with ink cartridges and

hard drives, and then leave it near an exit where a third individual would

push it outside the store. Appellant’s defense was simply untenable in light

of the video evidence. Attorney Gurwitz explained:




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                  We discussed various aspects of the case.
           Ultimately [appellant] and I both saw the case very
           differently. I think that was evident from the trial
           transcript from the very beginning when she seemed
           to be – to have cold feet the day of the trial.
           Ultimately, my concern in this kind of case where
           you have that much video evidence, and you have
           the [security] personnel that were going to be
           testifying, and that these – this evidence was going
           to be admissible, that the retail thefts at a
           fundamental level, and or conspiracy to retail thefts,
           end up being a foregone conclusion to the extent
           that there is just too much circumstantial evidence
           to support that.       [Appellant]’s view from our
           conversations was – not getting into the issue of
           circumstantial evidence, but that she – that factually,
           she herself did not push any evidence out of the
           cart, or take it out of the store herself; that
           circumstantial evidence that would potentially link
           her to other people didn’t matter, she didn’t herself
           take anything out of the store, and didn’t think that
           that made her culpable.

Id. at 14-15.

                 So that you have people loading things up into
           a cart. You have got a bin. You put a top on the
           bin. You push it to a particular point, but they don’t
           go anywhere close to the point of purchase. They
           end up exiting the store before there is any kind of
           interaction, and then somebody else picks it up from
           there. And that was evident from the video. So I
           see that as strong circumstantial evidence.
           [Appellant] did not see it as such. My concern for
           her legal interest at the point that the
           Commonwealth’s offer for one charge for a period of
           time, which was not unfair according to the
           guidelines, once we were headed for trial, the only
           effectual strategy that I could see was on the
           organized retail theft, and criminal conspiracy to
           organized retail theft, the F-2’s, the top, I guess, two
           charges, or the highest tier charges, because the
           presentation that I believed that is accurate, is that
           she was a pawn in a grand game, and that she


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           herself was not a manager, not promoter, not – That
           she herself was not instrumental in making this thing
           go from an organizational perspective, and that her
           only true culpability would be retail theft. She saw
           the case differently in that I didn’t commit any retail
           thefts. I didn’t commit any conspiracy. I didn’t
           engage in organized retail theft, and a deny and
           disclaim strategy, versus the one that I thought was
           far more plausible given the nature of the evidence.

Id. at 15-17.

     Clearly, there was ample evidence of appellant’s guilt, including

eyewitness testimony from Target security personnel and videotape footage.

On October 13, 2012, Perrins observed appellant and her cohorts remove

merchandise from the Easton Target.         (Notes of testimony, 9/11/13 at

58-61.) Perrins contacted Colon, who worked at the Airport Road location.

(Id. at 75, 98.) Shortly thereafter, appellant and another individual entered

Colon’s location and began loading hard drives and ink cartridges into their

cart. (Id. at 101.) Colon contacted state police who indicated they had a

trooper in an adjacent parking lot and to let them know when the suspects

exited the store. (Id. at 102.) Subsequently, when appellant was stopped

by state police on the evening of October 13, 2012, they recovered the

stolen merchandise in her trunk. (Notes of testimony, 9/12/13 at 53-54.)

Police also found bags lined with tin foil, designed to defeat the store’s

security devices.   (Id. at 57.)   Appellant admitted to stealing from Target

stores since August of 2012. (Id. at 62.) Appellant also admitted that she

directed Cameo Scott (“Scott”), the front right passenger of the vehicle, to



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push the cart out of the store. (Id. at 62-63.) Appellant indicated that they

took the stolen merchandise to Brooklyn, New York, to an individual

named ”D.” (Id. at 63.)

      Clearly,    given   the   overwhelming    evidence     against   appellant,

Attorney Gurwitz’s strategy of conceding guilt on the third-degree felony

retail theft charges and attempting to persuade the jury that appellant was

innocent of the second-degree felony charges of organized retail theft and

criminal conspiracy to commit organized retail theft, was a sound one.

Appellant’s notion that she could not be convicted of retail theft or attempt

to commit retail theft because she did not actually push the cart outside of

the store was not based in law. She was clearly acting in concert with her

accomplices, as depicted on the surveillance tapes.        Appellant’s only hope

was to convince the jury that she did not organize, coordinate, control or

supervise the activities of an organized retail theft enterprise, as required by

the statute.     18 Pa.C.S.A. § 3929.3(a).     Attorney Gurwitz attempted to

convince the jury that she was a mere pawn and the unidentified individuals

in New York were the masterminds of the operation.           Appellant obviously

disagreed with Attorney Gurwitz’s strategy in this regard, but it was a sound

one based on the evidence. There is no merit here.

      Next, appellant claims that Attorney Gurwitz was ineffective for failing

to investigate two potential witnesses, Scott and Charis Bynoe (“Bynoe”).

(Appellant’s brief at 11-12.) According to appellant, both Scott and Bynoe



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submitted affidavits prior to trial and Attorney Gurwitz should have called

them as witnesses.    (Id. at 12.)     Appellant argues that their testimony

would have likely changed the outcome of the trial. (Id.)

            To establish ineffectiveness for failure to call a
            witness, Appellant must establish that:        (1) the
            witness existed; (2) the witness was available;
            (3) counsel was informed of the existence of the
            witness or counsel should otherwise have known of
            him; (4) the witness was prepared to cooperate and
            testify for Appellant at trial; and (5) the absence of
            the testimony prejudiced Appellant so as to deny him
            a fair trial. A defendant must establish prejudice by
            demonstrating that he was denied a fair trial because
            of the absence of the testimony of the proposed
            witness.

Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal

denied, 860 A.2d 123 (Pa. 2004) (citations omitted).

      Scott, appellant’s niece, was a co-conspirator and entered into an

Accelerated Rehabilitative Disposition (“ARD”) program for receiving stolen

property. (Notes of testimony, 4/28/16 at 59.) Scott testified at the PCRA

hearing that she would have been willing to testify at appellant’s trial that

appellant had no involvement whatsoever in the retail thefts.        (Id. at 61-

62.) However, in her pre-sentence investigation report, appellant admitted

that she convinced Scott to participate in the thefts. (Id. at 63.) Scott also

admitted that they had stolen items from the Easton Target. (Id. at 64-65.)

Therefore, her proposed trial testimony would be in contradiction to the

established facts.




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      Attorney Gurwitz pointed out that as a co-conspirator, it would not

have served appellant’s interests to put Scott on the stand. (Id. at 24-25.)

Scott was seen on camera pushing the cart out of the Easton Target. As the

PCRA court found, Scott was a corrupt and polluted source and Attorney

Gurwitz had a reasonable basis for not calling her as a witness. (Id. at 71.)

The PCRA court also found Scott was not a credible witness. (Id. at 71.)

      Regarding Bynoe, appellant did not present her as a witness at the

PCRA hearing, nor did appellant submit an affidavit. (Id. at 72-73.) There

is no evidence as to what Bynoe would have testified to at appellant’s trial.

(Id.) Therefore, appellant cannot possibly show how she was prejudiced by

Attorney Gurwitz’s failure to call Bynoe as a witness.   (Id.)   Furthermore,

Bynoe was also a passenger in the vehicle when it was stopped by police,

and Attorney Gurwitz reasonably believed it was risky to use her as a

witness. (PCRA court opinion, 5/2/16 at 8.)

      Appellant also argues that because Scott and Bynoe were not called as

witnesses, she was forced to testify in her own defense. (Appellant’s brief at

11-13.) Appellant theorizes that if she did not testify, she would have been

found not guilty of all charges. (Id.)

      From our review of the record, this issue was not raised in appellant’s

PCRA petition, nor was it raised in her Rule 1925(b) statement.       (Docket

#53, #59.)     As such, it is waived.    See Commonwealth v. Ousley, 21

A.3d 1238, 1242 (Pa.Super. 2011) (“It is well-settled that issues not raised



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in a PCRA petition cannot be considered on appeal.” (quotation marks and

citations omitted)); 42 Pa.C.S.A. § 9544(b); Pa.R.A.P. 1925(b)(4)(vii). See

also Commonwealth v. Marion, 981 A.2d 230, 237 (Pa.Super. 2009),

appeal denied, 990 A.2d 729 (Pa. 2010) (“to preserve their claims for

appellate review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of Matters Complained of on Appeal pursuant to

[Rule] 1925.   Any issues not raised in a [Rule] 1925(b) statement will be

deemed waived.” (citations omitted)).

      At any rate, appellant never testified at the PCRA hearing that

Attorney Gurwitz forced her to testify.       In fact, there was an extensive

colloquy conducted at trial regarding appellant’s decision to testify and her

prior criminal record which included crimen falsi.          (Notes of testimony,

9/12/13 at 115-117.)

      In her third and final issue on appeal, appellant alleges that

Attorney Gurwitz failed to communicate a plea offer to appellant. According

to appellant, her lack of understanding of the Commonwealth’s plea offer

was what led her to reject it. (Appellant’s brief at 13.)

            Generally, counsel has a duty to communicate plea
            bargains to his client, as well as to explain the
            advantages and disadvantages of the offer. Failure
            to do so may be considered ineffectiveness of
            counsel if the defendant is sentenced to a longer
            prison term than the term he would have accepted
            under the plea bargain. Where the PCRA court’s
            determination of credibility is supported by the
            record, we will not disturb it on appeal.



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Commonwealth v. Marinez, 777 A.2d 1121, 1124 (Pa.Super. 2001),

appeal denied, 788 A.2d 374 (Pa. 2001) (citations omitted).

      Appellant’s claim is belied by the record.     Attorney Gurwitz testified

that he communicated the Commonwealth’s offer of a minimum sentence of

no more than two years’ incarceration and appellant rejected it. (Notes of

testimony, 4/28/16 at 18, 34-35.)         Attorney Gurwitz testified that he

thought the offer was reasonable, but appellant insisted on going to trial.

(Id. at 18-19.) Appellant firmly believed that she could not be found guilty

because she did not actually push the cart out of the door. (Id. at 34.) In

addition, despite her extensive prior record, appellant had not done much

jail time and was unwilling to agree to an offer of a minimum of up to

two years’ imprisonment.      (Id. at 34-35.)    The PCRA court, which also

presided over appellant’s jury trial, found that she was fully apprised of the

plea offer and made an informed decision to go to trial:

             Your client, much different than the tearful client she
             presents today, was nasty to her lawyer, did not
             listen to a word that he said in terms of advice, and
             she was hell bent on her course of action. She knew
             full well, because we had numerous conversations
             before trial.      She understood what the plea
             agreement was, and if she had any questions, I was
             right in front of her to ask. She wanted her trial.

Id. at 70.     As the PCRA court stated in its opinion and order denying

appellant PCRA relief:

             Furthermore, during the negotiation process,
             Attorney Gurwitz had conveyed to [appellant] the
             plea offer that was extended to her by the


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              Commonwealth.       In particular, the agreement
              entailed pleading guilty to Organized Retailed [sic]
              Theft, with a cap of the minimum sentence at
              two (2) years. Despite being advised to accept the
              offer by her attorney, [appellant] refused to accept
              the offer. Indeed, [appellant] believed that she did
              not commit a crime and dispelled all guilt in the
              matter.

PCRA court opinion, 5/2/16 at 5-6. The PCRA court’s findings in this regard

are supported by the record and will not be disturbed on appeal. This claim

fails.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017




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