J-S56043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROSS RABELOW                               :
                                               :
                       Appellant               :   No. 965 EDA 2019

              Appeal from the PCRA Order Entered March 6, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0006370-2012

BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 17, 2019

        Appellant Ross Rabelow appeals from the order denying his timely first

Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant raises

several claims of trial counsel’s ineffective advocacy. We affirm.

        We state the facts as set forth in the trial court’s opinion prepared for

Appellant’s direct appeal:

        From September 2008 through May of 2012, Appellant owned and
        operated a company called American Comfort Home Care
        Services, which was created to defraud . . . seniors into buying
        worthless contracts for on-demand non-medical home care
        services, which Appellant never intended to honor. He, along with
        his accomplices, Bruce Cherry, Thomas Muldoon and Robert
        Lerner, sought out seniors who lived alone and induced them into
        buying these bogus contracts.

        . . . In March of 2011, Special Agent Karen Tempinski, an agent
        assigned to the Insurance Fraud Section of the Attorney General’s
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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     Office, began an investigation after she received a complaint
     about Mr. Cherry, an insurance agent.         According to that
     complaint, Mr. Cherry had taken an insurance premium from a
     client, Inge Neuhauser, but failed to forward it to her insurance
     company. While investigating the claim, Ms. Neuhauser provided
     Agent Tempinski with relevant paperwork. Included with that
     paperwork was a contract from a company called American
     Comfort Home Care Services (“American Comfort”) that Ms.
     Neuhauser had purchased from Mr. Cherry.

     According to the contract, Ms. Neuhauser had purchased 1,000
     hours of in-home non-medical care for $1,590; thereby making it
     $1.59 per hour of service. According to the contract, services
     would be provided on demand, with no hospitalization
     requirement, age limit or deductible.

     As Agent Tempinski continued her investigation into Mr. Cherry’s
     activities with his other clients, she found that they also had
     contracts from American Comfort which were similar to Ms.
     Neuhauser’s contract. [Her investigation revealed that American
     Comfort sold 245 contracts]. Agent Tempinski’s [sic] attempted
     to locate American Comfort’s office, since the address printed on
     the contract was a UPS mailbox store. This led the agent to the
     Pennsylvania Department of State Records.           One document
     identified Appellant at 549 Jason Drive, Southampton. Another
     State Department document related to American Comfort was an
     application for registration of fictitious name, seeking to use the
     name National Comfort Home Care Services (“National Comfort”).
     It was signed by Appellant.

     At trial, Agent Tempinski testified that in the course of her
     investigation, she interviewed about 130 to 140 individuals. The
     agent compiled two binders full of the contracts, receipts and
     checks that the individuals provided to her. These binders were
     introduced and admitted into evidence . . . . In compiling these
     binders, Agent Tempinski determined that the checks had been
     deposited in TD Bank, Citizens Bank, Customers Bank, for which
     she was able to get the bank records. She was also able to
     retrieve the bank records for the automatic payment service that
     Appellant used, ACH. . . . In addition, Agent Tempinski compiled
     numerous additional exhibits summarizing the financial records of
     American Comfort a/k/a National Comfort. . . . Agent Tempinski
     testified at trial that from September of 2008 through May 2012,
     there was a total of $774,060 in deposits and a total of $771,622

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     in debits, for a net of $2,438. She was able to later determine
     that of the total amount of money going out of the bank accounts
     only 4.6% went to services, 93.7% were for expenses other than
     services and 1.7% of the total amount was unknown. The
     compiled list of payees showed that some of the non-service
     payees included commission checks, Appellant’s health insurance
     premium, PECO, Verizon, Appellant’s townhouse association fee,
     Willow Grove Day Camp, Comcast, Nissan Motor, Capital One
     credit card, Target National Bank, Lowes Home Improvement,
     HSBC credit card, Home Depot, among others.

     At trial, the Commonwealth also presented the testimony of Bruce
     Cherry, Appellant’s business associate and co-conspirator, who
     was arrested along with Appellant and several other co-
     conspirators on May 21, 2012. At the time of trial, Mr. Cherry had
     pleaded guilty in connection with his criminal conduct relating to
     American Comfort and Global Services. Mr. Cherry explained his
     association with American Comfort and Appellant as follows. Due
     to previous brushes with the law, in 2008 he began to work for
     Appellant’s company, American Comfort, as part of a work-release
     program he had been approved for. When he went to work for
     Appellant, Mr. Cherry understood that he was to sell American
     Comfort contracts, which were contracts for non-medical home
     care services, to elderly clients. Mr. Cherry was expected to use
     his own client list that he had built up over the years selling
     legitimate long-term care and home health care insurance . . . .
     It was Mr. Cherry’s understanding that Appellant was the sole
     owner of American Comfort, and Mr. Cherry was a salesman that
     got paid by commission. Mr. Cherry told the jury that it was
     Appellant who was completely in charge of the company, that it
     was Appellant who signed his commission checks, that no one
     other than Appellant who had authority to hire or fire anyone or
     make contractual arrangements on behalf of American Comfort.

     Mr. Cherry described that leads were generated in the office by
     screening phone calls to prospective clients, while Appellant would
     work on various promotions that could be added on to the original
     contracts for additional fees. The target audience was for seniors,
     65-plus in age. Appellant had set the price of the contract so that
     the price per hour of service was $1.59. Each contract had a
     unique number. There was never a full-time employee to provide
     services to people that requested them. Mr. Cherry testified that
     important to the sales model was the element of surprise and to
     have the potential customer alone.

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      Vital to Mr. Cherry’s testimony was his description of how
      Appellant handled requests for services which were supposed to
      be provided on demand, per the contractual language. He
      described how he handled these calls. The strategy was to erect
      roadblocks. The first hurdle he would erect was to tell the
      customer that he would have someone get back to them or to call
      again. Mr. Cherry would then relay the message to Appellant and
      then give the customers who were trying to obtain services
      Appellant’s 800-number. Mr. Cherry estimated that over the
      years he worked for Appellant, he received about 30 to 50
      requests for services. However, there was no money to pay for
      services. Looking at [a] compiled list of payees, Mr. Cherry
      identified the names of the customers who he knows to have
      requested services. He then identified who if any customers were
      ever provided services. [Mr. Cherry testified that only one of the
      245 customers ever received the full amount of contractually
      entitled services].

      The Commonwealth also presented the testimony of several
      victimized seniors; several caretakers and/or individuals working
      in the capacity of power of attorney for several other victimized
      seniors . . . .

      [Appellant] presented multiple character witnesses on Appellant’s
      behalf. Also testifying for the defense was Appellant’s father,
      Arthur Rabelow, and Appellant himself.

Trial Ct. Op. at 1-6 (citations and footnote omitted).

      After an eight-day jury trial, a jury found Appellant “guilty of criminal

conspiracy, corrupt organizations, 244 counts of theft by deception, 244

counts of deceptive fraudulent business practices, and dealing in proceeds of

unlawful activity.” Commonwealth v. Rabelow, 2985 EDA 2014, 2016 WL

963812, *1 (Pa. Super. filed Mar. 14, 2016) (unpublished memo.). Following

a pre-sentence investigation, the trial court sentenced Appellant to an




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aggregate sentence of four to forty-four years’ imprisonment and $650,000 in

restitution.2 Id.

       On direct appeal, Appellant raised several issues.     In pertinent part,

Appellant contended that the Commonwealth was required to have all 245

people who purchased the contracts testify. Id. at *2. This Court affirmed,

and our Supreme Court denied Appellant’s petition for allowance of appeal on

September 27, 2016.

       On December 22, 2017, the PCRA court docketed Appellant’s timely pro

se PCRA petition. The PCRA court appointed counsel, who ultimately filed a

counseled PCRA petition on September 18, 2018. That PCRA petition alleged

that trial counsel was ineffective by failing to (1) timely object to an improper

jury instruction, (2) provide discovery that could have been used to impeach

witnesses, and (3) impeach Commonwealth witnesses.             Am. PCRA Pet.,

9/18/18, at 5-6. We note that the pro se and the counseled PCRA petitions

did not attach any formal transcripts or similar documentation of Appellant’s

phone calls with the victims.




____________________________________________


2 In relevant part, the trial court sentenced Appellant to six months to seven
years’ imprisonment for conspiracy, a consecutive term of two to twenty years’
imprisonment for corrupt organizations, a consecutive term of six months to
seven years’ imprisonment for all of the theft convictions, and a consecutive
term of one to ten years’ imprisonment for dealing in the proceeds of unlawful
activities. N.T. Sentencing Hr’g, 9/22/14, at 47-49.


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      The Commonwealth filed an answer, and the PCRA court issued a

Pa.R.Crim.P. 907 notice on January 29, 2019. On February 25, 2019, the

PCRA court dismissed Appellant’s PCRA petition. Appellant timely appealed

and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

      We quote from Appellant’s Rule 1925(b) statement as follows:

      [Appellant] respectfully submits that the [PCRA] court erred in
      finding his PCRA Petition without merit where his trial counsel was
      ineffective where trial counsel failed to make a timely objection,
      did not introduce phone records, and did not take opportunities to
      impeach key Commonwealth witnesses. Trial counsel did not
      object to instructions that informed the jury that the
      Commonwealth was not required to present at trial victims of the
      alleged conduct. [In Appellant’s direct appeal, t]he Superior Court
      refused to address that issue on the merits, finding that it was
      waived by trial counsel . . . . [Appellant’s] counsel also did not
      introduce exculpatory recorded calls that would have
      demonstrated that [Appellant] was responding to inquiries and
      providing services. [Appellant’s] counsel also did not attempt to
      impeach many critical Commonwealth witnesses.

Rule 1925(b) Statement, 4/3/19, at 1-2 (citations omitted).

      Appellant raises one issue on appeal:

      Did the PCRA court err when it dismissed the petition without a
      hearing notwithstanding the multiple instances of ineffective
      assistance of counsel asserted in [Appellant’s] PCRA petition?

Appellant’s Brief at vi.

      Appellant raises several arguments in support of this issue.       Briefly,

Appellant asserts that trial counsel was ineffective for failing to (1) object to

the trial court’s jury instruction defining reasonable doubt, (2) introduce

recordings of his phone calls, and (3) otherwise impeach witnesses.

      We begin by stating the standard of review.

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     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. The PCRA court’s findings will not be disturbed unless there
     is no support for the findings in the certified record.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted). We have stated that

     to establish a claim of ineffective assistance of counsel, a
     defendant 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. The burden is on the defendant to prove all three of the
     following prongs: (1) the underlying claim is of arguable merit;
     (2) that counsel had no reasonable strategic basis for his or her
     action or inaction; and (3) but for the errors and omissions of
     counsel, there is a reasonable probability that the outcome of the
     proceedings would have been different.

     We have explained that

        a claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief. Whether the facts
        rise to the level of arguable merit is a legal determination.

        The test for deciding whether counsel had a reasonable
        basis for his action or inaction is whether no competent
        counsel would have chosen that action or inaction, or, the
        alternative, not chosen, offered a significantly greater
        potential chance of success. Counsel’s decisions will be
        considered reasonable if they effectuated his client’s
        interests.   We do not employ a hindsight analysis in
        comparing trial counsel’s actions with other efforts he may
        have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.


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Commonwealth v. Sandusky, 203 A.3d 1033, 1043-44 (Pa. Super. 2019)

(citations omitted and some formatting altered), appeal denied, 216 A.3d

1029 (Pa. 2019).

      We briefly state the following as background for Appellant’s first

argument.      At Appellant’s trial, the trial court gave the following jury

instruction.

      When you are considering the elements of the various crimes and
      considering the evidence, if after considering all the evidence you
      find that the Commonwealth has established beyond a reasonable
      doubt all the elements of a particular offense that you are
      considering, then you should find the defendant guilty of that
      particular offense; otherwise, you must find the defendant not
      guilty of that particular offense.

      Although the Commonwealth must prove every element of a crime
      beyond a reasonable doubt in order for you to find the defendant
      guilty of that crime, there is no requirement whatsoever that the
      Commonwealth do so by having all the victims testify, or that it
      even have one victim testify the absence of testimony from a
      victim, the Commonwealth may prove any element of any crime
      through circumstantial evidence provided by other witnesses or
      through direct evidence of the crime provided by the testimony of
      persons other than the victim or victims.

      Where the Commonwealth has alleged that a person is a victim
      and that person has testified, you may, of course, consider that
      person’s testimony in conjunction with any other evidence,
      circumstantial or direct, in determining whether or not the
      Commonwealth has proven that the defendant has committed a
      crime.

      You could consider the evidence of a murder case, for example.
      In that case, of course the victim would be dead and would never
      be testifying at such a trial.

N.T. Trial, 3/19/14, at 203-04.




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      In his direct appeal, Appellant attempted to challenge the adequacy of

this instruction. This Court held, however, that Appellant waived the issue

because his trial counsel did not object prior to the jury commencing

deliberation.

      In this PCRA appeal, Appellant contends that trial counsel was ineffective

by failing to timely object to an improper jury instruction. Appellant’s Brief

at 11.    Appellant quotes from direct appeal counsel’s appellate brief

challenging the instruction on its merits:

      The trial court instructed the jury that the Commonwealth was not
      required to present any victims of the alleged offenses as
      witnesses at trial. The trial court referenced a murder case in
      which the victim cannot be presented as a witness since he/she is
      deceased.         The trial court’s instruction relieved the
      Commonwealth of its burden of establishing the Appellant’s guilt
      beyond a reasonable doubt. The trial court instructed the jury
      that the Commonwealth was not required to present any alleged
      victim as a witness at trial and that it could sustain its burden
      through the testimony of other witnesses, likening the instant
      matter to a murder prosecution. After the jury was charged and
      commenced its deliberations, Appellant objected to this portion of
      the trial court’s charge.

Id. at 12 (citations omitted and some formatting altered).

      Appellant further argues that the instruction was prejudicial because it

was misleading:

      First, it implies that alleged victims did not testify in this case
      because of unavailability or some other good cause. Second, it
      overlooks the significant distinction that in this instance, unlike a
      murder case, the Commonwealth has the power to call witnesses
      by subpoena or otherwise.

      The instruction at issue was one of the last instructions given, and
      significantly after the jury had received general instructions with

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        regard to reasonable doubt and the Commonwealth’s burden of
        proof. The instruction implies that the Commonwealth’s case-in-
        chief, which included more than one victim, but significantly fewer
        than the 246 alleged, was sufficient, and wrongly lends the Court’s
        authority to that conclusion.

Id. at 13.3

        As noted above, a PCRA petitioner must establish that the underlying

claim is of arguable merit.         In evaluating whether a challenge to a jury

instruction has arguable merit, we note the following. “When evaluating the

propriety of jury instructions, this Court will look to the instructions as a whole,

and not simply isolated portions, to determine if the instructions were

improper.     Only where there is an abuse of discretion or an inaccurate

statement of the law is there reversible error.” Commonwealth v. Johnson,

192 A.3d 1149, 1153 (Pa. Super. 2018) (citation omitted and some formatting

altered). “A trial court’s charge to the jury must contain a correct statement

of the law. A court is free to use its own form of expression in charging the

jury as long as it adequately, accurately and clearly explains the principle of

law.” Commonwealth v. Patosky, 656 A.2d 499, 505-06 (Pa. Super. 1995)

(citations omitted). It is well-settled that the Commonwealth may prove theft

by circumstantial evidence.        See Commonwealth v. Harrison, 432 A.2d

1083, 1089 (Pa. Super. 1981); see also Pa.S.S.J.I. (Crim.) § 7.02A (2016).




____________________________________________


3   Appellant cited no law in support.


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       Initially, Appellant waived the issue by failing to cite any legal authority

in his argument in this appeal. See Commonwealth v. Pi Delta Psi, Inc.,

211 A.3d 875, 883 (Pa. Super. 2019) (holding argument waived when party

fails to cite pertinent legal authority).          Regardless, on the merits, the

challenged jury instruction was not misleading and accurately stated the law.

Whether the victims were available to testify or whether the Commonwealth

had the subpoena power to compel a victim to testify does not accurately state

the law regarding the Commonwealth’s burden of proof. None of Appellant’s

convictions include a statutory element that requires a victim to testify.

Indeed, the Commonwealth may prove theft by circumstantial evidence. See

Harrison, 432 A.2d at 1089.4            Because Appellant failed to establish the

underlying issue has merit, he cannot establish trial counsel was ineffective.

See Sandusky, 203 A.3d at 1043-44.

       Appellant’s second argument is that trial counsel was ineffective by

failing to use telephone and voice mail recordings that could have either

impeached witnesses or exculpated him. Appellant’s Brief at 14. Appellant

again quotes from his direct appeal argument, specifically a summary of his

calls with Jayme Mont, a witness who was satisfied with the services he

provided. Id. In Appellant’s view, his recorded calls with other witnesses



____________________________________________


4 The trial court’s jury instruction also tracks the content of the suggested jury
instruction for circumstantial evidence. See Pa.S.S.J.I. (Crim.) § 7.02A.


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would have established that he was, in fact, providing contracted-for services

and would have undermined the Commonwealth’s theory that “he engaged in

business practices designed to evade contract obligations.”         Id. at 15.

Appellant asserts that such recordings would not have been cumulative as

they would have been used for impeachment. Id.

      Here, in support, Appellant cited caselaw for the proposition that counsel

is ineffective when counsel ignores evidence that would establish a viable

defense. See Appellant’s Brief at 15 (citing Commonwealth v. Perry, 644

A.2d 705 (Pa. 1994), and Commonwealth v. Tippens, 598 A.2d 553 (Pa.

Super. 1991)).    Appellant, however, failed to explain how such evidence

undermined the reliability of the verdict. See 42 Pa.C.S. § 9543(a)(2)(ii);

see also   United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir.

1990) (“A litigant who fails to press a point by supporting it with pertinent

authority or by showing why it is a good point despite a lack of authority . . .

forfeits the point. We will not do his research for him.”). Therefore, similar

to Appellant’s first argument, because he failed to cite pertinent caselaw in

support, he waived the issue. See Pi Delta Psi, 211 A.3d at 883.

      In any event, Appellant failed to attach the recordings or some other

verifiable transcript of the recordings at issue.       We acknowledge that

Appellant’s pro se PCRA petition included some “contract histories” for a few

victims, each of which included purported transcriptions of voicemails,

interviews, and summaries of in-person meetings.         See, e.g., Ex. 11 to


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Appellant’s Pro se PCRA Pet. (Shirley Christman Contract History).          The

“contract history” for each such witness, however, was unsigned, apparently

prepared for Appellant’s defense, and lacks any indication about the reliability

and accuracy of the transcriptions, including who transcribed them. See, e.g.,

id.   On the basis of this deficient record, Appellant cannot establish trial

counsel was ineffective.

      Third, Appellant argues that trial counsel could have impeached

witnesses based on the available record, i.e., without the transcribed

recordings discussed above. Appellant’s Brief at 15. Specifically, Appellant

argues that trial counsel could have impeached unnamed witnesses with their

contradictory or inconsistent prior testimony and statements.       Id. at 16.

Appellant asserts that impeachment of those witnesses would                have

established that they called Mr. Cherry, and not Appellant, and it was Mr.

Cherry who was responsible for not following up to provide services. Id. at

16-17.

      Appellant similarly claims trial counsel was ineffective by failing to

impeach witness Robert Dennis.      Id.   According to Appellant, Mr. Dennis

testified that Appellant had visited the home of Mr. Dennis’s mother and gave

Mr. Dennis a business card listing Mr. Cherry’s business. Id. Appellant argues

that trial counsel should have highlighted that particular inconsistency. Id.

      Initially, other than Mr. Dennis, Appellant did not discuss any other

witness.   Therefore, to the extent Appellant contends trial counsel was


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ineffective by not impeaching unnamed witnesses, Appellant has waived the

argument. See Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super.

2006) (holding defendant waived issue by failing to advocate). With respect

to Appellant’s claim regarding Mr. Dennis, Appellant failed to argue how that

particular inconsistency established a reasonable probability that the outcome

of the trial would have been different. See Sandusky, 203 A.3d at 1043-44.

Appellant does not articulate how Mr. Dennis’s testimony that Appellant

presented Mr. Cherry’s business card undermines confidence in the verdict.

See id. For these reasons, because Appellant has not established legal error,

see Grayson, 212 A.3d at 1051, we affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/19




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