J-S47033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                   Appellee                 :
                                            :
                     v.                     :
                                            :
JAMES CUBBINS,                              :
                                            :
                   Appellant                :     No. 96 WDA 2018

              Appeal from the PCRA Order December 15, 2017
             in the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0003993-2013

BEFORE:     OLSON, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED APRIL 15, 2019

      James Cubbins (Appellant) appeals from the order entered on December

15, 2017, which denied his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On March 28, 2014, a jury convicted Appellant of rape by forcible

compulsion, unlawful contact with a minor, and corruption of minors. A prior

panel of this Court set forth the relevant underlying facts as follows.

            The victim, [J.B.], testified that she had known
            [Appellant] since July 2010, as he was a contractor
            who worked with her father[, S.B.]. In 2012, while
            she was fifteen years old, due to family
            circumstances, [the victim] was residing with her
            father and [Appellant] in an apartment. [The victim]
            stated that one day in July, after she returned home
            from her summer job, she was watching TV in her
            room when [Appellant] entered the room. She stated
            that he was “drunk as usual,” sat down on her bed,
            and asked her if she wanted to have sex. She
            declined. [The victim] testified that he got on top of

*Retired Senior Judge assigned to the Superior Court.
J-S47033-18


            her, forced her legs open, took off her pants and
            underwear and raped her. She disclosed the rape to
            her boyfriend, on February 13, 2013, at a point when
            [Appellant] was not residing in the apartment, and
            he[r boyfriend] encouraged her to tell her father what
            had happened. She told her father the following day,
            and he promptly took her to the police….

      Trial Court Opinion, 1/26/[20]15, at 3 (citations omitted).

             [Appellant] was arrested and charged with the above-
      mentioned crimes. The case proceeded to a jury trial in March
      2014. The jury found [Appellant] guilty of all of the crimes. The
      trial court sentenced [Appellant] to ten to twenty years in prison
      on the rape conviction, a consecutive probation term of three
      years on the unlawful contact with a minor conviction, and no
      further penalty for the corruption of minors conviction.
      [Appellant] was also required to register as a sexual offender for
      life.

Commonwealth v. Cubbins, 133 A.3d 82 (Pa. Super. 2015) (unpublished

memorandum at 1-2) (some brackets omitted). Appellant filed a direct appeal

to this Court. On September 29, 2015, we affirmed Appellant’s judgment of

sentence, and on June 1, 2016, our Supreme Court denied his petition for

allowance of appeal. Id., appeal denied, 140 A.3d 11 (Pa. 2016).

      On October 6, 2016, Appellant timely filed a pro se PCRA petition, and

the PCRA court appointed counsel on October 13, 2016. On December 16,

2016, Appellant filed an amended PCRA petition, and after obtaining leave of

court, filed a second amended petition on April 28, 2017. In that petition,

Appellant claimed trial counsel rendered ineffective assistance by failing to call

any alibi and character witnesses to testify on Appellant’s behalf at trial, and




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also claimed that he was serving an illegal sentence pursuant to Alleyne v.

United States, 570 U.S. 99, 102 (2013) (holding that “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt”). Attached to the second

amended petition were affidavits from Rhonda Rowland, Appellant’s aunt; Lisa

Davis, Appellant’s sister; Robert Davis, Appellant’s brother-in-law; and David

Manna and Raymond Gorby, Appellant’s friends, all of whom claimed they had

been willing and available to testify regarding Appellant’s whereabouts on

certain dates in July 2012 or his reputation in the community for being chaste.

      On September 22, 2017, the PCRA court held a hearing. At the hearing,

six witnesses testified:   Appellant, Rowland, Lisa, Manna, Gorby, and Erin

Melegari, a paralegal who had worked with Appellant’s trial counsel.1

Following briefing by the parties, on December 15, 2017, the PCRA court

determined that Appellant’s ineffective assistance of counsel claims did not

entitle him to relief, but agreed that his Alleyne claim required a resentencing

hearing. Order, 12/15/2017.

      On January 10, 2018, Appellant timely filed an appeal to this Court. The

PCRA court directed Appellant to file a concise statement of errors pursuant

to Pa.R.A.P. 1925(b), and Appellant complied on February 5, 2018. Therein,




1Appellant’s trial counsel died prior to the PCRA hearing. N.T., 9/22/2017, at
89.


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Appellant raised challenges relating to the first two ineffective assistance of

counsel issues in his second amended PCRA petition, but not the resentencing

issue. Meanwhile, the lower court scheduled a resentencing hearing on March

1, 2018. At that hearing, the trial court declined to resentence Appellant due

to his pending appeal.    Shortly thereafter, the trial court issued an order,

which requested that this Court remand this case to allow the trial court to

resentence Appellant; Appellant filed an emergency motion for stay of his

appeal, citing the same reason as the trial court. On August 2, 2018, we

denied the motion. See Commonwealth v. Grove, 170 A.3d 1127, 1138

(Pa. Super. 2017) (holding that “the PCRA court’s order granting relief with

regard to sentencing and denying all other claims … was a final appealable

order”). Thereafter, we directed the PCRA court to file a Rule 1925(a) opinion

and the parties to file new briefs. The PCRA court and the parties so complied.

      On appeal, Appellant presents two claims for our review. On review of

orders denying PCRA relief, our standard is to determine whether the PCRA

court’s ruling is free of legal error and supported            by the record.

Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017)

(citation omitted). “A PCRA court’s credibility findings are to be accorded great

deference, and where supported by the record, such determinations are

binding on a reviewing court.” Id. (citation omitted).




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       To prevail on a petition for PCRA relief, a petitioner must plead and

prove, by a preponderance of the evidence, that his conviction or sentence

resulted from one or more of the circumstances enumerated in 42 Pa.C.S.

§ 9543(a)(2). These circumstances include ineffectiveness of counsel, which

“so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).

       Because Appellant’s claims assert ineffectiveness of trial counsel, we

bear   in   mind    the   following.   We    presume    counsel   is   effective.

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).                     To

overcome this presumption and establish the ineffective assistance of counsel,

a PCRA petitioner must prove, by a preponderance of the evidence: “(1) the

underlying legal issue has arguable merit; (2) that counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice befell the [appellant] from

counsel’s act or omission.” Commonwealth v. Johnson, 966 A.2d 523, 533

(Pa. 2009) (citations omitted). “[A petitioner] establishes prejudice when he

demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. A claim will be denied if the petitioner fails to meet any one of these

requirements.      Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.

Super. 2008).




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      Appellant first contends that trial counsel was ineffective in failing to

present alibi and character witnesses.      Appellant’s Brief at 3.   Specifically,

Appellant claims that trial counsel had information relating to Appellant’s

whereabouts on certain dates in July 2012, from Rowland, Lisa, Manna, and

Gorby, but failed to investigate that information or prepare any of them to

testify at trial regarding Appellant’s location or his reputation in the community

for being chaste and appropriate around children. Id. at 7, 10-18. Appellant

further claims that trial counsel was ineffective for failing to file a notice of

intent to offer an alibi defense pursuant to Pa.R.Crim.P. 567. Id. at 14-15.

      In cases involving the failure to call a potential witness, a petitioner

satisfies the underlying-merit and prejudice prong

      by establishing that: (1) the witness existed; (2) the witness was
      available to testify for the defense; (3) counsel knew of, or should
      have known of, the existence of the witness; (4) the witness was
      willing to testify for the defense; and (5) the absence of the
      testimony of the witness was so prejudicial as to have denied the
      defendant a fair trial.... To demonstrate [] prejudice, a petitioner
      must show how the uncalled witnesses’ testimony would have
      been beneficial under the circumstances of the case. Counsel will
      not be found ineffective for failing to call a witness unless the
      petitioner can show that the witness’s testimony would have been
      helpful to the defense. A failure to call a witness is not per se
      ineffective assistance of counsel for such decision usually involves
      matters of trial strategy.

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted). Furthermore, while it

is unfortunate that trial counsel died prior to the PCRA hearing, it does not




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relieve Appellant of his burden to prove trial counsel was ineffective.

Commonwealth v. Simpson, 112 A.3d 1194, 1197 (Pa. 2015) (stating that

where “trial counsel is deceased, and, thus, unavailable to testify, the

petitioner’s burden of establishing a claim of ineffective assistance of counsel

is not lessened or reduced”) (citation omitted).

      In considering Appellant’s claim of ineffective assistance of counsel for

failing to call witnesses, the PCRA court found the following.

            At trial, counsel did not present a defense based on alibi but
      instead argued that the victim falsely accused Appellant in
      response to Appellant[‘s] threatening to evict her and her father
      from Appellant’s residence.        It is clear that trial counsel
      investigated an alibi defense but chose not to pursue it. He
      obtained the victim’s work schedule for the summer of 2012[,]
      and wrote notes on it indicating Appellant’s location on various
      days. At the preliminary hearing, the victim testified that the
      incident probably occurred in summer 2012, and on cross-
      examination by Appellant’s counsel at that time (Ronald
      Hayward),2 the victim narrowed her testimony to July.3 Based on
      the victim’s preliminary hearing testimony that the incident
      occurred after she left work around 7:00 p.m., [trial] counsel was
      able to focus on five days in July when she left work around 7:00
      p.m.[: July 5, 13, 16, 24 and 30]. He then consulted with his
      paralegal regarding alibi witnesses for those five days. [N.T.,
      9/22/2017, at 64-66.]

            _______________
            2 Appellant’s counsel during the preliminary hearing

            was not trial counsel, and counsel at the preliminary
            hearing is not the subject of an ineffectiveness claim.

            3 Hayward asked the victim if she remembered telling
            the police that the incident happened in July and the
            witness stated that she did. She then stated again
            that the incident happened in July 2012.




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            One may reasonably conclude that as an experienced
     attorney[, trial counsel] chose not to pursue an alibi defense, at
     least in part, due to the difficulty in obtaining competent and
     persuasive testimony regarding Appellant’s location during the
     relevant time period nearly two years earlier.4 If cross-examined
     at trial on [the victim’s] work schedule, a diligent and prepared
     attorney could reasonably anticipate that the victim might correct
     her testimony to indicate that the incident may have occurred in
     June or August instead, especially given her initial reluctance to
     state with specificity a month in the summer of 2012 when this
     incident occurred.

           _______________
           4 The incident in question occurred in the summer of

           2012 and the trial began on March 26, 2014.

            Furthermore, trial counsel may have considered the alibi
     witnesses and deemed them not to be credible. For example,
     [Rowland] testified at the PCRA hearing that Appellant remodeled
     her bathroom for five days that July, yet Appellant testified at the
     PCRA hearing it was a three-day job. [N.T., 9/22/2017, at 40,
     140.] Additionally, the victim’s work timesheet did not correspond
     to any of the dates Appellant claimed to have been at Rowland’s
     residence (the 5th, 13th or 16th of July 2012).[2]            [N.T.,
     9/22/2017, at 75.]       In fact, the handwritten notes on the
     timesheet written at a time closer to the underlying incident
     indicate Appellant was at two different locations on July 13, 2012
     and July 16, 2012, when he was supposedly working on Rowland’s
     bathroom.      Likewise, witness Lisa Davis, Appellant’s sister,
     testified at the PCRA hearing that she had a two-day business trip
     into Pittsburgh in July 2012, but the handwritten notes from alibi
     witnesses on the victim’s timesheet indicate the trip was for four


2
 To the extent Appellant argues that the PCRA court erred in so stating, see
Appellant’s Brief at 11-12, we observe that the handwritten notes on the
victim’s timesheet contain no indication that Appellant worked at Rowland’s
home on any date. In fact, the timesheet notes indicate that on July 13,
Appellant worked until 6:30 p.m. in Oakwood Heights, and on July 16, he
worked until 6:00 p.m. in Fox Chapel with the victim’s brother. Id. at App.
H. Rowland lives about 1½ hours away in Strothers, Ohio, and did not live in
Oakwood Heights or Fox Chapel. N.T., 9/22/2017, at 137-38; see also
Second Amended PCRA Petition, 4/28/2017, at Exh. B.


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      days. [N.T., 9/22/2017, at 81, 116, Exh. A.] Even with the
      benefit of hindsight, and the trial transcript, the alibi[-]witness
      testimony proffered at the PCRA hearing was inconsistent and not
      supported by corroborating evidence and it did not cover each of
      the July dates when the victim worked until 7:00.

             Furthermore, the strength of alibi testimony provided by a
      sister and an aunt is another factor counsel would have considered
      in making his decision. “[T]he credibility of [a] witness would be
      seriously questioned by a jury due to the nature of the relationship
      between appellant and the witness.”            Commonwealth v.
      Hoffman, 589 A.2d 737, 746 (Pa. Super. 1991). The Hoffman
      court noted, “Defense counsel’s decision not to call witnesses
      cannot be faulted when their testimony could be easily
      subverted.” Id. Given the number of days for which Appellant
      would need to account, and the apparent differences between the
      trial attorney’s handwritten notes of alibi testimony and the PCRA
      testimony, the decision not to call alibi witnesses was not an
      unreasonable one. It is clear that trial counsel did investigate,
      obtain timesheets and interview witnesses before deciding not to
      pursue an alibi defense.

PCRA Court Opinion, 9/21/2018, at 4-6 (unnecessary capitalization omitted;

some paragraph breaks supplied).

      We agree with the sound reasoning of the PCRA court. As the PCRA

court found and as is supported in the record, trial counsel’s strategy was to

argue that the victim falsely accused Appellant because Appellant had

threatened to evict her and her father from Appellant's home. Id. at 4; N.T.,

3/26-28/2014, at 52-54 (trial counsel’s stating repeatedly during opening

statement that the victim falsely accused Appellant), 165 (trial counsel’s

eliciting testimony from the victim that she and her father had nowhere else

to live and could not afford another place), 166-68 (trial counsel’s questioning




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the victim about the timing of her rape accusation with respect to her knowing

she was going to be evicted on February 15, and her reporting the incident on

February 14), 304-07 (trial counsel’s examining the victim’s father about

eviction from Appellant’s residence), 357 (trial counsel’s examining a

detective about whether the victim had reported to him the victim’s possible

eviction), 420 (trial counsel’s questioning Appellant’s sister regarding her

telling the victim and the victim’s father they had to move out of Appellant’s

residence), 484-85 (trial counsel’s arguing during closing argument that the

victim lied about being raped by Appellant because she was afraid of being

evicted).

      Trial counsel’s decision to pursue this theory of the case, instead of an

alibi defense, was reasonable, particularly where the exact date of the incident

was unknown.      The record shows that trial counsel did investigate alibi

witnesses and Appellant’s whereabouts, but the witnesses could not establish

conclusively an alibi for all potential dates. Because of time gaps and witness

inconsistencies, it was reasonable for trial counsel not to call any alibi

witnesses. See Commonwealth v. Early, 546 A2d 1236, 1238 (Pa. Super.

1988) (stating “failure to call an alibi witness is not ineffective assistance of

counsel where it is not determined that the witness is able to say unequivocally

that the alleged perpetrator was with the witness at the precise time of the

crime”). Accordingly, Appellant fails to prove the second prong of the test.




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See Johnson, 966 A.2d at 533; see also Commonwealth v. Thomas, 44

A.3d 12, 22 (Pa. 2012) (“Generally, where matters of strategy and tactics are

concerned, counsel’s assistance is deemed constitutionally effective if he

chose a particular course that had some reasonable basis designed to

effectuate his client’s interests.”) (citations and internal quotation marks

omitted).

      Appellant further claims that trial counsel was ineffective for failing to

call character witnesses regarding his reputation in the community for being

chaste and acting appropriately around children. Appellant’s Brief at 16-18.

Appellant admitted at the PCRA hearing that he had discussed with trial

counsel the strategic decision not to call character witnesses, and that trial

counsel had cautioned him that if he did so, evidence of Appellant’s prior

criminal activity may have been introduced at trial. N.T., 9/22/2017, at 52.

In addition, Gorby was unable to testify at the PCRA hearing as to Appellant’s

reputation for chastity in the community. Id. at 17. Lisa was also questioned,

but her assessment of Appellant’s reputation in the community of Pittsburgh

was limited because she lives in Indianapolis. See id. at 82, 110-13, 121-25.

      In considering this issue, the PCRA court determined that

      trial counsel’s failure to call character witnesses was not error.
      Pa.R.E. 404(a)(2)(A) states, “[A] defendant may offer evidence of
      the defendant’s pertinent trait, and if the evidence is admitted,
      the prosecutor may offer evidence to rebut it.” Pa.R.E. 404
      (a)(2)(A). The official comments to the rule notes that:




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            In a sexual abuse case, the defendant’s reputation for
            chastity in the community is relevant and admissible.
            However, ‘testimony to [defendant’s] specific acts in
            behaving appropriately around children in their family
            is not proper character evidence as to his general
            reputation for chastity in the community[.]’
            Commonwealth v. Johnson, 27 A.3d 244, 249-250
            (Pa. Super. 2011).

      Pa.R.E. 404 (a)(2)(A), Comment.

      … Davis was the only witness who testified at the PCRA hearing
      regarding Appellant’s reputation in the community for chastity.
      Davis testified that she lives out of state and only visits
      occasionally, which would make it difficult for her to assess
      Appellant’s reputation in the community of Pittsburgh. [The PCRA
      court] found that Davis, Appellant’s sister who resides out of state,
      would not be able to provide relevant character witness testimony,
      and as a result, trial counsel was not ineffective for failing to call
      her at trial. Davis’ testimony would more properly be deemed
      opinion, and not character testimony.           “Pennsylvania law
      generally limits proof of character evidence to a person’s
      reputation, and opinion evidence cannot be used to prove
      character.” Commonwealth v. Reyes-Rodriguez, 111 A.3d
      775, 781 (Pa. Super. 2015) (en banc) (citing Pa.R.E. 405(a)).

PCRA Court Opinion, 9/21/2018, at 6-7 (footnote and citation to the record

omitted).

      With respect to the PCRA court’s conclusion regarding Lisa’s testimony,

we discern no error or abuse of discretion. In addition, we point out that the

trial court and trial counsel conducted an extensive colloquy with Appellant at

trial regarding his decision not to testify or call character witnesses, and that

Appellant responded several times that he did not want to call any character

witnesses. N.T., 3/26-28/2014, at 390-401; see also N.T., 9/22/2017, at




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47, 51. Appellant knew trial counsel had character witnesses present at trial

that day, ready and willing to testify, but Appellant confirmed that he did not

want to call them. Appellant further stated that he understood he could risk

opening the door to his prior criminal convictions if he decided to call character

witnesses. Id. at 396-400. Thus, based on Appellant’s representations at

trial, Appellant’s contention that trial counsel was ineffective for not calling

character witnesses lacks arguable merit and his ineffectiveness claim fails.

See Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super. 2014)

(concluding claim that counsel was ineffective in failing to call alibi witnesses

lacked arguable merit where the trial court conducted a colloquy of Pander

regarding whether he agreed with the decision not to proffer those witnesses),

citing    Commonwealth        v.   Rios,   920   A.2d   790   (Pa.   2007)    and

Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002). See also Johnson,

966 A.2d at 533.

         Appellant next claims that the PCRA court erred in denying his claim of

ineffective assistance of counsel based on trial counsel’s cumulative errors.

Appellant’s Brief at 3. He argues that, in addition to trial counsel’s failing to

call witnesses, trial counsel’s “antics” at trial amounted to ineffective

assistance. Id. at 22. Specifically, Appellant alleges trial counsel

         gave a rambling and nonsensical opening, repeatedly asserted
         inappropriate objections, feigned ‘difficulty’ hearing, constantly
         interrupted the proceedings, aggressively dealt with witnesses as
         well as the Commonwealth and [t]rial [c]ourt, failed to explore or



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      appropriately file any relevant motions, failed to adequately
      prepare for the incarceration issue on cross examination[,] and
      gave an equally rambling and nonsensical closing.

Id.

      We observe that

      [i]t is well-settled that no number of failed ineffectiveness claims
      may collectively warrant relief if they fail to do so individually.
      Accordingly, where ineffectiveness claims are rejected for lack of
      arguable merit, there is no basis for an accumulation claim. When
      the failure of individual claims is grounded in lack of prejudice,
      however, then the cumulative prejudice from those individual
      claims may properly be assessed.

Commonwealth v. Smith, 181 A.3d 1168, 1187 (Pa. Super. 2018) (citations

and quotation marks omitted).

      In addressing these claims of error, the PCRA court determined as

follows.

            Appellant [] failed to establish that any objection or request
      for mistrial lacked arguable merit or a reasonable basis.
      Appellant’s allegation of error in trial counsel’s failure to seek a
      curative instruction following testimony that Appellant was in jail
      at one point could easily be defended as a reasonable trial strategy
      of not wanting to emphasize unfavorable testimony. Each of the
      allegations of error regarding trial counsel’s difficulty hearing, or
      his related movements around the courtroom during testimony,
      do[es] not have arguable merit. Ultimately, [the PCRA court]
      observed no indication that counsel’s purported difficulty hearing
      or his movements within the courtroom affected the trial or
      prejudiced Appellant at all. Therefore, [the PCRA court] cannot
      consider the third prong of prejudice in these examples and similar
      instances of error alleged by Appellant. Appellant’s claim of
      cumulative prejudice is without merit.

PCRA Court Opinion, 9/21/2018, at 8.




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      After a thorough PCRA evidentiary hearing, at which Appellant presented

six witnesses and whose testimony spans 200 pages, the judge, who was the

same judge who presided at Appellant’s trial, reached the conclusion that

Appellant was not entitled to relief on his cumulative error claim. As discussed

supra, we rejected Appellant’s claim of ineffectiveness in failing to call

witnesses because trial counsel had a reasonable basis for doing so, not based

on a lack of prejudice to Appellant. Thus, there can be no aggregation of

prejudice with this claim.    See Smith, 181 A.3d at 1187.         In addition,

Appellant’s claim that trial counsel was ineffective in failing to file timely

motions in limine fails because the parties and the trial court reached an

agreement on the motions prior to the start of trial, and thus, trial counsel

withdrew them. See N.T., 3/26-28/2014, at 3-14.

      Moreover, Appellant’s claim that trial counsel “failed to adequately

prepare for the incarceration issue on cross examination” also fails.      See

Appellant’s Brief at 22.      By way of background, prior to trial, the

Commonwealth sought to question the victim about her delayed report to

police and anticipated the victim would testify that she did not feel safe

reporting until after Appellant had been incarcerated on different charges.

See N.T., 3/26-28/2014, at 4-5. The parties and the trial court agreed that

Appellant’s incarceration at the time the victim reported the incident would

not be admissible at trial. Id. at 3-14. Subsequently, during trial counsel’s




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cross examination of the detective to whom the victim reported, the detective

referenced Appellant’s incarceration in response to trial counsel’s questioning

regarding the victim’s fear of Appellant and her delay in reporting the rape.3

Id. at 359-61.   Before the detective could finish his answer, trial counsel

objected immediately and moved for a mistrial. Id. at 361.         In his direct

appeal, Appellant claimed the trial court erred in not granting this motion for

mistrial. See Cubbins, supra. This Court disagreed, finding that because

Appellant’s trial counsel had elicited the detective’s testimony, Appellant

assumed the risk and could not benefit on appeal when the cross examination

had elicited an unwelcome response. Id.

      Appellant now claims that trial counsel lacked “preparation to avoid

mention of the incarceration” and the “wherewithal to request cautionary

instruction, which was prejudicial to Appellant.” Appellant’s Brief at 25. Trial

counsel sought to raise an inference of reasonable doubt by challenging the

thoroughness of the detective’s investigation and timing of the victim’s report.

As discussed supra, trial counsel’s theory of the case was that the victim

falsely accused Appellant in retaliation for her and her father’s eviction from

the residence. As such, trial counsel had a reasonable basis for asking the



3
 The detective stated, “Through my investigation, I had found that she was
afraid of him because they lived together. …Because of the fact that he was
no longer in the residence, because he was in Allegheny County Jail --,” at
which point trial counsel objected and moved for a mistrial. N.T., 3/26-
28/2014, at 361.


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detective why the victim reported she was afraid of Appellant.          Thus, we

discern no basis upon which to conclude that had trial counsel prepared more,

he would not have elicited this testimony. However, it is apparent from the

record that trial counsel could have asked for a curative instruction, but failed

to do so. Although Appellant does not argue ineffective assistance of counsel

on this basis, even if he did, he would not be entitled to relief. The detective’s

reference to Appellant’s incarceration was very brief, it did not mention an

offense, trial counsel interrupted the witness’s answer, trial counsel instantly

objected and moved for a mistrial, and the trial court immediately held a

sidebar with the parties. We do not find that this brief, general reference was

“likely to cause a jury to be so incensed as to lose sight of the ultimate

question before” it. See Commonwealth v. Morris, 519 A.2d 374, 378 (Pa.

1986). Under these circumstances, we conclude that Appellant has not shown

that there is a reasonable probability that, but for counsel’s failure, the result

of the proceeding would have been different. See Johnson, 966 A.2d at 533.

      Finally, we agree with the PCRA court’s finding that Appellant’s

remaining claims of error lack arguable merit. While Appellant may wish in

hindsight that his counsel had been more concise in his opening statement

and closing argument, had made fewer objections, had employed a less

aggressive style at trial, or had moved about the courtroom differently, none

of the matters of which he complains individually has arguable merit. As we




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have held, “no number of failed ineffectiveness claims may collectively

warrant relief if they fail to do so individually.” Thus, they cannot form the

basis of an accumulation claim. Smith, supra.

      Based on the foregoing, we discern no error in the PCRA court’s decision

to deny Appellant relief on his ineffective assistance of counsel claims.

Accordingly, we affirm the PCRA court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2019




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