J   -S05006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                    1   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

ALBERT VICTOR RAIBER,

                             Appellant                  No. 1315 MDA 2016


              Appeal from the PCRA Order Entered August 3, 2016
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001524-2012


BEFORE:     BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED FEBRUARY 28, 2017

        Appellant, Albert Victor Raiber, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.   §

9541    et seq. After   careful review, we affirm.

        The PCRA court summarized the pertinent procedural and factual

history of this case as follows:

               On January 17, 2013, [Appellant] was convicted by a jury
        of his peers of Involuntary Deviate Sexual Intercourse, Indecent
        Assault, Indecent Exposure, Corruption of a Minor, [multiple]
        Simple Assaults and False Imprisonment. Attorney Christopher
        L. Reibsome represented [Appellant] through trial. On July 29,
        2013, [Appellant] was determined to be a Sexually Violent
        Predator (SVP), given a lifetime Megan's Law registration
        requirement, and was sentenced to an aggregate incarceration
        term of twenty-nine (29) years and three (3) months to seventy-
        two (72) years.      See [N.T.] SVP Hearing and Sentencing,

*   Retired Senior Judge assigned to the Superior Court.
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        7/26/[]13, at 36.   On August 8, 2013, [Appellant] filed a Post -
        Sentence Motion challenging two counts of his sentence that
        were based on a previous conviction. This [c]ourt granted
        [Appellant's] Post -Sentence Motion on December 18, 2013[,]
        and resentenced [him] to an aggregate incarceration term of
        sixteen (16) and one half years to forty-six (46) and one half
        years. See [N.T.] Resentencing, 12/18/[]13, at 5.
              On January 17, 2014, [Appellant] filed a Notice of Appeal.
        [He] filed his Concise Statement of Matters Complained of on
        Appeal on February 10, 2014. On March 6, 2014, this [c]ourt,
        by Opinion and Order, requested that the Superior Court dismiss
        the appeal. The Superior Court affirmed this [c]ourt's judgment
        of sentence on September 4, 2014. See Commonwealth v.
        Raiber, [107 A.3d 218] (Pa. Super. ... 2014) [(unpublished
        memorandum)].
               [Appellant] initially filed the present Post Conviction Relief
        Act (PCRA) Petition on July 9, 2015. Attorney Mark Bayley was
        ultimately appointed [as Appellant's] PCRA counsel on August
        27, 2015.       This [c]ourt granted two motions extending
        [Appellant]'s deadline to file an amended PCRA Petition on
        October 16, 2015 and December 18, 2015. [Appellant] timely
        filed an Amended PCRA Petition on January 14, 2016, as well as
        addendums to the Petition on February 2, 2016 and February 29,
        2016. [A] [h]earing on the Petition occurred on March 3, 2016
        at which time the [c]ourt directed the parties to file briefs. The
        Commonwealth and [Appellant] filed timely briefs on March 31,
        2016 and April 11, 2016, respectively....
                                  BACKGROUND
                The above -captioned charges arose out of allegations of a
        pattern of sexual abuse that occurred in December [of] 2011. At
        trial, the Commonwealth first called the victim, J.W.
              J.W. testified  that, in December 2011, he befriended
        another boy named N.U. N.T. Trial, 1/16/13, at 40. J.W. was
        twelve years -old at the time. Id. The two boys spent a lot of
        time together over the 2011 Christmas break. Id. at 39-40.
        J.W. went to N.U.'s home on fi[ve] or six occasions, spending the
        night on three or four occasions.1° Id. at 43, 75. At the time,
        N.U. lived with [Appellant], his grandfather. Id. at 41-42. Nancy
        Raiber ([Appellant]'s wife), Beth Leevy ([Appellant]'s daughter),
        Brian Leevy (Beth's husband), Earl Brown (Beth's brother), and


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        Melanie Oreck (Brown's fiancé and N.U.'s mother) also lived in
        the home. Id. at 183, 185, 187-88.
              1° Defense witness, Beth Leevy[,] testified that J.W. spent
              the night on two occasions and came over once or twice
              before then. Id. at 186.
            The home itself was a small, three bedroom, single -wide
        trailer. Id. at 47, 78, 187, 193, 201. The trailer included, in
        sequence of proximity to the front door, the living room, the
        kitchen, and a hallway leading to two bedrooms, the bathroom,
        and the master ([Appellant]'s) bedroom. Id. at 47.

           J.W. identified the [Appellant] at trial. Id. at 42. He testified
        that he spent time with [Appellant] when N.U. was not around.
        Id. J.W. and [Appellant] watched movies in [Appellant]'s
        bedroom aloneil and went shopping on occasion. Id. at 42-43.
        J.W. testified that [Appellant] shut and sometimes locked his
        bedroom door while the two watched movies in the [Appellant]'s
        bedroom. Id. at 82. J.W. went on to testify about a number of
        occasions on which [Appellant] smacked or sexually abused him.
              11 J.W. conceded on cross examination that people came in
              and out of [Appellant]'s bedroom when he watched movies
              with [Appellant], but testified that he and [Appellant]
              were, on ocassion, alone for a period of time. Id. at 78 -
              79. Beth Leevy testified that her husband, Brian, and
              brother, Earl Brown, were running back and forth into the
              bedroom watching the movie with J.W. and [Appellant].
              Id. at 186.
           J.W. testified that on approximately six occasions, [Appellant]
        smacked his rear end with a stick, paddle, belt, whip or his
        hands. Id. He also stated that [Appellant] pinched his rear end
        on a few occasions. Id. at 66. J.W. testified that on more than
        one occasion, while J.W.'s pants and underwear were pulled
        down, [Appellant] bent J.W. over his knee and smacked his rear
        end. Id. at 61. The smacking resulted in bruising or scratching.
        Id.
                      described, in detail, one occasion on which
                   J.W.
        [Appellant] tied J.W.'s hands and feet to the bedframe with rope
        and hit J.W. with a paddle, belt and whip. Id. at 53-55. J.W.
        stated that on another occasion, [Appellant] handcuffed J.W.'s
        hands to [Appellant]'s bed and smacked J.W. Id. at 55-57.
        J.W. identified a photograph of the belt, paddle, whip, handcuffs

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        and rope as the items that [Appellant] used to smack or restrain
        J.W. Id. at 74-75.

              J.W. testified that the [Appellant] once drove him and one
        of [Appellant]'s friends12 to the video game store, GameStop.
        Id. at 62. J.W. stated that [Appellant] dropped the friend off in
        front of GameStop and drove behind the store.             There,
        [Appellant] smacked J.W. on the rear end while J.W. was face
        down on the passenger seat with his pants, but not underwear,
        pulled down. Id. at 63-64.
           12   It appears that [Appellant]'s "friend" was   his stepson,
           Daniel Brown, who testified that he went with [Appellant]
           and J.W. to GameStop on one occasion. Id. at 177-80.
           Daniel Brown is also referred to as "Jay[."] Id. at 204.

              J.W. testified that [Appellant] rubbed, licked and sucked
        his penis on one occasion.     Id. at 58-59. He testified that
        [Appellant] once entered the bathroom while J.W. was showering
        and washed J.W.'s entire body, including his groin area and
        buttocks, with a "spongy washcloth[."] Id. at 50, 59-60. J.W.
        stated that [Appellant] dried him off after the shower, rubbing a
        towel in a painful manner in between his legs. Id. at 60-61.
        J.W. testified that, on another occasion, [Appellant] instructed
        J.W. to bring him soap while [Appellant] was in the shower.
        J.W. did so. He saw [Appellant]'s side and saw that [Appellant]
        was nude. Id. at 65.
                        J.W.'s testimony, the Commonwealth called
                Following
        J.W.'s mother and stepfather, forensic interviewer Kim Duffy,
        Pennsylvania State Trooper Nathaniel Lieberum, Fulton County
        (PA) Chief Probation Officer Dan Miller, and Pennsylvania State
        Trooper Courtney Pattillo.
               J.W. reported the allegations of abuse and showed bruising
        to his parents on December 31, 2011. Id. at 83, 96-97. J.W.'s
        mother called the Pennsylvania State Police to report the
        allegations that same day. Id. at 98. The family met with
        Pennsylvania State Trooper Courtney Pattillo at the State Police
        barracks on January 2, 2012. Id. at 149. Trooper Pattillo
        interviewed the parents and referred the family to the Children's
        Advocacy Center for a forensic interview. Id. at 149-50. On
        January 9, 2012, forensic interviewer, Kim Duffy, interviewed
        J.W. about the allegations of abuse. Id. at 101, 124.



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               Kim Duffy testified that she did interview J.W. regarding
        the allegations on January 9, 2012. Id. at 124. Trooper Pattillo
        observed the interview via closed-circuit TV. Id. at 121-24.
        Duffy confirmed that the interview recording that the
        Commonwealth played for the jury was a fair and accurate
        depiction of her January 9, 2012 interview of J.W. Id. at 126.
               Trooper Pattillo identified the [Appellant] and testified that
        he interviewed [him] on January 10, 2012. Id. at 152-53. With
        the assistance of his initial report, Trooper Pattillo testified about
        his initial meeting with [Appellant]. Trooper Pattillo testified that
        he asked [Appellant] about each of the six incidents that J.W.
        disclosed in his forensic interview the day before. Id. at 156.
        Trooper Pattillo stated that [Appellant] admitted to spanking
        J.W. in his bedroom and holding hands with the boy. Id. at 156-
        58. Trooper Pattillo testified that [Appellant] denied having ever
        gone to GameStop with J.W. and denied performing oral sex on
        the boy. Id. at 157-158.
               Trooper Pattillo then discussed a January 12, 2012 search
        warrant to search the contents of [Appellant]'s trailer. Id. at
        161. Trooper Pattillo testified that he recovered several pieces
        of physical evidence from [Appellant]'s bedroom. Id. at 162.
        Those items included a whip found in a bedroom closet, two sets
        of hand cuffs found in different closets, two sets of ropes found
        tied to the legs of [Appellant]'s bed and another rope found in a
        travel bag, a black leather belt, and a black leather paddle. Id.
        at 164-67. Trooper Pattillo arrested [Appellant] that day. Id. at
        170.
               Trooper Lieberum testified to interviewing [Appellant] in
        2005 and ultimately charging him with simple assault, corruption
        of minors and indecent exposure.        Id. at 135-40. Trooper
        Lieberum further testified to [the] basis for the 2005 charges:
        [Appellant]'s admission to striking two naked children with a
        belt, undressing himself and ordering a child to strike him, and
        lying in bed nude with a child and hugging him. Id. at 138.
               Chief Miller testified that, in a pre -sentencing investigation
        interview, [Appellant] made the same admissions he made to
        Trooper Lieberum regarding the 2005 incidents. Id. at 143-46.
        [Appellant] ultimately pled guilty to corruption of minors as a
        result of the charges. Id. at 144.
              Attorney Reibsome's strategy at trial was "essentially - this
        could have never happened because everybody was around the

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        child."   N.T. PCRA Hearing, 3/3/16. Attorney Reibsome first
        called [Appellant]'s stepson, Daniel Brown, to testify. Brown
        testified that he went to GameStop with [Appellant] and J.W.,
        the three got out of the car at approximately the same time, and
        entered the store together.      N.T. Trial, 1/16/13, at 176-77.
        Brown further testified that nothing inappropriate happened
        while he was in the car. Id. at 178.
              Attorney Reibsome next called [Appellant]'s daughter,
        Beth Leevy.13 Leevy testified that she was living in [Appellant]'s
        home in December 2011 when J.W. spent time there. Id. at
        184. She testified that she was unemployed, and was present in
        the home "24/7" when J.W. was home, not even leaving to run
        errands. Id. at 184-85. Leevy stated that people w[]ere always
        in the home and that J.W. was never home alone with
        [Appellant]. Id. at 188. Leevy testified that [Appellant] did help
        J.W. with his homework in [Appellant]'s bedroom. Id. at 186.
        She further testified that J.W. watched movies in [Appellant]'s
        bedroom with him but Leevy's husband and brother "were
        running back and forth to that room watching movies with
        them." Id. Leevy stated that she did not witness anything
        inappropriate. Id. at 188.
           13[Appellant] and his then -wife were awarded custody of
           Leevy when she was 15 months old. Id. at 183.
           Leevy also testified to the physical makeup of the home
        stating that it was a small, single -wide trailer. Id. at 187, 193.
        She testified that the distance from the living room to the
        master bedroom is about 10 feet. Id. at 187. She stated that
        the walls are "paper -thin" and that most noises can be heard
        through the walls.14 Leevy did not recall hearing any noises
        from the master bedroom while J.W. and [Appellant] were in
        there. Id. She further stated that had she heard strange noises
        from the bedroom, she would have gone back there. Id. at 194.
           14 Conversely, J.W. testified that you couldn't really hear
           voices traveling through the walls. Id. at 78.
              Finally, Attorney Reibsome called [Appellant]'s wife, Nancy
        Raiber. Raiber testified that she was living with [Appellant] in
        the relevant time period. Id. at 196-97. She stated that she
        was unemployed and home the entire time J.W. was there. Id.
        at 198-99. Raiber testified that J.W. took a shower at the home
        on one occasion and she did not see [Appellant] go into the
        shower with him. Id. at 199.
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              Raiber testified that the [Appellant] and J.W. were alone
        together very few times, "[j]ust long enough for him to go down
        and pick up (Daniel Brown)." Id. She stated that she never saw
        anything inappropriate happening when J.W. was at the home.
        Id. at   200.
               Raiber also testified to the physical makeup of the home
        stating that it was a three -bedroom, single -wide trailer. Id. at
        201. She stated that the walls were constructed of dry wall and
        that persons in the home can hear what is going on in other
        rooms. Id. at 200-01. Raiber did, however, testify that a
        person would not necessarily hear a muffled cry unless he or she
        was at the bathroom right next to the bedroom. Id. at 203.
               In his closing argument, Attorney Reibsome conceded that
        [Appellant] committed simple assault, spanked J.W., and that
        "there was probably false imprisonment[."] N.T. Trial, 1/17/13,
        at 6, 9. He argued that the oral sex allegation was inconsistent
        with the allegations of spankings and inconsistent with
        [Appellant]'s charges. Id. at 7-10. Attorney Reibsome noted
        that J.W. called [Appellant]'s home to visit after the alleged oral
        sex incident, and argued that such unprompted action on J.W.'s
        part did not make sense if J.W.'s version of the event was to be
        believed. Id. at 7-8.
               Attorney Reibsome stated that J.W. was "far from an
        innocent person" and claimed that J.W. embellished his story
        because he did not want to return to [Appellant]'s home. Id. at
        20, 8. He argued that Ms. Duffy's testimony, and the forensic
        interview itself, was biased because Ms. Duffy's job to elicit
        testimony to be used in trial. Id. at 14-15. He argued that
        because no oral sex occurred, [Appellant] was neither guilty of
        involuntary deviate sexual intercourse nor corruption of minors.
        Id. at 18-19.
                 Ultimately, the jury found [Appellant] guilty on all charges.
PCRA Court Opinion (PCO),        8/26/16, at 1-8 (some footnotes omitted).
        Following    a   hearing, the PCRA court denied Appellant's petition by

order dated August 3, 2016.          On August 9, 2016, Appellant filed a        timely

notice of appeal, and          then filed   a   court -ordered,   Pa.R.A.P.   1925(b)



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statement on August 25, 2016.        The PCRA court issued its Rule 1925(a)

opinion on August 26, 2016.

      Appellant now presents the following questions for our review:

         1. Did the trial court err in denying ... Appellant's Amended
            Motion for [PCRA] Relief where ... Appellant's trial counsel
            was ineffective for failing to elicit testimony from Nancy
            Raiber that she had reason to believe that [J.W.] had
            snooped through a dresser drawer in ... Appellant's
            bedroom?
         2. Did the    trial court err in denying ... Appellant's Amended
            Motion for [PCRA] Relief where, in conjunction with the
            first ineffective assistance of counsel issue set forth above,
            ... Appellant's trial counsel was additionally ineffective for
            failing to interview and call [N.U.] - who could have
            testified at trial that he was present in ... Appellant's home,
            along with others, at the time [J.W.] showered there, that
            ... Appellant did not enter the bathroom while [J.W.]
            showered, that it would not have been possible for ...
            Appellant to have entered the bathroom while [J.W.]
            showered without [N.U.'s] observing ... Appellant['s] doing
            so, and that ... Appellant had never made sexual or
            otherwise inappropriate advances on him - and for failing
            to elicit testimony from Beth Leevy that she was present in
            ... Appellant's home, along with others, at the time [J.W.]
            showered there, that ... Appellant did not enter the
            bathroom while [J.W.] showered, and that it would not
            have been possible for ... Appellant to have entered the
            bathroom while [J.W.] showered without her noticing?
Appellant's Brief at 8.

      This Court's standard of review regarding an order denying       a   petition

under the PCRA    is as   follows:

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court's ruling if it
      is supported by evidence of record and is free of legal error.


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        This Court may affirm a PCRA court's decision on any grounds if
        the record supports it. Further, we grant great deference to the
        factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions. Where the
        petitioner raises questions of law, our standard of review is de
        novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194                 (Pa. Super. 2012) (internal

citations omitted).

        We must begin by briefly addressing the timeliness of Appellant's

petition, because the PCRA time limitations implicate our jurisdiction and

may not be altered or disregarded in order to address the merits of                a

petition.   Commonwealth v. Bennett, 930 A.2d 1264, 1267                (Pa. 2007).

Here, it is undisputed that Appellant's PCRA petition was timely.                On

September 4, 2014, this Court affirmed Appellant's judgment of sentence.

Appellant filed his pro se PCRA petition on July 9, 2015, well within the one-

year time limitation set forth in 42 Pa.C.S.   §   9545(b)(1) ("Any petition under
this subchapter, including    a   second or subsequent petition, shall be filed

within one year of the date the judgment becomes final....").           Accordingly,

the PCRA court had jurisdiction to entertain Appellant's PCRA petition, and

we have jurisdiction to entertain Appellant's appeal.

        Each of Appellant's claims concerns whether his trial counsel, Attorney

Reibsome, provided ineffective assistance of counsel (IAC).             In order to

successfully establish an IAC claim, Appellant     is   required

        to show: (1) that the claim is of arguable merit; (2) that counsel
        had no reasonable strategic basis for his or her action or
        inaction; and, (3) that, but for the errors and omissions of

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        counsel, there is a reasonable probability that the outcome of
        the proceedings would have been different.
Commonwealth v. Kimball, 724 A.2d 326, 333              (Pa. 1999).

        Appellant's   first IAC claim posits that Attorney Reibsome was
ineffective for failing to elicit testimony from Nancy Raiber, Appellant's wife,

regarding her suspicion that the victim snooped through their dresser

drawer.     Essentially, Appellant contends that such testimony would have

offered an alternative explanation for the victim's familiarity with the sex

toys discovered by police in Appellant's bedroom, to counter the inference

that such knowledge could have only derived from Appellant's having

performed the alleged criminal acts against the victim.           The PCRA court

dismissed this claim as having failed to prove any of the three prongs of the

IAC test enumerated in       Kimball.      However, we need not address each

prong in our review as "[f]ailure to prove any prong of this test will defeat

an ineffectiveness claim."   Commonwealth v. Fears, 86 A.3d 795, 804              (Pa.

2014).

        We begin with the arguable merit prong of Appellant's         first IAC claim.
At the PCRA hearing, Nancy Raiber was asked what she "knew about [J.W.]

snooping around in [her] bedroom...."            N.T. PCRA Hearing,   3/3/16, at 33.
Ms. Raiber answered:

        Um, I went to get a hanky out of my dresser drawer and I
        noticed my dresser drawer was open, which had all my lingerie
        in it.   And, at that time, I asked [Appellant] ... "Why is my
        dresser drawer open?" He sa[id], "I have no idea." So, I closed
        my dresser drawer and I left the room, went back out to the
        living room to where my computer was.


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Id.    She was then asked why she suspected J.W. had looked through the

drawer.    She said that at that time she noticed the open drawer, J.W. was

with Appellant in the room, doing his homework and "reading out of the

Bible with Appellant."       Id. at   34.    She suggested that J.W. was alone at

some point because Appellant had used the bathroom.                 Id.   She also stated

that all of the sex toys      in   question were located in the closet, not in her

lingerie drawer.   Id.
        In rejecting this claim as lacking arguable merit, the PCRA court stated

that the allegation of ineffectiveness "was factually inaccurate" because,

even if the jury had credited Ms. Raiber's PCRA hearing testimony, it did not

establish any link to the location where the sex toys were kept, as confirmed

both by Mr. Raiber's testimony and the police's search which uncovered

those items.     PCO     at 12.    The court went on to opine that         "[t]here   is no

factual support for [Appellant's] proposed theory" that J.W. 'must have'

snooped through the closet if he snooped through Ms. Raiber's dresser

drawer.    Id. Indeed,       as cited by the PCRA court, Ms. Raiber specifically

testified that she had no reason to believe that anyone had 'snooped'

through any other area of the bedroom. See N.T. PCRA Hearing at 35-36.

        Appellant counters that the PCRA court "seems to assume that the

bedroom closet was located in some other part of the universe, rather than

right next to the bedroom drawer. The            ...   court's position wrongly presumes

that the defense cannot use simple circumstantial evidence just as

effectively as the prosecutor." Appellant's Brief at 29.              We disagree with

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Appellant's characterization of this testimonial evidence. Ms. Raiber did not

observe J.W.'s snooping through her lingerie drawer.              She merely testified

that it was open. Moreover, she testified that nothing was missing from the
drawer.    N.T. PCRA Hearing at 36.         Ms. Raiber did not even indicate      that
anything was out of order in the drawer when she found it open. She also

specifically testified that she had no reason to suspect that anyone had

'snooped' through her bedroom closet. Id. Given these facts, we conclude,

as did the PCRA court,       that Appellant's attempt to connect this essentially
trivial fact (an open lingerie drawer) to the otherwise unsubstantiated

allegation that J.W. snooped through an entirely different location, albeit          a

nearby one, does not cross the threshold of what constitutes an arguably

meritorious claim.     It   is   merely conjecture built on   a    foundation of rote

speculation. While this Court might have been tempted to agree that actual

evidence (direct or circumstantial) of J.W.'s snooping could have supported

the secondary inference of snooping in the closet, given the close proximity

of the two locations, we simply reject the notion that Ms. Raiber's suspicion,

based merely on an open drawer, was competent circumstantial evidence to

that effect.     Accordingly, we conclude that the PCRA court did not err in

determining that Appellant's first IAC claim lacked arguable merit.               The

court's decision and analysis were free of legal error and supported by the

facts of record.      As noted above, we therefore need not address the

remaining prongs of the IAC test for this claim.



                                         - 12 -
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        Next, Appellant presents two separate, but partially -related IAC claims

in   the second question he presents for our review. We will address each in

turn.    First, Appellant asserts that Attorney Reibsome was ineffective for

failing to call N.U. to testify for the defense.         N.U. testified that he was

willing to testify at Appellant's trial that 1) Appellant did not enter the

bathroom on the occasion that J.W. took        a    shower in the Raiber home, and

that it was not possible for Appellant to entered the bathroom unobserved;
and 2) that N.U. never observed Appellant engage in sexually inappropriate

acts with himself, J.W., or anyone else.           Appellant's Brief at 8.   This sub -

claim itself can be separated into multiple claims; however, each is governed

by the same standard.        "[I]n order   to obtain relief on the basis of an

ineffectiveness claim premised upon counsel's failure to call witnesses,

[A]ppellant must establish that: 1) the witness existed; 2) the witness was

available; 3) counsel knew or should have known about the witness; 4) the

witness was prepared to cooperate and testify at trial; and 5) absence of the

testimony prejudiced appellant.      Commonwealth v. Smolko, 666 A.2d
672, 679 (Pa. Super. 1995). The first four parts of the Smolko test are not

in   dispute in this appeal; N.U. existed, he was available to testify, counsel

knew about him, and N.U. was willing to testify at Appellant's trial.              The

remaining prejudice element of the Smolko test is, in essence, the same as

the three -pronged IAC test set forth in Kimball.

        The PCRA court determined that Appellant's IAC claims regarding N.U.

are of arguable merit.    We disagree with this analysis in one respect: N.U.'s

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testimony that Appellant did not engage or attempt to engage in sexually

inappropriate acts with N.U., or with anyone other than J.W., was simply not

relevant to the issues in dispute at Appellant's trial. N.U. was not            a   victim   in

this case.        Accordingly, testimony concerning Appellant's relationship with

him was, at best, improper character testimony.                 See Commonwealth v.

Van Horn, 797 A.2d 983, 988 (Pa. Super. 2002) (holding that testimony by

a   defendant's relatives that the defendant had not "sexually abused any of

them     ...   does not constitute proper character testimony" because it was not

testimony          "regarding   [the   defendant's]        'general   reputation     in   the

community.").           As such, this aspect of Appellant's claim lacks arguable

merit.         As to the remaining sub -parts of Appellant's claim, regarding trial

counsel's failure to call N.U. to testify, we agree with the PCRA court's

assessment that arguable merit exists, with respect to trial counsel's failure

to call N.U. to testify about the shower incident, and the fact that he never

observed Appellant abusing J.W.           These aspects of N.U.'s testimony would

have been clearly relevant to the issues under consideration at Appellant's

trial.

         Therefore, we now turn to the reasonable basis prong.                  The PCRA

court found that Attorney Reibsome had              a   reasonable basis to decline to call

N.U. to the stand in Appellant's defense:

                Attorney Reibsome testified that, while he does not recall
         interviewing N.U., he does recall discussing with [Appellant]'s
         family whether N.U. should testify due to his age and either
         behavioral or mental health issues. N.T. PCRA Hearing, 3/3/16,
         at 13. Attorney Reibsome recalled being uncomfortable "putting

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       an unknown on the stand" and recalled coming to an agreement
       with [Appellant]'s family that he would not call N.U. to testify.
       Id. at 14. Attorney Reibsome further testified that he had Nancy
       Raiber testify specifically to the shower incident. Id.
              N.U. testified that he suffers from anxiety and bipolar
       disorder and has been medicated for those conditions almost all
       of his life. Id. 43 -44. He further stated that his anxiety issues
       arise when he is in a small area with a lot of people, and that he
       deals with the anxiety by trying to remain calm and fighting it
       out the best he can. Id. at 44.
             We find that, due to N.U.'s age and medical issues,
       Attorney Reibsome had a reasonable basis in deciding not to call
       N.U. to testify. As such, [Appellant]'s claim fails the second ...
       prong [of the IAC test].
PCO   at 17.

       Appellant argues that "[there] are no facts in the record to suggest

that the defense had anything to lose by calling [N.U.] to testify and                ...   the

defense had much to gain.              Trial counsel should not have relied on third

party opinions under such circumstances[,]" and "in the absence of an

interview," counsel's "statement that [N.U.] was an 'unknown,'                ...   does not

support his decision to forego his testimony." Appellant's Brief at 33.

       We note that Appellant did not present a claim to the PCRA court that

counsel was ineffective for failing to interview N.U.                    See Appellant's

Amended PCRA Petition, 1/14/16, at 2 ¶4(b).               "[T]he question of failing to
interview      a   witness   is   distinct from failure to call   a   witness to testify."

Commonwealth v. Dennis, 950 A.2d 945, 960                    (Pa. 2008).     Accordingly,

we must deem this issue waived. See Pa.R.A.P. 302(a) ("Issues not raised




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in   the lower court are waived and cannot be raised for the first time on

appeal.").1

       As to Appellant's remaining argument concerning            Attorney Reibsome's

basis for not calling N.U., Appellant baldly asserts that the defense had

'nothing to lose,' by offering N.U.'s testimony; however, Attorney Reibsome

expressed concerns with putting        a   mentally unstable individual on the stand.

Appellant offers no legal authorities suggesting that this strategy for not

calling N.U. to testify was improper, or that it        is   trumped by an alternative

'nothing to lose' strategy.       Moreover, we cannot view Attorney Reibsome's

decision in   a   vacuum. He testified that his decision was also informed by the

fact that he already had      a   witness to testify regarding the shower incident,

as well as to Appellant's conduct around J.W., as Mrs. Raiber claimed to

have been always present when J.W. was at their home.               N.T. PCRA Hearing

at 13-14.

       Our Supreme Court has stated:

       "With regard to 'reasonable basis,' the PCRA court 'does not
       question whether there were other more logical courses of action
       which counsel could have pursued; rather, [the court] must
       examine whether counsel's decisions had any reasonable basis.'


1
   Even if this fact was not known to Appellant when he filed his amended
PCRA petition, he failed to seek to amend his petition to add such a claim
after testimony establishing the factual basis for it arose during the course of
the PCRA hearing. Moreover, Appellant did not raise this claim appropriately
in his brief, as it does not appear in his statement of the questions
presented, but instead is offered in the middle of his argument pertaining to
trial counsel's failure to call N.U. to testify.


                                           - 16 -
J   -S05006-17


        Commonwealth v. Bardo, ... 105 A.3d 678, 684 (2014)[].
        "Where matters of strategy and tactics are concerned, '[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. Spotz, 624
        Pa. 4, 33, 84 A.3d 294, 311-12 (2014)[].

Commonwealth v. Mason, 130 A.3d 601, 618                    (Pa. 2015).

        Given these circumstances, as well as Appellant's failure to offer legal

authority to the contrary, we are constrained to conclude that the                    PCRA

court did not err as   a   matter of law    in   determining that Attorney Reibsome

had a reasonable basis to decline to call N.U. to testify on Appellant's behalf.

We also conclude that the facts of record adequately support the basis for

that decision.     Appellant's 'nothing to lose' theory does not, in our view,

constitute    an   alternative   strategy        offering    "a   potential   for   success

substantially greater than the course actually pursued." Id. (emphasis
added). It merely offers an alternative with some potential for success, no

matter how slight.      Accordingly, Appellant is not entitled to relief on this

aspect of his second IAC claim.

        Finally, Appellant contends that Attorney Reibsome was ineffective for

failing to elicit testimony from Beth Leevy that she was present when J.W.

showered in Appellant's home, that Appellant did not enter the bathroom

during that time, and that it would have been impossible for him to do so

unnoticed. The PCRA court accepted that there was arguable merit to this

claim, and that Attorney Reibsome lacked             a   reasonable basis for failing to

elicit such testimony from Ms. Leevy.              PCO      at 18-19.     We ascertain no


                                       - 17 -
J   -S05006-17



reason to dispute those determinations, and we are not being asked to do so

by the parties in this case.

        However, the court did determine that Appellant was not prejudiced by

trial counsel's omission       in   this regard, and so we move directly to

consideration of the third IAC prong. The PCRA court reasoned:

               [Appellant] argues that Attorney Reibsome's failure to
        question Beth Leevy about the shower incident, particularly
        coupled with N.U.'s testimony of the same, "would have enabled
        the defense to argue that four witnesses, including another child,
        directly contradicted J.W.'s claims on the only two alleged
        assaults that could be connected with precise times."
        [Appellant]'s 4/11/16 Memorandum in Law, at 30. [Appellant]
        alleges that "[t]here is a reasonable probability that the inclusion
        of this cumulative testimony would have changed the result of
        the trial." Id.
              Cumulative testimony is generally unnecessary to avoid
        prejudice in an ineffective assistance of counsel claim. However,
        the cumulative prejudicial effect of multiple omissions by trial
        counsel, even where each omission does not satisfy the
        prejudice prong alone, may warrant a new trial.                 See
        Commonwealth v. Champney, 65 A.3d 386 (Pa. 2013);
        Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). In
        Champney and Johnson, however, the multiple ineffective
        assistance of counsel claims satisfied the two initial [IAC] prongs
        but could not satisfy the prejudice prong alone. Here, however,
        we have dismissed [Appellant]'s claim regarding N.U.'s
        testimony because Attorney Reibsome had a reasonable basis in
        deciding not to call N.U. to testify.      Consequently, the rule
        established in Champney is inapplicable here.18 Thus,
        [Appellant]'s instant claim stands alone. We find that Beth
        Leevy's testimony regarding the shower incident is cumulative as
        Nancy Raiber testified to the shower incident at trial.
           18
                 Furthermore, N.U.      and   Beth   Leevy   provided
           contradictory testimony as to the shower incident. N.U.
           testified that he was in [Appellant]'s bedroom with
           [Appellant] when J.W. showered whereas Leevy testified
           that everyone was in the living room. Id. at 39-40, 49.

                                        - 18 -
J   -S05006-17


                Furthermore, Leevy's testimony called into doubt Mrs.
        Raiber's    testimony regarding the shower incident.        Leevy
        testified that Mrs. Raiber likely would not have been able to see
        the bathroom door due to where she was seated in the living
        room. N.T. PCRA Hearing, 3/3/16, at 49.
               Accordingly, we find that [Appellant] suffered no prejudice
        as a result of Attorney Reibsome's failure to question Beth Leevy
        about the shower incident. As such, [Appellant]'s claim fails the
        third [IAC] prong.
PCO    at 20-21 (some internal citations omitted).

        We agree with the PCRA court.            Leevy's proposed testimony was

cumulative of Mrs.      Raiber's testimony regarding       the shower incident.

Accordingly, the prejudice suffered by Appellant by the omission of that

testimony must have been less than had no such testimony been offered at

all.    Moreover, whatever benefit Appellant would have reaped from this

additional, cumulative testimony could have easily been undermined by the

conflicts in the testimony between Mrs. Raiber and Ms. Leevy. Indeed, it is

not inconceivable that such      a   conflict could have harmed Appellant more

than he gained from the additional testimony.

        To prove prejudice under the third prong of the IAC test, Appellant

must show that "there     is a   reasonable probability that the outcome of the

proceedings would have been different" absent counsel's error.         Kimball,
724 A.2d at 333.     Appellant's argument simply fails to convince us that the

presence of Ms. Leevy's proposed testimony could have produced such           a

reasonable probability, given its cumulative nature, and because it could

have actually undermined the testimony to the same effect actually elicited

at trial. Accordingly, we conclude that the PCRA court's determination that

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Appellant was not sufficiently prejudiced by counsel's omission to warrant

relief   is   free of legal error and supported by the record.

         Order    affirmed.
Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 2/28/2017




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