Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA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 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.* FILED FEBRUARY 28, 2017

MEMORANDUM BY BENDER, P.J.E.: Appellant, Albert Victor Raiber, appeals from order denying his petition filed pursuant Post Conviction Relief Act (PCRA), Pa.C.S. § et seq. After careful review, affirm. summarized the pertinent procedural factual history of case follows:

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

7/26/[]13, at 36. On August 8, 2013, [Appellant] filed a Post Sentence Motion challenging two counts of his sentence were based on previous conviction. This [c]ourt granted [Appellant's] Post -Sentence Motion on December 18, 2013[,] and resentenced [him] an aggregate incarceration term of sixteen (16) and one half years forty-six (46) and one half years. See [N.T.] Resentencing, 12/18/[]13, 5.

On January 17, 2014, [Appellant] filed Notice Appeal. [He] filed Concise Statement of Matters Complained on Appeal on February 10, 2014. On March 6, 2014, [c]ourt, Opinion Order, requested the Superior Court dismiss 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 ... 2014) [(unpublished memorandum)].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. Mark Bayley was ultimately appointed [as Appellant's] PCRA counsel on August [c]ourt granted 27, 2015. This two motions extending deadline file an amended Petition on [Appellant] timely October 16, 2015 December 18, 2015. filed Amended Petition on January 14, 2016, well as addendums the Petition on February 2, 2016 February 29, [A] [h]earing on Petition occurred on March 3, 2016 at which time [c]ourt directed the parties file briefs. The filed timely briefs on March 31, April respectively....

BACKGROUND The above -captioned charges arose out of allegations of a pattern of sexual abuse occurred December [of] 2011. At trial, the Commonwealth first called the victim, J.W.

J.W. that, December 2011, befriended another boy named N.U. N.T. Trial, 1/16/13, 40. J.W. was twelve years -old at the time. Id. two boys spent lot of Id. 39-40. time together over the Christmas break. went to N.U.'s home fi[ve] or six occasions, spending night three or four occasions.1° at 43, At time, N.U. lived [Appellant], grandfather. Id. 41-42. Nancy ([Appellant]'s wife), Beth Leevy ([Appellant]'s daughter), Brian Leevy (Beth's husband), Earl Brown (Beth's brother), and

-2 Melanie Oreck (Brown's fiancé and N.U.'s mother) also lived in home. Id. at 183, 187-88.

1° Defense witness, Beth Leevy[,] testified that J.W. spent night on two occasions and came over once or twice before then. Id. at 186. home itself a small, three bedroom, single -wide

trailer. Id. at 78, 187, 193, 201. The trailer included, in sequence proximity 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. not around. Id. [Appellant] watched movies in [Appellant]'s J.W. and bedroom aloneil and went shopping on occasion. Id. at 42-43. J.W. testified [Appellant] shut and sometimes locked his bedroom door while the two watched movies [Appellant]'s bedroom. Id. at 82. J.W. went on testify about a number of occasions on which [Appellant] smacked or sexually abused him. J.W. conceded on cross examination people came

and out of [Appellant]'s bedroom when he watched movies with [Appellant], but testified and [Appellant] were, on ocassion, alone a period of time. Id. at 79. Beth Leevy testified her husband, Brian, and brother, Earl Brown, were running back and forth into bedroom watching the movie with J.W. and [Appellant]. Id. at

J.W. testified on approximately six occasions, [Appellant] smacked his rear end with a stick, paddle, belt, whip or his hands. Id. He also stated [Appellant] pinched his rear end on few occasions. Id. J.W. on more than one occasion, while J.W.'s pants and underwear were pulled down, [Appellant] bent J.W. over knee smacked rear end. Id. 61. The smacking resulted bruising or scratching. Id.

J.W. described, detail, one occasion which [Appellant] tied J.W.'s hands feet the bedframe with rope hit J.W. paddle, belt whip. Id. 53-55. J.W. stated another occasion, handcuffed J.W.'s 55-57. hands to bed smacked J.W. identified photograph of the belt, paddle, whip, handcuffs

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

J.W. testified [Appellant] once drove him and one [Appellant]'s friends12 to the video game store, GameStop. Id. at 62. J.W. stated [Appellant] dropped the friend off front 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 his pants, but not underwear, pulled down. Id. at 63-64. It appears [Appellant]'s "friend" was his stepson,

Daniel Brown, who testified went with [Appellant] Id. at 177-80. and J.W. to GameStop on one occasion. Daniel Brown also referred "Jay[."] Id. at 204. J.W. testified [Appellant] rubbed, licked and sucked Id. at 58-59. He testified

his penis on one occasion. [Appellant] once entered the bathroom while J.W. showering and washed J.W.'s entire body, including his groin area and buttocks, with "spongy washcloth[."] Id. at 50, 59-60. J.W. stated [Appellant] dried him off after the shower, rubbing a Id. at 60-61. towel painful manner between legs. J.W. that, on another occasion, [Appellant] instructed J.W. bring him soap while the shower. J.W. did so. He saw side saw [Appellant] was nude. Id. at 65.

Following J.W.'s testimony, the Commonwealth called J.W.'s mother stepfather, forensic interviewer Kim Duffy, Pennsylvania State Trooper Nathaniel Lieberum, Fulton County (PA) Chief Probation Officer Dan Miller, Pennsylvania State Trooper Courtney Pattillo.

J.W. reported the allegations of abuse showed bruising parents December 31, 2011. Id. at 83, 96-97. J.W.'s mother called Pennsylvania State Police report allegations same day. Id. 98. The family met with Pennsylvania State Trooper Courtney Pattillo at the State Police barracks January 2, Id. 149. Trooper Pattillo interviewed the parents referred the family the Children's Id. 149-50. On Advocacy Center forensic interview. January 2012, forensic interviewer, Kim Duffy, interviewed about the allegations of abuse.

-4 Kim Duffy testified she did interview J.W. regarding the allegations January 9, 2012. Id. at 124. Trooper Pattillo Id. at 121-24. observed the interview via closed-circuit TV. that interview that Duffy confirmed recording the 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] January 2012. Id. at 152-53. With the assistance of his initial report, Trooper Pattillo testified about his initial meeting with [Appellant]. Trooper Pattillo testified he asked [Appellant] about each of the six incidents J.W. disclosed in forensic interview the day before. Id. at 156. Trooper Pattillo stated [Appellant] admitted to spanking in bedroom and holding hands with the boy. Id. at 156- 58. Trooper Pattillo testified [Appellant] denied having ever gone to GameStop with J.W. and denied performing oral sex on boy. Id. at 157-158.

Trooper Pattillo then discussed a January 2012 search warrant to search the contents of [Appellant]'s trailer. Id. at Trooper Pattillo testified 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 legs of [Appellant]'s bed another rope found a travel bag, a black leather belt, a black leather paddle. Id. at 164-67. Trooper Pattillo arrested [Appellant] day. Id. at 170.

Trooper Lieberum testified interviewing [Appellant] ultimately charging him with simple assault, corruption Id. at 135-40. Trooper minors and indecent exposure. Lieberum further testified [the] basis 2005 charges: admission striking two naked children with a belt, undressing himself ordering child to strike him, and lying bed nude child hugging him. Id. 138.

Chief Miller that, pre -sentencing investigation interview, [Appellant] made same admissions made to Trooper Lieberum regarding the 2005 incidents. Id. 143-46. ultimately pled guilty corruption minors a result of the charges. Reibsome's strategy trial "essentially - this

could have never happened because everybody around the child." N.T. 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 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 Id. at home December 2011 when J.W. spent time there. 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 that J.W. was never home alone with the home and in [Appellant]. Id. at 188. Leevy testified that [Appellant] did help J.W. with homework [Appellant]'s bedroom. Id. at 186. She further testified that J.W. watched movies [Appellant]'s bedroom with him but Leevy's husband and brother "were running back forth that room watching movies with Id. Leevy stated that she did not witness anything them." inappropriate. Id. at 188.

[13] [Appellant] then -wife were awarded custody of Leevy when she was 15 months old. Id. at 183.

Leevy also testified physical makeup of home stating was small, single -wide trailer. Id. at 187, 193. She testified the distance from the living room the master bedroom about feet. Id. at She stated the walls are "paper -thin" 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 she heard strange noises from the bedroom, she would have gone back there. Id. at 194. Conversely, J.W. testified you couldn't really hear

voices traveling through walls. Id. 78.

Finally, Reibsome called wife, Nancy Raiber. Raiber testified she was living with [Appellant] relevant time period. Id. 196-97. She stated she unemployed home the entire time J.W. there. Id. 198-99. took shower at the home one occasion she see go into shower him.

-6 Raiber testified that the [Appellant] and J.W. were alone together very few times, "[j]ust long enough him to go down pick up (Daniel Brown)." Id. She stated that she never saw anything inappropriate happening when J.W. was at the home. Id. also to physical makeup of the home

stating that it was a three -bedroom, single -wide trailer. Id. at 201. She stated the walls were constructed of dry wall and persons home can hear what going other Id. 200-01. Raiber did, however, testify that a rooms. person would not necessarily hear a muffled cry unless he or she was at the bathroom right next the bedroom. Id. at 203.

In closing argument, Attorney Reibsome conceded that [Appellant] committed simple assault, spanked J.W., that "there was probably false imprisonment[."] N.T. Trial, 1/17/13, 6, 9. He argued oral sex allegation was inconsistent with inconsistent with the allegations of spankings and Id. 7-10. Attorney Reibsome noted [Appellant]'s charges. J.W. called [Appellant]'s home to visit after alleged oral sex incident, argued such unprompted action J.W.'s part did not make sense if J.W.'s version of the event was to be believed. Id. at 7-8. Reibsome stated J.W. "far from an

innocent person" claimed embellished story because want return home. Id. at 20, 8. He argued Ms. Duffy's testimony, the forensic interview itself, was biased because Ms. Duffy's job elicit Id. at 14-15. He argued be used trial. because no oral sex occurred, neither guilty of involuntary deviate sexual intercourse nor corruption of minors. at 18-19.

Ultimately, the jury found [Appellant] guilty on all charges. Court Opinion (PCO), 8/26/16, at 1-8 (some footnotes omitted). Following hearing, the denied Appellant's petition by order dated August On August 2016, filed timely notice of appeal, and then filed court -ordered, Pa.R.A.P. 1925(b)

-7 statement on August 2016. PCRA court issued its Rule 1925(a) opinion August 2016.

Appellant now presents the following questions for our review:

1. Did trial court err in denying ... Appellant's Amended Motion for [PCRA] Relief where ... Appellant's trial counsel ineffective for failing elicit from Nancy she had reason to believe [J.W.] had snooped through a dresser drawer ... Appellant's in bedroom? Did trial court err denying ... Appellant's Amended

Motion for [PCRA] Relief where, conjunction with the first ineffective assistance of counsel issue set forth above, ... Appellant's trial counsel was additionally ineffective for failing interview call [N.U.] - who could have trial present ... Appellant's home, along with others, time [J.W.] showered there, ... Appellant did not enter the bathroom while [J.W.] showered, 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 ... Appellant never made sexual or otherwise inappropriate advances him - for failing elicit testimony from Beth Leevy that she was present ... Appellant's home, along with others, at the time [J.W.] showered there, ... Appellant enter the bathroom while [J.W.] showered, it would not been possible ... to have entered the bathroom while [J.W.] showered without her noticing? Appellant's Brief

This Court's standard of review regarding an order denying petition under the PCRA is follows:

We review order dismissing petition under the PCRA in the light most favorable the prevailing party at the PCRA level. This review is limited the findings of the evidence of record. will not disturb court's ruling if it supported evidence of record is free of legal error. This Court may affirm PCRA court's decision any grounds if the record supports it. Further, grant great deference factual findings of the PCRA court will not disturb those findings unless they no support 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 our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, (Pa. Super. 2012) (internal citations omitted). must begin briefly addressing the timeliness of Appellant's

petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded order to address merits of a petition. v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Here, it is undisputed Appellant's PCRA petition timely. On September 4, 2014, this Court affirmed Appellant's judgment sentence. Appellant filed his pro se PCRA petition July well within the one- year time limitation set forth Pa.C.S. § 9545(b)(1) ("Any petition under this subchapter, including second or subsequent petition, shall be filed within one year of the date judgment becomes final...."). Accordingly, had jurisdiction entertain Appellant's petition, and we have jurisdiction entertain Appellant's appeal.

Each Appellant's claims concerns whether trial counsel, Attorney Reibsome, provided ineffective assistance of counsel (IAC). In order to successfully establish IAC claim, is required show: (1) claim of arguable merit; (2) counsel no reasonable strategic basis for or her action or

inaction; and, (3) that, but the errors omissions of

-9 counsel, there is reasonable probability the outcome of the proceedings would have been different.

Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). first IAC claim posits that Attorney Reibsome was

Appellant's ineffective failing elicit testimony from Nancy Raiber, Appellant's wife, regarding her suspicion victim snooped through their dresser drawer. Essentially, contends such would have offered an alternative explanation for the victim's familiarity with sex toys discovered police in Appellant's bedroom, counter the inference such knowledge could have only derived from Appellant's having performed the alleged criminal acts against the victim. PCRA court dismissed claim as having failed prove any of the three prongs of the IAC test enumerated Kimball. However, need not address each prong our review "[f]ailure to prove any prong of this test will defeat ineffectiveness claim." v. Fears, A.3d 795, 804 (Pa. 2014). begin the arguable merit prong Appellant's first IAC claim.

At hearing, Nancy Raiber was asked what she "knew about [J.W.] snooping around [her] bedroom...." N.T. Hearing, 3/3/16, Ms. answered:

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

Id. She then asked why she suspected J.W. had looked through the drawer. She said that that time she noticed the open drawer, J.W. was with Appellant in the room, doing homework "reading out of the Bible Appellant." Id. 34. She suggested that J.W. alone at some point because had used the bathroom. She also stated all of the sex toys question were located the closet, not in her lingerie drawer. Id.

In rejecting this claim as lacking arguable merit, the PCRA stated the allegation of ineffectiveness "was factually inaccurate" because, even if the jury had credited Ms. Raiber's PCRA hearing testimony, not establish any link the location where the sex toys were kept, as confirmed both by Mr. Raiber's the police's search which uncovered those items. PCO 12. The court went opine "[t]here no factual support for [Appellant's] proposed theory" that 'must have' snooped through the closet if snooped through Ms. Raiber's dresser Id. Indeed, as cited PCRA court, Ms. specifically drawer. she no reason to believe anyone had 'snooped' through any other area of the bedroom. See N.T. Hearing at 35-36.

Appellant counters court "seems to assume bedroom closet was located some other part of the universe, rather than right next the bedroom drawer. ... court's position wrongly presumes defense cannot use simple circumstantial evidence just as effectively prosecutor." Appellant's Brief disagree with Appellant's characterization this testimonial evidence. Ms. Raiber did not observe J.W.'s snooping through her lingerie drawer. She merely testified that was open. Moreover, she that nothing was missing from the drawer. N.T. PCRA Hearing Ms. did not even indicate anything out order drawer when she found it open. She also specifically testified she no reason to suspect that anyone had 'snooped' through her bedroom closet. Given these facts, we conclude, did court, Appellant's attempt connect this essentially trivial fact (an open lingerie drawer) the otherwise unsubstantiated allegation snooped through an entirely different location, albeit a nearby one, does not cross the threshold of what constitutes arguably It merely conjecture built foundation of rote meritorious claim. speculation. While this Court might been tempted to agree actual evidence (direct or circumstantial) of J.W.'s snooping could have supported the secondary inference of snooping the closet, given the close proximity of the two locations, we simply reject the notion Ms. Raiber's suspicion, based merely on an open drawer, competent circumstantial evidence to effect. Accordingly, we conclude err determining Appellant's first IAC claim lacked arguable merit. The court's decision analysis were free of legal error supported facts of record. As noted above, therefore need not address the remaining prongs of the IAC test for claim.

Next, Appellant presents two separate, but partially -related IAC claims in the second question he presents for our review. We will address each turn. First, Appellant asserts Reibsome was ineffective for failing to call N.U. to testify the defense. N.U. he was willing testify Appellant's trial 1) Appellant enter the bathroom the occasion took shower in the Raiber home, and was not possible for Appellant entered the bathroom unobserved; and 2) N.U. never observed engage in sexually inappropriate acts himself, J.W., or anyone else. Appellant's Brief This sub - claim itself can be separated into multiple claims; however, each governed "[I]n order obtain relief basis an same standard. 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) witness was prepared to cooperate testify trial; and 5) absence of the prejudiced appellant. v. Smolko, 666 A.2d 672, 679 (Pa. Super. 1995). The first four parts of the Smolko test are not in dispute in appeal; N.U. existed, available testify, counsel knew about him, N.U. willing testify Appellant's trial. The remaining prejudice element of the Smolko test is, essence, same as three -pronged IAC test set forth Kimball. court determined that Appellant's IAC claims regarding N.U. are of arguable merit. disagree with this analysis one respect: N.U.'s testimony Appellant not engage or attempt to engage sexually inappropriate acts with N.U., or with anyone other than J.W., was simply not relevant to issues dispute Appellant's trial. N.U. not victim in this case. Accordingly, testimony concerning Appellant's relationship with him was, best, improper character testimony. See v. Van Horn, 797 A.2d (Pa. Super. 2002) (holding that testimony by defendant's relatives the defendant had not "sexually abused any of them ... does not constitute proper character testimony" because not testimony "regarding [the defendant's] 'general reputation community."). As such, aspect of Appellant's claim lacks arguable merit. As to the remaining sub -parts Appellant's claim, regarding trial counsel's failure to call N.U. to testify, agree with court's assessment arguable merit exists, respect to trial counsel's failure call N.U. testify about the shower incident, the fact he never observed abusing These aspects N.U.'s would been clearly relevant issues under consideration at Appellant's trial.

Therefore, we now turn the reasonable basis prong. PCRA found that Attorney Reibsome reasonable basis to decline to call N.U. stand Appellant's defense:

Attorney Reibsome that, while he does recall interviewing N.U., does recall discussing with [Appellant]'s family whether N.U. should testify due to age and either behavioral or mental health issues. N.T. Hearing, 3/3/16, Reibsome recalled being uncomfortable "putting an unknown the stand" and recalled coming to an agreement with [Appellant]'s family he would not call N.U. to testify. Id. at Attorney Reibsome further testified he had Nancy testify specifically to the shower incident. Id.

N.U. he suffers from anxiety bipolar disorder and has been medicated those conditions almost all his life. Id. 43 -44. He further stated his anxiety issues arise when he is a small area with a lot of people, he deals the anxiety by trying to remain calm fighting it out the best can. 44.

We find that, due to N.U.'s age and medical issues, Reibsome had a reasonable basis deciding not to call N.U. to testify. As such, claim fails the second ... prong [of the IAC test].

PCO 17.

Appellant argues "[there] are no facts record suggest defense had anything lose calling [N.U.] testify ... defense much to gain. Trial counsel should not have relied third party opinions under such circumstances[,]" "in absence an interview," counsel's "statement that [N.U.] 'unknown,' ... does not support decision to forego testimony." Appellant's Brief note not present claim to counsel was ineffective for failing to interview N.U. See Appellant's Amended Petition, 1/14/16, 2 ¶4(b). "[T]he question of failing to interview witness distinct from failure call witness testify." v. Dennis, 950 A.2d (Pa. 2008). Accordingly, must deem issue waived. See Pa.R.A.P. 302(a) ("Issues raised in the lower court are waived cannot be raised for first time on appeal.").1

As to Appellant's remaining argument concerning Attorney Reibsome's basis for not calling N.U., Appellant baldly asserts defense had 'nothing to lose,' by offering N.U.'s testimony; however, Attorney Reibsome expressed concerns with putting a mentally unstable individual stand. Appellant offers no legal authorities suggesting this strategy for not calling N.U. to testify was improper, or it is trumped by alternative 'nothing to lose' strategy. Moreover, cannot view Reibsome's decision in vacuum. He his decision was also informed fact he already had witness to testify regarding the shower incident, as well as Appellant's conduct around J.W., as Mrs. Raiber claimed to been always present when their home. N.T. PCRA Hearing at 13-14.

Our Supreme Court has stated: "With regard to 'reasonable basis,' the PCRA '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 any reasonable basis.' Even if this fact not known Appellant when he filed his amended petition, failed to seek to amend his petition add such claim after testimony establishing the factual basis it arose during the course of hearing. Moreover, raise claim appropriately brief, does not appear his statement of the questions presented, but instead offered the middle of argument pertaining to trial counsel's failure call N.U. testify.

Commonwealth v. Bardo, ... A.3d 684 (2014)[]. "Where matters strategy 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 course actually pursued." Commonwealth v. Spotz, 624 Pa. 4, 33, 84 A.3d 311-12 (2014)[]. v. Mason, 130 A.3d 601, 618 (Pa. 2015).

Given these circumstances, as well as Appellant's failure to offer legal authority to contrary, we are constrained to conclude PCRA court did not err matter law determining that Attorney Reibsome reasonable basis to decline to call N.U. testify Appellant's behalf. We also conclude facts of record adequately support the basis for decision. Appellant's 'nothing lose' theory does not, our view, constitute an alternative strategy offering "a potential for success substantially greater than the course actually pursued." (emphasis added). It merely offers alternative with some potential for success, no matter how slight. Accordingly, Appellant not entitled relief this aspect of second IAC claim.

Finally, Appellant contends that Attorney Reibsome ineffective for failing elicit testimony from Beth Leevy she was present when J.W. showered Appellant's home, enter the bathroom during time, would been impossible for him to do so unnoticed. accepted there arguable merit this claim, that Attorney Reibsome lacked reasonable basis failing to elicit such from Ms. Leevy. PCO 18-19. ascertain no reason to dispute those determinations, we are not being asked do so by the parties in case.

However, the court determine not prejudiced by trial counsel's omission this regard, so we move directly to in consideration of the third IAC prong. reasoned:

[Appellant] argues 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 argue that four witnesses, including another child, directly contradicted J.W.'s claims the only two alleged could be connected precise times." assaults [Appellant]'s 4/11/16 Memorandum in Law, 30. [Appellant] alleges "[t]here is reasonable probability inclusion of this cumulative testimony would have changed the result of trial." Id.

Cumulative testimony is generally unnecessary to avoid prejudice ineffective assistance of counsel claim. However, cumulative prejudicial effect multiple omissions trial counsel, even where each omission does not satisfy prejudice prong alone, may warrant new trial. See Commonwealth v. Champney, 65 A.3d 386 (Pa. 2013); v. Johnson, 966 A.2d 523 (Pa. 2009). In Champney Johnson, however, the multiple ineffective assistance counsel claims satisfied two initial [IAC] prongs but could satisfy the prejudice prong alone. Here, however, [Appellant]'s claim dismissed regarding N.U.'s testimony because Reibsome reasonable basis in deciding not to call N.U. testify. Consequently, the rule Champney established inapplicable here.18 Thus, is [Appellant]'s instant claim stands alone. find Beth Leevy's regarding the shower incident cumulative as Nancy Raiber the shower incident at trial. Furthermore, N.U. Beth Leevy provided

contradictory testimony the shower incident. N.U. testified was bedroom with when showered whereas Leevy testified everyone the living room. 39-40, Furthermore, Leevy's testimony called into doubt Mrs. Raiber's testimony regarding the shower incident. Leevy Mrs. Raiber likely would not have been able see the bathroom door due to where she was seated the living room. N.T. PCRA Hearing, 3/3/16, at 49.

Accordingly, we find suffered no prejudice result of Reibsome's failure question Beth Leevy about the shower incident. As such, claim fails the third [IAC] prong.

PCO at 20-21 (some internal citations omitted). agree with the court. Leevy's proposed testimony was

cumulative 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 no such testimony been offered at all. Moreover, whatever benefit Appellant would have reaped from this additional, cumulative testimony could have easily been undermined the conflicts testimony between Mrs. Ms. Leevy. Indeed, it is not inconceivable such conflict could have harmed more than gained from the additional testimony.

To prove prejudice under the third prong of the IAC test, Appellant must show that "there reasonable probability 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 presence of Ms. Leevy's proposed testimony could have produced such a reasonable probability, given its cumulative nature, because could actually undermined the same effect actually elicited trial. Accordingly, conclude court's determination sufficiently prejudiced by counsel's omission warrant relief free of legal error supported record.

Order affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 2/28/2017