J

### -S05006-17
NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 INTHE SUPERIORCOURTOF PENNSYLVANIA Appellee

v. ALBERTVICTOR RAIBER, 

### Appellant No. 1315 MDA2016 Appeal 

### fromthe PCRA

### Order Entered

### August3, 2016 In the CourtofCommon 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 ReliefAct (PCRA), 42 Pa.C.S. § 9541

## etseq. Aftercareful 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) yearsand

### three (3) monthsto 

### seventytwo 

### (72) years. 

### See [N.T.] SVP Hearing and 

### Sentencing,

* Retired SeniorJudgeassigned to

### the Superior Court.J

### -S05006-17 

### 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

### thatthe Superior Court dismiss 

### the appeal. The 

### Superior Courtaffirmed this 

### [c]ourt'sjudgment 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 anAmended PCRA Petition on 

### January 14, 

### 2016, as well as addendumsto 

### the Petition on February 2, 2016 and February29, 2016. [A] 

### [h]earing on 

### the Petition occurred on March 3, 2016 at which 

### time the 

### [c]ourt directed the partiesto 

### file briefs. The 

### Commonwealth and 

### [Appellant] filed 

### timely briefs on March 31, 2016 andApril 11, 

### 2016, 

### respectively.... BACKGROUND The above

### -captioned charges arose 

### out of allegations of a 

### pattern ofsexual abuse

### that occurred in December 

### [of] 2011. At 

### trial, theCommonwealth 

### firstcalled 

### 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.

### wentto N.U.'s home on

### fi[ve] orsixoccasions, 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 

## -2J

### -S05006-17

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 beforethen. 

### 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. at47. J.W. 

### identified the 

### [Appellant] at

### trial. 

### Id. at42. 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 doorwhile the twowatched movies in 

### the 

### [Appellant]'s bedroom. 

### Id. at 82. J.W. 

### went on to 

### testifyabout a 

### number of occasionson which 

### [Appellant] smacked or

### sexuallyabused him.

11 J.W. conceded on cross 

### examination

### that people came in and 

### outof 

### [Appellant]'s bedroom when he watched movies 

### with 

### [Appellant], but 

### testified 

### that he and 

### [Appellant] were, on ocassion, alone 

### for a period 

### oftime. 

### 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. at66. J.W. 

### testified 

### that on morethan 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. at61. Thesmacking resulted in bruising or

### scratching. 

### Id. J.W. described, in 

### detail, one occasion on which 

### [Appellant] tied J.W.'s hands and 

### feetto 

### 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 ofthe belt, paddle, 

### whip, handcuffs

- 3 -J

### -S05006-17

and rope as

### the items

### that [Appellant] used to smackor 

### restrain J.W. 

### Id. at

### 74-75. J.W. 

### testified 

### thatthe 

### [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 passengerseat 

### 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 

### referredto 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 

### enteredthe bathroomwhileJ.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 

### offafterthe 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. at65. Following J.W.'s 

### testimony, the Commonwealth called 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 ofabuse and showed bruising to his 

### parents on December 31, 2011. 

### Id. at83, 

### 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. 

### abouttheallegations ofabuse. 

### Id. at 101, 124.


## -4J

### -S05006-17

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 depictionof her

### January9, 2012 

### interview ofJ.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 whipfound 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 ropefound in a 

### travel bag, a black 

### leather belt, and a black 

### leather paddle. 

## Id. at 

### 164-67. Trooper Pattillo arrested 

### [Appellant] 

### thatday. 

## Id. at 170. 

### Trooper Lieberum 

### testified to 

### interviewing [Appellant] in 2005 and 

### ultimately charging him

### with simpleassault, 

### 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. ChiefMiller 

### 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 

### resultofthe charges. 

## Id. at 144. 

### Attorney Reibsome's

### strategy at

### trial was 

### "essentially - 

### this could have 

### never happened because 

### everybody was around the

- 5 -J

### -S05006-17
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 gotout ofthe carat

### approximatelythe 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 shewas living in 

### [Appellant]'s home in December 2011 when J.W. 

### spent 

### time there. 

### Id. at 184. She

### testified

### that shewas 

### unemployed, and was 

### present in 

### the home 

### "24/7" when J.W. was home, not even leaving to run errands. 

### Id. at 

### 184-85. Leevystated 

### 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 Leevywhen shewas 15 

### months old. 

### Id. at 183. Leevy also 

### testified to 

### the physical makeup of 

### the home 

### stating 

### that itwas 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

### furtherstated 

### that had she heard 

### strange noises 

### from thebedroom, shewould have gone back

### there. 

### Id. at 194.

14 Conversely, J.W. 

### testified 

### that you 

### couldn't really hear voices

### travelingthroughthewalls. 

### Id. at78. Finally, 

### Attorney Reibsomecalled 

### [Appellant]'swife, 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 

### timeJ.W. was

### there. 

### Id. at 

### 198-99. Raiber

### testified 

### that J.W.

### took a shower atthe home on one occasion and she did not see 

### [Appellant] go into 

### the shower

### with him. 

### Id. at 199. 

## -6J

### -S05006-17

Raiber 

### testified 

### that the 

### [Appellant] and J.W. were alone 

### togetherveryfew

### times, 

### "[j]ust long enough

### for him to go down and pick up (Daniel 

### Brown)." 

### Id. She stated

### that she 

### neversaw 

### 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 

### thatthe wallswere constructed of drywall 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 orshe was atthe 

### bathroom 

### rightnextto 

### the bedroom. 

### Id. at203. 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 

### thatthe 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 afterthe alleged oral sex 

### incident, and argued 

### that such 

### unprompted action on J.W.'s 

### part did not make sense ifJ.W.'sversion ofthe 

### eventwas to be believed. 

### Id. at7-8. 

### 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

### juryfound 

### [Appellant] guilty on all charges. PCRA

### CourtOpinion (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)


## -7J

### -S05006-17

statement on 

### August 25, 2016. The PCRA 

### court issued its Rule 

### 1925(a) opinionon

### August 26, 2016. 

### Appellant nowpresents 

### thefollowing questions

### forour 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 assistanceofcounsel issue set

### forth above,

... 

### Appellant's 

### trial counsel was 

### additionally ineffectivefor 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

### testimonyfrom Beth Leevy

### thatshe 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 Briefat 8. This 

### Court's standard of review regarding an 

### order denying a 

### petition underthe 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 ofthe PCRA 

### court and 

### the evidenceof record. Wewill not 

### disturb a PCRA 

### court's ruling if it is 

### supported by evidence of record and is 

### free of legal 

### error.

- 8 -J

### -S05006-17

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 scopeof 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. 

### Appellantfiled his 

### pro se PCRA 

### petition on July 9, 2015, well

### within the oneyear

### 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 

### entertainAppellant'sappeal. Each of

### Appellant's claims concerns 

### whether his

### trial counsel,

### Attorney Reibsome, provided 

### ineffective assistance of counsel 

### (IAC). In 

### order to successfullyestablish an IAC 

### claim,

### Appellant is required to show: (1)

### thatthe claim isofarguable 

### 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 

## -9J

### -S05006-17
counsel, 

### there is a reasonable 

### probability 

### that the outcome of the proceedingswould have been 

### different. 

### Commonwealthv. 

### Kimball,724A.2d 326, 333 (Pa. 

### 1999). Appellant's 

### first IAC claim posits 

### that Attorney Reibsome was 

### ineffective

### for failing to 

### elicit

### testimonyfrom 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 

### ofthe

### 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 

### ofthis 

### testwill 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

### draweropen?" 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

### computerwas.

- 10 -J

### -S05006-17


### 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 thisclaim as lacking 

### arguable 

### merit,the PCRA

### courtstated 

### that the allegation of ineffectiveness "was 

### factually inaccurate" because,
even ifthe

### jury had 

### credited Ms. Raiber's PCRA hearing 

### testimony, it did not establish any 

### linkto

### the locationwhere the sex

### toyswere 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

### otherarea ofthe bedroom. 

### See N.T. PCRA Hearingat 

### 35-36. Appellant counters 

### that the PCRA 

### court "seems to assume 

### that the bedroom closet was located in some 

### other part ofthe 

### universe, 

### ratherthan 

### right nextto 

### 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

- 11 -J

### -S05006-17
Appellant's characterization of

### this 

### testimonial evidence. Ms. Raiber did not observe J.W.'s snooping 

### through her 

### lingerie drawer. She 

### merely testified 

### that itwas 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) ofJ.W.'s snooping could have 

### supported the secondary inference of snooping in 

### the closet, given the close 

### proximity ofthe two locations, we 

### simply rejectthe 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

### ofthe IAC

### testforthis claim.

- 12 -J

### -S05006-17

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 itwas not possible

### forAppellantto 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 beseparated into

### multiple claims; however, each isgoverned 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 

### aboutthe witness; 4) 

### the witness was prepared to cooperate and

### testifyat

### trial; and 5)absence 

### ofthe 

### testimony prejudiced appellant. 

### Commonwealth v. 

### Smolko, 666 A.2d 672, 679 (Pa. Super. 

### 1995). The 

### firstfour partsofthe

### Smolkotest 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 ofthe

### Smolkotest is, in essence, 

### the same as 

### the

### three-pronged IAC

### testset

### forth in 

### Kimball. The PCRA

### courtdetermined

### thatAppellant's IAC claims regarding N.U.
are of arguable 

### merit. We disagree

### withthis analysis in one respect: N.U.'s

- 13 -J

### -S05006-17
testimony 

### that Appellant did not engage or 

### attempt to engage in 

### sexually inappropriate acts 

### with N.U., or

### with anyone 

### otherthanJ.W., was

### simply not 

### relevantto 

### the issues in 

### disputeat

### Appellant's 

### trial. N.U. was not a

### victim in 

### this case. 

### Accordingly, 

### testimony concerning 

### Appellant's relationship with him was, 

### at best, 

### improper charactertestimony. See 

### Commonwealth v. 

### Van

### Horn, 797A.2d 

### 983, 988 (Pa. Super. 

### 2002) (holding

### thattestimonyby

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 respectto 

### trial counsel's

### failure to call N.U. to 

### testify aboutthe 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 

### courtfound 

### thatAttorney Reibsome had a reasonable basis to declineto 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

- 14 -J

### -S05006-17

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

### furthertestified

### that he had Nancy Raiber

### testifyspecificallyto

### 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 

### furtherstated 

### that his 

### anxiety issues arisewhen he is in a small area

### with a lotofpeople, and

### that he deals 

### with the 

### anxiety by 

### trying to remain calm and 

### fighting it 

### outthe best he can. 

### Id. at44. 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 

### [ofthe 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 

### "statementthat [N.U.] was an 

### 'unknown,'

... does not 

### support his decision toforego his

### testimony." Appellant's Briefat33. We note

### thatAppellant 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 offailing 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

- 15 -J

### -S05006-17

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

### thestand. 

### 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 

### presentwhen J.W. was at

### their home. N.T. PCRA Hearing at 13-14. OurSupreme Court has

### stated: "With regard to 

### 'reasonable basis,' the PCRA 

### court 'does not question

### whethertherewere

### othermore logical courses ofaction 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 seekto amend his 

### petition to add such a claim 

### aftertestimonyestablishing thefactual basis

### for itarose 

### during the course

### of the PCRA hearing. Moreover, 

### Appellantdid not raise

### thisclaim 

### 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

### failureto 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 greaterthan the course 

### actually 

### pursued." 

### Commonwealth v. 

### Spotz, 624 Pa. 4, 33, 84A.3d 294, 

### 311-12 (2014)[]. 

### Commonwealthv. 

### Mason, 130A.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 tocall 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 aspectof his second IAC claim. Finally, 

### Appellant contends

### thatAttorney 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

reasonto 

### disputethose

### determinations, and we are not being asked to do so by

### the parties in

### this case. However, the 

### courtdid 

### determine

### thatAppellantwas not prejudiced by 

### trial counsel's omission in 

### this regard, and so we move 

### directly to 

### considerationofthe

### 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

### testimonyofthe same, "would have enabled 

### the defenseto argue

### thatfourwitnesses, including 

### anotherchild, 

### 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

### thatthe 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 counselclaim. 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

### ofcounsel claims satisfied 

### thetwo 

### 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 

### thateveryone 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 

### likelywould 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, at49. 

### Accordingly, we find 

### that [Appellant] suffered no 

### prejudice as a 

### resultof

### Attorney Reibsome's

### failureto 

### question Beth Leevy 

### aboutthe shower incident. As such, 

### [Appellant]'s claim fails the 

### third [IAC] prong. PCO at20-21 (some 

### internalcitations 

### 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 

### fromtheadditional

### 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, 724A.2d at 333. 

### Appellant's 

### argument simplyfails to convince us 

### thatthe 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

- 19 -J

### -S05006-17
Appellant was not 

### sufficiently prejudiced by counsel's omission to 

### warrant relief is

### freeof legal 

### error and 

### supported by

### the record. Order

### affirmed. Judgment Entered.

J seph D. 

### Seletyn, Prothonotary

Date: 

### 2/28/2017

- 20 -