Commonwealth v. Orner

• Decision Date: 27 April 2021
• Docket Number: No. 351 MDA 2019,351 MDA 2019
• Citation: 251 A.3d 819
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Colby David ORNER
• Court: Pennsylvania Superior Court

251 A.3d 819

COMMONWEALTH of Pennsylvania, Appellant

v.Colby David ORNER

No. 351 MDA 2019

Superior Court of Pennsylvania.

Submitted December 3, 2020

Filed April 27, 2021

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.

Thomas W. Gregory Jr., York, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.

OPINION BY BOWES, J.:

The Commonwealth of Pennsylvania appeals from the January 24, 2019 order that granted the petition for relief filed by Colby David Orner under the Post-Conviction Relief Act ("PCRA"), and awarded him a new trial due to his trial counsel failing to call a beneficial witness at trial. We affirm.

We glean the following facts from the testimony adduced at Orner's trial. The events giving rise to this case took place in the evening hours of December 31, 2012, in Manchester, Pennsylvania. The complainant, M.B., was celebrating the New Year with her long-term boyfriend, Brendan Krouse, and their neighbor, Orner. All three individuals reported drinking heavily that evening in each other's company at the residence shared by M.B. and her boyfriend. At approximately 9:00 p.m., M.B. reported going to bed while Orner and Krouse left the residence to continue drinking at the Veterans of Foreign War hall ("VFW"), in nearby Mount Wolf. Ultimately, Orner was unable to enter the VFW and parted company with Krouse.

Thereafter, Orner testified that he eventually returned to the residence. With respect to his actions that evening, Orner asserted that he and M.B. were engaged in a "flirtatious" affair and had been "messing around" for "a little over a year" by that point. N.T. Trial, 10/9/14, at 313, 320-21, 339. Upon reaching the residence, Appellant claimed that he performed oral sex on M.B. for "about two minutes," but stopped when she asked him to and left the residence.¹ Id . at 321-22. However, his position at trial was that any sexual contact between the two of them had been consensual.

By contrast, M.B. denied that she and Orner were amorously involved with one another. See N.T. Trial, 10/7/14, at 151. At trial, she testified to being awakened shortly after going to bed by the sensation of someone performing oral sex on her. Id . at 141-42. Although she initially assumed that Krouse was responsible, she stated that she finally opened her eyes when the same person penetrated her with his penis and discovered that it was Orner. Id . at 143-45. M.B. stated that Orner fled the residence as soon as she awoke and asked him what he was doing. Id . at 145-46. She testified that she first called her boyfriend, and then sought police assistance by dialing 911. Officers responded approximately ten minutes later, and found Krouse already present at the residence with M.B.²

Krouse's testimony at trial confirmed that he received a phone call from M.B. alerting him to the assault, but also acknowledged that he flew into an "insane rage" that caused significant damage to the residence. Id . at 186, 201-02. He also admitted to sending a text message several months after these events claiming that Orner and M.B. had been engaged in a surreptitious-but-consensual affair for "two years" prior to these events.³ Id . at 188, 199-200.

Orner initially denied any sexual contact had occurred between M.B. and him on the night in question during numerous interactions with police. However, when confronted with a search warrant for a DNA test to compare against a rape kit, Orner admitted that he had "licked his hand and put it on her vagina more than one time." See N.T. Trial, 10/9/14, at 256-57, 267-68, 330. During these interactions, Orner consistently denied raping M.B. The test confirmed the presence of Orner's DNA in a sample taken from M.B.’s rape kit.⁴ See N.T. Trial, 10/9/14, at 290.

Ultimately, Orner was arrested and charged with a number of criminal offenses related to these events, including rape. He entered an initial plea of nolo contendere . However, the trial court later permitted him to withdraw his plea after the discovery of two witnesses, Russell and Evelyn Detter (collectively, "the Detters"), who could corroborate the nature of his relationship with M.B. The Detters were tenants in an apartment owned by Krouse that was next-door to the residence where these events transpired. In addition to being their next-door neighbors, the Detters also regularly socialized with the parties. See N.T. Trial, 10/9/14, at 366-68.

The Commonwealth's first two attempts to try Orner for these charges abruptly ended in mistrials.⁵ In the midst of the third proceeding, trial counsel announced that he had failed to serve subpoenas upon the Detters. See N.T. Trial, 10/9/14, at 247-48. Sheriff's deputies eventually detained Mr. Detter and brought him to the courthouse to testify, but could not locate Mrs. Detter. In relevant part, Mr. Detter testified that: (1) "several months" prior to the events of December 31, 2012, M.B. publicly expressed a desire to have sex with Orner; and (2) the day after the underlying events in this case, she also confided in Mrs. Detter about her relationship with Orner. Id . at 370, 372-73. However, Mr. Detter could not testify as to the precise content of this conversation between M.B. and his wife.

Based upon the testimony detailed at length above, Orner was convicted of rape, involuntary deviate sexual intercourse ("IDSI"), sexual assault, and indecent assault. The trial court sentenced him to an aggregate term of six to fourteen years of imprisonment. Appellant filed a timely direct appeal. However, his counsel sought to withdraw and filed an Anders / Santiago⁶ brief asserting that the available appellate claims were frivolous. Contemporaneously, Orner filed a pro se petition seeking to discontinue his direct appeal. Accordingly, this Court affirmed his judgment of sentence. See Commonwealth v. Orner , 145 A.3d 797 (Pa.Super. 2016) (unpublished memorandum at 1-8). Thus, Appellant's judgment of sentence became final under the PCRA on April 29, 2016, when he discontinued his direct appeal. See Commonwealth v. McKeever , 947 A.2d 782, 785 (Pa.Super. 2008).

On March 30, 2017, Orner filed a timely pro se PCRA petition asserting, inter alia , that trial counsel was ineffective for failing to call Mrs. Detter to testify at his trial. See 42 Pa.C.S. § 9543(a)(2)(ii). The PCRA court appointed counsel to represent him and PCRA counsel filed a supplemental memorandum of law. On August 15, 2018, the PCRA court held a hearing at which trial counsel and Mrs. Detter testified.

Trial counsel testified that his pre-trial investigations indicated that Mrs. Detter would testify that M.B. had intimated that the complained-of sexual encounter with Orner was "consensual," but that she had been "caught in the act" by Krouse. See N.T. PCRA Hearing, 8/15/18, at 10. Although he mentioned Mrs. Detter by name in his opening statement, trial counsel failed to subpoena her for Orner's third trial. Id . at 12-14. Trial counsel conceded that he spoke with Mr. Detter prior to the third proceeding, but never directly advised Mrs. Detter of the trial date. Id . at 15-16. According to trial counsel's testimony, the result of this oversight was the omission of a "key witness" in Orner's defense. Id . at 18.

Mrs. Detter testified that M.B. had implied a much different version of events to her than that presented a trial.⁷ According to Mrs. Detter's testimony, M.B. and Orner had intended to rendezvous at the residence while Krouse was drinking at the VFW on the evening of December 31, 2012. The two engaged in consensual "sexual contact," but they were interrupted when Krouse unexpectedly returned home in a "rage." Thereafter, Orner fled from the residence. Id . at 36-37. Mrs. Detter further related that this affair was an ongoing matter, and asserted that M.B. had given Orner a key to the residence and would regularly meet him there while Krouse was not at home. Id . at 38-39. Most importantly, Mrs. Detter asserted that M.B. had confessed that her rape allegation against Orner was "false." Id . at 46.

At the time of trial, Mrs. Detter testified that she was regularly traveling between Pennsylvania and Atlantic City, New Jersey while tending to her father, who was suffering from Alzheimer's disease. Id . at 33-34. However, she also stated that she was willing to testify and would have been available if she had received notice from trial counsel.⁸ Id . at 33, 40.

By order and opinion filed on January 24, 2019, the PCRA court granted Orner's petition and awarded him a new trial upon the basis that trial counsel was ineffective by failing to call Mrs. Detter to testify at trial. See PCRA Court Opinion, 1/24/19, at 1-8. Specifically, the PCRA court concluded that Mrs. Detter's testimony was "crucial" because it would have greatly supported Orner's defense that M.B. "consented to the acts that happened on the night in question and had a motive to fabricate the rape charges." Id . at 9.

The Commonwealth filed a timely notice of appeal to this Court. Both the Commonwealth and the trial court complied with the obligations of Pa.R.A.P. 1925. The Commonwealth has raised a single issue for our review: "Did the PCRA [c]ourt err in granting [Orner's] PCRA petition where [Orner] failed to establish that he was prejudiced by his trial counsel's failure to call a witness whose testimony would have contradicted most of [Orner's] trial testimony and case strategy?" Commonwealth's brief at 4.

"Our standard of review in a PCRA appeal requires us to determine whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from error." Commonwealth v. Small , 238 A.3d 1267, 1280 (Pa. 2020). "The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who prevailed before that court." Id . (citing Commonwealth v....