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2021 PA Super 80
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COLBY DAVID ORNER : No. 351 MDA 2019
Appeal from the PCRA Order Entered January 24, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007025-2013
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.: FILED APRIL 27, 2021
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
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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
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1 A long-time friend of Orner, Erik Dick, testified that Orner never directly
discussed having any sexual contact with M.B., but specifically denied raping
her. See N.T. Trial, 10/7/14, at 221.
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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
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2 After obtaining a search warrant, police seized an undisclosed quantity of
marijuana from the residence. See N.T. Trial, 10/7/14, at 217-18.
3 Krouse asserted this message was not a statement of fact, but a ploy
intended to elicit confirmation from the third party that Orner and M.B were
having an affair. See N.T. Trial, 10/7/14, at 188-89. Specifically, Krouse sent
this text message to an individual named Scott Edward Stambaugh, who
confirmed the content of the message at trial. See N.T. Trial, 10/9/14, at
306.
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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
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4 The forensic analysis conducted by the Commonwealth concluded that this
positive sample contained “saliva,” but no “[s]eminal material.”
Commonwealth’s Serology Report, 5/21/13, at 1.
5 Orner’s first trial was discontinued after an issue arose that would have
required court personnel to testify. See N.T. Trial, 9/2/14, at 75-95. Orner’s
second trial similarly ended in a mistrial after M.B. testified in open court that
Orner was her marijuana dealer, in contravention of an earlier ruling from the
trial court. See N.T. Trial, 9/8/14, at 51-64.
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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
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6 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago,
978 A.2d 349 (Pa. 2009).
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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
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7 During her testimony, Mrs. Detter reviewed a written summary of her
conversation with M.B. that she created on May 20, 2014. This written
statement was entered into evidence at the PCRA hearing and is part of the
certified record in this case.
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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
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8 Based upon this testimony, the PCRA court concluded that Mrs. Detter
“would have been available to testify if the subpoena had been served on her
before trial.” PCRA Court Opinion, 1/24/19, at 6.
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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. Hanible,
30 A.3d 426, 438 (Pa. 2011)). “The
PCRA court’s factual findings and credibility determinations, when supported
by the record, are binding upon this Court.”
Id. (citing Commonwealth v.
Mason,
130 A.3d 601, 617 (Pa. 2015)). However, we review the PCRA court’s
legal determinations de novo.
Id.
The Commonwealth’s claim in this appeal challenges the PCRA court’s
conclusion that trial counsel was ineffective for failing to secure Mrs. Detter’s
testimony at Orner’s trial. Accordingly, we will remain mindful of the following
legal principles:
To prevail on a claim that counsel was constitutionally ineffective,
the defendant must overcome the presumption that counsel was
effective by showing that: (1) the underlying substantive claim
has arguable merit; (2) counsel whose effectiveness is being
challenged did not have a reasonable basis for his or her actions
or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance.
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Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012) (citing
Strickland v. Washington,
466 U.S. 668 (1984)). A failure to meet any of
these required prongs bars a petitioner from obtaining relief.
Id. We also
note that this case concerns trial counsel’s failure to call a witness:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have known
of, the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony was
so prejudicial as to have denied the defendant a fair trial. To
demonstrate Strickland prejudice, a petitioner “must show how
the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case.” Commonwealth v.
Gibson, 951 A.2d 1110, 1134 (Pa. 2008).
Commonwealth v. Sneed,
45 A.3d 1096, 1108-09 (Pa. 2012). In order for
Appellant to prevail “he must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of the particular
case, so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” Commonwealth
v. Orlando,
156 A.3d 1274, 1280-81 (Pa.Super. 2017).
The Commonwealth’s arguments in this case focus upon the prejudice
prongs of the ineffectiveness framework discussed above.9 Overall, the
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9 The Commonwealth has not presented any arguments concerning the
arguable merit or reasonable basis prongs of the basic ineffectiveness
standard, and we perceive no legal error or factual deficiency in the PCRA
court’s apt conclusion that Orner’s claim for relief satisfied the first two
requirements of the Strickland test.
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Commonwealth asserts that the PCRA erred in finding prejudice and identifies
a number of alleged inconsistencies between Mrs. Detter’s testimony10 and
the respective testimonies of Orner and the other trial witnesses. See
Commonwealth’s brief at 24 (“The absence of Mrs. Detter’s testimony did not
prejudice Orner because her testimony and written statement differed from
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In pertinent part, the PCRA court found that Orner’s ineffectiveness claim had
arguable merit based upon trial counsel’s testimony that Mrs. Detter was a
critical part of Orner’s defense strategy and her concomitant testimony that
she “would have been available to testify if the subpoena had been served on
her before trial.” PCRA Court Opinion, 1/24/19, at 6-7; see also N.T. PCRA
Hearing, 8/15/18, at 12-18, 33-40. Along very similar lines, the PCRA also
concluded that trial counsel’s failure to call Mrs. Detter was a blatant
“oversight” and not part of any reasonable trial strategy. PCRA Court Opinion,
1/24/19, at 7. We agree with these conclusions, which are commensurate
with the certified record and supported by existing case law. See, e.g.,
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa.Super. 2013) (en banc)
(concluding that trial counsel’s failure to admit testimony contradicting
complainant’s version of events was ineffectiveness).
The Commonwealth has also correctly recited the more-specific legal standard
concerning uncalled witnesses, but its substantive arguments discuss only the
alleged absence of prejudice under the final prong of this test. See
Commonwealth v. Sneed,
45 A.3d 1096, 1108-09 (Pa. 2012). With respect
to the first four prongs of this test implicating witness availability, the PCRA
court concluded that Mrs. Detter was “prepared to cooperate,” and would have
been available to testify but for trial counsel’s oversight in failing to subpoena
her. PCRA Court Opinion, 1/24/19, at 6. The certified record supports these
findings. See N.T. PCRA Hearing, 8/15/18, at 33, 40. Consequently, we are
bound by these factual conclusions.
10 The Commonwealth’s arguments concern themselves principally with
allegations of inconsistencies contained in the written statement that Mrs.
Detter created in anticipation of trial and reviewed while testifying at the PCRA
hearing. We will collectively discuss these allegations in the context of the
testimony that she provided at the PCRA hearing.
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Orner’s testimony and contradicted Orner’s theory of the case.” (cleaned up)).
The specific differences identified by the Commonwealth include that Mrs.
Detter’s testimony: (1) placed M.B. at the VFW with Orner and Krouse on the
evening in question, before returning to her home around 9:00 p.m.; (2)
alleged that M.B. and Orner had continued to drink and smoke marijuana after
rendezvousing at the residence; and (3) claimed that Orner was forced to flee
the apartment after Krouse unexpectedly came home.11 Id. at 31-42. The
Commonwealth maintains that these details do not appear in the trial
testimony offered by Orner and the other witnesses and asserts these
discrepancies are so “material” with respect to Orner’s defense that the
absence of Mrs. Detter’s testimony did not prejudice him. We disagree.
The PCRA court addressed these concerns in its January 24, 2019
opinion, as follows:
The Commonwealth points out that Mr. Detter’s testimony would
place M.B. at the VFW with Orner and [Krouse] when there was
no evidence submitted that M.B. went to the VFW. Other
inconsistencies involve what allegedly happened when Orner went
back to M.B.’s house and that Orner ran out of the house because
he heard [Krouse] return home. We find these inconsistencies do
not discredit Mrs. Detter’s testimony in its entirety.
We agree with Orner that Mrs. Detter’s testimony was
crucial to Orner’s trial strategy and defense. Orner was charged
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11 Throughout the Commonwealth’s brief, it claims that Mrs. Detter’s
testimony at the PCRA hearing indicated that Orner had vaginal intercourse
with M.B. on the night in question. Our review of the transcripts reveals no
such assertion. Rather, Mrs. Detter’s testimony confirmed only that Orner and
M.B. had some manner of “sexual contact” that night, without offering specific
details. See N.T. PCRA Hearing, 8/15/18, at 37.
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with rape of an unconscious person and other sexually related
crimes. Orner’s defense at trial was that M.B. consented to the
acts and Orner testified at trial that he and M.B. had been in a
relationship, M.B. had been seeing [Krouse] at the same time, and
M.B. made up the allegation. If called to testify at trial, Mrs.
Detter would have testified on the day after the incident, M.B. told
her that she had been in an on-going relationship with Orner. We
find that this testimony could support Orner’s position at trial that
M.B. consented to the acts that happened on the night in question
and had a motive to fabricate the rape charges.
We agree with Orner that Mrs. Detter’s inconsistencies with
other testimony regarding her recollection of what she was told
happened that night are better for the jury to resolve[.]
PCRA Court Opinion, 1/24/19, at 8-9 (cleaned up). We concur with the PCRA
court’s assessment, which is fully supported by the certified record.
The Commonwealth’s case against Orner depended entirely upon the
credibility of M.B., where Orner conceded having sexual contact with her, but
asserted that it was part of a consensual, ongoing relationship. As the PCRA
court has aptly noted, Mrs. Detter’s testimony struck at the heart of the
credibility of her allegations.12 This testimony was unquestionably beneficial
to Orner’s trial defense, in that it provided significant corroboration of Orner’s
claims and offered additional details of the evening in question. While the
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12 To the extent that the Commonwealth is asserting that Mrs. Detter’s
testimony was too incredible to be believed, the transcripts of the PCRA
hearing support the PCRA court’s conclusions that her testimony was credible
and believable. See PCRA Court Opinion, 1/24/19, at 8 (“We find her
testimony at the PCRA hearing credible.”). As such, the PCRA court’s
credibility determination is binding upon this Court. See Commonwealth v.
Mason, 130 A.3d 601, 617 (Pa. 2015) (“The PCRA court’s credibility
determinations, where supported by the record, are binding on this Court[.]”).
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Commonwealth’s arguments may have identified minor inconsistencies in Mrs.
Detter’s averments as to ancillary details of the evening in question, these
concerns do not undermine the central thesis of her testimony, i.e., that the
sexual contact between Orner and M.B. was consensual and that her assault
accusation was falsified.
Overall, this case is fairly analogous to this Court’s prior holding in
Commonwealth v. Matias, 63 A.3d 807 (Pa.Super. 2013) (en banc). Matias
was convicted of various sexual offenses after an accusation made by a friend
of his minor daughter. He filed a PCRA petition asserting ineffectiveness based
upon trial counsel’s failure to call Matias’ daughter to rebut the complainant’s
version of events. The PCRA court granted Matias a new trial and the
Commonwealth appealed, arguing that the daughter’s testimony was
“inconsistent” with the trial testimony and “could have corroborated the
testimony of the [complainant], and contradicted that of Matias.”
Id. at 810.
This Court affirmed, concluding these variabilities were not determinative on
this point where “the Commonwealth’s case against Matias rested entirely
upon the credibility” of the complainant and the certified record supported the
PCRA court’s findings.
Id. at 812.
As in Matias, the testimony of Mrs. Detter would have gone to the
nucleus of Orner’s arguments at trial. Its omission prejudiced Orner by
depriving him of crucial support for his proffered defense. As detailed at
length above, the certified record and transcripts of testimony fully support
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the PCRA court’s factual findings and we discern no error in the PCRA court’s
legal conclusions. As such, we deny the Commonwealth’s appeal.
Order affirmed.
President Judge Emeritus Bender, Judge Lazarus, Judge Olson, and
Judge Stabile, join this Opinion.
Judge King files a Dissenting Opinion in which President Judge Panella
and Judge McLaughlin join.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2021
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