J-S07015-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

COLBY DAVID ORNER,

                          Appellant                   No. 673 MDA 2015


          Appeal from the Judgment of Sentence November 12, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007025-2013


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 29, 2016

       Colby David Orner appeals from the judgment of sentence of six to

fourteen years imposed after a jury convicted him of rape, involuntary

deviate sexual intercourse (“IDSI”), sexual assault, and indecent assault.

Marc J. Semke, Esquire has filed a petition to withdraw from representation

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).              In response to

counsel’s petition to withdraw, Appellant filed a pro se petition to have his

appeal discontinued.      We grant counsel’s petition to withdraw and grant

Appellant’s pro se petition to discontinue this appeal.

       The trial court succinctly summarized the factual history as follows:


*
    Former Justice specially assigned to the Superior Court.
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             In the evening hours of December 31, 2012, [M.B.] was
      celebrating the New Year with her boyfriend and their neighbor
      Colby Orner, the Defendant. At approximately 9:43 PM, Ms. [B.]
      called 911 to report that she had been raped by the Defendant.
      Officers arrived at her home about 10 minutes later and noted
      that the victim was crying and visibly upset. Ms. [B.] stated that
      she sort of woke up when she felt someone performing oral sex
      on her[.] [S]he thought it was her boyfriend. However, she
      fully awoke when this person inserted his penis into her vagina.
      She opened her eyes and saw it was the Defendant, not her
      boyfriend. The Defendant ran from the bedroom and Ms. [B.]
      immediately called her boyfriend. The very next phone call she
      made was to the police.

           While officers were on scene, the Defendant walked by and
      agreed to speak with them. He denied having any type of sexual
      encounter with Ms. [B].

             Ms. [B.] went to York Hospital to have a [Sexual Assault
      Forensic Examiner (“SAFE”)] nurse examine her. The following
      day officers picked up the examination kit and it was submitted
      to a lab for testing. The Defendant's DNA (saliva) was found [on
      at least one of the swabs contained in the rape kit.]

Trial Court Opinion, 3/30/15, at 1-2.

      As it relates to one of the issues that Appellant levels on appeal, we

note that Appellant objected to the trial court’s jury charge defining

unconsciousness for the purpose of rape, IDSI, and indent assault as “when

[a person] lack[s] the conscious awareness that they would possess in the

normal waking state.” N.T., 10/7/14, at 423; see also id. at 424, 428

(repeating the nearly identical definitions for IDSI and indecent assault ).

The objections were overruled and Appellant was convicted of the three

foregoing offenses as well as sexual assault.     The court imposed six to

fourteen years imprisonment for rape and a concurrent term of five to ten

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years for sexual assault. IDSI and indecent assault merged with rape for the

purpose of sentencing.

     Appellant filed a post-sentence motion challenging, inter alia, the

weight of the evidence supporting the convictions. The trial court denied the

motion, and this timely appeal followed. Appellant complied with the trial

court order to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), wherein he asserted five complaints that

counsel reiterated on appeal as follows:

     I.    Whether the evidence was insufficient to sustain the
     conviction for rape, IDSI and indecent assault in that the
     Commonwealth failed to present sufficient evidence regarding
     whether the victim was unconscious?

     II.  Whether the trial court erred in deviating from the
     standard   jury  instruction regarding the   definition of
     unconsciousness as an element of rape, IDSI and indecent
     assault?

     III. Whether the the trial court abused its discretion by
     denying Appellant’s post[-]sentence motion arguing that the
     [jury’s] verdicts were against the weight of the evidence as:

        A. Victim’s testimony was not credible as her testimony was
        inconsistent and . . . contradictory;

        B. Victim’s testimony contradicts the jury’s finding that she
        was unconscious;

        C. The Commonwealth’s witnesses testified about key facts
        regarding the incident, such that it was error for the jury to
        believe them[.]

     IV.  Whether the trial court erred [or] abused its discretion in
     denying Appellant’s request for a mistrial during jury selection?



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      [V.] Whether the trial court erred in overruling Appellant’s
      objection to the admission of the DNA . . . evidence?

Appellant’s brief at 6.

      On October 6, 2015, Attorney Semke filed a petition to withdraw from

representation pursuant to Anders, and he filed a Santiago brief outlining

the claims that Appellant sought to assert on appeal and explaining why

each was frivolous. On October 29, 2015, Appellant filed a pro se petition to

discontinue this appeal in order to file a PCRA petition asserting that

Attorney Semke provided ineffective assistance during the jury trial. Since

Appellant is not entitled to hybrid representation, we cannot address the pro

se petition until we first grant counsel’s Anders petition to withdraw from

representation.   See generally Commonwealth v. Ellis, 626 A.2d 1137

(Pa. 1993) (hybrid representation proscribed on appeal); Commonwealth

v. Jette, 23 A.3d 1032, 1040 (Pa. 2011) (same).

      First, we consider counsel’s petition to withdraw.      In order to be

permitted to withdraw, counsel must meet three procedural requirements:

1) petition for leave to withdraw and state that, after making a conscientious

examination of the record, counsel has concluded that the appeal is

frivolous; 2) provide a copy of the Anders brief to the defendant; and 3)

inform the defendant that he has the right to retain private counsel or raise,

pro se, additional arguments that the defendant deems worthy of the court’s

attention. Id.



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        Attorney Semke’s petition to withdraw sets forth that he made a

conscientious review of the record and concluded that the appeal is wholly

frivolous.    He informed Appellant that he was seeking to withdraw and

furnished him with a copy of the Anders brief.            Further, counsel told

Appellant that he had the right to retain new counsel or could proceed on a

pro se basis and raise any additional issues he deemed worthy of this Court’s

review. A copy of counsel’s letter to Appellant is appended to the petition to

withdraw. Thus, counsel complied with the procedural aspects of Anders.

        We must now examine whether counsel’s Anders brief meets the

substantive elements of Santiago. Pursuant to Santiago, an Anders brief

must:

        (1) provide a summary of the procedural history and facts, with
        citations to the record; (2) refer to anything in the record that
        counsel believes arguably supports the appeal; (3) set forth
        counsel's conclusion that the appeal is frivolous; and (4) state
        counsel's reasons for concluding that the appeal is frivolous.
        Counsel should articulate the relevant facts of record, controlling
        case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, supra at 361.

        In his brief, counsel summarized the factual and procedural history of

the case and referenced the portions of the record that ultimately fail to

support any issues of merit.     Counsel delineated case law that establishes

that the foregoing issues raised by Appellant are frivolous. Thus, the brief is

compliant with Santiago.



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      The first set of issues that Appellant presents challenges the

sufficiency of the evidence in support of the convictions for rape, IDSI, and

indecent assault.     He argues that the Commonwealth did not adduce

sufficient evidence to demonstrate beyond a reasonable doubt that the

victim was unconscious, an element of each of the challenged offenses.

Specifically, he argues that since the victim testified that she was able to

recall the ordeal, she was necessarily conscious as a matter of law. For the

following reasons, we disagree.

      In conducting a sufficiency of the evidence review, we examine all of

the    evidence     admitted,     even      improperly   admitted   evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We consider the evidence in the light most favorable to the verdict winner,

herein the Commonwealth, drawing all possible inferences from the evidence

in favor of the Commonwealth. Id. When evidence exists to allow the fact-

finder to determine beyond a reasonable doubt each element of the crimes

charged, the sufficiency claim will fail. Id.

      The evidence need not preclude the possibility of innocence entirely.

The fact finder is free to believe, in whole or in part, whatever evidence it

chooses.    Id.   Additionally, the Commonwealth may prove its case by

circumstantial evidence alone. It is only when “the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances,” that the defendant is entitled to relief.

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Id. This Court is not permitted “to re-weigh the evidence and substitute our

judgment for that of the fact finder.” Id.

      In Commonwealth v. Erney, 698 A.2d 56 (Pa. 1997) our Supreme

Court addressed the definition of “unconscious” within the context of § 3121

regarding rape of an unconscious person.        After reviewing the legislative

intent of the rape statute and the dictionary definitions of unconscious,

conscious, and consciousness, the High Court concluded that the evidence

adduced in that case sustained the rape conviction even though the victim,

who was in an alcohol and marijuana induced daze, had some recollection of

the sexual assault. Specifically, the court reasoned,

      [D]espite [the victim’s] ability to perceive some aspects of the
      incident, her lack of knowledge of much of what occurred
      supports the finding that she was unconscious during portions of
      the assault and was, therefore, unable to consent to sexual
      intercourse. Because there was ample evidence from which the
      jury could properly find that the victim, during at least portions
      of the assault, lacked knowledge or awareness of both her own
      sensations and external events, and was not in the normal
      waking state, the evidence was sufficient to support the finding
      that she was unconscious within the meaning of the statute.

Id. at 59 (emphasis added).

      Herein, the victim testified that Appellant performed oral sex upon her

while she was in a drunken stupor.           N.T., 10/7/14, at 142, 144-145.

Although she was marginally aware that the sex act was occurring, she was

not fully awake and mistook Appellant for her boyfriend.        Id. at 142.   In

fact, it was not until Appellant inserted his penis into the victim’s vagina that



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she opened her eyes, awoke fully, and realized that Appellant had assaulted

her. Id. at 142-143, 145. Thus, like the factual scenario the Supreme Court

reviewed in Erney, there was ample evidence in the case at bar for the fact

finder to conclude that the victim lacked an awareness and was not in the

normal waking state during the assault. Thus, as our High Court determined

in Erney, we conclude, herein, that the Commonwealth adduced sufficient

evidence to demonstrate beyond a reasonable doubt that the victim was

unconscious within the meaning of the statute. Thus, no relief is due.

       Next, we address the group of issues that attack the weight of the

evidence. Appellant levels an interrelated claim that contests the credibility

of the Commonwealth’s witnesses, including the victim, and challenges the

jury’s determination that the victim was unconscious.      Again, no relief is

due.

       When we review a weight-of-the-evidence challenge, we do not

examine the underlying question but the trial court’s exercise of discretion in

resolving the claim.      Commonwealth v. Leatherby, 116 A.3d 73

(Pa.Super. 2015). This type of review is necessitated by the fact that the

trial judge heard and saw the evidence presented. Id. Simply put, “One of

the least assailable reasons for granting or denying a new trial is the lower

court’s conviction that the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the interest of justice.”

Id. at 82. A new trial is warranted in this context only when the verdict is

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“so contrary to the evidence that it shocks one’s sense of justice and the

award of a new trial is imperative so that right may be given another

opportunity to prevail.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014).

      Instantly,   the   victim   and    Commonwealth      witnesses   testified

unequivocally about the particulars of the sexual assault.         In rejecting

Appellant’s post-trial motions, the trial court noted that any inconsistences in

the witnesses’ testimony were inconsequential.        Moreover, it highlighted

that, while the victim previously made an isolated out-of-court statement to

her boyfriend indicating that Appellant merely “tried to penetrate” her, the

context of that statement and the fact that the victim’s testimony about the

rape was unwavering led the court to conclude that the jury’s credibility

determination was unassailable.         As the record supports the court’s

conclusion that the jury’s guilty verdicts were not so contrary to the

evidence as to shock one’s sense of justice, we find no abuse of discretion in

the trial court’s denial of his weight-of-the-evidence claim.

      Appellant’s next claim is that the trial court erred in deviating from the

standard jury instruction regarding the definition of unconsciousness as an

element to rape, IDSI, and indecent assault. While the standard instructions

do not define unconsciousness, the court’s charge advised, “a person is

unconscious when they lack the conscious awareness that they would

possess in the normal waking state.” N.T., 10/7/14, at 423. In overruling

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Appellant’s objections, the trial court concluded that the deviation was

minimal and its elaboration as to the definition of unconsciousness was

warranted to explain the law as to an unconscious victim. We find no basis

to disturb the trial court’s conclusion.

       In Commonwealth v. Cook, 952 A.2d 594, 626-627 (Pa. 2008), we

outlined the appropriate standard of review as follows: “in reviewing a

challenged jury instruction, an appellate court must consider the entire

charge as a whole, not merely isolated fragments, to ascertain whether the

instruction fairly conveys the legal principles at issue.”        We review “a jury

charge for reversible and prejudicial error.” Commonwealth v. Trill, 543

A.2d 1106 (Pa.Super. 1998). Indeed, the trial court is afforded deference in

framing its instructions and a deviation from the suggested instruction or a

technical inaccuracy in a jury instruction that otherwise expresses the law

adequately, accurately, and clearly does not mandate reversal. Id. at 1114.

       The respective standard jury instructions for Rape, IDSI, and indecent

assault    invoke    but,    do   not    define,   the   term   “unconscious.”   See

Pa.S.S.J.I.(Crim)        15.3121B;         Pa.S.S.J.I.(Crim)     15.3123B;       and

Pa.S.S.J.I.(Crim) 15.3126B.1          Accordingly, in charging the jury, the trial

____________________________________________


1
  Both Pa.S.S.J.I.(Crim) 15.3121B and Pa.S.S.J.I.(Crim) 15.3123B relating
to rape and IDSI, respectively, provide that “A person commits [rape or
IDSI] if he or she has [sexual or deviate sexual] intercourse with another
person who is unconscious, or who is known by the perpetrator to be
(Footnote Continued Next Page)


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court supplemented the standard instructions with a definition of the term

that was clearly inspired by our High Court’s discussion in Erney, supra, at

59, i.e., whether the victim “lacked knowledge or awareness of . . .

sensations and external events, and was not in the normal waking state[.]”

Hence, the trial court’s enhancement was consistent with the definition of

“unconscious” that our Supreme Court established specifically in relation to

rape and related offenses. Moreover, when viewed in their entirety, the trial

court’s instructions as to rape, IDSI, and indecent assault all fairly conveyed

the elements of the respective offenses and accurately expressed the

meaning of unconscious in this context.             Since Appellant cannot establish

reversible error, his claim fails.

      Appellant’s fourth issue asserts that the trial court erred in denying his

request for a mistrial during jury selection. The following facts are relevant.

During voir dire, the Commonwealth asked members of the jury pool if they

or someone they knew had been the victim of rape or a similar sexual

offense.   A few potential jurors provided emotional, sometimes detailed,

accounts of sexual assaults and noted their inability to remain impartial.

N.T., 10/7/14, at 24-26. One juror reported a story concerning the rape and
                       _______________________
(Footnote Continued)

unaware that intercourse is occurring, or who is mentally disabled and
therefore incapable of consent.” Likewise, Pa.S.S.J.I.(Crim) 15.3126B, the
suggested instruction for indecent assault, references “unconscious” in
framing the second and third elements of that offense, but it does not define
the term.



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attempted murder of a babysitter. Another juror informed the court that his

daughter became pregnant as a result of rape.          Two other jurors relayed

their accounts at sidebar.   Id. 45-47.       All of the jurors who indicated an

inability to remain impartial were excused for cause outside of the hearing of

the remaining jurors in the pool.

      Despite these prophylactic measures, Appellant moved for a mistrial

based upon his belief that the affected jurors’ emotional reactions tainted

the remaining members of the pool, and thus deprived him of an impartial

jury. The trial court denied Appellant’s request summarily and subsequently

explained that it did not believe that the responses that were stated in front

of the entire pool were particularly prejudicial.       Id. at 52; Trial Court

Opinion, 6/16/2015, at 11 (“We denied [the] request because we did not

think that the emotional response from potential jury members prejudiced

the Appellant. . . . [W]e cannot conclude that the other jurors were so

tainted that we abused our discretion in denying the Appellant’s request for

a mistrial.”). Upon review, we agree.

      We review the denial of a request for a mistrial for an abuse of

discretion. Commonwealth v. Caldwell, 117 A.3d 763 (Pa.Super. 2015).

In Caldwell we reiterated, “A mistrial upon motion of one of the parties is

required only when an incident is of such a nature that its unavoidable effect

is to deprive the appellant of a fair and impartial trial.” Id. at 774 (citation

omitted).   Further, “It is within the trial court's discretion to determine

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whether a defendant was prejudiced by the incident that is the basis of a

motion for a mistrial.” Id.

      Presently, all of the potential jurors who indicated an inability to be

impartial were stricken from the jury pool outside of the remaining jurors’

hearing. Furthermore, beyond their sexual nature, the factual accounts that

supported Appellant’s request for a mistrial were not so offensive as to affect

the remaining potential jurors, who all subsequently avowed to remain

impartial. As such, the trial court’s denial of the request for mistrial did not

constitute an abuse of discretion.     See Commonwealth v. Frazier; 410

A.2d 826, 831 (Pa.Super. 1979).           (where all empaneled jurors were

questioned at voir dire to determine impartiality, prior statements made by

two prospective jurors in front of jury pool indicating predetermination of

defendant’s guilt was not so prejudicial as to require grant of mistrial);

Caldwell supra (mistrial required only when unavoidable effect of incident

is to deprive defendant of fair and impartial trial). No relief is due.

      Appellant’s final claim is that the trial court erred in failing to sustain

his objection to the Commonwealth’s presentation of a DNA report during

the jury trial.   He argues that the Commonwealth did not establish the

location on the victim’s body from which his DNA was recovered.               He

continues that, without this foundation, the report was inadmissible.

Appellant’s claim is faulty.

      Our Supreme Court recently echoed our standard of review as follows:

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      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (citations omitted)

(internal quotation marks omitted).

      First, we summarize the relevant facts.         During the jury trial, the

Commonwealth presented Angela Schultheis as a forensic DNA expert. Ms.

Schultheis testified that she tested the swabs included in the rape kit

prepared by the SAFE team and discovered Appellant's DNA. N.T., 10/7/14,

at 290. As noted, Appellant assailed the admissibility of that report on the

basis that it is unclear from where on the victim’s body the swabs were

taken. In rejecting this position from the bench, the trial court mistakenly

relied upon the Commonwealth’s representation that the victim’s vagina was

the only area that had been swabbed.              Nevertheless, the trial court

accurately concluded that, to the extent that the record is unclear regarding

the area of the victim’s body from which Appellant’s DNA was recovered,

that uncertainty relates to the weight of the DNA evidence and not to its

admissibility.   In fact, the trial court invited Appellant to resurrect this

position during closing arguments.        The court opined, “I am going to

overrule your request to strike the DNA results.       I think certainly you can



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argue that [the location] may not have been in the testimony . . . . I think

there’s enough there for the Jury to connect the dots . . . [b]ut you’re

certainly free to argue that issue.” Id. at 297.

      Although Appellant did not correct the court’s misinterpretation of the

testimony, the certified record reveals that Geneva Keirn, that SAFE nurse

who examined the victim and assembled the rape kit following the sexual

assault, testified that she swabbed everything listed on the sexual assault

checklist except underneath the victim’s fingernails.      Id. at 231.   As the

checklist was not included in the certified record, it is unclear where the

respective swabs were applied.     Nevertheless, as the trial court cogently

highlighted, this uncertainty does not preclude the admission of the DNA

report. At most, it provided Appellant a platform to challenge the weight of

the Commonwealth’s evidence, which it suggested Appellant assert during

his closing arguments.    As the trial court did not abuse its discretion in

admitting the DNA evidence, Appellant’s challenge fails.

      In sum, for all of the foregoing reasons, we concur with Attorney

Semke’s assessment that Appellant’s claims are wholly frivolous.             In

addition, we conducted an independent review of the record and found that

there are no other issues of arguable merit that can be raised in this appeal.

Hence, we permit Attorney Semke to withdraw.

      Having granted counsel’s petition to withdraw from representation, we

are now permitted to resolve Appellant’s pro se petition to discontinue this

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appeal. As referenced supra, Appellant desires to withdraw this appeal so

that he may file a PCRA petition asserting that trial counsel provided

ineffective assistance.       Neither Attorney Semke nor the Commonwealth

responded to Appellant’s pro se filing.            Upon review of the motion to

discontinue, the relevant legal authority, and the certified record, we grant
                                                      2
the requested relief and discontinue this appeal.

       Petition of Marc J. Semke, Esquire, to withdraw as counsel is granted.

Appeal discontinued.

       Judge Ott Joins the majority.

       Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




____________________________________________


2
  In light of our independent review of the record and our confirmation that
no non-frivolous issues have been preserved for review on direct appeal, it
was tempting, at least initially, to deny the pro se motion for discontinuance
and affirm the judgment of sentence. However, upon consideration of the
procedural implications of that disposition, we elected to grant the relief
Appellant expressly requested.



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