J-S43035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 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:     GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 04, 2019

      The Commonwealth appeals from the January 24, 2019, order entered

in the Court of Common Pleas of York County, which granted Appellee Colby

David Orner’s (“Orner”) first petition under the Post Conviction Relief Act

(“PCRA), 42 Pa.C.S.A. § 9541-9546, and awarded him a new trial. On appeal,

the Commonwealth contends the PCRA court erred in awarding Orner a new

trial on the basis trial counsel was ineffective in failing to call Evelyn Detter to

testify on behalf of Orner at his jury trial. The Commonwealth specifically

challenges the PCRA court’s conclusion that Orner proved he was prejudiced

by counsel’s omission. After a careful review, we reverse the PCRA court’s

order and reinstate Orner’s judgment of sentence.

      A detailed recitation of the underlying facts and procedural history is

necessary for our review. Orner was arrested and charged with various crimes


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43035-19


in connection with the rape of the victim, “Ms. B.”1 Represented by counsel,

he proceeded to a jury trial on October 7, 2014, at which numerous witnesses

testified.2   The trial court previously summarized the relevant testimony

offered by Ms. B. at trial as follows:

              The victim, [Ms. B.], testified that on the evening of
       December 31, 2012, she returned home from lunch with her
       daughters and began making plans for New Year’s Eve. N.T.,
       10/7-10/9/2014, at 138-39. She went to her friend’s house for
       about an hour, and when she returned home her boyfriend, [B.K.],
       and her neighbor, [Orner], were at her house. Id. [Ms. B.]
       testified that [B.K.] and [Orner] had been drinking all day, and
       that she started drinking with them when she got home. Id. at
       140. She admitted to having somewhere between 6 to 10 shots
       of Jagermeister and that she was definitely feeling the effects of
       the alcohol. Id. Around 9:00 [p.m.], [Ms. B.] decided that she
       had drank enough and went up to her bedroom to call her friend
       and go to bed. Id. at 140-41.
             [Ms. B.] [testified] that while she was on the phone with her
       friend, her boyfriend yelled up the stairs that he and [Orner] were
       going to the bar. [Id.] at 141. [Ms. B.] fell asleep and the next
       thing she remembered was someone performing oral sex on her.
       Id. at 142. She had assumed it was her boyfriend, but when this
       person stuck his penis inside of her she opened her eyes and saw
       it was not her boyfriend, but rather [it was Orner]. Id. at 143,
       145. [Ms. B.] [testified] she was “sort of out of it” because of how
       much she had to drink, but that she was pretty sure she said
       something like “what are you doing?” Id. at 145. [Orner] ran out
____________________________________________


1 We use initials for the victim’s name, as well as her paramour’s name, in
order to protect the identity of the victim.

2 We note Orner pleaded “no contest” on March 7, 2014; however, the trial
court permitted him to withdraw his plea on June 26, 2014. Orner then
proceeded to a trial on September 2, 2014, but it resulted in a mistrial after
the jury was chosen but before opening arguments commenced. Orner
proceeded to trial again on September 8, 2014, but it also resulted in a
mistrial. Subsequently, Orner proceeded to a trial on October 7, 2014, and a
jury convicted him of numerous offenses. See Trial Court Opinion, filed
6/19/15, at 2-3.

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     of the room. Id. [Ms. B.] [testified] the very next thing she did
     was call her boyfriend and then she called 911. Id. at 146.
            The 911 recording was played for the jury, and [Ms. B.]
     testified that the police directed her to go to the hospital to have
     an exam done. [Id.] at 147-48. [Ms. B.] [testified] she was taken
     straight back to an examination room where her clothes were
     removed and placed in bags. Id. at 149. Next, a nurse performed
     an internal exam of her vagina and took samples/swabs. Id.
     After the exam, [Ms. B.] returned home. Id. at 150.
            Lastly, [Ms. B.] testified about her relationship with [Orner]
     before this incident took place. She [testified] that he had lived
     next door to her and she classified their relationship as friends.
     [Id.] at 151. She [testified] that her kids played with his kids and
     that prior to this [incident] they had no problem with one another.
     Id. She further testified that at no time prior to this did [Orner]
     make any sexual advances towards her. Id. However, [she
     testified] the night of the incident…“[h]e smacked me in my ass
     when we were like drinking and partying, but I didn’t think
     anything of it because, I mean, we were just having a good time.”
     Id. at 151-52. [Ms. B.] denied ever making any sexual advances
     towards [Orner]. Id. at 152. She also flat out denied ever giving
     [Orner] consent to perform any kind of sexual activity on her. Id.
     She reiterated that the first time she was fully aware of what was
     happening was when [Orner] stuck his penis inside of her. Id. at
     153.
           On cross-examination, [Ms. B.] denied that she repeatedly
     asked [Orner] to slap her butt. [Id.] at 158. She also denied
     showing [Orner] her breasts and having an argument with her
     boyfriend. Id. Counsel also attempted to clarify when exactly
     [Ms. B.] was aware of what was going on in the bedroom. [Ms.
     B.] stated that she fell asleep and the very next thing she
     remembered was “feeling that sensation down there that someone
     was doing oral to me.” Id. at 163. She [testified] that at this
     point her pants and underwear were down. Id. However, at no
     point prior to this did she know anyone was in her bedroom. Id.
           [Ms. B.] continually [testified] that she thought it was her
     boyfriend, which is why she did not open her eyes or attempt to
     push the person off of her. [Id.] at 165. She stated, “I knew
     something was going on, but I guess, yes, I was awake enough to
     know that, but I still didn’t open my eyes.” Id. Defense counsel
     asked [Ms. B.] about her statements to her boyfriend, which can
     be overheard in the 911 call where she said that [Orner] tried to


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        penetrate her. Id. at 166. [Ms. B.] was adamant that [Orner]
        inserted his penis into her vagina. Id.

Trial Court Opinion, filed 6/19/15, at 6-8.

        In addition to Ms. B.’s testimony, the Commonwealth offered the

testimony of Ms. B.’s live-in boyfriend, B.K., who testified that he had been

drinking alcohol with Orner for most of the day on December 31, 2012. N.T.,

10/7-10/9/04, at 177-79. Somewhere between 5:00 p.m. and 7:00 p.m., Ms.

B. joined them as they drank at the couple’s house; however, by 8:00 p.m.,

Ms. B. indicated she had enough and was going to go to bed. Id. at 179-80.

B.K. testified that, at this point, he and Orner left the house with the intent of

going into a VFW hall (“VFW”),3 which was just down the hill from the couple’s

house. Id. at 180. However, Orner was not permitted entry into the VFW, so

B.K. went inside without him. Id. at 181.

        B.K. testified that, within an hour of being at the VFW, he received a

phone call from Ms. B., who was hysterical, indicating that Orner had just

raped her. Id. B.K. advised her to call the police, and by the time B.K. walked

back to the couple’s house, the police were on site. Id. B.K. admitted that

he was ranting and raving and very upset about what Orner had done to Ms.

B. to the point the police placed him in the back of the police car until he

calmed down. Id. at 185-86.



____________________________________________


3   We recognize that “VFW” stands for “Veterans of Foreign Wars.”

                                           -4-
J-S43035-19


     B.K. admitted that, prior to the rape, he and Ms. B. would argue when

he used too many drugs. Id. at 187. He also testified that, within a few days

of the rape, Ms. B asked him to move out, and they remained broken up for

three or four months. Id. The couple then reunited; however, B.K. testified

that the following occurred while they were separated:

     Q. During that time that you were—after she asked you to move
     out of the house, did anything happen?
     A. Well, I have a 30 or 40-year friend that is [Orner’s] roommate,
     and in the mentality of an angry, jilted, twisted lover that is now
     an ex, I was texting the roommate trying to get information out
     of him, I guess, was part of what I was doing, and part of our
     texting was that I had made a disparaging comment on one of the
     texts, and he answered that. He answered that back.
     Q. What was your disparaging comment?
     A. I think I said something like, “How was it rape when they were
     having sex for two years?”
     Q. To the best of your knowledge, was there any sexual contact
     between them?
     A. No.
     Q. Why would you say that?
     A. I wanted to see what his response would be, and maybe in the
     back of my head that we were no longer boyfriend and girlfriend,
     maybe I was just being angry, mean, and a jilted lover. It was
     said out of a hated discontent at the time, the mentality I was in.
     I never once suspected her of having a relationship with [Orner].
     Q. The night that you were—on that New Year’s Eve, did you ever
     see her make any sexual advances towards him?
     A. No, sir.
     Q. Did you ever see him make any sexual advances towards hers?
     A. No, sir.
     Q. Did she flash her breasts at you or him?
     A. No, sir.



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Id. at 188-90.

     Police Officer Scott George testified that, in response to Ms. B.’s 911

call, he arrived at the residence at 10:00 p.m., on December 31, 2012. Id.

at 208. Ms. B., who was crying, reported she had been asleep and awoke to

Orner sexually assaulting her. Id. After collecting evidence, Officer George

walked out to his police car, and he spoke to Orner, who was standing outside

on the sidewalk. Id. at 209. Officer George testified as follows on direct-

examination regarding the conversation he had with Orner at this time:

     Q. Okay. And what was the discussion that you had with him?
     A. I asked him what happened. [Orner] said that he got to the
     residence at about 7:30. When he got to the residence, [Ms. B.]
     and [B.K.] were already there and were already intoxicated. They
     were drinking Jager. In between the three of them, they drank
     the whole bottle.
           He explained to me that [B.K.] and [Ms. B.] were not
     currently getting along, and during the course of the evening, that
     on three separate occasions, [Ms. B.] exposed her breasts to him.
     He said there was some flirtatious talk during the evening. She
     went upstairs and went to bed, and shortly thereafter, he left.
     Q. Okay. Did he indicate that anything had taken place between
     the two of them?
     A. Completely denied having sex with her.
     Q. So you asked him about that?
     A. Yes.
     Q. Did he say that he performed oral sex on her?
     A. No.
     Q. Did he say he touched her in any way?
     A. No.
                                 ***
     Q. And did he state if he had received any contact about the
     incident prior to speaking with you?

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     A. I don’t know if he said he spoke to, it would have been [B.K.].
     I don’t know if he said he spoke to [B.K.] or not.
     Q. If I showed you your police report, would that help refresh your
     recollections?
     A. Yeah.
     Q. Does that help you remember if he indicated that he spoke with
     anybody about the incident prior to speaking with you?
     A. Mr.—yeah, he said he did. [B.K.] called him.
     Q. And did he say what the call from [B.K.] was about?
     A. [B.K.] wanted to know if he was having sex with [Ms. B.].
     Q. And did—did [Orner] tell you what his response was?
     A. He denied having sex with [Ms. B.].

Id. at 209-11.

     Erik Dick testified that he has been friends with Orner for thirty years,

and he spoke to him about Ms. B.’s rape allegations. Id. at 222-21. Mr. Dick

indicated that Orner told him “he didn’t rape her” and the “rape kit…came up

negative or inconclusive.” Id. at 222-23.

     York County Hospital Nurse Geneva Keirn, who is a certified sexual

assault forensic examiner, testified that she conducted the examination upon

Ms. B. on December 31, 2012. Id. at 227. During the examination, Ms. B.

reported that she had been asleep and awoke to a tongue in her vagina and

then she felt a penis enter her vagina. Id. at 241. She awoke and saw Orner,

who ran. Id.

     Detective Brian O’Melko testified he interviewed Orner on March 8,

2013, and June 11, 2013, in connection with the sexual assault of Ms. B. Id.

at 252-54. Detective O’Melko testified that, when he spoke to Orner on March


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8, 2013, “[Orner] told [him] that he did not rape [Ms. B.], and he had no

sexual contact with her whatsoever.” Id. at 252. Detective O’Melko indicated

that, during the March 8, 2013, interview, Orner made no allegation that he

was having an affair with or had prior sexual contact with Ms. B. Id. at 253.

     Detective O’Melko testified he obtained a search warrant for Orner’s DNA

and served it upon Orner on June 11, 2013. Id. at 254-56. As he served the

search warrant and collected Orner’s DNA, Detective O’Melko testified as

follows regarding the conversation he had with Orner:

     Q. All right. So you said at the time that you served [this warrant]
     that he wanted to discuss [the situation] further?
     A. Yes.
     Q. And what was the discussion?
     A. He told me that he didn’t rape [Ms. B.], [and] that it was a
     waste of my time. You know, he was saying that [Ms. B.] and
     [B.K.] are crack heads and things of that nature, so—
                                 ***
     Q. Okay.
     A. I told him my job was to serve the search warrant and get the
     DNA. I didn’t want to argue with him. He seemed like he wanted
     to argue the case there with me. That wasn’t what my purpose
     was.
            So actually I was preparing to leave, and he called me back
     into the room and wanted to discuss it more. So he says, what’s
     up. I said, I can’t give you information, that’s not my job. My job
     is to collect information.
            So he told me, he said, I didn’t rape her. There was a lot of
     stuff that went on that night. He didn’t elaborate. He read the
     search warrant obviously, which had information in there that
     there was DNA found, and that’s why I was there to collect the
     DNA evidence from him. And he told me, he said, my shit will be
     on [Ms. B.], and he told me that he licked his hand and put it on
     her vagina more than one time.


                                    -8-
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       Q. Now, was that the first time that you had heard that?
       A. That is the first time that I heard that.
       Q. So when you showed up, he saw—he read the warrant that
       showed there was his DNA or there was DNA?
       A. Yes.
       Q. His story then became, he licked his hand and put it on her?
       A. Yes.
       Q. Was there anything else that was said at that time?
       A. He just said, my DNA—my DNA’s going to be on her, but that
       doesn’t prove shit, was his words.

Id. at 255-57.

       On cross-examination, Detective O’Melko testified that, during the June

11, 2013, interview, Orner continued to deny that he inserted his penis into

Ms. B.’s vagina on the evening of December 31, 2012. Id. at 268. Detective

O’Melko confirmed that he swabbed Orner’s mouth to collect the DNA. Id. at

281-82. He also confirmed that, following the June 11, 2013, interview, he

wrote in his police report that “it is clear that it is [Orner’s] position that he

did not have sexual contact with [Ms. B.] on the night in question.” Id. at

283.

       Angela Schultheis, a forensic DNA scientist for the Pennsylvania State

Police, testified that the swabs from Ms. B.’s rape kit, as well as the swab from

Orner’s cheek, were compared. Id. at 290. She opined that “the DNA profile

that [she] obtained from the question[ed] item[s], the swab[s], was

consistent with a mixture with at least three individuals, and both [Ms. B.] and

[Orner] could be included as contributors to that mixture.” Id. She further


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opined that there was a “third unidentified individual” who contributed DNA to

the mixture. Id.

      Scott Stambaugh testified on behalf of Orner at trial. He confirmed that

he resides with Orner and has known [B.K.] for forty years. Id. at 305. He

also confirmed that he has known Ms. B. for approximately fifteen years and,

during this time, she and B.K. were paramours. Id. at 307. Mr. Stambaugh

testified that, sometime after December 31, 2012, he received a text message

from B.K. in which B.K. “said that even he knew that [Ms. B.] and [Orner]

were messing around for two years.” Id. at 306. Mr. Stambaugh testified

that Ms. B. and B.K. “seem[ed] to have fights [and] [i]t’s a pretty rocky

relationship[.]” Id. at 307.

      Orner testified in his own defense. He testified that he and B.K. had a

“good relationship” and they spent a lot of time together.    Id. at 310-12.

However, Orner testified that he often spent time at B.K. and Ms. B’s house

without B.K. or the children being present.     Id. at 312.   Specifically, he

testified as follows on direct-examination:

      Q. Can you please describe your relationship with [Ms. B.] in
      December [2012]?
      A. We had a good relationship. I mean, everybody was getting
      along. Me and her were kind of a little flirtatious, you know. We,
      you know, we were messing around a little bit, but other than
      that, it was just kind of, you know, a good relationship between
      all of us. We were kind of all good friends.
           Now, they had a rocky relationship, so I mean, they were
      always fighting. But other than that, everything was pretty good.
      Q. To your knowledge, at that time, did [B.K.] know that you were
      having sexual contact with [Ms. B.]?

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      A. No.
      Q. Were you trying to keep that from him?
      A. Obviously, yes.

Id. at 313.

      With regard to December 31, 2012, Orner indicated he arrived at B.K.

and Ms. B’s residence at approximately 7:00 p.m. Id. at 315. Orner testified

that he walked upstairs with B.K. to the bedroom, and Ms. B. was “laying [sic]

there naked. She kind of—half naked, covered herself up, which was nothing

normal—or abnormal. I mean, that was pretty much normal.” Id. at 316.

Orner testified Ms. B. was crying and told Orner that B.K. had been calling her

names. Id. at 318. Orner testified that he sat on the edge of the bed by Ms.

B. while B.K. sat in a chair, and Orner told the couple he just wanted to drink

and have a good time. Id. at 316. Orner testified the trio drank and smoked

in the bedroom for approximately forty-five minutes and then they went

downstairs to continue “partying” in the kitchen. Id. at 317-18.

      Orner testified that, while they were in the kitchen, Ms. B. told Orner to

“smack her ass.” Id. at 318. Orner testified that he felt “odd” doing this in

front of B.K., but he complied. Id. Ms. B. then stated, “[T]hat’s tight. That’s

from that Zumba[.]” Id. at 318-19.        Orner indicated the trio continued

drinking in the kitchen until approximately 9:00 p.m., at which time Ms. B.

indicated she was going to bed while B.K. mentioned that he was going to go

to the VFW. Id. at 319. Orner and B.K. then left the residence together;



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however, Orner returned to the residence approximately twenty minutes later

and went up to the bedroom. Id. at 321.

        Orner admitted that Ms. B. did not explicitly ask him to come back to

the house or go into the bedroom with her; however, since they were already

“having some sexual contact” prior to December 31, 2012, he assumed she

wanted him to come to the bedroom after B.K. left.         Id. at 320.   Orner

admitted that he and Ms. B. “never had sex” prior to December 31, 2012, but

they “fooled around here and there.” Id.

        Orner indicated that, upon entering the bedroom, he and Ms. B., who

was lying on the bed, “acknowledged each other[,]” he pulled down her pants,

and he performed oral sex on her.       Id. at 322.   He indicated that, after

approximately two minutes of this activity, Ms. B. indicated she did not want

to “do this tonight,” so Orner got up and left. Id. He denied that he took his

penis out of his pants or inserted his penis into Ms. B.’s vagina. Id.

        Orner admitted that he subsequently spoke to Officer George.       He

explained that, when Officer George asked him whether he had sex with Ms.

B., he understood the question to mean whether his penis entered Ms. B.’s

vagina. Id. at 324. He testified that, since such did not occur, he answered

“no.”    Id. Orner also admitted that, on March 8, 2013, he told Detective

O’Melko that he “did not have sex with [Ms. B.].” Id. at 328. Orner explained

that he made this statement for the same reasons he told Officer George that

he and Ms. B. did not have sex. Id. Orner admitted that he told Detective


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O’Melko on June 11, 2013, that the police would find his DNA on Ms. B. Id.

at 330-31. Orner opined that Ms. B. accused him of raping her because she

was trying to get attention from B.K. Id. at 325.

      On cross-examination, Orner testified that, prior to December 31, 2012,

he and Ms. B. had a “flirtation, sexual relations[,]” which had been ongoing

for “a little over a year.” Id. at 339.   Orner testified that Ms. B. lied under

oath when she testified that she and Orner did not have a prior sexual

relationship. Id. Orner testified the sexual relationship between him and Ms.

B. was a “secret,” which B.K. did not know. Id. at 339-40.

      With regard to the December 31, 2012, incident, Orner admitted Ms. B.

never explicitly asked him to come back to the house or meet her in the

bedroom; however, Orner assumed it would “not be a problem” because of

their history. Id. at 343. He indicated that, when he entered the bedroom,

Ms. B. looked at him, so he pulled down her pants and put his tongue in her

vagina. Id. at 347. He said Ms. B. then changed her mind, so he stopped.

Id.

      With regard to Orner informing Detective O’Melko at the June 11, 2013,

interview that he had licked his hand and touched Ms. B.’s vagina, Orner

explained on cross-examination that this act occurred while he was in the

kitchen with Ms. B. and B.K., but B.K. did not see the act occur. Id. at 362.

He explained that he never informed the police that he had oral sex with Ms.




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B. on December 31, 2012, because he was not cooperating with the police.

Id.

      On redirect-examination, Orner testified that all of the “sexually related

acts,” including oral sex, occurring between him and Ms. B. on December 31,

2012, had occurred between them before. Id. at 364-65. He testified the

only new component was that B.K. was present on December 31, 2012, for

some of the sexual interaction between Orner and Ms. B. Id. at 365.

      Russell Detter, who also testified as a defense witness, indicated that he

and his family, including his wife, Evelyn Detter, spent a lot of time with Ms.

B., B.K., and Orner. Id. at 367-68. He testified they had cook-outs, and the

kids swam in Ms. B.’s and B.K.’s pool. Id. Mr. Detter testified there were

occasions when he saw Orner at the house when only Ms. B. was present,

particularly when B.K. was at work. Id. at 369. Mr. Detter testified as follows

on direct-examination:

      Q. Sometime prior to December 31st, 2012, did you hear or have
      the opportunity to observe [Ms. B.] make any statements
      regarding a relationship with [Orner]?
                                  ***
      Q. Did you have that opportunity?
      A. Yes.
      Q. And what did she say?
      A. One time my wife and I were both sitting there on the deck,
      and we were out chatting. [Orner] wasn’t there at the time, and
      [B.K.] was at work, and she said how she would like to have sex
      with him.
      Q. And this was a couple months prior to December 12, 2013—
      I’m sorry December 31st, 2012?


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      A. Yes.

Id. at 370.

      On cross-examination, Mr. Detter reiterated that Ms. B. told him and his

wife that “she wanted to have sex with [Orner];” however, he could not

remember the month or date of the conversation. Id. at 372. Mr. Detter

indicated that, after December 31, 2012, he and his family no longer went to

Ms. B.’s and B.K.’s house; however, on January 1, 2013, Ms. B. came to his

house, and she had a conversation with his wife. Id. at 373. He noted that

his wife then asked him to let Ms. B. borrow his shotgun because Ms. B. was

scared. Id. at 374.

      The Commonwealth recalled Ms. B. as a witness, and she specifically

denied having a conversation with Mr. Detter or his wife wherein she indicated

that she wanted to have sex with Orner. Id. at 383. Ms. B. denied that she

was home or visiting the Detter residence on January 1, 2013; however, she

admitted that, on January 2, 2013, she spoke to Mrs. Detter. Id. at 384. Ms.

B. indicated that she asked Mrs. Detter to come to her house to help clean it

because B.K. had “smashed up [the] house” and “was very angry” on January

1, 2013. Id. at 384-85.

      At the conclusion of all testimony, the jury convicted Orner of rape,

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

assault. On November 12, 2014, the trial court sentenced him to six years to

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


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years in prison for sexual assault. IDSI and indecent assault merged with

rape for the purposes of sentencing.           Orner filed a post-sentence motion,

which the trial court denied, and Orner filed a timely direct appeal to this

Court.

       On appeal, Orner’s counsel sought to withdraw and filed a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and

Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Moreover,

Orner filed a pro se petition seeking to have his direct appeal discontinued. A

panel of this Court examined the issues presented in appellate counsel’s

petition to withdraw, and concluding there were no non-frivolous issues,

granted counsel’s petition to withdraw. Commonwealth v. Orner, No. 673

MDA      2015    (Pa.Super.      filed   4/29/16)   (unpublished   memorandum).

Additionally, upon consideration of Orner’s pro se petition, the panel elected

to discontinue the appeal, as opposed to affirm the judgment of sentence.

See id.

       On or about March 30, 2017, Orner filed a timely, pro se PCRA petition4

in which he averred, inter alia, that trial counsel was ineffective in failing to


____________________________________________


4 Orner’s judgment of sentence became final on April 29, 2016, when this
Court granted his petition to discontinue his appeal. See Commonwealth v.
McKeever, 947 A.2d 782, 785 (Pa.Super. 2008) (finding judgment of
sentence final on date the appellant discontinued appeal). Thus, his March
30, 2017, PCRA petition was timely filed. See 42 Pa.C.S.A. § 9545(b)(1)
(providing that a PCRA petition shall be filed within one year of the date the
underlying judgment becomes final).


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J-S43035-19


call Evelyn Detter to testify at trial. Counsel was appointed to assist Orner,

and counsel filed a supplemental PCRA petition. The Commonwealth filed a

memorandum in opposition to Orner’s petition.

      The matter proceeded to a PCRA evidentiary hearing at which Orner’s

trial counsel, Marc J. Semke, Esquire, and Evelyn Detter testified. Specifically,

Attorney Semke testified his defense strategy was that Ms. B. and Orner

engaged in consensual sex during the incident in question. N.T., 8/15/18, at

9.   Attorney Semke admitted that, prior to trial, Orner indicated that Mrs.

Detter was a possible witness, and accordingly, Attorney Semke hired a

private investigator, who took a statement from Mrs. Detter on May 20, 2014.

Id. In the statement, Mrs. Detter told the private investigator that “the victim

had told [her] that this was consensual and that she was caught in the act by

her boyfriend.” Id. at 10.

      Attorney Semke testified he intended to call Mrs. Detter as a witness at

Orner’s trial. Id. at 13.    To this end, Attorney Semke prepared a subpoena

for Mrs. Detter to testify, and he “sent [it] by first class mail.” Id. at 16. He

acknowledged that he did not “personally serve a subpoena” or secure Mrs.

Detter’s signature indicating she had received the subpoena. Id. at 15-16.

Attorney Semke testified that, immediately after Orner’s trial began, he called

Mr. and Mrs. Detter to inform them of which day they would be called as

witnesses; however, “[t]hey weren’t returning [his] calls.”          Id. at 17.

Accordingly, Attorney Semke informed the trial court that he was attempting


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J-S43035-19


to locate Mr. and Mrs. Detter, and therefore, the trial court “agreed to send

sheriff’s out in an effort to locate [them].” Id. The Sheriff’s Office located

Mr. Detter, who testified at Orner’s trial, but the Sheriff’s Office was unable to

locate Mrs. Detter. Id.

      Upon cross-examination, Attorney Semke clarified that his trial strategy

was that Ms. B. and Orner had consensual oral sex, but they had no

penile/vaginal sexual intercourse. Id. at 21. Attorney Semke admitted Orner

consistently denied that he penetrated Ms. B.’s vagina with his penis, and

Orner never testified that Ms. B.’s boyfriend, B.K., “caught them” having sex

on the night of the incident. Id. Thus, Attorney Semke admitted that Mrs.

Detter’s May 20, 2014, statement regarding what Ms. B. allegedly told her

about the incident was, at least in part, inconsistent with Orner’s trial

testimony. Id. at 22.

      Mrs. Detter testified she was friends with and a neighbor of Ms. B., and

following the December 31, 2012, incident, she provided a written statement

to a private investigator. Id. at 30-32.        Mrs. Detter indicated she had

conversations with Attorney Semke prior to Orner’s trial, and she was

prepared to be a witness for Orner; however, she did not receive a subpoena.

Id. at 33. With regard to her whereabouts at the time of Orner’s October

2014 trial, Mrs. Detter testified as follows on direct-examination:

      Q. Were you around—were you in Pennsylvania during [the] time
      period [of Orner’s October 2014 trial]?
      A. When all of this stuff was going on?


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J-S43035-19


     Q. The trial?
     A. No, I wasn’t here.
     Q. Where were you?
     A. Well, I get a little sentimental here. My father has—he was
     diagnosed with dementia and Alzheimer’s. I was running back
     and forth and leaving the house and he was put in a hospital and
     stuff. And he was running around with machetes and knives and
     going into people’s houses.
           And we had to get him hospitalized. That’s when we found
     out he had dementia and Alzheimer’s. I, as the oldest daughter,
     had to go in and take care of my father before I took care of
     anything else.
     Q. How long were you there?
     A. Oh, gosh, about a week or two.
           THE COURT: Where were you, ma’m?           I don’t think you
     ever told us.
           THE WITNESS: Atlantic City, New Jersey.
           THE COURT: Thank you.

Id. at 33-34.

     Mrs. Detter testified she was not aware that Orner had gone to trial until

the week before the PCRA evidentiary hearing, when Orner’s PCRA attorney

contacted her. Id. at 34. Mrs. Detter indicated that, had she been called to

testify at Orner’s October 2014 trial, she would have testified that Ms. B.

“always had trouble with her boyfriend[.]” Id. at 35. Moreover, with regard

to what she would have testified to at Orner’s trial, the following exchange

occurred on direct-examination:

     Q. Did you talk to [Ms. B.] about this alleged incident?
     A. Yes. After everything happened, [Ms. B.] came to my house.
     This was, I think, the second or the third after, I guess, they were



                                    - 19 -
J-S43035-19


     looking for [Orner] because, I guess, he had left. And then she
     had told me everything that happened.
     Q. Okay. I don’t want to breeze through that. What did she tell
     you happened?
     A. Okay. Um, they were supposed to go to the VFW.
     Q. I’m going to interrupt you again. When you say they, who do
     you mean by they?
     A. Okay. It would be [Orner, Ms. B., and B.K.]. They were all
     supposed to go ahead and go to the VFW that night, which I think
     it was the 31st because it was almost New Year’s. He left later
     because she was with me for a while at my house getting ready,
     talking about what they were going to do that night.
           And so, they went down to the VFW, and me and my
     husband stayed home. She said to go ahead and just get
     everything out there quickly. She came out and they were all
     going into the VFW. She supposedly was supposed to be coming
     back home that night early because she wanted to get her
     boyfriend/husband, I don’t know if they are married or not. They
     have been together so long.
           But supposedly they wanted to get him drunk to go ahead
     and stay there. So, [Ms. B.] could go ahead come to the house
     and [Orner] was supposed to go ahead and meet her at her house,
     which was not—it was like three or four blocks or whatever.
           After all of that happened and she said that they got into a
     sexual contact. They were doing their little thing or whatever it
     was, and like I said, I don’t know what happened inside the house.
     But she told me, I guess, [B.K.] came in—into the house and he
     was raging. Did you leave and where are you at and screaming
     in the house.
           And that’s when, I guess, [Orner] went and jumped off of
     her and went and grabbed his stuff and ran out of the house.
            [B.K.] went and had tore up the place. Then a day or two—
     well, this was two days later she came—this is when I found out
     about everything, two days later. She was at my house and she
     asked me for a 410 I owned, which I use for hunting.
            So, the 410 that she wanted was to protect herself from
     [B.K.]. And to me, that didn’t make any sense because why she
     is trying to protect herself from [B.K.] when supposedly all of this
     happened to her that night.


                                    - 20 -
J-S43035-19


     Q. Did she ever say that [Orner] had raped her?
     A. She did not say that.
     Q. When you said that she mentioned that [B.K.] came in, did she
     say that [B.K.] came in while she was having sex with Mr. Orner?
     A. Yes.
     Q. And did she say anything else?
     A. She was just upset that she got caught. She was like, I guess
     [she] and [Orner] were having—I know that they were having a
     sexual relationship because [Ms. B.] gave [Orner] a key.
                                     ***
            [Orner] had a key to the house and [Ms. B.] worked, I
     guess, it is on Main Street or George Street, whichever one you
     prefer to call it. She worked and at 12:00 o’clock or 1:00 o’clock,
     depending on [when] her break was, [Orner] would always—most
     of the time be there waiting on her. And I asked her why is [Orner]
     at your house?
            She is like we have a little rendezvous while [B.K.] is out at
     the golf course because that’s where he used to work at and I
     didn’t know anything about this. I didn’t know [B.K.] was working.
     [B.K.] was mostly around the house. She told me he was working
     at the golf course or go on his boat or fishing or whatever with the
     girls and then that’s when I had found out that they were already
     an item before all of this stuff happened.
     Q. How long did you continue to live in the same area with [Ms.
     B.]?
     A. I lived there—let’s see, ’18—I guess not too long after that we
     left.
     Q. At no point she said to you that Mr. Orner raped her?
     A. No.
     Q. And were you willing and prepared to testify as you did today
     back in October of 2014?
     A. Yes.

Id. at 36-40.

     On cross-examination, Mrs. Detter testified that, during 2014, she went

to Atlantic City often because her father was having problems. Id. at 41. She

                                    - 21 -
J-S43035-19


indicated that she went to her father’s house on September 29, 2014, and she

stayed there for two weeks while Mr. Detter remained at home. Id. She

admitted Mr. Detter was receiving the mail at the house during this time. Id.

at 42. Mrs. Detter admitted that, in her statement that she gave to the private

detective, Mrs. Detter indicated Ms. B. told her that she, B.K., and Orner went

to the VFW on the night of the incident, but Ms. B. left because she was not

feeling well. Id. at 43.

      At the conclusion of the PCRA hearing, by order and opinion entered on

January 24, 2019, the PCRA court granted Orner’s PCRA petition and awarded

him a new trial on the basis trial counsel was ineffective in failing to call Mrs.

Detter to testify at Orner’s October 2014 trial. On February 22, 2019, the

Commonwealth filed a timely notice of appeal from the PCRA court’s order,

and all Pa.R.A.P. 1925 requirements have been met.

      On appeal, the Commonwealth contends the PCRA court erred in

granting Orner PCRA relief on his claim that trial counsel was ineffective in

failing to call Evelyn Detter as a witness at Orner’s jury trial.

      We note that “[i]n reviewing the propriety of an order granting or

denying PCRA relief, an appellate court is limited to ascertaining whether the

record supports the determination of the PCRA court and whether the ruling

is free of legal error.” Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d

523, 532 (2009). We pay great deference to the findings of the PCRA court,

“but its legal determinations are subject to our plenary review.” Id.


                                      - 22 -
J-S43035-19


            The essence of a claim of ineffective assistance of counsel is
     that counsel’s unprofessional errors so upset the adversarial
     balance between defense and prosecution that the trial was
     rendered unfair and the verdict rendered suspect. As originally
     established by the United States Supreme Court in Strickland v.
     Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
     (1984), and adopted by Pennsylvania appellate courts, counsel is
     presumed to have provided effective representation unless a PCRA
     petitioner pleads and proves all of the following: (1) the
     underlying legal claim is of arguable merit; (2) counsel’s action or
     inaction lacked any objectively reasonable basis designed to
     effectuate his client’s interest; and (3) prejudice, to the effect that
     there was a reasonable probability of a different outcome at trial
     if not for counsel’s error.
            To satisfy the prejudice prong of this test when raising a
     claim of ineffectiveness for the failure to call a potential witness
     at trial, our Supreme Court has instructed that the PCRA petitioner
     must establish that: (1) the witness existed; (2) the witness was
     available to testify for the defense; (3) counsel knew, 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 of the witness was so prejudicial as to have denied the
     defendant a fair trial.

Commonwealth v. Wantz, 84 A.3d 324, 331 (Pa.Super. 2014) (citations

omitted).

            To demonstrate Strickland prejudice, a petitioner must
     show how the uncalled witness[’s] testimony would have been
     beneficial under the circumstances of the case. Counsel will not
     be found ineffective for failing to call a witness unless the
     petitioner can show that the witness’s testimony would have been
     helpful to the defense.

Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa.Super. 2013) (en banc)

(quotation marks and quotations omitted).




                                     - 23 -
J-S43035-19


       In the case sub judice, the Commonwealth contends the PCRA court

erred in holding Orner met the prejudice prong of the ineffectiveness test.5 In

this vein, the Commonwealth avers the PCRA court erred in holding Orner

proved the absence of Mrs. Detter’s testimony was so prejudicial as to have

denied him a fair trial.6 Accordingly, the Commonwealth argues Orner failed

to demonstrate that, but for trial counsel’s omission, there was a reasonable

probability of a different outcome at Orner’s trial. For the reasons discussed

infra, we agree with the Commonwealth.

       At the PCRA evidentiary hearing, Mrs. Detter indicated that, had she

been called to testify at Orner’s jury trial, she would have testified that Ms. B.

and her paramour, B.K., had a “troubled” relationship, and prior to the incident

in question, Ms. B. and Orner had a sexual relationship. N.T., 3/30/17, at 36-

40. Moreover, as to the incident in question, Mrs. Detter admitted that she

was not a witness to and did not know what happened inside the house. Id.

However, she indicated that, the next day, Ms. B. told her that Orner and she

had made a plan to get B.K. drunk on New Year’s Eve so they could have

“sexual contact,” and to this end, the trio went to the VFW to drink. Id. Mrs.


____________________________________________


5 The Commonwealth does not challenge the PCRA court’s conclusion that
Orner’s underlying legal claim is of arguable merit or that counsel’s inaction
lacked any objectively reasonable basis designed to effectuate his client’s
interest. See Strickland, supra.

6 The Commonwealth does not dispute that Orner demonstrated Mrs. Detter
existed, she was available to testify, trial counsel knew of her existence, and
she was willing to testify for Orner.

                                          - 24 -
J-S43035-19


Detter indicated Ms. B. told her that, while she and Orner were having sex,

B.K. walked into the room, leading to Orner “jumping off” of Ms. B. and

running away. Id.

      As the Commonwealth argues, even assuming, arguendo, the jury found

Mrs. Detter’s proffered testimony to be credible, the testimony was

cumulative, in some respects, to testimony offered by other witnesses at

Orner’s trial, and it was contradictory, in other respects, to Orner’s own trial

testimony and defense strategy.

      For instance, as to Mrs. Detter’s PCRA hearing testimony that Ms. B. and

B.K. had a “troubled” relationship, this testimony was cumulative of the

following: B.K.’s testimony that he and Ms. B. argued often prior to the night

in question; Officer George’s testimony that, on the night in question, Orner

reported that Ms. B. and B.K. had been arguing; Mr. Stambaugh’s testimony

that Ms. B. and B.K. had a “rocky relationship;” and Orner’s testimony that

Ms. B. and B.K. had a “rocky relationship” and were always fighting.       See

Commonwealth v. Tharp, 627 Pa. 673, 101 A.3d 736, 758 (2014) (holding

the appellant failed to demonstrate prejudice where the proposed witness’s

testimony would have been merely cumulative of other evidence).

      As to Mrs. Detter’s PCRA hearing testimony that Ms. B. told her that she

and Orner planned to get B.K. drunk on New Year’s Eve so that they could

have “sexual contact,” and the trio went to the VFW, this testimony was

contradictory to Orner’s own trial testimony. Orner testified that, in relation


                                     - 25 -
J-S43035-19


to the night in question, Ms. B. did not go to the VFW, and Ms. B. did not

explicitly ask him to engage in sexual contact; but rather, he assumed she

would want to engage in such contact.

      Further, as to Mrs. Detter’s PCRA hearing testimony that Ms. B. told her

that, while Ms. B. and Orner were having sex, B.K. walked into the room,

leading to Orner “jumping off” of Ms. B. and running away, this testimony was

also contradictory to Orner’s own trial testimony. Orner testified that, on the

night in question, he stopped having oral sex with Ms. B. because she indicated

that she did not want to “do this tonight,” so he simply left the residence. To

the extent Mrs. Detter’s testimony implied Ms. B. and Orner had penile/vaginal

sexual intercourse on the night in question, such implication was contrary to

Orner’s trial testimony that he and Ms. B. did not engage in penile/vaginal

sexual intercourse. See Commonwealth v. Sneed, 616 Pa. 1, 45 A.3d 1096

(2012) (holding counsel cannot be ineffective for failing to call witness where

witness’s testimony would not have been helpful to the defense).

      Moreover, as to Mrs. Detter’s PCRA hearing testimony that, prior to the

incident in question, Ms. B. and Orner had a sexual relationship, we note this

proffered testimony was cumulative of Orner’s trial testimony that he and Ms.

B. had a prior sexual relationship. To the extent Mrs. Detter implied Ms. B.

and Orner had a history of prior penile/vaginal sexual intercourse, such

testimony would have been contradictory to Orner’s trial testimony.




                                    - 26 -
J-S43035-19


      Finally, it is noteworthy that Mrs. Detter admitted at the PCRA hearing

that she has no first-hand knowledge of the specific sexual incident at issue

and she was not present in the house at the time it occurred.                  See

Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726 (2004) (finding the

appellant failed to prove trial counsel was ineffective in failing to call a witness

who had no first-hand knowledge of the murder).

      Based on the aforementioned, we agree with the Commonwealth that

any benefit Orner would have reaped from the portions of Mrs. Detter’s

testimony that were cumulative of other witnesses’ testimony would have

been undermined by the conflicts between her proffered testimony and

Orner’s trial testimony. Indeed, it is not inconceivable that the conflicts would

have harmed Orner more than he gained from the additional cumulative

testimony.   We conclude Orner has failed to demonstrate that “there is a

reasonable probability that the outcome of the proceedings would have been

different” absent counsel’s omission. Wantz, 84 A.3d at 331. Accordingly,

we conclude the PCRA court’s determination that Orner was sufficiently

prejudiced by counsel’s omission to warrant relief constitutes legal error.

      For all of the aforementioned reasons, we reverse the PCRA court’s

January 24, 2019, order granting Orner a new trial, and we reinstate Orner’s

judgment of sentence.

      Order reversed and judgment of sentence reinstated.

      Judge Dubow joins the memorandum.


                                      - 27 -
J-S43035-19


     P.J.E. Gantman notes dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/04/2019




                                 - 28 -
