Com. v. Orner, C.
251 A.3d 819
| Pa. Super. Ct. | 2021Background
- On December 31, 2012, M.B. accused neighbor Colby Orner of sexual assault after she awoke to sexual contact; Orner admitted some contact and DNA from his saliva was found in her rape kit but claimed the acts were consensual as part of an ongoing affair.
- Neighbors Russell and Evelyn Detter (particularly Mrs. Detter) later reported that M.B. had told them she and Orner were in an ongoing consensual relationship and that the rape allegation was false.
- Trial counsel failed to subpoena Mrs. Detter for Orner’s third trial; Orner was convicted of rape, IDSI, sexual assault, and indecent assault and sentenced to 6–14 years.
- Orner filed a timely PCRA petition alleging ineffective assistance for not calling Mrs. Detter; a PCRA hearing was held where counsel admitted the oversight and Mrs. Detter testified she would have been available and would corroborate consent and fabrication.
- The PCRA court found counsel’s failure was not strategic, credited Mrs. Detter’s testimony as material and available, and granted a new trial.
- The Commonwealth appealed; the Superior Court affirmed the PCRA court, holding Orner was prejudiced by counsel’s failure to call the witness.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Orner) | Held |
|---|---|---|---|
| Did Orner show prejudice from counsel’s failure to call Mrs. Detter? | Mrs. Detter’s statements were inconsistent with trial testimony and would not have meaningfully aided Orner; no Strickland prejudice. | Mrs. Detter would have corroborated that the contact was consensual and that M.B. had motive to fabricate, so her absence prejudiced the defense. | Held: PCRA court and Superior Court: prejudice shown—Detter’s testimony was material and would have benefitted defense; new trial warranted. |
| Was counsel’s omission a reasonable strategy or deficient performance and was the witness available/willing? | Implied that any omission could be strategic and inconsistencies undercut availability/worth. | Counsel admitted he failed to subpoena Mrs. Detter (an oversight); Mrs. Detter testified she would have been available and willing to testify. | Held: Counsel’s failure was an unreasonable oversight (not strategy); Detter existed, was known, available and willing—performance prong satisfied. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
- Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012) (standards for uncalled-witness claims under Strickland)
- Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013) (en banc) (uncalled witness testimony that attacks complainant credibility can be prejudicial)
- Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008) (discusses Strickland prejudice and assessment of uncalled witnesses)
- Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020) (standard of review for PCRA appeals)