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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S07015-16
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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