J-S07015-16

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

the requested relief and discontinue this appeal. 2 

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.