In Commonwealth v. Orner, an en banc panel of the Pennsylvania Superior Court affirmed the Court of Common Pleas’ order, which granted the defendant a new trial. The defendant was convicted of sexually assaulting his neighbor, but he maintained that the encounter was consensual. His first two trials ended in mistrials. His attorney forgot to notify a key defense witness about the third trial, and thus she did not testify. After the defendant filed a PCRA petition alleging ineffective assistance of counsel for failing to secure the witness’s presence for his third trial, the court held a hearing. The witness testified at the hearing and indicated her willingness to testify at trial and to the substance of her conversations with the victim. The Superior Court held that trial counsel was ineffective for failing to subpoena the witness and that the defendant was prejudiced even though the witness’s proposed testimony was not completely consistent with the defendant’s own testimony.
