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Superior Court of Pennsylvania • 1998

Commonwealth v. Fischer

721 A.2d 1111 | 1998 Pa. Super. LEXIS 3812

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Takeaway

In short, Fischer preserves the conviction because, whatever the appeal of a reasonable-mistake-of-consent defense in some date-rape cases, binding Pennsylvania law did not recognize it when Fischer was tried, and counsel was not ineffective for failing to anticipate a change in that law.

Background

An eighteen-year-old Lafayette College freshman was convicted of involuntary deviate sexual intercourse, aggravated indecent assault, and related offenses arising from a sexual encounter with another freshman in his dormitory room. The parties agreed they had engaged in intimate contact earlier that evening, but sharply disputed its nature and the later encounter.

The complainant testified that, during the second encounter, Fischer locked the door, pushed her onto the bed, restrained her wrists, forced his penis into her mouth, digitally penetrated her, ejaculated on her, and attempted anal penetration. She said she repeatedly said no, tried to leave, and escaped only after kneeing him in the groin. Fischer admitted, among other things, straddling her, holding her arms above her head, placing his penis at her mouth, and touching her genitalia. He maintained, however, that he believed she was a willing participant based on their earlier encounter and her conduct during the second one.

The jury found Fischer guilty on virtually all counts, and the trial court sentenced him to two to five years' imprisonment. On direct appeal with new counsel, Fischer argued that trial counsel was ineffective for failing to request a mistake-of-fact instruction stating that a reasonable but mistaken belief in the complainant's consent could require acquittal.

Issues

Issue #1

Whether Fischer's testimony that the complainant did not perform oral sex on him prevented him from asserting a mistake-of-fact defense to IDSI.

Holding

No. Fischer's testimony did not itself foreclose the claimed defense.

Reasoning

The Commonwealth argued that Fischer could not claim a mistake about consent because he denied that the complainant performed oral sex on him during the second encounter. The court rejected that characterization of his testimony. Fischer admitted placing his penis at her mouth and testified that its head went halfway into her mouth before she closed her mouth and turned away.

reasoning

Because IDSI is complete upon even slight penetration, Fischer's own account admitted the physical element of the offense. His defense throughout trial was not that no sexual contact occurred, but that he reasonably understood the complainant to consent. Thus, his testimony did not make his mistake-of-fact theory legally unavailable.

Issue #2

Whether Pennsylvania law entitled Fischer to a jury instruction that a reasonable but mistaken belief in consent is a defense to forcible-compulsion IDSI.

Holding

No. Binding Pennsylvania precedent did not recognize that defense or require the requested instruction.

Reasoning

The controlling precedent was Commonwealth v. Williams, which held that a defendant's reasonable belief that a complainant consented was not, and had never been, a defense to rape or IDSI under Pennsylvania law. Williams also concluded that creating such a defense was a matter for the legislature rather than the judiciary. As an intermediate appellate court, the Superior Court was bound by that decision.

reasoning

The court acknowledged that Pennsylvania sexual-assault law had substantially developed since Williams. Rhodes recognized that forcible compulsion can include psychological, moral, or intellectual force; Berkowitz held that lack of consent alone is not forcible compulsion; and the legislature later broadly defined forcible compulsion to include physical, intellectual, moral, emotional, and psychological force. The court also found persuasive the Standard Jury Instructions Subcommittee's view that a non-reckless mistaken belief in consent could matter in some date-rape cases.

reasoning

Those developments did not displace Williams in this case. Fischer's case involved competing accounts of physical force, verbal and physical resistance, and an alleged physical struggle, rather than the more subtle psychological or moral coercion scenarios contemplated by the expanded statutory definition and the Subcommittee's hypothetical. The parties' prior sexual contact distinguished the facts from Williams, but did not alter Williams's legal rule that Pennsylvania did not recognize the requested defense.

Issue #3

Whether trial counsel was ineffective for failing to request the mistake-of-fact instruction.

Holding

No. Counsel was not ineffective for failing to seek an instruction that binding law did not support.

Reasoning

To establish ineffective assistance, Fischer had to show that his underlying claim had arguable merit, that counsel lacked a reasonable basis for the omission, and that the omission prejudiced him. Counsel cannot be ineffective for declining to pursue a baseless claim, and counsel's performance is judged according to the law existing at the time of trial.

reasoning

Even if the court believed that a reasonable-mistake instruction would be a sound future development in Pennsylvania law, granting Fischer relief would require holding trial counsel ineffective for failing to predict that change. Pennsylvania law does not demand such prescience from counsel. Because Williams foreclosed the instruction at the time of trial, Fischer could not establish ineffective assistance.

Concurrences

Judge Del Sole

Reasoning

Judge Del Sole concurred in the result. The opinion provides no separate explanation of his reasoning.