Com. v. Fischer

• Decision Date: 07 December 1998
• Citation: 721 A.2d 1111
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kurt FISCHER, Appellant.
• Court: Pennsylvania Superior Court

721 A.2d 1111

COMMONWEALTH of Pennsylvania, Appellee, v. Kurt FISCHER, Appellant.

Superior Court of Pennsylvania.

Argued September 2, 1998.

Filed December 7, 1998.

Michael M. Mustokoff, Huntington Valley, for appellant.

Before DEL SOLE, SCHILLER and BECK, JJ.

BECK, J.:

This case prompts our consideration of the law with respect to forcible compulsion and consent in sexual assault cases. After a careful review of the record and an in-depth analysis of the issue at hand, we affirm.

Appellant, an eighteen year-old college freshman, was charged with involuntary deviate sexual intercourse (IDSI), aggravated indecent assault and related offenses in connection with an incident that occurred in a Lafayette College campus dormitory. The victim was another freshman student appellant met at school.

At trial, both the victim and appellant testified that a couple of hours prior to the incident at issue, the two went to appellant's dorm room and engaged in intimate contact. The victim testified that the couple's conduct was limited to kissing and fondling. Appellant, on the other hand, testified that during this initial encounter, he and the victim engaged in "rough sex" which culminated in the victim performing fellatio on him. According to appellant, the victim acted aggressively at this first rendezvous by holding appellant's arms above his head, biting his chest, stating "You know you want me," and initiating oral sex.

After the encounter, the students separated and went to the dining hall with their respective friends. They met up again later and once more found themselves in appellant's dorm room. While their accounts of what occurred at the first meeting contained significant differences, their versions of events at the second meeting were grossly divergent. The victim testified that appellant locked the door, pushed her onto the bed, straddled her, held her wrists above her head and forced his penis into her mouth. She struggled with appellant throughout the entire encounter and warned him that "someone would look for her" and "someone would find out." She also told him that she was scheduled to be at a mandatory seminar and repeatedly stated that she did not want to engage in sex, but her pleas went unheeded.

According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers. He then placed his penis inside the torn jeans, removed it and ejaculated on her face, hair and sweater. Thereafter, he turned her over onto her stomach, pulled down her underpants and attempted to penetrate her anally. Throughout the incident, appellant made various statements to the victim, including "I know you want it," "I know you want my dick in your mouth" and "Nobody will know where you are." When the victim attempted to leave, appellant blocked her path. Only after striking him in the groin with her knee was the victim able to escape.

Appellant characterized the second meeting in a far different light. He stated that as he led the victim into his room, she told him it would have to be "a quick one." As a result, appellant figured that their sexual liaison would be brief. Thereafter, according to appellant, he began to engage in the same type of behavior the victim had exhibited in their previous encounter. Appellant admitted that he held the young woman's arms above her head, straddled her and placed his penis at her mouth. He testified that at that point he told her "I know you want my dick in your mouth." When she replied "no," appellant answered "No means yes." After another verbal exchange that included the victim's statement that she had to leave, appellant again insisted that "she wanted it." This time she answered "No, I honestly don't." Upon hearing this, appellant no longer sought to engage in oral sex and removed himself from her body. However, as the two lay side by side on the bed, they continued to kiss and fondle one another.

Appellant admitted to touching the victim's genitalia and to placing his penis inside the hole in her jeans. According to appellant, the victim enjoyed the contact and responded positively to his actions. At some point, however, she stood up and informed appellant that she had to leave. When appellant again attempted to touch her, this time on the thigh, she told him she was "getting pissed." Before appellant could "rearrange himself," so that he could walk the victim to her class, she abruptly left the room.

At trial, both sides presented evidence to support their positions. Appellant's college friends testified that after the first encounter, but before the second, appellant showed them bite marks on his chest that he had received from the victim during the first encounter. Numerous character witnesses testified on appellant's behalf.

The Commonwealth offered physical evidence of sperm found on the victim's sweater. Medical personnel testified to treating the victim on the night in question. Many of the victim's friends and classmates described her as nervous, shaken and upset after the incident.

Defense counsel argued throughout the trial and in closing that appellant, relying on his previous encounter with the victim, did not believe his actions were taken without her consent. Presenting appellant as sexually inexperienced, counsel argued that his client believed the victim was a willing participant during their intimate encounters. In light of his limited experience and the victim's initially aggressive behavior, argued counsel, appellant's beliefs were reasonable. Further, the victim's conduct throughout the second encounter, as testified to by appellant, would not make appellant's actions "forcible" since it appeared that the victim was enjoying the encounter. Finally, as soon as appellant realized that the victim truly did not wish to engage in oral sex a second time, appellant stopped seeking same. As a result, appellant's actions could not be deemed forcible compulsion.

The jury returned a verdict of guilty on virtually all counts.¹ Appellant was sentenced to two to five years in prison. On direct appeal, he retained new counsel who has raised a single issue of ineffectiveness before this court. He argues that trial counsel provided ineffective assistance in failing to request a jury charge on the defense of mistake of fact. Specifically, appellant claims that counsel should have asked the court to instruct the jurors that if they found appellant reasonably, though mistakenly, believed that the victim was consenting to his sexual advances, they could find him not guilty.

The standard of review for ineffectiveness challenges is clear. Appellant must establish: 1) an underlying issue of arguable merit; 2) the absence of a reasonable strategy on the part of counsel in acting or failing to act; and 3) prejudice as a result of counsel's action or inaction. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303, 1305 (1991). In all instances we presume that counsel is effective and place the burden on appellant to prove otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990).

Our initial inquiry is whether counsel would have been successful had he requested a mistake of fact instruction. Counsel cannot be deemed ineffective for failing to pursue a baseless claim. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Further, the quality of counsel's stewardship is based on the state of the law as it existed at time of trial; counsel is not ineffective if he fails to predict future developments or changes in the law. Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997).

The Commonwealth relies on two bases for dispensing with appellant's claims. It first argues that appellant's claim does not warrant consideration because he testified that the victim did not perform oral sex on him at the second encounter. The Commonwealth insists that appellant's testimony prevents him from claiming a mistake of fact regarding commission of the crime. The record, however, establishes otherwise. Throughout the trial, counsel clearly relied on appellant's previous contact with the victim to support his claim that appellant reasonably believed the victim consented to his advances. While on the stand, appellant admitted that he placed his penis on the victim's mouth. He testified: "the head of my penis went halfway in, but then she closed her mouth and turned to the side." Because the crime of IDSI is complete at the point of "penetration, however slight," appellant clearly admitted that the physical element/requirement of the crime was met. 18 Pa.C.S.A. § 3101. The Commonwealth's first argument, therefore, is unavailing.

The Commonwealth's second line of attack is its reliance on an opinion by a panel of this court. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (Pa.Super.1982), concerned the rape and assault of a Temple University student. The facts established that the victim accepted a ride from the appellant on a snowy evening in Philadelphia. Instead of taking the young woman to the bus station, appellant drove her to a dark area, threatened to kill her and informed her that he wanted sex. The victim told Williams to "go ahead" because she did not wish to be hurt.

After his conviction and sentence, appellant filed a direct appeal and argued, among other things, that the trial court erred in refusing to instruct the jury "that if the defendant reasonably believed that the prosecutrix had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charge." Id. 439 A.2d at 767. This court rejected Williams's claim and held:

In so refusing the proffered charge the court acted correctly. The charge requested by the defendant is not now and has never been the law of Pennsylvania. When one individual uses force or the threat of force to have sexual relations with a person not his spouse and without the person's consent he has committed the

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