Commonwealth v. Fischer

Rule of Law:

Trial counsel is not ineffective for failing to request a jury instruction on a defense that is not recognized under existing, binding precedent. In Pennsylvania, a defendant's reasonable but mistaken belief as to a victim's consent is not a valid defense to a charge of sexual assault.

Facts:

• Appellant and the victim, both freshmen at Lafayette College, met and went to appellant's dorm room.
• During their first encounter, they engaged in intimate contact. The victim described it as kissing and fondling, while appellant claimed they engaged in 'rough sex' initiated by the victim, which included fellatio and the victim biting his chest.
• A few hours later, they met again in appellant's dorm room.
• The victim testified that appellant locked the door, physically overpowered her, held her wrists, and forced his penis into her mouth despite her repeated verbal and physical resistance.
• The victim also testified that appellant digitally penetrated her, placed his penis inside a tear in her jeans, ejaculated on her, and attempted anal penetration before she escaped by striking him.
• Appellant testified that the victim implied she wanted a brief sexual liaison. He admitted to holding her arms and telling her 'No means yes' but claimed he stopped seeking oral sex when she said, 'No, I honestly don’t.'
• Appellant claimed they continued to kiss and fondle consensually until the victim became upset and left abruptly.

Procedural Posture:

• Appellant was charged in a Pennsylvania trial court with involuntary deviate sexual intercourse, aggravated indecent assault, and related offenses.
• Following a trial, a jury found appellant guilty on most counts.
• The trial court sentenced appellant to two to five years in prison.
• Appellant obtained new counsel and filed a direct appeal to the Superior Court of Pennsylvania, which is the intermediate appellate court.