Commonwealth v. Fischer

721 A.2d 1111 (1998)

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Nature of the Case

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Facts

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. D 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 D, 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. The students separated and went to the dining hall with their respective friends. They met up again later and once more found themselves in D's dorm room. 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, D 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. D 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, D blocked her path. Only after striking him in the groin with her knee was the victim able to escape. D claims he led the victim into his room, and she told him it would have to be 'a quick one.' D began to engage in the same type of behavior the victim had exhibited in their previous encounter. D 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,' D answered, 'No means yes.' After another verbal exchange that included the victim's statement that she had to leave, Dagain insisted that 'she wanted it.' This time she answered, 'No, I honestly don't.' Upon hearing this, D 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. D admitted to touching the victim's genitalia and to placing his penis inside the hole in her jeans. D claims that 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. D again attempted to touch her, this time on the thigh, she told him she was 'getting pissed.' She abruptly left the room. D's college friends testified that after the first encounter, but before the second, D showed them bite marks on his chest that he had received from the victim during the first encounter. Numerous character witnesses testified on D's behalf. Sperm was found on the victim's sweater. Many of the victim's friends and classmates described her as nervous, shaken and upset after the incident. D argued that he believed the victim was a willing participant during their intimate encounters and in light of the circumstances those beliefs were reasonable. The jury returned a verdict of guilty on virtually all counts. D was sentenced to two to five years in prison. On direct appeal, D 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.