Com. v. Cosby Jr., W.
224 A.3d 372
Pa. Super. Ct.2019Background
- In January 2004 Cosby was accused by a woman (Victim) of being given pills, becoming incapacitated, and being sexually assaulted in his Cheltenham home; she later filed a civil suit that settled confidentially in 2006.
- A 2005 Montgomery County press release by District Attorney Bruce Castor declared he would not prosecute after investigating; Cosby sat for civil depositions and testified without invoking the Fifth Amendment. The civil discovery remained sealed until 2015, when the criminal investigation reopened.
- In 2015–2018 prosecutors charged Cosby with three counts of aggravated indecent assault (2004 incident). At trial the Commonwealth introduced testimony from five prior-wrongdoing witnesses under Pa.R.E. 404(b). Cosby was convicted in April 2018 and sentenced to 3–10 years.
- Pretrial habeas and suppression claims argued Castor’s 2005 declination constituted a binding non-prosecution promise (or estoppel) that induced Cosby to testify in civil depositions; trial court rejected those claims after hearings.
- Cosby raised multiple appellate issues: admissibility of prior-bad-acts evidence; failure to recuse the judge for prior conflict with Castor; denial of habeas and suppression; admission of deposition testimony about Quaaludes; erroneous jury instruction (consciousness of guilt); juror bias; and constitutionality/ex post facto challenge to SORNA II SVP designation.
Issues
| Issue | Plaintiff's Argument (Cosby) | Defendant's Argument (Commonwealth / Trial Ct.) | Held |
|---|---|---|---|
| Admissibility of prior-bad-acts evidence (Pa.R.E. 404(b)) | Testimony by five women was remote, dissimilar, and unduly prejudicial; should be excluded. | Evidence showed a distinctive, recurring “mentor → intoxicant → incapacitation → sexual assault” pattern; probative value outweighed prejudice. | Court admitted five witnesses under common plan and absence-of-mistake exceptions; appellate court affirmed. |
| Recusal of trial judge for prior acrimony with Castor | Judge had an undisclosed, acrimonious 1999 relationship with Castor, creating bias; recusal required. | The claim was raised too late and was waived; no actual bias shown. | Waived for delay; no abuse of discretion found in denying recusal. |
| Habeas / non-prosecution promise & promissory estoppel | Castor’s 2005 press release and communications constituted a binding promise not to prosecute; Cosby relied and testified in civil depositions. | No court-ordered immunity was granted; prosecutorial declination alone cannot confer transactional immunity; promissory estoppel unreasonable here. | Denial of habeas upheld: no enforceable immunity existed and promissory-estoppel/suppression claims fail. |
| Suppression of civil deposition testimony | Deposition compelled by reliance on Castor’s promise should be suppressed. | No enforceable promise; counsel participated; testimony given while represented and not coerced. | Suppression denied; trial court credibility findings supported. |
| Admission of deposition statements about Quaaludes (404(b)) | 1970s Quaalude admissions were irrelevant and overly prejudicial. | Those admissions showed knowledge of CNS depressants and method—relevant to intent/recklessness and corroborated pattern. | Admission affirmed: probative of mens rea and intent; prejudice mitigated by limiting instructions. |
| Jury instruction: consciousness of guilt | Instruction misleading and inapplicable. | Evidence (offers to Victim/mother after accusation) legitimately admissible and charge proper. | Claim waived for failure to object at charge; merits also rejected. |
| Juror bias (failure to remove Juror 11) | Juror 11 told others he thought Cosby was guilty; should have been struck for cause. | Investigator’s prospective juror account was not credible; Juror 11 denied the remark; trial court found no bias. | No abuse of discretion: trial court’s credibility findings sustained; no new trial. |
| SORNA II SVP designation / ex post facto | Applying SORNA II SVP consequences retroactively increases punishment (lifetime registration) in violation of ex post facto; insufficient proof standard alleged. | Only SVP challenge was preserved; Cosby failed to analyze Mendoza–Martinez factors or SORNA II’s relief mechanism; claim waived or meritless. | Appellate court found claim waived for inadequate briefing and, alternatively, would reject it on the merits given SORNA II changes (including §9799.59 relief mechanism). |
Key Cases Cited
- Commonwealth v. Tyson, 119 A.3d 353 (Pa. Super. 2015) (Rule 404(b) common-scheme and absence-of-mistake exceptions can rebut consent defenses when incidents show distinctive, similar facts)
- Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) (404(b) evidence admissible to show absence of accident where prior similar deaths rebut accidental theory)
- Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. 1990) (common-scheme inquiry requires near-identical or distinctive signature facts)
- Commonwealth v. Bidwell, 195 A.3d 610 (Pa. Super. 2018) (404(b) evidence of prior dissimilar violent acts may be excluded where no unique modus operandi links them)
- Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (SORNA registration provisions are punitive; retroactive application violates ex post facto clause)
- Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (Alleyne concerns with SVP assessment under SORNA I)