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J-M07001-19
2019 PA Super 354
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
WILLIAM HENRY COSBY, JR.
Appellant No. 3314 EDA 2018
Appeal from the Judgment of Sentence Entered September 25, 2018
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-3932-2016
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and NICHOLS, J.
OPINION BY BENDER, P.J.E.: FILED DECEMBER 10, 2019
Appellant, William Henry Cosby, Jr., appeals from the judgment of
sentence of 3-10 yearsâ incarceration, imposed following his conviction for
three counts of aggravated indecent assault, pursuant to 18 Pa.C.S. §
3125(a)(1), (4), and (5). After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
In January 2004[,]1[] [Appellant] sexually assaulted [the] then
thirty[-]year[-]old [Victim] at his home in Elkins Park,
Cheltenham, Montgomery County. On the evening of the assault,
[Victim] was invited to the then sixty-six[-]year[-]old
[Appellant]âs home to discuss her upcoming career change. She
had decided to leave her position as the Director of Basketball
Operations for the Temple womenâs basketball team, and to return
to her native Canada to pursue a career in massage therapy.
When she arrived at the home, she entered through the kitchen
door, as she had on prior visits. She and [Appellant] sat at the
kitchen table and began talking. There was a glass of water and
a glass of wine on the table when she arrived. Initially, she drank
only the water because she had not eaten a lot and did not want
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to drink on an empty stomach. Eventually, [Appellant] convinced
her to taste the wine. They discussed the stress she was feeling
at the prospect of telling [the basketball coach] that she was
leaving Temple. [Victim] left the table to use the restroom. When
she returned, [Appellant] was standing by the table, having gone
upstairs himself while she was in the bathroom. He reached out
his hand and offered her three blue pills. He told her, âThese are
your friends. Theyâll help take the edge off.â She asked him if she
should put the pills under her tongue. He told her to put them
down with water, and she did.
1 In each of her statements to police, and in prior testimony,
[Victim] indicated that the assault took place in 2004. She
indicated to police that the assault happened prior to her
cousin[âs] visiting from Canada; border crossing records
indicate that he entered the United States on January 22,
2004. There was no evidence to indicate that the assault
happened prior to December 30, 2003.
After she took the pills, [Victim] and [Appellant] sat back down
at the kitchen table and continued their conversation. She began
to have double vision and told [Appellant] that she could see two
of him. Her mouth became cottony and she began to slur her
words. [Appellant] told her that he thought she needed to relax.
[Victim] did not know what was happening to her, but felt that
something was wrong. They stood up from the table and
[Appellant] took her arm to help steady her. Her legs felt rubbery
as he walked her through the dining room to a sofa in another
room. He placed her on the sofa on her left side and told her to
relax there. She began to panic and did not know what was
happening to her body. She felt weak and was unable to speak.
She was unable to maintain consciousness. She was jolted awake
by [Appellant] forcefully penetrating her vagina with his fingers.
[Appellant] had positioned himself behind her on the couch,
penetrated her vagina with his fingers, and fondled her breasts.
He took her hand[,] placed it on his penis[,] and masturbated
himself with her hand. [Victim] was unable to tell him to stop or
to physically stop the assault.
She awoke sometime between four and five a.m. to find her
pants unzipped and her bra up around her neck. She fixed her
clothing and began to head towards the front door. As she walked
towards the door, she saw [Appellant] standing in the doorway
between the kitchen and the dining room. He was wearing a robe
and slippers and told her there was a muffin and tea for her on
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the table. She sipped the tea[,] took a piece of the muffin with
her[,] and drove herself home.
At the time of assault, [Victim] had known [Appellant] since
the fall of 2002 when she met him in her capacity as the Director
of Basketball Operations. She was introduced to [Appellant] by
Joan Ballast at a basketball game at the Liacouras Center.
[Victim] accompanied Ms. Ballast and several others [who were]
giving [Appellant] a tour of the newly renovated facilities. Several
days after the initial introduction, [Appellant] called Temple with
some questions about the renovations and spoke to [Victim] on
the phone. Several weeks later, she again spoke to him on the
phone at her office. They discussed having met at the game at
Temple. They began having more regular conversations, mostly
pertaining to Temple sports. The conversations also included
personal information about [Victim]âs history as a professional
basketball player, her educational background and her career
goals.
After several phone conversations, [Appellant] invited [Victim]
to his home for dinner. When she arrived at the home, [Appellant]
greeted her and took her to the room where she ate her dinner.
The chef served her meal and a glass of wine and she ate alone.
As she was finishing her meal, [Appellant] came into the room and
sat next to her on the couch. At this point, he placed his hand on
her thigh. She was aware that this was the first time [Appellant]
touched her, but thought nothing of it and left shortly after as she
had been preparing to do.
Subsequently, [Appellant] invited her to attend a blues concert
in New York City with other young women who shared similar
interests, particularly related to health and homeopathic
remedies. She did not see [Appellant] in person on that trip.
Sometime later, she was again invited to dine at [Appellant]âs
home alone. The chef called her about the meal and again she
ate in the same room as she had on the first occasion. For a
second time, when she was finished [with] her meal, [Appellant]
sat beside her on the couch. The conversation again revolved
around things [Victim] could do to ⊠break into sports
broadcasting. On this occasion, [Appellant] reached over and
attempted to unbutton and to unzip her pants. She leaned
forward to prevent him from undoing her pants. He stopped. She
believed that she had made it clear she was not interested in any
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of that. She did not feel threatened by him and did not expect
him to make a romantic or sexual advance towards her again.
[Victim] continued to have contact with [Appellant], primarily
by phone and related to Temple sports. [Appellant] also had
contact with [Victim]âs family. [Victim]âs mother ⊠and ⊠sister âŠ
attended one of [Appellant]âs performances in Ontario, and
afterward, met him backstage.
In late 2003, [Appellant] invited [Victim] to meet him at the
Foxwoods Casino in Connecticut. He put her in touch with Tom
Cantone, who worked at the casino. When she arrived at the
casino, she had dinner with [Appellant] and Mr. Cantone. After
dinner, Mr. Cantone escorted [Victim] to her room. She thanked
him and told him that she would have to leave early in the morning
and would not have time to tour the Indian reservation that was
on the property. [Appellant] called her and asked her to come
back upstairs to his room for some baked goods. When she
arrived at the room, he invited her in and continued to unpack his
luggage cart. She believed that the baked goods were on the cart.
During this time, they discussed their usual topics of conversation,
Temple and sports broadcasting. [Victim] was seated on the edge
of the bed. [Appellant] laid down on the bed. He fell asleep.
[Victim] remained in the room for several minutes, and then she
went back to her own room.
[Victim] testified that during this time, she came to view
[Appellant] as a mentor and a friend.2 He was well respected at
Temple as a trustee and alumni, and [Victim] was grateful for the
help that he tried to give her in her career. She continued her
friendship with him, despite what she felt were two sexual
advances; she was a young, fit woman who did not feel physically
threatened by [Appellant].
2 In his statement to police, [Appellant] agreed and
indicated that [Victim] saw him as a mentor and that he
encouraged that relationship as a mentor.
Following the assault, between January[] 2004 and March[]
2004, [Victim] and [Appellant] continued to have telephone
contact, solely regarding Temple sports. In March 2004[,
Appellant] invited [Victim] to a dinner at a restaurant in
Philadelphia. [Victim] attended the dinner, hoping to speak to
[Appellant] about the assault. After the dinner, [Appellant] invited
her to his home to talk. Once at the home, she attempted to
confront him to find out what he gave her and why he assaulted
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her. She testified that he was evasive and told her that he thought
she had an orgasm. Unable to get an answer, she lost her courage
and left the home.
At the end of March 2004, [Victim] moved back to Canada.
[Victim]âs mother ⊠testified that when her daughter returned
home, she seemed to be depressed and was not herself. She
would hear her daughter screaming in her sleep, but [Victim]
denied that anything was wrong.
After returning to Canada, [Victim] had some phone contact
with [Appellant] related to his performance in the Toronto area.
[Appellant] invited [Victim] and her family to attend that show.
Her parents were excited to attend the show, and her mother had
previously spoken with [Appellant] on the phone and attended two
of his shows prior to the assault. [Victimâs] mother brought
[Appellant] a gift to the show.
In January 2005, [Victim] disclosed the assault to her mother.
She woke up crying and called her mother. [Victimâs mother] was
on her way to work and called [Victim] back once she arrived at
work. They decided to contact the Durham Regional Police in
Ontario, Canada[,] when [Victimâs mother] returned home from
work. Unsure of how the American criminal justice system
worked, and afraid that [Appellant] could retaliate against her or
her family, [Victim] attempted to reach two attorneys in the
Philadelphia area during the day.
Ultimately, that evening, [Victim] and her mother contacted
the Durham Regional Police and filed a police report. Following
the report, [Victimâs mother] asked for [Appellant]âs phone
number and called him. [Appellant] returned [Victimâs mother]âs
call the next day. During this call, both [Victim] and her mother
spoke to [Appellant] on separate phone extensions. [Victim]
confronted him about what happened and the three blue pills that
he gave her. [Appellant] apologized, but would not tell her what
he had given her. He indicated that he would have to check the
prescription bottle and that he would write the name down and
send it to them. [Victim] hung up the phone and her mother
continued to speak to [Appellant]. He told [Victimâs mother] that
there was no penile penetration. [Victim] did not tell [Appellant]
that she had filed a police report.
After this initial phone conversation with [Appellant], [Victimâs
mother] purchased a tape recorder and called him again. In the
call, [Appellant] indicated that he wanted to talk about a âmutual
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feeling or friendship,â and âto see if [Victim] is still interested in
sports [broad]casting or something in T.V.â [Appellant] also
discussed paying for [Victim] to continue her education. He
continued to refuse to give [Victimâs mother] the name of the
medication he had given [Victim]. Additionally, he invited her and
[Victim] to meet him in another city to meet with him to discuss
these offers in person and told her that someone would call them
to arrange the trip.
Subsequently, [Victim] received a phone message from Peter
Weiderlight, one of [Appellant]âs representatives. Mr. Weiderlight
indicated in his message that he was calling on behalf of
[Appellant] to offer [Victim] a trip to see [Appellant]âs upcoming
performance in Florida.
When [Victim] returned Mr. Weiderlightâs call, she recorded the
conversation. During this conversation, Mr. Weiderlight discussed
[Appellant]âs offer for [Victim] and her mother to attend a
performance ⊠in Miami and sought to obtain her information so
that he could book flights and make reservations. [Victim] did not
give him that information or call him back to provide the same.
[Victim] also received a message from [Appellant]âs attorney,
Marty Singer, Esq., wherein he indicated that [Appellant] wished
to set up an educational trust for [Victim]. [Victim] did not return
Mr. Singerâs call. Both of these calls were received within days of
[Victim]âs report to police.
The Durham Regional Police referred the report to the
Philadelphia Police, who ultimately referred it to the Cheltenham
Police Department in Montgomery County, Pennsylvania.
Sergeant Richard Schaeffer, of the Cheltenham Township Police
Department, was assigned to the case in 2005. Cheltenham police
investigated jointly with the Montgomery County Detective
Bureau. On January 19, 2005, Sgt. Schaeffer spoke to [Victim]
by phone to obtain a brief description of her allegations. He
testified that [Victim] was nervous and anxious during this call.
She then drove from Canada to meet with law enforcement in
person in Montgomery County. She testified that in each of her
meetings with law enforcement she was very nervous. She had
never had any previous contact with law enforcement, and
discussing the nature of the assault made her uncomfortable. She
testified that she cooperated with the police and signed releases
for her mental health, banking and phone records.
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On January 24, 2005, then Montgomery County District
Attorney Bruce L. Castor, Jr., issued a signed press release
indicating that an investigation had commenced following
[Victim]âs January 13, 2005[] report to authorities in Canada. As
part of the investigation, law enforcement, including Sgt.
Schaeffer, took a written[] question and answer statement from
[Appellant] in New York City on January 26, 2005. [Appellant]
was accompanied by counsel, both his criminal defense attorney
Walter M. Phillips[, Esq.,]3[] and his longtime general counsel John
P. Schmitt, Esq., when he provided his statement to police.
3 Mr. Phillips passed away in early 2015.
In his statement to police, [Appellant] stated that he met
[Victim] in 2002 at the Liacouras Center. He stated [that] they
had a social and romantic relationship that began on her second
visit to his home. He stated that she was alone with him in the
home on three occasions. As to the night of the assault, he stated
that [Victim] had come to his home and they were talking in the
kitchen about her inability to sleep. He told police that he gave
her Benadryl that he uses to help him sleep when he travels. He
stated that he would take two Benadryl and would become sleepy
right away. He gave [Victim] one and [one-]half pills. He did not
tell [Victim] what the pills were. He stated that he was
comfortable giving her pills to relax her. He stated that she did
not appear to be under the influence when she arrived at his home
that night.
He stated that after he gave her the pills, they began to touch
and kiss on the couch with clothes on. He stated that she never
told him to stop and that he touched her bare breasts and
genitalia. He stated that he did not remove his clothing and
[Victim] did not touch him under his clothes. He told police, âI
never intended to have sexual intercourse, like naked bodies with
[Victim]. We were fully clothed. We are petting. I enjoyed it.
And then I stopped and went up to bed. We stopped and then we
talked.â
He stated that there were at least three other occasions where
they engaged in similar petting in his home. When asked if they
had ever had intercourse, he stated, â[n]ever asleep or awake.â
He stated that on each occasion, he initiated the petting. He
stated that on her second visit to his home, they were kissing in
the hallway and he lifted her bra to kiss her breasts and she told
him to stop.
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He stated that, just prior to the date of his statement, he spoke
to [Victimâs mother] on the phone and she asked him what he had
given her daughter. He told her that he gave [Victim] some pills
and that he would send her the name of them. He further stated
that [he] told [Victimâs mother] there was no penile penetration,
just petting and touching of private parts. He also stated that he
did not recall using the word âconsensualâ when describing the
encounter to [Victimâs mother]. He also answered âno,â when
asked if he ever knew [Victim] to be untruthful. Following that
interview, [Appellant], unprompted, provided law enforcement
with pills that were later identified as Benadryl.
On February 17, 2005, law enforcement had a strategy
meeting where they created a plan for the next steps in the
investigation. Later that same day, then District Attorney, Bruce
L. Castor, Jr., issued a second, signed press release, this time
stating that he had decided not to prosecute [Appellant]. The
press release cautioned that the decision could be reconsidered.
Mr. Castor never personally met with [Victim].
[Victim]âs attorneys, Dolores Troiani, Esq., and Bebe Kivitz,
Esq., first learned of Mr. Castorâs decision not to prosecute when
a reporter arrived at Ms. Troianiâs office on the evening of
February 17, 2005[,] seeking comment about what Bruce Castor
had done. The reporter informed her that Mr. Castor had issued
a press release in which he declined prosecution. Ms. Troiani had
not received any prior notification of the decision not to prosecute.
At a pretrial hearing held on February 2 and 3, 2016, Mr. Castor
testified that it was his intention in 2005 to strip [Appellant] of his
Fifth Amendment right to force him to sit for a deposition in a yet[-
]to[-]be[-]filed civil case, and that Mr. Phillips, [Appellant]âs
criminal attorney, agreed with his legal assessment. Mr. Castor
also testified that he relayed this intention to then First Assistant
District Attorney Risa V. Ferman.4
4 Ms. Ferman is now a Judge on the Court of Common Pleas.
Disappointed with the declination of the charges, [Victim]
sought justice civilly. On March 8, 2005, she filed a civil suit
against [Appellant] in federal court. As part of the lawsuit, both
parties were deposed. On four dates, September 28 and 29,
2005[,] and March 28 and 29, 2006, [Appellant] sat for
depositions in the civil matter. He was accompanied by counsel,
including Mr. Schmitt. Mr. Schmitt testified that Mr. Phillips had
informed him of Mr. Castorâs promise not to prosecute.
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[Appellant] did not invoke the Fifth Amendment during the
depositions; however, counsel did advise him not to answer
questions pertaining to [Victim] and her attorneys filed motions to
compel his testimony. [Appellant] did not invoke the Fifth
Amendment when asked about other alleged victims. At no time
during the civil litigation did any of the attorneys for [Appellant]
indicate on the record that [Appellant] could not be prosecuted.
There was no attempt by defense attorneys to confirm the
purported promise before the depositions, even though Mr. Castor
was still the District Attorney; it was never referenced in the
stipulations at the outset of the civil depositions.
In his depositions, [Appellant] testified that he met [Victim] at
the Liacouras Center and developed a romantic interest in her
right away. He did not tell her of his interest. He testified that he
was open to âsort of whatever happensâ and that he did not want
his wife to know about any relationship with [Victim]. When asked
what he meant by a romantic interest, he testified â[r]omance in
terms of steps that will lead to some kind of permission or no
permission or how you go about getting to wherever youâre going
to wind up.â After their first meeting, they spoke on the phone on
more than one occasion. He testified that every time [Victim]
came to his Elkins Park home it was at his invitation; she did not
initiate any of the visits.
He testified that there were three instances of consensual
sexual contact with [Victim], including the night he gave her the
pills. [During] one of the encounters, he testified that he tried to
suck her breasts and she told him âno, stop,â but she permitted
him to put his hand inside of her vagina. He also testified about
the pills he gave law enforcement at the January 26, 2005
interview. Additionally, he testified that he believed the incident
during which he gave [Victim] the pills was in the year 2004,
â[b]ecause itâs not more than a year away. Thatâs a time period
that I knew-itâs a ballpark of when I knew [Victim].â
He testified that he and [Victim] had discussed herbal
medicines and that he gave [Victim] pills on one occasion, that he
identified to police as Benadryl[]. He testified about his
knowledge of the types of Benadryl and their effects. He indicated
that he would take two pills to help him go to sleep.
[Appellant] testified that on the night of the assault, [Victim]
accepted his invitation to come to his home. They sat at a table
in the kitchen and talked about [Victim]âs position at Temple as
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well as her trouble concentrating, tension and relaxation. By his
own admission, he gave [Victim] one and one[-]half Benadryl and
told her to take it, indicating, âI have three friends to make you
relax.â He did not tell her the pills were Benadryl. He testified
that he gave her the three half pills because he takes two and she
was about his height. He testified that she looked at the pills, but
did not ask him what they were.
[Appellant] testified that, after he gave her the pills, they
continued to talk for 15-20 minutes before he suggested they
move into the living room. He testified that [Victim] went to the
bathroom and returned to the living room where he asked her to
sit down on the sofa. He testified that they began to âneck and
we began to touch and feel and kiss, and kiss back,â and that he
opened his shirt. He then described the encounter,
[t]hen I lifted her bra up and our skin-so our skin could
touch. We rubbed. We kissed. We stopped. I moved back
to the sofa, coming back in a position. Sheâs on top of me.
I place my knee between her legs. Sheâs up. We kiss. I
hold her. She hugs. I move her to the position of down.
She goes with me down. Iâm behind her. I have [my left
arm behind] her neck...[.] Her neck is there and her head.
Thereâs a pillow, which is a pillow that goes with the
decoration of the sofa. Itâs not a bedroom pillow. I am
behind her. We are in what would be called ⊠a spooning
position. My face is right on the back of her head, around
her ear. I go inside her pants. She touches me. Itâs
awkward. Itâs uncomfortable for her. She pulls her hand-I
donât know if she got tired or what. She then took her hand
and put it on top of my hand to push it in further. I move
my fingers. I do not talk, she does not talk but she makes
a sound, which I feel was an orgasm, and she was wet. She
was wet when I went in.
He testified that after the encounter he told her to try to go to
sleep and then he went upstairs. He set an alarm and returned
downstairs about two hours later when it was still dark out.
[Victim] was awake and they went to the kitchen where he gave
her some tea and a blueberry muffin that she took a bite of and
wrapped up before she left.
During his depositions, [Appellant] also discussed his phone
calls with [Victimâs mother]. He testified that he told [Victim] and
her mother that he would write the name of the pills he gave
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[Victim] on a piece of paper and send it to her. He testified that
he did not tell them it was Benadryl because,
Iâm on the phone. Iâm listening to two people. And at first
Iâm thinking the mother is coming at me for being a dirty
old man, which is also bad-which is bad also, but then, what
did you give my daughter? And [if] I put these things in the
mail and these people are in Canada, what are they going
to do if they receive it? What are they going to say if I tell
them about it? And also, to be perfectly frank, Iâm thinking
and praying no one is recording me.
He testified that after his first, unrecorded phone call with
[Victim], he had âPeterâ from William Morris contact [Victim] to
see if she would be willing to meet him in Miami. He also testified
that he apologized to [Victimâs mother] âbecause Iâm thinking this
is a dirty old man with a young girl. I apologized. I said to the
mother it was digital penetration.â He later offered to pay for
[Victim] to attend graduate school. [Appellant] contacted his
attorney Marty Singer and asked him to contact [Victim] regarding
an educational trust.
He also testified that he did not believe that [Victim] was after
money. When asked if he believed it was in his best interest that
the public believe [Victim] consented, he replied âyes.â He
believed there would be financial consequences if the public
believed that he drugged [Victim] and gave her something other
than Benadryl.
In his deposition testimony, [Appellant] also testified about his
use of Quaaludes with women with whom he wanted to have sex.
On November 8, 2006, the civil case settled and [Victim]
entered into a confidential settlement agreement with [Appellant],
Marty Singer and American Media.5 [Appellant] agreed to pay
[Victim] $3.38 million[,] and American Media agreed to pay her
$20,000. As part of the settlement agreement, [Victim] agreed
that she would not initiate a criminal complaint arising from the
instant assault.
5 American Media was a party to the lawsuit as a result of
[Appellantâs] giving an interview about [Victim]âs allegations
to the National Enquirer.
The 2005-2006 civil depositions remained under temporary
seal until 2015 when the federal judge who presided over the civil
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case unsealed the records in response to a media request. As a
result, in July 2015, the Montgomery County District Attorneyâs
Office, led by then District Attorney Ferman, reopened the
investigation.
On September 22, 2015, at 10:30 am, Brian McMonagle, Esq.
and Patrick OâConnor, Esq., met with then District Attorney
Ferman and then First Assistant District Attorney Kevin Steele at
the Montgomery County District Attorneyâs Office for a discussion
regarding [Appellant], who was represented by Mr. McMonagle
and Mr. OâConnor. On September 23, 2015, at 1:30 pm, Bruce L.
Castor, Jr., Esq., now a County Commissioner, sent an unsolicited
email to then District Attorney Ferman.6
6 This email was marked and admitted as Defendantâs
Exhibit 5 at the February 2016 Habeas Corpus hearing held
in this matter.
In this September 23, 2015 email, Mr. Castor indicated â[a]gain
with the agreement of the defense lawyer and [Victim]âs
[lawyers,] I intentionally and specifically bound the
Commonwealth that there would be no state prosecution of
[Appellant] in order to remove from him the ability to claim his
Fifth Amendment protection against self-incrimination, thus
forcing him to sit for a deposition under oath.â The
correspondence further stated,
I signed the press release for precisely this reason, at the
request of [Victim]âs counsel, and with the acquiescence of
[Appellant]âs counsel, with full and complete intent to bind
the Commonwealth that anything [Appellant] said in the
civil case would not be used against him, thereby forcing
him to be deposed and perhaps testify in a civil trial without
him having the ability to âtake the 5thâŠ.â [B]ut one thing is
fact: the Commonwealth, defense and [Victim]âs lawyers
were all in agreement that the attached decision [February
17, 2005 press release] from me stripped [Appellant] of his
Fifth Amendment privilege, forcing him to be deposed.[]
However, in his testimony at the hearing on [Appellant]âs
Petition for Habeas Corpus, Mr. Castor indicated that there was no
agreement and no quid pro quo. On September 23, 2015, at 1:47
pm, Mr. Castor forwarded this email identified above as
Defendantâs Habeas Exhibit 5 to Mr. McMonagle.
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On September 25, 2015, then District Attorney Ferman sent a
letter to Mr. Castor by way of hand delivery.7 In her letter[,] Ms.
Ferman stated, â[t]he first I heard of such a binding agreement
was your email sent this past Wednesday.â On September 25,
2015, at 3:41 pm, Mr. Castor sent an email to District Attorney
Ferman.8 In this email, he wrote Ms. Ferman, â[n]aturally, if a
prosecution could be made out without using what [Appellant]
said, or anything derived from what [Appellant] said, I believed
then and continue to believe that a prosecution is not precluded.â
7 This letter was marked and admitted as Defendantâs
Exhibit 6 at the February 2016 Habeas Corpus hearing held
in this matter. At 3:02 pm that same day, Mr. Castorâs
secretary forwarded a scanned copy of the letter to him by
way of email.
8 This email was marked and admitted as Defendantâs
Exhibit 7 at the February 2016 Habeas Corpus hearing in
this matter.
On September 25, 2015, at 3:59 pm, Mr. Castor forwarded the
letter from Ms. Ferman, identified above as Defendantâs Habeas
Exhibit 6, to Mr. McMonagle. On September 25, 2015, at 4:19
pm, Mr. Castor forwarded the email identified above as
Defendantâs Habeas Exhibit 7 to Mr. McMonagle along with the
message âLatest.â In his final email to Ms. Ferman on the subject,
Mr. Castor stated, âI never said we would not prosecute
[Appellant].â
In 2015, prosecutors and [d]etectives from Montgomery
County visited [Victim] in Canada and asked her if she would
cooperate in the instant case. As a part of the reopened
investigation in 2015, the Commonwealth interviewed numerous
women who claimed that [Appellant] had sexually assaulted them.
The Commonwealth proffered nineteen women for this [c]ourtâs
consideration[;] ultimately, five such women were permitted to
testify at trial.
Heidi Thomas testified that in 1984, she was a twenty-two[-
]year[-]old aspiring actress working as a model, represented by
JF [I]mages. JF Images was owned by Jo Farrell.9 In April of
1984, her agent told her that a prominent figure in the
entertainment world was interested in mentoring young talent.
She learned that [Appellant] was going to call her to arrange for
one-on-one acting sessions. [Appellant] called Ms. Thomas at her
home and spoke to both of her parents. Ms. Thomasâ agency paid
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for her to travel to Reno, Nevada[,] to meet with [Appellant] and
booked her a room at Harrahâs. Her family took a photo of her
with her father and boyfriend when she was leaving for the
airport; she testified that she dressed professionally because she
wanted [Appellant] to know she took this opportunity very
seriously. Ms. Thomas purchased a postcard of Harrahâs when she
arrived in Reno to commemorate her trip and kept several other
mementos. When she arrived in Reno, Ms. Thomas was met by a
driver. She eventually realized that they were driving out of Reno.
They pulled up to a house, the driver told her that this is where
the coaching would take place and that she should go in.
9 In his deposition testimony, [Appellant] testified that Jo
Farrell would send her clients to see him perform in Denver,
C[olorado].
She rang the doorbell and [Appellant] answered the door. The
driver showed her to her room. [Appellant] instructed her to
change into something more comfortable and to come back out
with her prepared monologue. She returned to a kitchen area and
performed her monologue for [Appellant]. Unimpressed with her
monologue, [Appellant] suggested that she try a cold read. In the
script he gave her, her character was supposed to be intoxicated.
She performed the scene. Again, unimpressed, [Appellant]
questioned whether she had ever been drunk. She told him that
she did not really drink, but that she had seen her share of drunk
people in college. He asked her what she would drink if she were
to have a drink and she indicated perhaps a glass of white wine.
He got up and returned with a glass of white wine. He told her it
was a prop and to sip on it to see if she could get more into
character. She took a sip and then remembers only âsnap shotsâ
of what happened next. She remember[ed] [Appellantâs] asking
her if she was relaxing into the part. She remember[ed] waking
up in a bed, fully clothed with [Appellant] forcing his penis into
her mouth. In her next memory, she awoke with her head at the
foot of the bed, and hear[d] [Appellant] say[,] âyour friend is
going to come again.â Her next memory [wa]s slamming the door
and then apologizing to [Appellant].
She awoke, presumably the next morning, feeling unwell. She
decided to get some fresh air. She went to the kitchen, where she
saw someone other than the driver for the first time. The woman
in the kitchen offered her breakfast, but she declined. She went
outside with her camera that she always carried with her, and took
pictures of the estate. She took a number of photos of both the
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interior and exterior of the house where she was staying. She
also remembers going to a show and being introduced to the
Temptations and being in [Appellant]âs dressing room. She
testified that it did not occur to her to report the assault to her
agent, and that she felt she must have given [Appellant] some
signal to think it was okay to do that to her.
Two months later, in June 1984, [Ms.] Thomas called
[Appellant], as he told her she could, in an attempt to meet with
him to find out what had happened; she was told by his
representative that she would be able to see him. She made
arrangements to see him in St. Louis, using her own money.
When she arrived in St. Louis, she purchased a postcard. On this
trip, she photographed her hotel room and the driver who picked
her up. Ms. Thomas attended the show, but was not allowed
backstage. After [Appellant]âs performance, she accompanied
him and others to a dinner. There were a number of people at the
dinner and Ms. Thomas was unable to confront [Appellant] about
what happened in Reno. As the evening came to a close and it
became clear she would not be able to speak to him, she asked
the driver or valet to take her picture with [Appellant]. She had
no further contact with [Appellant]. At some time later, she told
both a psychologist and her husband what happened.
Chelan Lasha testified that in 1986[,] when she was a
seventeen-year-old senior in high school[] in Las Vegas, Nevada,
a connection of her fatherâs ex-wife put her in touch with
[Appellant]. At that time, Ms. Lasha lived with her
grandparents[.] [Appellant] called her home and spoke to her and
to her grandmother. [Appellant] told her that he was looking
forward to meeting her and to helping her with her education and
pursuit of a career in acting and modeling. The first time she met
[Appellant] in person, he came to her grandparentsâ home for a
meal. They remained in phone contact and she sent headshots to
his agency in New York.
After she graduated from high school that same year, she
worked at the Las Vegas Hilton. [Appellant] returned to Las
Vegas and invited Ms. Lasha to meet him at the Las Vegas Hilton.
When she arrived at the hotel, she called [Appellant] and a
bellman took her to the Elvis [Presley] Suite. Ms. Lasha
understood the purpose of their meeting was to help her break
into modeling and that someone from the Ford Modeling Agency
would be meeting her and taking her picture. Ms. Lasha testified
that she had a cold on the day of the meeting. [Appellant]
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directed her to wet her hair to see what it looked like, and
someone took some photographs of her. The photographer left.
A second person came into the suite, who [Appellant] said was a
therapist related to stress and relaxation; this person also left the
suit[e].
Ms. Lasha was congested and blowing her nose, [and
Appellant] offered her a decongestant. He gave her a shot of
amaretto and a little blue pill. She took the pill. He gave her a
second shot of amaretto. He sat behind her and began to rub her
shoulders. She began to feel woozy and he told her that she
needed to lay down. [Appellant] took her to the back bedroom;
prior to that time, they had been in the living area of the suite.
When she stood up[,] she could barely move and [Appellant]
guided her to the back bedroom. He laid her on the bed, at which
point she could no longer move. He laid down next to her and
began pinching her breasts and rubbing his genitals on her leg.
She felt something warm on her leg. Her next memory is
[Appellant] clapping to wake her up. When she awoke, she had a
Hilton robe and her shorts on, but her top had been removed. Her
top was folded neatly on a table with money on top. [Appellant]
told her to hurry up and get dressed and to use the money to buy
something nice for herself and her grandmother. During her
incapacitation, she was aware of what was happening but was
powerless to stop it. When she left the hotel, she drove to her
guidance counselorâs house and told her what happened. She also
told her sister.
The day after the assault, Ms. Lashaâs mother and grandmother
attended a performance at the Hilton where [Appellant] was a
participant. [Appellant] called her and asked her why she did not
attend, [and] she told him she was sick and hung up the phone.
A couple days later, Ms. Lasha attended a performance at the
Hilton with her grandmother, where she heckled [Appellant].
Afterwards, she told her grandmother what happened. She was
ultimately fired from her position at the Hilton. She reported the
assault to the police in 2014.
Janice Baker-Kinney testified that she lived in Reno, Nevada[,]
and worked at Harrahâs Casino from 1981-1983. In 1982, Ms.
Baker-Kinney was a twenty-four[-]year[-]old bartender at
Harrahâs. During the course of her employment, she met several
celebrities who performed in one of Harrahâs two showrooms.
Performers could stay either in the hotel, or in a home owned by
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Mr. Harrah, just outside of town. Ms. Baker[-]Kinney attended a
party at that home hosted by Wayne Newton.
On one particular evening, one of the cocktail waitresses
invited her to go to a pizza party being hosted by [Appellant].
[Appellant] was staying at Mr. Harrahâs home outside of town. Ms.
Baker-Kinney agreed to attend the party and met her friend at the
front door of the home. [Appellant] answered the door. Ms.
Baker-Kinney was surprised to find that there was no one else in
the home for a party. She began to think that her friend was
romantically interested in [Appellant] and asked her to come along
so she would not be alone. She decided to stay for a little while
and have a slice of pizza and a beer.
[Appellant] offered Ms. Baker-Kinney a pill, which she believes
he said were Quaaludes. She accepted the pill and then he gave
her a second pill, which she also accepted. Having no reason not
to trust [Appellant], she ingested the pills. After taking the pill,
she sat down to play backgammon with [Appellant]. Shortly after
starting the game, she became dizzy and her vision blurred. She
told [Appellant] that the game was not fair anymore because she
could not see the board and fell forward and passed out on[] the
game.
Ms. Baker-Kinney next remembers hearing voices behind her
and finding herself on a couch. She realized it was her friend
leaving the house. She looked down at her clothing and realized
that her shirt was unbuttoned and her pants were unzipped.
[Appellant] sat down on the couch behind her and propped her up
against his chest. She remembers him speaking, but could not
recall ⊠the words he said. His arm was around her, inside her
shirt, fondling her. He then moved his hand toward her pants.
She was unable to move.
Her next memory is of [Appellant] helping her into a bed and
then being awoken the next day by the phone ringing. She heard
[Appellant] speaking on the phone and realized that they were in
bed together and both naked. When [Appellant] got off of the
phone, Ms. Baker-Kinney apologized for passing out and tried to
explain that dieting must have affected her ability to handle the
pills. She had a sticky wetness between her legs that she knew
indicated they had sex at some point, which she could not
remember.
Afraid that someone she worked with would be coming to clean
the home, Ms. Baker-Kinney rushed to get herself dressed and get
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out of the home. [Appellant] walked her to the front door and told
her that it was just between them and that she should not tell
anyone. She made a joke that she would not alert the media and
left, feeling mortified.
The day after the assault, she worked a shift at Harrahâs. At
the end of her shift, she was leaving with a friend and heard
[Appellant] calling her name across the room. She gave a slight
wave and asked her friend to get her out of there and they left.
Within days of the assault, she told her roommate, one of her
sisters, and a friend what had happened.
Mary Chokran testified that in 1982, Ms. Baker-Kinney called
her and was very distraught. Ms. Baker[-]Kinney told Ms.
Chokran that she had taken what she thought was a Quaalude and
that [Appellant] had given it to her. Ms. Baker-Kinney told her
that she thought it was a mood-enhancing party drug, not
something that would render her unconscious as it did.
Janice Dickinson testified that in 1982, when she was a twenty-
seven[-]year[-]old[] established model represented by Elite
Modeling Agency, [Appellant] contacted the agency seeking to
meet with her. She first met [Appellant] at his townhouse in New
York City. She went to the home with her business manager. She
was excited about the meeting; she had been told that [Appellant]
mentored people and had taken an interest in her. During the
meeting[,] they discussed her potential singing career as well as
acting. [Appellant] gave her a book about acting. After the
meeting[,] she and her manager left the home.
Sometime later, Ms. Dickinson was working on a calendar shoot
in Bali, Indonesia[,] when [Appellant] contacted her. [Appellant]
offered her a plane ticket and a wardrobe to come meet him in
Lake Tahoe to further discuss her desire to become an actress.
She accepted the invitation and left her boyfriend in Bali to go
meet [Appellant] to discuss the next steps to further her career.
When she arrived at the airport in Reno, Nevada, she was met
by Stu Gardner, [Appellant]âs musical director. He took Ms.
Dickinson to the hotel where she checked in to her room and put
on the clothes ⊠provided for her by the hotel boutique. She
arranged to meet [Mr.] Gardner on a sound stage to go over her
vocal range. [Appellant] arrived in the room. She attended
[Appellant]âs performance and had dinner afterwards with
[Appellant] and [Mr.] Gardner.
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During the dinner, Ms. Dickinson drank some red wine. She
began to experience menstrual cramps, which she expressed to
the table. [Appellant] said he had something for that and gave
her a little, round blue pill. She ingested the pill. Shortly after
taking the pill, she began to feel woozy and dizzy. When they
finished in the restaurant, Mr. Gardner left and [Appellant] invited
her to his room to finish their conversation.
Ms. Dickinson traveled with a camera and took photographs of
[Appellant], including one of him making a phone call, inside of
his hotel room. She testified that after taking the photos, she felt
very lightheaded and like she could not get her words to come
out. When [Appellant] finished his phone call, he got on top of
her and his robe opened. Before she passed out, she felt vaginal
pain as he penetrated her vagina. She awoke the next morning
in her room with semen between her legs and she felt anal pain.
Later that day, she saw [Appellant] and they went to Bill
Harrahâs house. At the house, she confronted [Appellant] and
asked him to explain what happened the previous evening. He
did not answer her. She left Lake Tahoe the next day on a flight
to Los Angeles with [Appellant] and Mr. Gardner. From Los
Angeles, she returned to Bali to complete her photo shoot. Ms.
Dickinson did not report the assault; she was having commercial
success as a model and feared that it would impact her career.
In 2002, Ms. Dickinson sought to include the rape in her
memoir, No Lifeguard on Duty, but the publishing houseâs legal
team would not allow her to include it. Judith Regan testified that
she was the publisher of Ms. Dickinsonâs 2002 memoir. She
testified that Ms. Dickinson told her that [Appellant] had raped her
and that she wanted to include that in her book. Ms. Regan told
Ms. Dickinson that the legal department would not allow her to
include the story without corroboration. Ms. Dickinson was angry
and upset when she learned she could not include her account in
the book.
In 2010, Ms. Dickinson disclosed what happened to her to Dr.
Drew Pinsky in the course of her participation in the reality show
Celebrity Rehab. That conversation was never broadcast. She
testified that she also disclosed [it] to a hairdresser and makeup
artist.
Maud Lise-Lotte Lublin testified that when she was in her early
twenties and living in Las Vegas, she modeled as a way to make
money to finance her education. She met [Appellant] in 1989,
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when she was twenty-three years old. Her modeling agency told
her that [Appellant] wanted to meet her. The first time she met
with him in person, he was reviewing other headshots from her
agency; he told her that he would send her photos to a New York
agency to see if runway or commercial modeling was the best fit
for her.
She had subsequent contact with [Appellant]. [Appellant] also
developed a relationship with her family. On one occasion, she
and her mother went to the [University of Nevada, Las Vegas]
track with [Appellant] where he introduced her to people as his
daughter. She and her sister spent time with [Appellant] on more
than one occasion. He was aware that her goal was to obtain an
education and thought that modeling or acting would help her earn
enough money to reach her educational goals. She felt that
[Appellant] was a father figure or mentor. Eventually, that
relationship changed.
[Appellant] called her and invited her to the Hilton in Las Vegas.
She arrived at the suite and he began talking to her about
improvisation and acting, as she had not done any acting at this
point. During the conversation, he went over to a bar and poured
her a shot, told her to drink it and that it would relax her. She
told him that she did not drink alcohol. He insisted that it would
help her work on improvisation and help the lines flow. She
trusted his advice and took the drink. He went back to the bar
and prepared her a second drink, which she accepted.
Within a few minutes, she started to feel dizzy and woozy and
her hearing became muffled. [Appellant] asked her to come sit
with him. He was seated on the couch; Ms. Lise-Lotte Lublin was
standing. He asked her to come sit between his knees. She sat
down; he began stroking her hair. [Appellant] was speaking to
her, but the sound was muffled. She felt very relaxed and also
confused about what this had to do with learning improvisation.
She testified that she remembers walking towards a hallway and
being surprised at how many rooms were in the suite. She has
no further memory of the night. When she woke up, she was at
home. She thought she had a bad reaction to the alcohol and told
her family about the meeting. In the days that followed, she told
additional friends that she thought she had accidentally had too
much to drink and gotten sick and embarrassed herself. She
continued to have contact with [Appellant].
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On one occasion[,] she traveled to see [Appellant] at Universal
Studios in California. She invited a friend to go with her as she
felt uncomfortable seeing him alone after what happened. On the
drive to Universal Studios, she told her friend that she was
uncomfortable because [Appellant] had her sit down and he
stroked her hair and she could not remember what happened.
She came forward in 2014.
Trial Court Opinion (TCO), 5/14/19, at 1-33 (citations to the record omitted).
It is unnecessary to recount fully the tortured procedural history of this
case, but for the following summary of the pertinent procedural events. On
December 30, 2015, the Commonwealth charged Appellant by criminal
complaint with three counts of aggravated indecent assault, 18 Pa.C.S. §
3125(a)(1), (4), and (5), for the incident involving Victim that occurred in
Appellantâs home in January of 2004.1 Appellant filed a Petition for Writ of
Habeas Corpus (âHabeas Motion Iâ) on January 11, 2016, arguing for, inter
alia, the dismissal of the charges based on Former District Attorney Castorâs
alleged promise not to prosecute Appellant.2 See Reproduced Record (âRRâ)
at 389a.3 The trial court heard testimony and argument at a hearing held on
____________________________________________
1 The Commonwealth later filed a criminal information setting forth the same
charges on July 13, 2016.
2 Appellant has not raised the other issues preserved in Habeas Motion I in
the instant appeal.
3 Due to the massive size of the certified record in this case, we will primarily
cite to the reproduced record for ease of disposition. We note that the
Commonwealth has not issued any objections to the contents of the
reproduced record.
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February 2 and 3, 2016. Id. at 412a-1047a. On February 4, 2016, the trial
court denied Habeas Motion I.4 Id. at 1048a.
Following a preliminary hearing held on May 24, 2016, the magistrate
held the aforementioned charges over for trial. Subsequently, Appellant and
the Commonwealth filed numerous pretrial motions.5 On August 12, 2016,
Appellant filed a motion to suppress the contents of his civil deposition
testimony. Id. at 6271a-6290a. On September 6, 2016, the Commonwealth
filed a motion to introduce evidence of Appellantâs prior bad acts (âFirst PBA
Motionâ). Both matters were addressed at hearings held on November 1 and
2, 2016. Id. at 1049a-1191a. Appellantâs suppression motion was denied on
December 5, 2016. Id. at 1197a. The trial court granted in part and denied
in part the First PBA Motion on February 24, 2017. Id. at 1198a (granting the
motion with respect to a single prior-bad-acts witness, but denying the motion
with respect to twelve other proffered witnesses).
Appellantâs first jury trial began on June 5, 2017, and concluded on June
17, 2017, when the jury deadlocked on all three counts, leading the trial court
to issue an order declaring a mistrial based upon âmanifest necessity.â Order,
____________________________________________
4 Appellant filed an interlocutory appeal from the denial of Habeas Motion I.
After initially granting a temporary stay, this Court granted the
Commonwealthâs motion to quash that appeal on April 25, 2016. Our
Supreme Court denied further review on June 20, 2016. Indeed, Appellant
filed numerous, unsuccessful interlocutory appeals from the decisions of the
trial court. The remainder have been omitted as none impact our decision
today.
5 We will discuss only the pretrial motions that have at least some relevance
to the issues raised in the current appeal.
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6/17/17, at 1 (single page). On July 6, 2017, the trial court ordered a new
trial. Order, 7/6/17, at 1 (single page).
On January 18, 2018, the Commonwealth filed a second motion in
limine, seeking to introduce Appellantâs prior bad acts (âSecond PBA Motionâ).
RR at 1200a-1206a; Id. at 1208a-1308a (memorandum in support thereof).
On January 25, 2018, Appellant filed a motion seeking to incorporate all of his
previous pretrial motions from his first trial. On March 15, 2018, the trial
court granted the Commonwealthâs Second PBA Motion in part, and denied it
in part. Id. at 1672a-1673a (permitting five of the nineteen proffered prior-
bad-acts witnesses to testify).
Appellantâs second trial commenced on April 2, 2018. On April 6, 2018,
Appellant filed a motion seeking to excuse Juror 11 for cause. Id. at 2541a-
2548a. The trial court denied the motion. Id. at 2714a (N.T., 4/9/18, at
153). On April 26, 2018, the jury returned a verdict of guilty on all counts.
Id. at 5813a (N.T., 4/26/18, at 10). Sentencing was deferred pending an
assessment by the Sexual Offender Assessment Board.
On July 25, 2018, Appellant filed a post-trial motion challenging the
constitutionality of the trial courtâs retroactively applying to him the current
version of Pennsylvaniaâs Sex Offender Registration and Notification Act
(âSORNA IIâ), 42 Pa.C.S. § 9799.10 et seq. Id. at 6291a-6297a. Appellant
also filed a post-trial motion seeking recusal of the trial court judge on
September 11, 2018, alleging newly-discovered evidence that the judge
harbored a bias toward one of Appellantâs pretrial hearing witnesses, Mr.
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Castor. Id. at 5874a-5886a. The trial court denied the recusal motion on
September 19, 2018. Id. at 5887a-5894a.
The trial court conducted a combined Sexually Violent Predator (SVP)
and sentencing hearing on September 24 and 25, 2018. The trial court
deemed Appellant to be an SVP under a clear-and-convincing-evidence
standard. Id. at 6213a. The trial court also denied Appellantâs constitutional
challenge to SORNA II, which was later memorialized in an order dated
September 27, 2018. Id. at 6214a. The trial court then sentenced Appellant
to 3-10 yearsâ incarceration. Id. at 6198a (N.T., 9/25/18, at 120).
Appellant filed a timely post-sentence motion, which the trial court
denied on October 23, 2018. He then filed a timely notice of appeal on
November 19, 2018, and a timely, court-ordered Pa.R.A.P. 1925(b) statement
on December 11, 2018. The trial court issued its Rule 1925(a) opinion on May
14, 2019.
Appellant now presents the following questions for our review:
A. Where the lower court permitted testimony from five women
(and a de facto sixth via deposition), as well as purported
admissions from [Appellant]âs civil deposition, concerning
alleged uncharged misconduct by [Appellant] that was: (a)
more than fifteen years old; (b) lacking any striking
similarities or close factual nexus to the conduct for which
he was on trial; and (c) unduly prejudicial[;] was the lower
courtâs decision clearly erroneous and an abuse of
discretion, thus requiring that a new trial be granted?
B. Did the lower court abuse its discretion in failing to disclose
his acrimonious relationship with an imperative defense
witness[,] which not only created the appearance of
impropriety[,] but was evidenced by actual bias?
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C. Did the lower court err in denying the writ of habeas
[corpus] filed on January 11, 2016[,] and failing to dismiss
the criminal complaint where the Commonwealth, in 2005
through District Attorney Castor, promised [Appellant] that
he would not be charged for the allegations made by
[Victim]?
D. Did the lower court err in denying the motion to suppress
where [Appellant], relying on the Commonwealthâs promise
not to prosecute him for the allegations by [Victim], had no
choice but to abandon his constitutional rights under the
Fifth Amendment of the U[.]S[.] Constitution and testify at
a civil deposition?
E. Where the excerpts of [Appellant]âs deposition concerning
his possession and distribution of Quaaludes to women in
the 1970s had no relevance to the issue at trial, was the
lower courtâs decision to allow this evidence to be presented
to the jury clearly erroneous and an abuse of discretion,
thus requiring that a new trial be granted?
F. Where the lower courtâs final charge to the jury erroneously
included an instruction on âconsciousness of guilt,â a charge
which was misleading and had no application to
[Appellant]âs case, was the charge legally deficient, thus
requiring a new trial [to] be granted?
G. Where the lower court allowed a juror to be impaneled,
despite evidence demonstrating that the juror had
prejudged [Appellant]âs guilt, did the lower court abuse its
discretion and deprive [Appellant] of his constitutional right
to a fair and impartial jury, thus, requiring that a new trial
be granted?
H. Did the lower court abuse its discretion in applying SORNA
II to the 2004 offenses for which [Appellant] had been
convicted, in violation of the ex post facto clauses of the
state and federal constitutions?
Appellantâs Brief at 11-13.
A. Prior Bad Acts Evidence
Appellantâs first claim concerns the trial courtâs admission of prior bad
acts (âPBAâ) evidence. The court admitted the testimony of five witnesses
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who essentially testified that Appellant had drugged and then sexually
assaulted them in circumstances similar to that recounted by Victim. The PBA
evidence was admitted under the âcommon plan/scheme/designâ and âabsence
of mistakeâ exceptions to the general evidentiary ban on PBA evidence. See
Pa.R.E. 404(b). Appellant asserts that this PBA evidence was not admissible
because it did not satisfy any exception.
The at-issue PBA evidence was the subject of the Commonwealthâs
January 18, 2018 Second PBA Motion. RR at 1200a-1206a. Pursuant to that
motion, the Commonwealth sought to admit the testimony of 19 prior victims
of Appellantâs alleged sexual misconduct. Following a hearing held on March
5 and 6, 2018, the trial court granted the Second PBA Motion in part, and
denied it in part. Id. at 1672a-1673a (Order, 3/15/18, at 1-2). The
Commonwealth was thereby permitted to present the PBA testimony of five
witnesses: Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice
Dickinson, and Maud Lise-Lotte Lublin. The trial court did not permit the
Commonwealth to introduce the testimony of the remaining 14 PBA witnesses
proffered by the Commonwealth.
âThe admission of evidence is committed to the sound discretion of the
trial court, and a trial courtâs ruling regarding the admission of evidence will
not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.â Commonwealth v. Minich, 4 A.3d 1063,
1068 (Pa. Super. 2010) (citations and quotation marks omitted).
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Pennsylvania Rule of Evidence 404(b)(1) prohibits â[e]vidence of a crime,
wrong, or other act ⊠to prove a personâs character in order to show that on
a particular occasion the person acted in accordance with the character.â
Pa.R.E. 404(b)(1). This is because â[t]he Commonwealth must prove beyond
a reasonable doubt that a defendant has committed the particular crime of
which he is accused, and it may not strip him of the presumption of innocence
by proving that he has committed other criminal acts.â Commonwealth v.
Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (citations omitted). However,
PBA âevidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident[,]â if âthe probative value of the evidence
outweighs its potential for unfair prejudice.â Pa.R.E. 404(b)(2).
Here, the trial court admitted the testimony of Heidi Thomas, Chelan
Lasha, Janice Baker-Kinney, Janice Dickinson, and Maud Lise-Lotte Lublin
under two PBA exceptions: the common plan/scheme/design exception, and
the absence-of-mistake exception. Both exceptions were invoked to serve
similar evidentiary goals for the Commonwealth. The Commonwealth sought
to demonstrate that Appellant engaged in a pattern of non-consensual sex
acts with his victims that were âquite distinct from a typical sexual abuse
pattern; so distinct, in fact, that they are all recognizable as the handiwork of
the same perpetratorâ[Appellant].â Commonwealthâs Brief at 44.
A determination of admissibility under the common plan/scheme/design
exception
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must be made on a case by case basis in accordance with the
unique facts and circumstances of each case. However, we
recognize that in each case, the trial court is bound to follow the
same controlling, albeit general, principles of law. When ruling
upon the admissibility of evidence under the common plan
exception, the trial court must first examine the details and
surrounding circumstances of each criminal incident to assure that
the evidence reveals criminal conduct which is distinctive and so
nearly identical as to become the signature of the same
perpetrator. Relevant to such a finding will be the habits or
patterns of action or conduct undertaken by the perpetrator to
commit crime, as well as the time, place, and types of victims
typically chosen by the perpetrator. Given this initial
determination, the court is bound to engage in a careful balancing
test to assure that the common plan evidence is not too remote
in time to be probative. If the evidence reveals that the details of
each criminal incident are nearly identical, the fact that the
incidents are separated by a lapse of time will not likely prevent
the offer of the evidence unless the time lapse is excessive.
Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).
Thus, the common plan/scheme/design exception aids in identifying a
perpetrator based on his or her commission of extraordinarily similar criminal
acts on other occasions. The exception is demanding in it constraints,
requiring nearly unique factual circumstances in the commission of a crime,
so as to effectively eliminate the possibility that it could have been committed
by anyone other than the accused. See Commonwealth v. Miller, 664 A.2d
1310, 1318 (Pa. 1995) (holding admissible, to prove a common scheme, plan,
or design, evidence that the defendant lured other victims of similar race and
weight into his car, took them to remote areas to force sex upon them, beat
them in a similar manner, and killed or attempted to kill them), abrogation on
other grounds recognized by Commonwealth v. Hicks, 156 A.3d 1114 (Pa.
2017); Commonwealth v. Clayton, 483 A.2d 1345, 1349â50 (Pa. 1984)
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(holding admissible, to prove a common scheme, plan, or design, evidence of
a subsequent crime for which the defendant had already been acquitted,
because it was strikingly similar in geographic location, motive and method of
execution); but see Commonwealth v. Fortune, 346 A.2d 783, 787 (Pa.
1975) (holding inadmissible in a trial for felony murder, under the common
scheme, plan, or design exception, evidence of defendantâs commission of six
prior robberies where âtoo many details ⊠[were] unexplained or incongruous
to say that one crime naturally tend[ed] to show that the accused [was] the
person who committed the otherâ).
This Court has also permitted PBA evidence under the common
plan/scheme/design exception âto counter [an] anticipated defense of
consent.â Commonwealth v. Tyson, 119 A.3d 353, 361 (Pa. Super. 2015).
In Tyson, the defendant was accused of rape and related offenses based on
the following course of conduct:
On July 31, 2010, [the victim,] G.B.[,] left work because she felt
ill after donating plasma. G.B. asked [Tyson], whom she knew
casually, to bring her some food. [Tyson] arrived at G.B.âs
apartment and stayed as she fell asleep. During the early morning
hours of August 1, 2010, G.B. claims she awoke to find [Tyson]
having vaginal intercourse with her. [Tyson] told G.B. she had
taken her pants off for him. G.B. claims she told [Tyson] to stop,
and he complied. After falling back asleep, G.B. woke again later
that night and went into her kitchen, where she allegedly found
[Tyson] naked. G.B. claims she told [Tyson] she did not want to
have sex with him and returned to bed. Shortly thereafter, G.B.
claims, she woke up[,] and [Tyson] was again having vaginal
intercourse with her. G.B. told [Tyson] to stop and asked him
what he was doing. [Tyson] told G.B. her eyes were open the
whole time.
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Id. at 356.
The Commonwealth filed a motion in limine seeking to introduce
evidence of Tysonâs then 12-year-old rape conviction in Delaware, which the
trial court denied. On appeal, the Commonwealth argued that the PBA
evidence regarding the prior rape was admissible under both the common
plan/scheme/design and absence-of-mistake exceptions, because Tyson
âengaged in a pattern of non-consensual sexual intercourse with
acquaintances who were in an unconscious or diminished state.â Id. at 357.
This Court noted
numerous similarities between the two incidents: (1) the victims
were the same race and similar in age; (2) both victims were
casually acquainted with [Tyson]; (3) [Tyson]âs initial interaction
with each victim was legitimate, where [Tyson] was invited into
the victimâs home; (4) [Tyson] had vaginal intercourse with each
victim in her bedroom; (5) both incidents involved vaginal
intercourse with an alleged unconscious victim who woke up in the
middle of the act; and (6) in each case, [Tyson] knew the victim
was in a compromised state.
Id.
This Court reversed the trial courtâs determination that the PBA evidence
was not admissible, reasoning that the ârelevant details and surrounding
circumstances of each incident further reveal criminal conduct that is
sufficiently distinctive to establish [that Tyson] engaged in a common plan or
scheme.â Id. at 360. The Tyson Court further stated:
The factual overlap between the two incidents goes beyond the
commission of crimes or conduct âof the same general class.â The
evidence does not merely show [Tyson] sexually assaulted two
different women or that [his] actions are generically common to
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many sexual assault cases. To the contrary, the incidents reflect
a clear pattern where [Tyson] was legitimately in each victimâs
home; [he] was cognizant of each victimâs compromised state;
and [he] had vaginal intercourse with each victim in her bedroom
in the middle of the night while the victim was unconscious.
Id. The Tyson Court also opined that the lapse in time between the rapes
did not undermine its probative value, both because Tyson was incarcerated
for a majority of that time, and because the âsimilarities [between] the two
incidents render[ed] the five-year time gap even less important.â Id. at 361.
The absence-of-mistake exception typically applies in circumstances
where the identity of the accused is not at issue, such as where the evidence
serves to prove that the cause of an injury was not accidental. A
quintessential example of the absence-of-mistake exception to the ban on PBA
evidence occurred in Commonwealth v. Boczkowski, 846 A.2d 75 (Pa.
2004), where the defendantâs wife, Maryann, was found unconscious in the
coupleâs hot tub. She later died. Maryann had alcohol in her blood, and
paramedics observed the defendant trying to revive her when they arrived on
the scene, suggesting that her death may have been accidental. However,
other injuries to the victimâs body suggested that she had been the target of
foul play.
The defendantâs former wife, Elaine, had died under similar
circumstances just 4 years earlier.
Elaine died in her bathtub, Maryann in a hot tub. Both women
were in their thirties and in good health. [The defendant] reported
to the North Carolina police that Elaine had been drinking alcoholic
beverages before entering the bathtub; he told Ross Township
police that Maryann had been drinking prior to entering the hot
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tub. [The defendant] told police in both jurisdictions that he and
his wife had a minor argument on the evening before the death.
In each case, police noticed that [the defendant] had fresh scratch
marks on his arms, hands and torso shortly after his wifeâs death.
The autopsies of both women revealed that they had died from
asphyxiation, not drowning.
Id. at 82. The Commonwealth presented evidence of Elaineâs death in
Boczkowskiâs trial pursuant to Rule 404(b)(2) in order to demonstrate that
Maryannâs death was not an accident. Our Supreme Court determined that
such evidence was admissible even if the defendant does not âactually forward
a formal defense of accident, or even present an argument along those lines,â
because âthe Commonwealth may have a practical need to exclude the theory
of accidental death.â Id. at 89.
The absence-of-mistake exception has also been used to defeat an
anticipated defense of consent in a case of sexual misconduct. The Tyson
Court permitted the PBA evidence at issue in that case under the absence-of-
mistake exception, reasoning that:
[Tyson] disputes G.B.âs account that she was asleep when [he]
initiated sexual intercourse with herâ[Tyson] maintains he
thought G.B. consented to the act. Given the relevant similarities
between the two incidents, evidence of [Tyson]âs prior rape would
tend to prove he did not âmistakenly believeâ G.B. was awake or
gave her consent. [Tyson] was invited into G.B.âs home for
another reason, [he] knew G.B. was in a compromised state, and
G.B. awoke to find [him] having vaginal intercourse with her.
[Tyson]âs prior conviction would likewise show he had been invited
into the home of an acquaintance, knew the victim was in a
compromised state, and had non-consensual sex with the victim
while the victim was unconscious. The prior conviction would tend
to prove [Tyson] was previously in a very similar situation and
suffered legal consequences from his decision to have what
proved to be non[-]consensual vaginal intercourse with an
unconscious victim. Thus, the evidence would tend to show
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[Tyson] recognized or should have recognized that, as with T.B.,
G.B.âs physical condition rendered her unable to consent.
Tyson, 119 A.3d at 362â63.
Instantly, Appellant contends that the PBA evidenceâthe testimony of
Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice Dickinson, and Maud
Lise-Lotte Lublinâshould not have been permitted under either exception.
Appellant argues that their testimony involved âstrikingly dissimilar actsâ and
were too distant in time to outweigh the potential for undue prejudice.
Appellantâs Brief at 42. Thus, he asserts that the trial court abused its
discretion by admitting the PBA evidence. Notably, under both exceptions,
the standard for admission is virtually the same. The PBA evidence must be
âdistinctive and so nearly identical as to become the signature of the same
perpetrator,â and its probative value must not be undermined by the lapse in
time between incidents. Frank, 577 A.2d at 614; see also Tyson, 119 A.3d
at 359-60. Appellant first contends that the acts in question were too
dissimilar to be admitted under either exception, and second, that the lapse
in time between the conduct at issue in this case and the PBA evidence
undermined its probative value.
The trial court justified its admission of the PBA evidence as follows:
The testimony of the five 404(b) witnesses was admissible under
both the common plan, scheme or design exception and the lack
of accident or mistake exception, with admissibility further
supported by the doctrine of chances. Therefore, this claim must
fail.
First, [Appellant] asserts that testimony of the permitted
witnesses was too dissimilar to [Victim]âs allegations. This claim
is belied by the record. Victimâs testimony can be summarized as
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follows: 1) [Victim] was substantially younger than the married
[Appellant] and physically fit; 2) she met him through her
employment at Temple University; 3) they developed what she
believed to be a genuine friendship and mentorship. Over the
course of that friendship, she accepted invitations to see
[Appellant] socially, both with other people and alone; 4) after a
period of time, during which he gained her trust, he invited her to
his home to discuss her upcoming career change; 5) he offered
her three blue pills and urged her to take them; 6) once she took
the pills, she became incapacitated and was unable to verbally or
physically stop the assault[; s]he did not consent to sexual contact
with [Appellant]; [and] 7) during intermittent bouts of
consciousness, she was aware of [Appellantâs] digitally
penetrating her vagina and using her hand to masturbate himself.
The allegations of the Commonwealthâs 404(b) witnesses
may be summarized as follows: 1) each woman was substantially
younger than the married [Appellant] and physically fit; 2)
[Appellant] initiated the contact with each woman, primarily
through her employment; 3) over the course of their time
together, she came to trust him and often developed what the
woman believed to be a genuine friendship or mentorship; 4) each
woman accepted an invitation from [Appellant] to a place in his
control, where she was ultimately alone with him; 5) each woman
accepted the offer of a drink or a pill, often after insistence on the
part of [Appellant]; 6) after ingesting the pill or drink, each woman
was rendered incapacitated and unable to consent to sexual
contact; [and] 7) [Appellant] sexually assaulted her while she was
under the influence of the intoxicant he administered. These
chilling similarities rendered the 404(b) testimony admissible
under the common plan, scheme or design and the absence[-]of[-
]mistake exceptions.
TCO at 102-04 (footnotes omitted).
Appellant points to various dissimilarities between the PBA incidents and
the instant matter. Appellantâs Brief at 59-62. For instance, Appellantâs
relationship with Victim lasted longer than his relationship with any of the PBA
witnesses. Id. at 59. Prior to the at-issue assault, Victim was a guest at
Appellantâs home for dinner on multiple occasions, and Appellant and Victim
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had exchanged gifts. Id. at 59-60. Appellant had made prior attempts at
sexual contact with Victim, unlike with the other victims. Id. at 60.
Additionally, the nature of the sexual contact between Appellant and his
victims varied in each incident. Id. at 60-61. Finally, Appellantâs assault of
Victim was the only reported assault to occur in Appellantâs home, whereas
the PBA evidence only involved incidents âin a hotel room or in some third
personâs house.â Id. at 62.
We disagree that these differences render the PBA evidence inadmissible
under the common plan/scheme/design or absence of mistake exceptions. It
is impossible for two incidents of sexual assault involving different victims to
be identical in all respects. Indeed, we instead subscribe to the statement
offered by Amicus Curiae, the Office of the Attorney General of Pennsylvania,
when it states:
A distinct pattern does not require outlandish or bizarre criminal
conduct, nor does it demand proof that the conduct was part of a
greater master plan. Rather, what is essential is that the
similarities âare not confined to insignificant details that would
likely be common elements regardless of who had committed the
crimes.â Commonwealth v. Hughes, 555 A.2d 1264, 1283 (Pa.
1989). A criminal âplanâ may be analogized to a script or playbook
of criminal tactics that worked for the offender when committing
past crimes.
Brief of Amicus Curiae, the Office of the Attorney General of Pennsylvania, at
18. We further observe that no two events will ever be identical, and it is
simply unreasonable to hold the admission of PBA evidence to such a
standard. The question for the trial court was whether the pattern of
misconduct demonstrated by the PBA evidence was sufficiently distinctive to
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warrant application of the Rule 404(b)(2) exceptions. It is the pattern itself,
and not the mere presence of some inconsistencies between the various
assaults, that determines admissibility under these exceptions.
Here, the PBA evidence established Appellantâs unique sexual assault
playbook. His assault of Victim followed a predictable pattern based on the
PBA evidence:
[E]ach woman was substantially younger than the married
[Appellant]; each woman met [Appellant] through her
employment or career; most of the women believed he truly
wanted to mentor them; [Appellant] was legitimately in each
victimâs presence because each had accepted an invitation to get
together with him socially; each incident occurred in a setting
controlled by [Appellant], where he would be without interruption
and undiscovered by a third party; [Appellant] had the
opportunity to perpetrate each crime because he instilled trust in
his victims due to his position of authority, his status in the
entertainment industry, and his social and communication skills;
he administered intoxicants to each victim; the intoxicant
incapacitated each victim; [Appellant] was aware of each victimâs
compromised state because he was the one who put each victim
into that compromised state; he had access to sedating drugs and
knew their effects on his victims; he sexually assaulted each
victimâor in the case of one of his victims, engaged in, at
minimum, untoward sexual conductâwhile she was not fully
conscious and, thus, unable to resist his unwelcomed sexual
contact; and, none of the victims consented to any sexual contact
with [Appellant].
Commonwealth Briefâs at 42-44 (footnotes omitted). Indeed, not only did the
PBA evidence tend to establish a predictable pattern of criminal sexual
behavior unique to Appellant, it simultaneously tended to undermine any claim
that Appellant was unware of or mistaken about Victimâs failure to consent to
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the sexual contact that formed the basis of the aggravated indecent assault
charges. Thus, both exceptions applied to the circumstances of this case.
Appellant argues that the trial courtâs admission of the PBA evidence
conflicts with this Courtâs recent ruling in Commonwealth v. Bidwell, 195
A.3d 610 (Pa. Super. 2018), reargument denied (Nov. 13, 2018), appeal
denied, 208 A.3d 459 (Pa. 2019). In Bidwell, the victim was discovered
âhanging from an electrical heating wire tied to a refrigeration unit that was
located in a trailerâ in the appelleeâs scrap yard. Id. at 612. However, the
victimâs âface was not swollen or discolored, as is commonly seen in victims
of hanging or ligature strangulation.â Id. Nevertheless, âthe original
investigators and the coroner concluded that the [v]ictim committed suicide
by hanging.â Id.
Other evidence emerged linking Bidwell to the death, including a witness
who claimed that he had admitted to killing the victim and to having arranged
it to look like a suicide. It was also revealed that Bidwell had been involved
in an extra-marital affair with the victim. Id. Bidwell also âmade several
contradictory statements regarding the circumstances of the [v]ictimâs death
and his whereabouts at that time.â Id. at 613. The Commonwealth charged
Bidwell with criminal homicide.
The Commonwealth subsequently filed a motion in limine, seeking to
introduce PBA evidence, including evidence of Bidwellâs prior violent conduct
toward other women. The trial court granted admission of some PBA evidence
(such as evidence concerning Bidwellâs infidelity), but denied, inter alia,
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evidence of his prior violent behavior toward other women.6 The
Commonwealth sought to use such evidence to demonstrate that the victimâs
death was not a suicide, and to show Bidwellâs motive. The trial court excluded
the evidence because âit was âimproper propensity evidence of [Bidwell]âs
prior, dissimilar assaults on other women.ââ Id. at 618 (emphasis added).
The Commonwealth filed an interlocutory appeal from that order.
On appeal, this Court affirmed, ruling that the trial court had not abused
its discretion in excluding the proffered PBA evidence regarding Bidwellâs prior
violent conduct. The Bidwell Court reasoned that:
The Commonwealthâs evidence failed to show that each woman
was assaulted in the same manner or had been involved in a
sexual relationship with [Bidwell] or that [he] was under the
influence of alcohol or drugs at the time of the encounters with
the women. To the contrary, the womenâs testimony establishes,
at most, the commission of crimes or conduct in the past âof the
same general class,â namely physical and/or sexual assaults.
Their testimony does not evidence any particular distinctive
pattern of behavior by [Bidwell] in that [Bidwell]âs allegedly
abusive behavior appears to have been triggered in each incident
by different causes. For instance, it is alleged that [Bidwell]
assaulted his wives during the course of their marriages, but he
spontaneously attacked Ms. Sickle whom he had just met while
she interviewed for a job. Ms. Benek indicated [Bidwell] did not
physically accost her.
In addition, the trial court found that the [PBA] testimony was not
admissible to prove a âcommon scheme, plan or design.â Under
Pennsylvania law, evidence of prior bad acts is admissible to prove
âa common scheme, plan or design where the crimes are so
related that proof of one tends to prove the others.â
Commonwealth v. Elliott, ⊠700 A.2d 1243, 1249 ([Pa.] 1997).
____________________________________________
6 The trial court in Bidwell did not prohibit PBA evidence concerning Bidwellâs
prior violent conduct toward the deceased victim. Id. at 618.
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In Elliott, the appellant had been accused of sexually assaulting
and killing a young woman whom he had approached outside a
nightclub at 4:30 a.m. The Pennsylvania Supreme Court affirmed
the trial courtâs decision to permit three other young women to
testify that the appellant also had preyed upon and physically
and/or sexually assaulted each of them as they left the same club
in the early morning hours. Id. at ⊠1250â51. Our Supreme
Court held that evidence of the similarities among the assaults
was admissible to establish a common scheme, plan or design.
Id.
As the trial court found herein, the proposed testimony of Denise
Bidwell, Jennifer Bidwell, Alyssa Benek and Danielle Sickle does
not establish a pattern of conduct on the part of [Bidwell] so
distinctive that proof of one tends to prove the others. Instead,
the prior bad acts testimony demonstrates that [Bidwell] was a
domestic abuser of women, some of whom he was involved in on-
going romantic relationships in the past, but it does not show a
unique âsignatureâ modus operandi relevant to the [v]ictimâs
murder.
Bidwell, 195 A.3d at 626â27.
We find Bidwell easily distinguishable from the instant case. First, the
procedural posture here is not the same as this Court confronted in Bidwell.
In Bidwell, the Commonwealth appealed from the denial of a motion in limine
concerning the admissibility of evidence. The burden was on the
Commonwealth in that case to demonstrate that the trial court abused its
discretion in deeming the PBA evidence inadmissible. Here, Appellant bears
the burden on appeal of demonstrating that the trial court abused its discretion
by deeming admissible the at-issue PBA evidence. Given the deference we
pay to trial courts under the abuse of discretion standard, it would not
necessarily follow that the holding in Bidwell dictates the same result in the
instant case.
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Second, the evidence in this case is not comparable to the facts in
Bidwell, as the circumstances here present a far more compelling argument
for admission of the PBA evidence under Rule 404(b)(2). Here, the PBA
evidence established a distinct, signature pattern: Appellant presented himself
as a mentor or potential mentor to much younger women in order to establish
trust, and then he abused that trust by drugging those women in order to
sexually assault them. This constitutes far more distinctive behavior than the
PBA evidence of prior domestic abuse considered by the Bidwell Court. The
PBA evidence does not, as Appellant claims, merely âmatch[] the alleged act
on trial only in its general nature.â Appellantâs Brief at 65. Accordingly, we
reject his contention that Bidwell supports his claim.
Appellant also alleges that his assault on Victim and the assaults detailed
in the PBA evidence are too remote in time to be probative. He argues:
Baker-Kinney and Dickinson claim that [Appellant]âs alleged
inappropriate contact with them occurred in 1982, more than two
decades before the alleged incident with [Victim]. Thomas claims
that [Appellant] forced her to perform oral sex on him in 1984;
Lasha claims that her contact with [Appellant] was in 1986; and
Lublin claimed that she became intoxicated with [Appellant] in
1989âŠ. As to âJane Doe 1,â [Appellant] gave her a Quaalude,
which she took knowing that it was a Quaalude, in the 70s.
Id. at 66-67 (citations omitted). The allegation of sexual assault in this case
concerned conduct that occurred in 2004. Thus, the PBA evidence spanned
between 15-22 years prior to the conduct in this case for the testifying
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witnesses, and at least a few years prior to that for the incident involving Jane
Doe 1, about whom Appellant testified in his civil deposition.7
As our Supreme Court has stated, âeven if evidence of prior criminal
activity is [otherwise] admissible under [Rule 404(b)(2)], said evidence will
be rendered inadmissible if it is too remote.â Commonwealth v. Shively,
424 A.2d 1257, 1259 (Pa. 1981). However, this Court has also held that
âwhile remoteness in time is a factor to be considered in determining the
probative value of other crimes evidence under the theory of common scheme,
plan or design, the importance of the time period is inversely proportional to
the similarity of the crimes in question.â Commonwealth v. Aikens, 990
A.2d 1181, 1185 (Pa. Super. 2010) (citation omitted).
Here, the time period in question is substantial, especially in relation to
existing case law. Nevertheless, several factors tend to demonstrate that the
probative value of the PBA evidence remains strong, despite that substantial
time gap. There are distinctive similarities between the PBA evidence and
Appellantâs sexual assault of Victim. Furthermore, there were multiple prior
sexual assaults, not merely one, and all of those prior assaults evidenced the
same, signature pattern of misconduct. Had there only been a single prior
bad act, it would be easier to write off the similarities as coincidental,
____________________________________________
7 We will not separately address Appellantâs contention that Jane Doe 1 was
effectively a sixth PBA witness, as Appellant only challenged the admission of
the testimony of the five PBA witnesses in his Rule 1925(b) statement. See
Appellantâs 1925(b) Statement, 12/11/18, at ¶ 6; Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998) (holding that any issues not raised in a 1925(b)
statement are waived).
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especially given the passage of time. However, because the pattern here was
well-established in this case, both in terms of frequency and similarity, the at-
issue time gap is relatively inconsequential. Moreover, because Appellantâs
identity in this case was not in dispute (as he claimed he only engaged in
consensual sexual contact with Victim), there was no risk of misidentification
by use of the PBA evidence despite the gap in time. Accordingly, we conclude
that the remoteness of the PBA evidence was so substantial as to undermine
its probative value.
Appellant also contends that the trial court failed to make âany
assessment of the highly prejudicial natureâ of the PBA evidence. Appellantâs
Brief at 83. The record belies this claim. The Commonwealth sought the
admission of 19 witnesses, and the trial court âfound that the testimony of all
19 witnesses was relevant and admissibleâ under Rule 404(b)(2). TCO at 110.
Nevertheless, âthe [c]ourt sought to mitigate any prejudicial effect of such
evidence by limiting the number of witnessesâ to five. Id. Moreover, the trial
court
gave a cautionary instruction no less than four times during trial,
and again in its concluding instructions, limiting the prejudicial
effect of the testimony. N.T.[, 4/11/18,] at 45-46, 50-51; N.T.[,
4/12/18,] at 69, 167. Jurors are presumed to follow the courtâs
instructions. Commonwealth v. La Cava, 666 A.2d 221, 228
(Pa. 1995). Limiting instructions weigh in favor of upholding
admission of other bad acts evidence. ⊠Boczkowski, 846 A.2d
[at] 89âŠ.
Id. at 110-11. By limiting the number of relevant and admissible witnesses,
as well as by issuing multiple cautionary instructions, the trial court
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necessarily recognized the potential for unfair prejudice presented by the PBA
evidence. Thus, Appellantâs argument to the contrary is baseless.
Finally, we deem it unnecessary to address Appellantâs claim that the
trial court abused its discretion by relying on the âDoctrine of Chancesâ8 in
admitting the PBA evidence,9 as we agree with the trial court that the PBA
evidence was admissible under both the common plan/scheme/design and the
absence-of-mistake exceptions to Rule 404(b)(1)âs prohibition on PBA
evidence. For all the aforementioned reasons, we conclude that the trial court
did not abuse its discretion by admitting the PBA evidence and, therefore,
Appellantâs first claim lacks merit.
B. Trial Judgeâs Failure to Disclose Prior Relationship with Former
District Attorney Castor
Next, Appellant asserts that he is entitled to a new trial because the trial
judge in this case, the Honorable Steven T. OâNeill (âJudge OâNeillâ), failed to
disclose his prior and allegedly âacrimoniousâ relationship with former District
Attorney Castor (âMr. Castorâ). Appellantâs Brief at 92. As discussed in more
detail infra, Mr. Castor purportedly promised not to prosecute Appellant while
he was serving as Montgomery Countyâs District Attorney during the initial
____________________________________________
8 In his concurring opinion in Commonwealth v. Hicks, 156 A.3d 1114 (Pa.
2017), Chief Justice Saylor endorsed the âDoctrine of Chancesâ theory, which
holds, generally, that PBA evidence may be admissible where a logical
inference can be drawn âthat does not depend on an impermissible inference
of bad character, and which is most greatly suited to disproof of accident or
mistake.â Id. at 1132 (Saylor, J., concurring).
9 See Appellantâs Brief at 79-82; TCO at 99-100.
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investigation into Victimâs accusations against Appellant. Judge OâNeill
received testimony from Mr. Castor regarding that issue at a pretrial hearing,
and Mr. Castor was essentially a witness for the defense. Appellant contends
that Judge OâNeill was biased against Mr. Castor due to interactions between
the two that are alleged to have occurred in 1999. The Commonwealth
contends that Appellant waived this claim by failing to raise it at the earliest
possible opportunity.
It is undisputed that, in 1999, Judge OâNeill and Mr. Castor were both
âseeking the [R]epublican nomination for District Attorney in Montgomery
County.â Id. at 94. Mr. Castor won the nomination, and ultimately was
elected as District Attorney. However, Appellant alleges that Mr. Castorâs use
of smear tactics during that campaign (allegedly prompting a confrontation
with Judge OâNeill at a campaign event) produced a long-held bias in Judge
OâNeill toward Mr. Castor. Appellant asserts that this purported bias calls into
question the propriety of Judge OâNeillâs making credibility determinations
regarding Mr. Castorâs purported promise not to prosecute Appellant, which
occurred at a hearing held on February 2, 2016. Appellant essentially claims
that Judge OâNeill should have recused himself from hearing testimony from
Mr. Castor as a result of this bias. Appellant argues:
The fact that the lower court and [Mr.] Castor had a previous
relationship and disagreement is not a valid reason, alone, for the
lower court to have recused himself. However, the issue is not
their prior relationship, or a mere confrontation. Rather, then-
Candidate OâNeill engaged [Mr.] Castor, in a contentious and very
public confrontation over two highly sensitive topics: love and
politics. Despite knowing [Mr.] Castor would be a crucial witness
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in deciding whether the high-profile, nationally publicized trial of
Cosby would be allowed to go forward, the lower court made the
decision not to disclose his history with [Mr.] Castor.
Id. at 96-97.
In his Rule 1925(a) opinion, Judge OâNeill flatly denies that he harbors
any bias against Mr. Castor, and states that he had nothing to disclose to the
defense, and no reason to recuse. TCO at 125 (âThis [c]ourt cannot disclose
that which does not exist. This [c]ourt simply has no bias against Mr. Castor,
thus no disclosure was necessary.â). In any event, the trial court agrees with
the Commonwealth that Appellant waived this claim. Id. at 126 (finding that
Appellant âfailed to raise the alleged issue at th[e] earliest possible momentâ).
âThe standards for recusal are well established. It is the burden of the
party requesting recusal to produce evidence establishing bias, prejudice or
unfairness which raises a substantial doubt as to the juristâs ability to preside
impartially.â Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)
(citations omitted). Until evidence establishes a juristâs bias, â[t]his Court
presumes judges of this Commonwealth are âhonorable, fair and competent,â
and, when confronted with a recusal demand, have the ability to determine
whether they can rule impartially and without prejudice.â Commonwealth
v. Luketic, 162 A.3d 1149, 1157 (Pa. Super. 2017) (quoting
Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)).
Before we address the merits of this claim, we must address the
Commonwealthâs contention that Appellant waived our consideration of this
issue, as
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the law is clear. In this Commonwealth, a party must seek recusal
of a jurist at the earliest possible moment, i.e., when the party
knows of the facts that form the basis for a motion to recuse. If
the party fails to present a motion to recuse at that time, then the
partyâs recusal issue is time-barred and waived.
Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017).
The Commonwealth contends that Appellant waived his recusal issue by
waiting 167 days to raise it after discovering the factual basis for the claim.
We agree. Although Mr. Castor testified before Judge OâNeill on February 2,
2016, prior to Appellantâs first trial, Appellant did not raise the instant claim
until after his second trial, and just prior to sentencing, on September 11,
2018. Appellant initially asserted this after-discovered-evidence-recusal claim
based on a Radar Online article published on March 28, 2018. See Motion for
Disclosure, Recusal, and for Reconsideration of Recusal, 9/11/18, at 3 ¶¶ 7-8
(asserting that neither Appellant nor his attorneys had any knowledge of the
1999 incident until the article was published). In the article, Appellantâs
spokesperson, Andrew Wyatt, was quoted as having just learned of the
purported 1999 confrontation between Mr. Castor and Judge OâNeill. RR at
1679a (âA spokesman for Cosby, Andrew Wyatt, told Radar: âItâs very
interestingâitâs my first time hearing about it.ââ).
Appellant provided virtually no argument in his September 11, 2018
motion, nor does he provide any argument in his brief, indicating why he
waited 167 days to seek Judge OâNeillâs recusal based on the factual
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allegations contained in the Radar Online article.10 Appellant has not denied
that his spokesperson, Mr. Wyatt, made the quoted statement, nor has he
asserted that Mr. Wyatt withheld that information from him or his attorneys.
In any event, even if we were inclined to disregard the obviousâthat Mr.
Wyatt would have no rational reason for withholding such information from
Appellant or Appellantâs counselâAppellant has not offered any explanation
as to why he was unable to discover the Radar Online article at an earlier time.
Accordingly, we agree with the trial court and the Commonwealth that
Appellant waived this claim, as he failed to raise it at the earliest possible
opportunity.11 See Reilly by Reilly v. S.E. Pennsylvania Transp. Auth.,
____________________________________________
10 Appellant attempts to claim that his sentencing counsel had no knowledge
of the Radar Online article until after June 14, 2018, when sentencing counsel
entered his appearance. Appellantâs Brief at 114. This excuse borders on
frivolity. It is undisputed that Appellant was represented by counsel at every
stage of the proceedings below. Yet, he has thus far failed to argue why he
or his prior attorneys were unable to ascertain the contents of the Radar
Online article at an earlier time.
In any event, even if we were to countenance the notion that only sentencing
counselâs oversight of Appellantâs defense was relevant to our analysis,
Appellant has still not justified the delay of 89 days from when sentencing
counsel entered his appearance until the recusal motion was filed.
Furthermore, nowhere in Appellantâs numerous filings has he ever stated a
specific date, or even a general range of dates, establishing when he or his
attorneys actually learned of the contents of the Radar Online article. This
alone demonstrates that Appellant has failed to satisfy his burden of
demonstrating why he did not raise the matter at the earliest possible time.
11 We note that Appellant provided this Court with an affidavit from Mr. Castor
in the reproduced record (hereinafter âCastorâs Affidavitâ). See RR at 6215a-
6223a. Castorâs Affidavit is dated October 20, 2018. Id. at 6223a. Therein,
Mr. Castor ostensibly provides additional details concerning his prior
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489 A.2d 1291, 1300 (Pa. 1985) (holding that an 8-month delay in raising a
recusal motion after the facts were known to the moving party resulted in
waiver of the recusal claim); see also Lomas, 170 A.3d at 391 (â[I]t is
obvious that October 15, 2007, was not âthe earliest possible momentâ that
[the a]ppellants could have raised their objections regarding recusal, as all of
____________________________________________
relationship with Judge OâNeill not contained in the Radar Online article, such
as his recollections concerning the 1999 campaign, as well as various opinions
held by Mr. Castor regarding Judge OâNeillâs purported bias against him over
the ensuing years. However, it is undisputed that Castorâs Affidavit was never
presented in the trial court, and it does not appear in the certified record in
this case.
[A]s an appellate court, our review is limited by the contents of
the certified record. Pa.R.A.P.1921; Commonwealth v. Young,
⊠317 A.2d 258, 264 ([Pa.] 1974) (âonly the facts that appear in
[the] record may be considered by a courtâ). See also Ritter v.
Ritter, ⊠518 A.2d 319, 323 ([Pa. Super.] 1986) (âthe appellate
court can only look at the certified record on appeal when
reviewing a caseâ). All documents in a criminal matter must be
filed with the clerk of courts in order to become part of the certified
record. 42 Pa.C.S. § 2756(a)(1). Additionally, [the a]ppellant has
the duty to ensure that all documents essential to his case are
included in the certified record. Fiore v. Oakwood Plaza
Shopping Ctr., ⊠585 A.2d 1012, 1019 ([Pa. Super.] 1991) ( âIt
is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of the
issues raised on appeal[.]â). If a document is not in the certified
record then this Court cannot take it into account.
Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).
Thus, we cannot consider the contents of Castorâs Affidavit.
Nonetheless, even if we could consider it, we would still deem Appellantâs
recusal claim waived due to his failure to raise it at the earliest opportunity,
as the basic, underlying facts were contained in the Radar Online article
published on March 28, 2018.
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the facts underlying the recusal issue were known to [them] ⊠on September
6, 2007.â).
C. Mr. Castorâs Alleged Promise Not to Prosecute
Appellant next argues that the trial court abused its discretion when it
denied his habeas corpus motion seeking to quash the criminal complaint and
bar his trial based on Mr. Castorâs purported promise in 2005 not to prosecute
him for his sexual assault of Victim. As noted in the trial courtâs summary of
the facts, supra, the original investigation into Appellantâs 2004 sexual assault
of Victim began in January of 2005, and ended the following month when, on
February 17, 2005, Mr. Castor personally issued a press release in his capacity
as District Attorney, which read in pertinent part as follows:
Montgomery County District Attorney Bruce L. Castor, Jr. has
announced that a joint investigation by his office and the
Cheltenham Township Police Department into allegations against
actor and comic Bill Cosby is concluded.
âŠ
The District Attorney has reviewed the statements of the parties
involved, those of all witnesses who might have first[-]hand
knowledge of the alleged incidentâŠ. Detectives searched Mr.
Cosbyâs Cheltenham home for potential evidence. Investigators
further provided District Attorney Castor with phone records and
other items that might have evidentiary value. Lastly, the District
Attorney reviewed statements from other persons claiming that
Mr. Cosby behaved inappropriately with them on prior occasions.
However, the detectives could find no instance in Mr. Cosbyâs past
where anyone complained to law enforcement of conduct, which
would constitute a criminal offense.
After reviewing the above and consulting with County and
Cheltenham detectives, the District Attorney finds insufficient[]
credible[] and admissible evidence exists upon which any charge
against Mr. Cosby could be sustained beyond a reasonable doubt.
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In making this finding, the District Attorney has analyzed the facts
in relation to the elements of any applicable offenses, including
whether or not evidence is admissible. Evidence may be
inadmissible if it is too remote in time to be considered legally
relevant or if it was illegally obtained pursuant to Pennsylvania
law. After this analysis, the District Attorney concludes that a
conviction under the circumstances of this case would be
unattainable. As such, District Attorney Castor declines to
authorize the filing of criminal charges in connection with this
matter.
Because a civil action with a much lower standard of proof is
possible, the District Attorney renders no opinion concerning the
credibility of any party involved so as not to contribute to the
publicity, and taint prospective jurors. The District Attorney does
not intend to expound publicly on the details of his decision for
fear that his opinions and analysis might be given undue weight
by jurors in any contemplated civil action. District Attorney Castor
cautions all parties to this matter that he will reconsider this
decision should the need arise.
RR at 382a-383a.
After he was charged by the current District Attorney of Montgomery
County on December 30, 2015, Appellant filed a habeas corpus petition
alleging that his prosecution was barred by a non-prosecution agreement. Id.
at 389a-391a (Appellantâs Petition for Writ of Habeas Corpus, 1/11/16).
However, it is undisputed that no written, formalized non-prosecution
agreement exists in this case. Additionally, no order granting Appellant
immunity from prosecution was previously sought by Appellant or Mr. Castor.
Appellant contends that the above-stated press release, coupled with
testimonial evidence regarding Mr. Castorâs intent to bar Appellantâs
prosecution (and communication of that intent to Appellantâs now deceased,
former attorney in 2005), constituted a de facto âagreement, contract,
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arrangement, or promiseâ not to prosecute him.12 Appellantâs Brief at 127.
Alternatively, Appellant argues that the principle of promissory estoppel
barred his trials, reasoning that Mr. âCastorâs promise was tailored to force
[Appellant] to relinquish his Fifth Amendment right and sit for a civil
deposition[,]â even if the promise was formally defective in conveying
immunity from prosecution.13 Id. at 129.
The trial court rejected both claims. The court first determined that
the only conclusion that was apparent to this [c]ourt was that no
agreement or promise not to prosecute ever existed, only the
exercise of prosecutorial discretion. A press release, signed or
not, was legally insufficient to form the basis of an enforceable
promise not to prosecute. The parties did not cite, nor has this
[c]ourt found any support in Pennsylvania law for the proposition
that a prosecutor may unilaterally confer transactional immunity
through a declaration as the sovereign. Thus, the District
Attorney was required to utilize the immunity statute, which
provides the only means for granting immunity in Pennsylvania.
TCO at 62.
In rejecting Appellantâs claim that the principle of promissory estoppel
barred his prosecution, the trial court reasoned:
Even assuming, arguendo, that there was a defective grant of
immunity, as would support a theory of promissory estoppel, any
reliance on a press release as a grant of immunity was
unreasonable. [Appellant] was represented by a competent team
of attorneys who were versed in written negotiations. Yet none of
____________________________________________
12 As noted by the trial court, Mr. Castor also âtestified that he intended to
confer transactional immunity upon [Appellant] and that his power to do so
as the sovereign was derived from common law not from the statutes of
Pennsylvania.â TCO at 57 (citing N.T., 2/2/16, at 232-36 (RR 643a-647a)).
13 Elements of Appellantâs civil deposition were used as evidence against him
at trial as discussed, infra.
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these attorneys obtained Mr. Castorâs promise in writing or
memorialized it in any way, further supporting the conclusion that
there was no promise. Therefore, the Commonwealth was not
estopped from proceeding with the prosecution following their
reinvestigation. The [c]ourt did not abuse its discretion and this
claim must fail.
Id. at 65-66.
We review the denial of a motion seeking to quash a criminal complaint
or information under a well-settled standard of review.
The decision to grant or deny a motion to quash is within the
sound discretion of the trial judge and will be reversed on appeal
only where there has been a clear abuse of discretion. See
Commonwealth v. Hackney, ⊠178 A. 417, 418 ([Pa. Super.]
1935)âŠ. A court, moreover, âshould not sustain a motion to quash
... except in a clear case where it is convinced that harm has been
done to the defendant by improper conduct that interfered with
his substantial rights.â
Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa. Super. 1980).
Additionally, to the extent that denying such a motion turns in some
part on issues of fact, this Court is highly deferential to the findings of the trial
court.
Questions of credibility and conflicts in the evidence presented are
for the trial court to resolve, not our appellate courts.
As long as sufficient evidence exists in the record which is
adequate to support the finding found by the trial court, as
factfinder, we are precluded from overturning that finding[.]
Commonwealth of Pennsylvania, Dept. of Transp., Bureau of Traffic
Safety v. OâConnell, 555 A.2d 873, 875 (Pa. 1989) (citations omitted);
accord Commonwealth v. Doolin, 24 A.3d 998, 1003 (Pa. Super. 2011)
(âIt is well settled that the decision to grant a pretrial motion to dismiss a
criminal charge is vested in the sound discretion of the trial court and may be
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overturned only upon a showing of abuse of discretion or error of law.â)
(internal brackets, quotation marks, and citation omitted).
We first address whether a non-prosecution agreement existed that
precluded Appellantâs prosecution for the instant offenses. As a matter of law
and based on the uncontested facts, independent of any credibility
determination by the trial court, we hold that Appellant was not immune from
prosecution based on Mr. Castorâs alleged promise not to prosecute.
Like the trial court, we cannot uncover any authority suggesting that a
district attorney âmay unilaterally confer transactional immunity through a
declaration as the sovereign.â TCO at 62. Appellant has yet to present any
authority suggesting otherwise and, therefore, it is clear on the face of the
record that the trial court did not abuse its discretion in determining that there
was no enforceable non-prosecution agreement in this case; i.e., there was
no legal grant of immunity from criminal prosecution conferred to Appellant
by Mr. Castor. Even assuming Mr. Castor promised not to prosecute Appellant,
only a court order can convey such immunity. Such promises exist only as
exercises of prosecutorial discretion, and may be revoked at any time.
The exclusive authority for conferring immunity from prosecution rests
within the immunity statute itself, 42 Pa.C.S. § 5947. Section 5947 provides,
in pertinent part, that
a district attorney may request an immunity order from any
judge of a designated court, and that judge shall issue such an
order, when in the judgment of the Attorney General or district
attorney:
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(1) the testimony or other information from a witness may be
necessary to the public interest; and
(2) a witness has refused or is likely to refuse to testify or provide
other information on the basis of his privilege against self-
incrimination.
42 Pa.C.S. § 5947(b) (emphasis added).
Mr. Castor indicated that he never sought such an order, and no
evidence of such an order exists in this case.14 Instead, Mr. Castor testified
that he âmade the decision as the sovereign that [Appellant] would not be
prosecuted no matter what.â RR at 475a (N.T., 2/2/16, at 64). Mr. Castor
did not suggest under what statute or relevant case law he relied in exercising
such authority outside the parameters of Section 5947. Indeed, Appellant
makes no attempt in his brief to legally support Mr. Castorâs contention at all.
Thus, we ascertain no abuse of discretion in the trial courtâs determination
that Appellant was not immune from prosecution, because Mr. Castor failed
to seek or obtain an immunity order pursuant to Section 5947. At most, Mr.
Castor exercised his prosecutorial discretion in promising not to prosecute
Appellant. We have not discovered any case law, nor does Appellant cite to
any relevant authority, holding that when a prosecutor exercises his or her
____________________________________________
14 Nor does it appear that such an order would have been granted by a trial
court had it been sought. Even if Mr. Castorâs speculation was reasonable that
a civil suit against Appellant was inevitable, and that it was equally inevitable
that Appellant would have likely attempted to refuse to testify based on his
5th Amendment right against self-incrimination, there is no reason to believe
that his testimony was ânecessary to the public interest.â 42 Pa.C.S. §
5947(b)(1). It was, at best, potentially helpful to Victimâs private interest in
a civil suit. However, regardless of whether Mr. Castor could have procured
such an order, he did not even attempt to obtain one.
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discretion not to prosecute, such action conveys immunity from future
prosecution for the same accusation or offense, even if such a decision takes
the form of an agreement. Only a court order conveying such immunity is
legally binding in this Commonwealth.
Alternatively, Appellant argues that the trial court abused its discretion
when it denied his habeas corpus motion seeking to bar his trial based on a
promissory estoppel theory. As Appellant contends:
The Commonwealth through [Mr.] Castor made a promise not to
prosecute. In reliance on that promise, [Appellant] testified in a
civil deposition without asserting his Fifth Amendment rights.
Justice can only be served by holding the Commonwealth to their
promise and upholding the non-prosecution agreement.
Appellantâs Brief at 130.
Initially, we note that Appellant fails to cite any precedent for the
proposition that a prosecution can be barred based on a contract theory of
promissory estoppel, or anything similar. Rather, he merely provides this
Court with boilerplate law concerning the theory and its application in contract
law. As such, Appellant has utterly failed to convince us of the applicability of
such a theory in barring a criminal prosecution. Accordingly, he is not entitled
to relief on this basis alone.
In any event, even if we were to countenance Appellantâs novel theory,
we agree with the trial court that he cannot establish the necessary elements
of a promissory estoppel claim. âPromissory estoppel enables a person to
enforce a contract-like promise that would be otherwise unenforceable under
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contract law principles.â Peluso v. Kistner, 970 A.2d 530, 532 (Pa. Cmwlth.
2009).
To establish promissory estoppel, the plaintiff must prove that:
(1) the promisor made a promise that would reasonably be
expected to induce action or forbearance on the part of the
promisee; (2) the promisee actually took action or refrained from
taking action in reliance on the promise; and (3) injustice can be
avoided only by enforcing the promise. These factors are strictly
enforced to guard against the âloose applicationâ of promissory
estoppel.
Id. (citation omitted).
With regard to the first element, we agree with the trial court that it was
not reasonable for Appellant to rely on Mr. Castorâs promise, even if the trial
court had found credible the testimony provided by Mr. Castor and Appellantâs
civil attorney, John Patrick Schmitt, Esq.15 As noted above, there is simply no
authority for the proposition that immunity from criminal prosecution can be
conveyed by a prosecutor absent a valid court order pursuant to the immunity
statute, 42 Pa.C.S. § 5947. We cannot deem reasonable Appellantâs reliance
on such a promise when he was represented by counsel, especially when
immunity can only be granted by a court order, and where no court order
granting him immunity existed.
With regard to the second element, there is virtually no evidence in the
record that Appellant actually declined to assert his Fifth Amendment rights
at the civil deposition based on Mr. Castorâs purported promise not to
____________________________________________
15 The trial court did not find Mr. Castorâs testimony regarding the promise not
to prosecute to be credible.
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prosecute. Appellant did not testify to this fact at either hearing on the at-
issue habeas petition. Appellantâs only witnesses were Mr. Castor and
Attorney Schmitt. Mr. Castor testified that he had made such a promise
through the press release, in part, and through conversations he had with
Appellantâs prior criminal defense attorney, Walter Phillips, Esq. (now
deceased).
Yet, Attorney Schmitt was the only witness who could ostensibly testify
as to whether Appellant relied on the alleged promise not to prosecute by
sitting for a deposition in the civil case. Attorney Schmitt testified regarding
his conversations with Mr. Phillips, indicating that Mr. Phillips had assured him
that Mr. Castorâs promise not to prosecute was binding,16 and therefore
Appellant could be compelled to testify during any subsequent civil litigation.
RR at 703a (N.T., 2/3/16, at 11). However, as the Commonwealth accurately
notes,
Schmitt was forced to admit on cross-examination that he
permitted [Appellant] to be questioned by police and, during an
interview in advance of that questioning, did not believe that
[Appellant] could incriminate himself[. N.T., 2/3/16, at 22-24].
He also admitted to negotiating with the National Enquirer on the
details of a published interview with [Appellant] regarding the
criminal investigation while the criminal investigation was
ongoing, and also trying to negotiate the settlement agreement to
prohibit [Victim] from ever cooperating with police in the future[.
____________________________________________
16 As noted above, Mr. Phillips was clearly mistaken in that regard, as
immunity from prosecution can only be obtained by a court order pursuant to
42 Pa.C.S. § 5947.
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Id. at 31-33, 44-48]. It was not necessary for the trial court to
specifically state that it rejected ⊠Schmittâs testimony, as it is
patently obvious that his testimony belies his claim that there was
some âpromiseâ from [Mr.] Castor not to prosecute[. Id. at 25-
27.] Further, by crediting the testimony of Troiani and Kivitz the
trial court necessarily discredited Schmitt just as it did [Mr.]
Castor.[17]
While [Appellant] seemingly takes issue with the trial courtâs
treatment of Schmittâs testimony in its findings of fact and
conclusions of law, he completely ignores the trial courtâs
thorough analysis of his testimony in its 1925([a]) opinion, which
makes it abundantly clear that Schmittâs conduct in representing
[Appellant] was totally and completely inconsistent with the
existence of any promise or agreement not to prosecute from
[Mr.] Castor.
Commonwealthâs Brief at 136-37.
We agree with the Commonwealth and the trial court that the evidence
was entirely inconsistent with Appellantâs alleged reliance on Mr. Castorâs
promise in choosing not to assert his Fifth Amendment privilege in the civil
suit. It is axiomatic that:
The privilege against self-incrimination can only be asserted when
the witness is being asked to testify to self-incriminating facts and
only when a witness is asked a question demanding an
incriminating answer. The witness has the burden of
demonstrating that he or she has a reasonable ground for
asserting the privilege.
McDonough v. Com., Dept. of Transp., Bureau of Driver Licensing, 618
A.2d 1258, 1261 (Pa. Cmwlth. 1992) (citation omitted).
____________________________________________
17 Troiani, one of Victimâs attorneys in her civil case against Appellant, testified
that she never received any information from Appellantâs civil attorneys
indicating that he could never be prosecuted. N.T., 2/3/16, at 177. She also
indicated several reasons why it would not have been to Appellantâs advantage
to assert his Fifth Amendment rights during a civil trial in any event. Id. at
176.
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Attorney Schmitt believed that Appellant could not incriminate himself
based on the testimony he intended to provide. If this was the case, then
there was no basis for Appellant to assert the Fifth Amendment privilege in
the civil suit, which is consistent with Appellantâs prior decision to sit for an
interview with criminal investigators. Moreover, Attorney Schmittâs actions
were entirely inconsistent with reliance on the purported promise, as he failed
to mention the alleged promise to Victimâs civil attorneys, and he attempted
to negotiate a settlement with Victim to prevent her from cooperating with the
police in the future. Thus, even if Appellantâs promissory estoppel theory were
cognizable (and we hold that it is not), he would not be entitled to relief.
D. Motion to Suppress the Contents of Appellantâs Civil Deposition
Appellant next argues that the trial court abused its discretion when it
denied his motion to suppress the contents of his civil deposition.
[O]ur standard of review in addressing a challenge to a trial courtâs
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression courtâs factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
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Appellantâs suppression argument is contingent upon his claim that Mr.
Castor unilaterally immunized Appellant from criminal prosecution, which we
have already rejected. We have also rejected Appellantâs promissory estoppel
theory as a basis for barring his prosecution, and we agree with the trial court
that suppression is not warranted for the following reasons:
1. Instantly, this [c]ourt concludes that there was neither an
agreement nor a promise not to prosecute, only an exercise of
prosecutorial discretion, memorialized by the February 17, 2005
press release.
2. In the absence of an enforceable agreement, [Appellant] relies
on a theory of promissory estoppel and the principles of due
process and fundamental fairness to support his motion to
suppress.
3. Where there is no enforceable agreement between parties
because the agreement lacked consideration, the agreement may
still be enforceable on a theory of promissory estoppel to avoid
injustice. Crouse v. Cyclops Indus., 745 A.2d 606 (Pa. 2000).
4. The party who asserts promissory estoppel must show (1) the
promisor made a promise that he should have reasonably
expected would induce action or forbearance on the part of the
promisee; (2) the promisee actually took action or refrained from
taking action in reliance on the promise; and (3) injustice can be
avoided only by enforcing the promise. Id. (citing Restatement
(Second) of Contracts § 90). Satisfaction of the third requirement
may depend, inter alia, on the reasonableness of the promiseeâs
reliance and the formality with which the promise was made.
Thatcherâs Drug Store of W. Goshen, Inc. v. Consol.
Supermarkets, Inc., 636 A.2d 156, 160 (Pa. 1994) (citing
Restatement (Second) of Contracts § 90, comment b).
5. Because there was no promise, there can be no reliance on the
part of [Appellant] and principles of fundamental fairness and due
process have not been violated.
6. This [c]ourt finds that there is no Constitutional barrier to the
use of [Appellant]âs civil deposition testimony.
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TCO at 72 (quoting Findings of Fact and Conclusions of Law, 12/5/16, at 5 (RR
at 1196a)).
Appellant cites several cases in support of his claim, discussed below.
However, we conclude that none of these cases suggest, much less compel, a
ruling that the trial court abused its discretion in denying suppression of
Appellantâs civil deposition testimony in this matter.
Appellant first cites Commonwealth v. Eiland, 301 A.2d 651 (Pa.
1973), for the proposition that: âIf the Commonwealth makes a promise to a
defendant, who acts in detriment to their protected rights as a result of that
promise, the District Attorney, as an âadministrator of justice,â cannot then
renege on the promise and seek to benefit from the deceit.â Appellantâs Brief
at 131.
However, Eiland did not involve circumstances comparable to the
matter at hand. There, the defendant had claimed that his incriminating
statement, given while in custody, was unlawfully induced through physical
coercion and a substantial delay between his arrest and his arraignment. The
Eiland Court ultimately granted relief, based on the following facts:
The record evinces [u]ncontradicted evidence that [the
defendant], a 20-year-old with a tenth grade education, was
isolated for several periods of time; that upon his initial
interrogation he refused to admit involvement in the shooting;
that eleven hours later when told by the police he would get more
lenient treatment if he confessed, he signed an incriminating
statement; and that he was not arraigned until some twenty-five
hours after arrest.
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Eiland, 301 A.2d at 654. The Eiland Court concluded that the defendant had
been subject to âimpermissible psychological coercion.â Id. at 655.
Accordingly, the Court ruled that his incriminating statement should have been
suppressed.
Here, Appellant was not in custody when he was deposed. The at-issue
statement was given in the presence of experienced counsel at a civil
deposition, and his civil deposition testimony was not compelled based on a
promise that he would be shown leniency if he confessed directly to criminal
conduct. Thus, Eiland is completely inapposite.
Next Appellant argues that relief is due pursuant to United States v.
Hayes, 946 F.2d 230 (3d Cir. 1991). In Hayes, the defendant alleged that
the Commonwealth had breached the terms of his plea agreement, which
stated, in writing, that the district attorney would not recommend a specific
sentence at sentencing. The Commonwealth breached that agreement by
recommending a sentence in its sentencing memorandum. On that basis, the
Hayes Court granted relief and vacated the defendantâs sentence, reasoning
that, âthe government must honor its bargain with the defendant.â Id. at
233.
The instant case does not involve a promise made pursuant to a plea
agreement. Moreover, the agreement in Hayes was memorialized in writing
and accepted by the trial court, and the specific terms of that agreement were
not in dispute. Here, the purported promise by Mr. Castor was not
memorialized in writing, and Appellantâs alleged consideration for that promise
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was nonexistent at the time; indeed, the Commonwealth in this case claims
that no agreement or promise existed at all. Furthermore, there is no
evidence that the purported promise not to prosecute was the product of a
negotiation, rather than merely being a unilateral declaration made by Mr.
Castor. Thus, Hayes does not support Appellantâs claim.
Appellant also cites Commonwealth v. Stipetich, 652 A.2d 1294 (Pa.
1995). In that case, Pittsburgh police searched George and Heidi Stipetichâs
home pursuant to a warrant and discovered a small quantity of drugs and
related paraphernalia.
Sergeant Thomas, the officer in charge of the search, was
subsequently contacted by the Stipetichesâ attorney, Charles
Scarlata. Thomas and Scarlata reached an agreement that, if
George Stipetich would answer questions concerning the source
of the controlled substances and drug paraphernalia found in his
residence, no charges would be filed against either of the
Stipetiches. George Stipetich then fulfilled his part of the
agreement by answering all questions posed by the police.
Nevertheless, ⊠on the basis of the contraband recovered in the
foregoing search, Allegheny County authorities charged the
Stipetiches with possession of controlled substances. Citing the
non-prosecution agreement entered with the Pittsburgh police,
the Stipetiches filed a motion seeking dismissal of the charges.
The motion was granted by the [C]ourt of [C]ommon [P]leas.
Id. at 1294-95. Our Supreme Court reversed that decision because the ânon-
prosecution agreement was, in short, invalid. The Pittsburgh police did not
have authority to bind the Allegheny County District Attorneyâs office as to
whether charges would be filed.â Id. at 1295.
However, the Stipetich Court opined that:
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The decisions below, barring prosecution of the Stipetiches,
embodied concern that allowing charges to be brought after
George Stipetich had performed his part of the agreement by
answering questions about sources of the contraband discovered
in his residence would be fundamentally unfair because in
answering the questions he may have disclosed information that
could be used against him. The proper response to this concern
is not to bar prosecution; rather, it is to suppress, at the
appropriate juncture, any detrimental evidence procured through
the inaccurate representation that he would not be prosecuted.
Id. at 1296.
This language from Stipetich, relied upon by Appellant, is merely dicta.
The holding in Stipetich was solely that the Stipetichesâ prosecution was not
barred by the invalid non-prosecution agreement. Nevertheless, Stipetich is
also factually distinguishable from the instant case. Here, there was no
negotiated agreement, just a unilateral declaration by Mr. Castor, which on its
face did not grant Appellant immunity from prosecution. Moreover, as Mr.
Castor testified, âthere wasnât any quid pro quo here.â RR at 99 (N.T., 2/2/16,
at 99). Indeed, at the time of Mr. Castorâs statement, Victim had not yet filed
a civil claim against Appellant. Additionally, as discussed above, there was no
reasonable reliance on a defective grant of immunity when the suit was filed
and Appellant was ultimately deposed. Accordingly, Stipetich does not
support Appellantâs suppression claim.
Appellant also relies on Commonwealth v. Peters, 373 A.2d 1055 (Pa.
1977), but provides practically no analysis of that case. We find that Peters
is easily distinguishable from the instant matter. In Peters, an uncounseled
defendant waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
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and gave an incriminating statement when promised by a detective with the
District Attorneyâs Office that he would not be prosecuted. Our Supreme Court
held that the Commonwealth had not âcarried its burdenâ to demonstrate that
the defendant had knowingly, intelligently, and voluntarily waived his
Miranda rights, where â[n]o explanation of this promise was provided by the
Commonwealth.â Peters, 373 A.2d at 1062. Here, Appellant was
represented by multiple attorneys throughout the initial criminal investigation
and civil proceedings, and gave the at-issue statement during a civil
deposition, not during a custodial interrogation.
Appellant offers another cursory analysis of Commonwealth v. Bryan,
818 A.2d 537 (Pa. Super. 2003), but that case also does not suggest that he
is entitled to relief. In Bryan, the defendant failed to comply with an invalid
and unenforceable non-prosecution agreement with police. The trial court
dismissed the subsequently filed charges due to a delay in filing the charges.
We reversed, ruling, in part, that there was no demonstrable prejudice to the
defendant due to the delay. Id. at 541-42. We then, in dicta, suggested that,
â[h]ad incriminating information been obtained against [the defendant] as a
result of the unauthorized agreement, he would be entitled to have that
evidence suppressed.â Id. at 542. In any event, in that case, the police
offered not to prosecute in exchange for the defendantâs assistance in
unrelated criminal matters. The offer was made while the uncounseled
defendant was detained for blood testing during a DUI arrest. Again, in this
case, Appellant was represented by counsel, and there was no negotiation.
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The Commonwealth did not receive any benefit from Mr. Castorâs promise,
and Appellant provided testimony while counseled at a civil deposition, not
while under duress from a custodial interrogation.
Finally, in assessing the trial courtâs denial of Appellantâs motion to
suppress, we are bound by the courtâs factual determinations. The trial court
determined that Mr. Castorâs testimony and, by implication, Attorney
Schmittâs testimony (which was premised upon information he indirectly
received from Mr. Castor) were not credible. The court found that the weight
of the evidence supported its finding that no agreement or grant of immunity
was made, and that Appellant did not reasonably rely on any overtures by Mr.
Castor to that effect when he sat for his civil deposition. Thus, for all of the
aforementioned reasons, we do not ascertain any abuse of discretion in the
trial courtâs denial of Appellantâs motion to suppress his civil deposition.
E. Evidence from Appellantâs Civil Deposition Concerning His
Possession and Distribution of Quaaludes in the 1970âs
Next, Appellant challenges the admission of the portion of his civil
deposition testimony pertaining to his possession and distribution of
Quaaludes in the 1970s. Appellant asserts that such evidence was
inadmissible under Pa.R.E. 404(b), and that it did not satisfy any exception
thereto as set forth in Rule 404(b)(2). Specifically, Appellant challenges the
admission at trial of his civil deposition testimony pertaining to
the circumstances under which [Appellant] was prescribed the
Quaaludes[, RR at 4789a-4790a;] the number of scripts
obtained[, id. at 4790;] and his decision to share the Quaaludes,
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noting that, at that time (i.e., the 1970s), âQuaaludes happen to
be the drug that kids, young people, were using to party with and
there were times when I wanted to have them just in case.â [id.
at 4793a].
Appellantâs Brief at 138.
The trial court determined that this evidence was admissible to establish
Appellantâs intent and motive in giving âa depressant to [Victim]â for the
purpose of impairing her ability to refuse to consent to sexual activity. TCO
at 115; see Pa.R.E. 404(b)(2) (permitting the admission of PBA evidence that
demonstrates âmotive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident[,]â if âthe probative value of
the evidence outweighs its potential for unfair prejudice.â).
Appellant contends:
The [r]ecord is barren of any evidence which reflects that
[Appellant] had Quaaludes in his possession in 2004[,] and that
the pills [Victim] was given were Quaaludes. In fact, the [r]ecord
reflects otherwise. Moreover, the fact that [Appellant] may have
shared Quaaludes with women in the 1970s is not probative of his
motive or intent concerning providing Benadryl to [Victim] in
2004.
Quaaludes were legal in the 1970s and were a âparty drugâ widely
used in the 1970s and early 1980s. [RR at 4969a-4970a]. The
fact that [Appellant] possessed but unlawfully shared Quaaludes
in the 1970s while partying with other individuals may be
salacious, but it does not establish any material fact in this case,
nor does it make a fact at issue (i.e., whether [Appellant] had
non[-]consensual sexual contact with [Victim][)] more or less
probableâŠ. Further, it does not raise any reasonable inference
supporting a material fact. It had no probative value and was not
relevant but was extraordinarily prejudicial.
The prosecution offered this evidence to raise the innuendo that
[Appellant] supplied women with Quaaludes back in the 1970s and
then had sex with them. No facts were presented, however, to
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support the conclusion that the women: (a) were forced to take
the Quaaludes; (b) did not know that they were taking Quaaludes;
(c) actually had sex with [Appellant]; and (d) if they had sex with
[Appellant], had nonconsensual sex with [him]. The fact is, a
person can be impaired by voluntarily taking a controlled or
noncontrolled substance, or by consuming alcohol, and still
engage in consensual sexual contact. That such may have
happened between [Appellant] and some women in the 1970s in
no way establishes whether, on some night in 2004, [Appellant]
had nonconsensual contact with [Victim]. This prejudicial evidence
was offered for no reason other than to smear [Appellant], a
reason which certainly does not support the admissibility of the
evidence. A new trial is warranted.
Appellantâs Brief at 142-44.
The Commonwealth responds, first, that Appellantâs admissions
regarding his distribution of Quaaludes âwere relevant because they tended to
establish that he had knowledge of substancesâparticularly, central nervous
system depressantsâthat would induce unconsciousness and facilitate a
sexual assault.â Commonwealthâs Brief at 151.
[Appellant] specifically testified in his deposition that he obtained
numerous prescriptions for Quaaludes, without intending to use
the pills himself, but to give to âyoung women [he] wanted to have
sex with[.]â [N.T.], 4/18/18, at 35, 40-42, 47âŠ. He admitted
that he knew the drugs caused at least one womanââJane Doe
Number 1ââto get âhigh,â appear âunsteady,â and âwalk[] like
[she] had too much to drink[.]â [Id.] at 35-37âŠ. He knew the
drug was a central nervous system âdepressantâ because he had
taken a similar medication following surgery. For that that reason,
he did not take the drugs himself because he âget[s] sleepyâ and
he âwant[s] to stay awake[.]â [Id.] at 41-43âŠ.
Id. at 151-52.
The Commonwealth argues that these admissions were critical to the
prosecution in order to prove Appellantâs commission of an aggravated
indecent assault, where the Commonwealth was required to prove that he
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engaged in âpenetration, however slight, of the genitals or anus of a
complainant with a part of the personâs body for any purpose other than good
faith medical, hygienic or law enforcement proceduresâ and
(1) the person does so without the complainantâs consent; âŠ
(4) the complainant is unconscious or the person knows that the
complainant is unaware that the penetration is occurring;
(5) the person has substantially impaired the complainantâs power
to appraise or control his or her conduct by administering or
employing, without the knowledge of the complainant, drugs,
intoxicants or other means for the purpose of preventing
resistanceâŠ.
18 Pa.C.S. § 3125(a).
The Commonwealth correctly notes, and Appellant does not dispute,
that the minimum mens rea for these offenses is recklessness. âA person acts
recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct.â 18 Pa.C.S. § 302(b)(3). That
risk âmust be of such a nature and degree that, considering the nature and
intent of the actorâs conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actorâs situation.â Id. (emphasis
added).
The Commonwealth argues that Appellantâs
admissions that he gave other women central nervous system
depressants (Quaaludes), knowing their effects, helped prove that
he knew that the supposed Benadryl he gave to [Victim] would
render her unconscious, or nearly unconscious, and[,] thus[,
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make her] unable to consent to sex with himâat the very least,
he disregarded this risk. Indeed, [Appellant]âs admission to
knowing the effect of a central nervous system depressant was
critically relevant to the case because it demonstrated his
familiarity with a certain prescription drug that falls within the
same class of drugs as that which he alleges to have given
[Appellant] on the night of the assault.
Commonwealthâs Brief at 154-55.18 The Commonwealth maintains that
Appellantâs
familiarity with one drug and its effects in an overall class of drugs
is highly probative where he claimed, in this prosecution, to have
used a different drug in the same class with effects he knows to
be similar. That is, his own words about his use and knowledge
of a central nervous system depressant drug, when coupled with
the admissions he made claiming to have provided [Victim]
Benadryl, and the expert testimony indicating that the effects
experienced by [Victim] are consistent with being given a central
nervous system depressant, were relevant to demonstrate
[Appellant]âs intent and motive in giving [Victim] a central nervous
system depressant; to wit, to render her unconscious so that he
could facilitate a sexual assault.
Id. at 156-57.
Second, the Commonwealth contends that Appellantâs admissions
regarding his distribution of Quaaludes were relevant to strengthen evidence
provided by the five PBA witnesses, discussed supra. The Commonwealth
____________________________________________
18 The Commonwealthâs expert forensic toxicologist, Dr. Timothy Rohrig,
testified that both Benadryl and Quaaludes fall in the same class of central
nervous system depressants. See N.T., 4/18/18, at 60, 85. Dr. Rohrig also
indicated his knowledge of several cases where Benadryl (or its active
ingredient, diphenhydramine) had been used to facilitate sexual assaults. Id.
at 74-76. He testified that numerous other central nervous system
depressants are manufactured as small, blue pills. Id. at 81-82. In any event,
the Commonwealth notes that it never conceded that Appellant had given
Victim Benadryl rather than another central nervous system depressant.
Commonwealthâs Brief at 154 n.34.
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argues that, in combination, such evidence was necessary to establish
Appellantâs âmotive and intent in administering these intoxicants. The ability
of the Commonwealth to establish [Appellant]âs motive and intent through the
absence of mistake was particularly critical here, where consent was a
defense.â Id. at 160.
We agree with the Commonwealth, and we are not convinced that
Appellantâs attempts to draw a hard distinction between Quaaludes and
Benadryl present a meaningful argument for our consideration. First, the jury
was free to disbelieve Appellantâs assertion that he only provided Victim with
Benadryl. Second, even accepting that Appellant gave Benadryl to Victim, his
testimony regarding his knowledge of the effects of other central nervous
system depressants, such as Quaaludes, was highly probative of âthe
circumstances known to himâ for purposes of determining whether he acted
with the requisite mens rea for the offense of aggravated indecent assaultâ
recklessness. 18 Pa.C.S. § 302(b)(3). This was particularly relevant where
Appellantâs own admissions to his sexual contact with Victim left him
contesting only her consent. His knowledge of the use of central nervous
system depressants, coupled with his likely past use of the same with the PBA
witnesses, were essential to resolving the otherwise he-said-she-said nature
of Victimâs allegations. Thus, this evidence was highly probative of Appellantâs
mens rea.
Furthermore, we do not ascertain any abuse of discretion in the trial
courtâs determination that the probative value of this evidence outweighed its
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âpotential for unfair prejudice.â Pa.R.E. 404(b)(2). In a vacuum, Appellantâs
use and distribution of a then-legal âparty drugâ nearly half a century ago, does
not appear highly prejudicial, at least not to the extent that there was a
serious risk that it would overwhelm the good sense of a rational juror. It
only becomes significantly prejudicial, and fairly so, when, in the context of
other evidence, it establishes Appellantâs knowledge of and familiarity with
central nervous system depressants for purposes of demonstrating that he
was at least reckless in providing a central nervous system depressant to
Victim before engaging in sexual acts with her, as he should have been aware
that it would substantially impair her ability to consent.
Moreover, whatever potential for unfair prejudice existed was
substantially mitigated by the trial courtâs issuance of cautionary instructions
regarding the admission of this evidence. It is undisputed that the jury was
instructed to consider the evidence in question only for its admitted purpose.
See Tyson, 119 A.3d at 362 (holding that âto alleviate the potential for unfair
prejudice, the court can issue a cautionary instruction to the jury, to advise
the jury of the limited purpose of the evidence and to clarify that the jury
cannot treat the prior crime as proof of [Tysonâs] bad character or criminal
tendenciesâ). Moreover, â[j]urors are presumed to follow the trial courtâs
instructions.â Id. Accordingly, we ascertain no abuse of discretion in the trial
courtâs admission of Appellantâs civil deposition statements regarding his use
and distribution of Quaaludes in the 1970s.
F. Consciousness-of-Guilt Jury Charge
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Appellant claims that the trial court abused its discretion when it issued
a consciousness-of-guilt jury charge. The Commonwealth argues that this
claim is waived, and the trial court agrees. See Commonwealthâs Brief at
170-71; TCO at 116-18. We agree that Appellant waived this claim by failing
to adequately preserve it below.
The Commonwealth contends that, â[a]lthough [Appellant] argued prior
to the jury charge that the trial court should not issue a consciousness of guilt
instruction, he made no objection to the actual instructions after they were
givenâŠ.â Commonwealthâs Brief at 170. Indeed, regardless of any prior
discussions, when the court concluded giving the instructions to the jury,
neither the Commonwealth nor Appellant offered any objections. N.T.,
4/25/18, at 61. At 11:08 a.m., the jury retired to deliberate. Id. at 66. The
following day, Appellant filed written objections to the courtâs jury instructions.
See Defendant William H. Cosby, Jr.âs Objections to Jury Instructions,
4/26/18, at 2 ¶ 5. Appellant contends that he adequately preserved his
objection by 1) opposing the instruction during the charging conference; and
2) filing the written objections the day after the jury retired to deliberate. We
disagree that those actions were sufficient to preserve his claim.
âIssues not raised in the lower court are waived and cannot be raised
for the first time on appeal.â Pa.R.A.P. 302(a). Furthermore, a âgeneral
exception to the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission complained of.â
Pa.R.A.P. 302(b). âIn order to preserve a claim that a jury instruction was
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erroneously given, the [a]ppellant must have objected to the charge at trial.â
Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014); see also
Pa.R.Crim.P. 647(C) (âNo portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate.â).
In Parker, as here, the defendant contested a jury charge âat the
charging conference.â Parker, 104 A.3d at 29. However, he failed to object
immediately after the jury was charged when prompted by the court. Id. We
held in that case that Parkerâs objection at the charging conference was not
sufficient to preserve a claim challenging that instruction on appeal. Id.; see
also Commonwealth v. Smallhoover, 567 A.2d 1055, 1059 (Pa. Super.
1989) (deeming waived a challenge to a jury instruction under similar
circumstances).
Here, under Parker, Appellantâs objections at the charging conference
were not sufficient to preserve his challenge to the consciousness-of-guilt jury
charge issued by the trial court because he did not also object when the charge
was given to the jury. Moreover, Appellantâs attempt to preserve that
challenge in the subsequently-filed written objections does not satisfy the
explicit requirement in Rule 647(C) that the objection must be filed âbefore
the jury retires to deliberate.â Pa.R.Crim.P. 647(C). Thus, we agree with the
trial court that Appellant waived this claim.
Nevertheless, had Appellant not waived this claim, we would deem it
meritless.
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[W]hen evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury for
its consideration. Only where there is an abuse of discretion or
an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (quoting
Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super. 2007)).
Here, Appellant concedes that the Commonwealthâs evidence, if believed
by the jury, demonstrated that he offered âto pay for [Victim]âs education,
therapy[,] and travelâ during the phone conversations he had with Victim and
Victimâs mother, in which they confronted Appellant with Victimâs accusation
that Appellant had sexually assaulted her. Appellantâs Brief at 148. However,
Appellant contends that those offers did not constitute evidence of his
consciousness of guilt, because:
Unlike those cases in which the courts have upheld the submission
of a âconsciousness of guiltâ instruction to the jury, [Appellant] is
not accused of fleeing; of concealing himself in some way; of
altering his appearance; of threatening any witness; or of
intimidating any witness. The conduct which ostensibly served as
the basis for the lower courtâs âconsciousness of guiltâ instruction
was consistent with wholly innocent conduct that occurred
between [Appellant] and [Victim] over the period of their
friendshipâŠ.
Id. at 150.
We disagree. First, Appellant cites no authority for the proposition that
consciousness-of-guilt instructions are limited to the circumstances he listed.
Pennsylvania courts have specifically rejected the use of certain types of
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evidence as consciousness-of-guilt evidence, especially when the admission
of such evidence conflicts with well-established constitutional protections.
See Commonwealth v. Welch, 585 A.2d 517 (Pa. Super. 1991) (holding
that a defendantâs refusal to consent to a search in the absence of a warrant
was not admissible under a consciousness-of-guilt theory of relevancy); see
also Commonwealth v. Chapman, 136 A.3d 126 (Pa. 2016) (holding that
a defendantâs refusal to submit to a warrantless blood test for DNA purposes
was inadmissible to demonstrate consciousness of guilt). Here, the admission
of evidence concerning Appellantâs offers to Victim does not conflict with these
or similar constitutional principles. Indeed, Appellant fails to cite any case law
that suggests the inadmissibility of this or similar evidence.
Second, the jury was under no obligation to view Appellantâs offers to
Victim as âwholly innocent conduct[.]â Appellantâs Brief at 150. In the
circumstances of this case, a reasonable person could interpret Appellantâs
actions as an attempt to entice Victim with economic incentives not to pursue
a criminal prosecution. Appellantâs argument goes to the weight of the
evidence, not its admissibility under a consciousness-of-guilt theory, nor to
the propriety of issuing an instruction on that theory.
Third, the evidence in question does not fall outside the underlying
purpose of the consciousness-of-guilt theory for the admissibility of evidence.
The courts of this Commonwealth have permitted a wide variety of evidence
under auspices of the consciousness-of-guilt theory. See Commonwealth
v. Homeyer, 94 A.2d 743, 747 (Pa. 1953) (recognizing, as consciousness of
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guilt, âmanifestations of mental distressâ and âfear at the time of our just
before or just after discovery of the crimeâ); Commonwealth v. Sanchez,
610 A.2d 1020, 1028 (Pa. Super. 1992) (holding that evidence of âsuicide
ideationâ and âattempt to commit suicideâ are admissible âto show
consciousness of guiltâ); Commonwealth v. Pestinikas, 617 A.2d 1339,
1348 (Pa. Super. 1992) (holding âthat an attempt by a criminal defendant to
obtain and apply political pressure for the purpose of obtaining a dismissal of
charges is a relevant circumstance tending to show consciousness of guiltâ);
id. (recognizing that an âattempt to influence witnessesâ can constitute
evidence of consciousness of guilt). Appellantâs argument that he did not
attempt to âconceal himself in some wayâ is purely semantical. Appellantâs
Brief at 150 (emphasis added). The jury could reasonably infer that by
offering Victim and her mother significant economic benefits immediately after
being confronted with his unlawful behavior, Appellant was attempting to
influence witnesses in order to shield himself from prosecution. Accordingly,
even had we not deemed this issue waived, we would ascertain no abuse of
discretion by the trial court in its decision to present the jury with a
consciousness-of-guilt instruction.
G. Juror Bias
Next, Appellant claims he is entitled to a new trial because the trial court
deprived him of a fair and impartial jury when it failed to remove an ostensibly
biased juror. The trial court explained the circumstances leading to its
decision not to dismiss the juror in question as follows:
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Jury selection was completed on April 5, 2018[,] with the selection
of twelve jurors and six alternates; although the jury was selected,
the jury was not yet sworn. N.T., [4/5/18,] at 190. On April 6,
2018, the [c]ourt and counsel had a conference to address any
outstanding issues in advance of the commencement of trialâŠ.
Following this conference, ⊠[Appellant] filed âDefendantâs Motion,
and Incorporated Memorandum of Law In Support Thereof, to
Excuse Juror for Cause and for Questioning of Jurors.â In the
Motion, [Appellant] alleged that during the jury selection process,
Juror 11 indicated that he believed [Appellant] was guilty. In
support of this Motion, [Appellant] filed declarations of Priscilla
Horvath, the administrative assistant for [Appellant]âs Attorney
Kathleen Bliss, the declaration of Richard Beasley, a defense
private investigator, and the declaration of prospective Juror 9.
Ms. Horvath indicated that when she arrived at work on April 5,
2018, there was a message from prospective Juror 9. In the
message, [prospective] Juror 9 indicated that she had been
dismissed from the jury on April 4, 2018[,] and that there was a
potential juror who stated that âhe is guiltyâ in reference to
[Appellant]. Ms. Horvath called the prospective juror back and
obtained a description of the juror who purportedly made the
statement. Private investigator Beasley also contacted the
prospective juror; the juror relayed the same information to
Beasley. Despite learning of this purported issue on April 5, 2018,
at which time jury selection was still taking place, defense counsel
did not bring this issue to the [c]ourtâs attention at that time, or
during the April 6, 2018 conference, but instead undertook an
independent investigation.
On April 9, 2018, the [c]ourt held an in-camera hearing prior to
the commencement of trial. At the hearing, prospective Juror 9
testified that she was on the second panel of jurors, summoned
on April 3, 2018. The jurors who were not stricken for cause
returned the next day, April 4, 2018, for individual voir dire.
Prospective [J]uror 9 and eleven other prospective jurors waited
in a small jury room for individual voir dire. The court noted
during the in chambers proceeding that the room is a small room,
approximately 10 feet by 15 feet. Prospective [J]uror 9 testified
that she was sitting across the room from Juror 11. She testified
that she was able to hear anything that anyone said in the room
unless they were having a private conversation.
She testified that when they returned to the jury room after lunch,
at some point in the afternoon, Juror 11 was standing by the
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window, playing with the blinds. She testified that he stated that
he was ready to just say [Appellant] was guilty so they could all
get out of there. She testified that she was unsure if he was
joking. She indicated that no one else in the room reacted to the
statement and people continued to make small talk. She indicated
that Juror 11 also made a statement about a comedy show that
[Appellant] performed after the first trial. There was also some
discussion in the group about a shooting at YouTube.
Prospective Juror 9 contacted defense counsel and left a message
regarding this information. When questioned by the [c]ourt, she
unequivocally indicated that she was told by the defense team
that if she signed the declaration, she would not have to return to
court. Defense counsel, Becky James, Esq., stated that she spoke
to prospective Juror 9 over the phone and told her twice that she
could not guarantee that she would not have to come back.
Defense investigator Scott Ross, who actually obtained the signed
declaration of prospective Juror 9, also indicated that he told her
he could not guarantee she would not have to return to testify.
The [c]ourt questioned Juror 11 about the statement. The
following exchange took place:
The [c]ourt: Let me just ask you: At any time during the
afternoon, for whatever reason, did you make the
statement, I just think heâs guilty, so we can all be done and
get out of here, or something similar to that? . . .
Juror 11: No.
The [c]ourt: You never made such a statement?
Juror 11: No.
The [c]ourt: So if you were standing at the window there,
you donât recall making a statement, for whatever reason,
it could have been just to break the ice?
Juror 11: I do not recall that.
The [c]ourt: You donât recall it. Could you have made a
statement like that?
Juror 11: I donât think I would have.
The [c]ourt: You donât think you would have?
Juror 11: No.
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The [c]ourt: I just want to make perfectly clear, it is okay if
you did. We just-I need to track down a lot of different
things and, you know, I will ask you some other questions
afterwards, but it is important that if you made such a
statement you do tell us.
Juror 11: (Nods).
The [c]ourt: And Iâm going to let you reflect on it because
itâs part of the process and we do have to check these things
out.
Juror 11: Okay.
The [c]ourt: So did you make that statement? If you did,
itâs perfectly okay.
Juror 11: No.
The [c]ourt: You did not?
Juror 11: No.
[âŠ]
The [c]ourt: So did you hear anyone at any time mention
an[] opinion when you [were] back in this room regarding
the guilt or innocence of [Appellant]?
Juror 11: No.
The [c]ourt: That means whether it was joking or not joking,
just any comment?
Juror 11: No, I donât remember anything like that.
The [c]ourt: So you donât remember, but you clearly know
that you did not say it; is that correct?
Juror 11: Yes.
[N.T., 4/9/18, at 56-59].
Juror 11 consistently denied making any such statement, even as
a joke. He also stated that he did not remark on a comedy
performance of [Appellant] and indicated that people in the room
discussed the shooting at YouTube.
Following Juror 11âs repeated denials, the [c]ourt then interviewed
the seated jurors who were in the room at the time of the alleged
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statement. First, the [c]ourt interviewed seated Juror 9. [Seated
J]uror 9 indicated that they did not hear anyone make a comment
to the effect that [Appellant] was guilty, any comment about his
guilt or innocence, or any discussion of YouTube. The [c]ourt
interviewed seated Juror 10. Juror 10, likewise, did not hear
anyone make a comment regarding [Appellant]âs guilt or
innocence. Juror 10 indicated that they heard people discussing
the shooting at YouTube. Juror 10 did not hear anyone talk about
a comedy performance [by Appellant]. The [c]ourt interviewed
seated Juror 12 who did not hear anyone say that they thought
[Appellant] was guilty. Juror 12 did hear people discuss the
shooting at YouTube. He did not hear any discussion of a comedy
performance [by Appellant] that may have been on YouTube.
Juror 12 was seated next to Juror 11 at the time of the alleged
statement.
Following the interviews of Jurors 9, 10 and 12, the [c]ourt again
questioned Juror 11. At this point, the [c]ourt told Juror 11 that
a prospective juror claimed that he made a statement to the effect
of âI think heâs guilty, so we can all be done and get out of here.â
Again the juror denied making the statement.
Based on this [c]ourtâs observations of the demeanor of all of the
people questioned regarding the statement and its review of the
declarations attached to the Motion, the [c]ourt denied the motion
on credibility grounds.
TCO at 83-88 (some citations and footnotes omitted).
Appellant contends that the trial court erred in two respects. First,
Appellant claims that the trial court âpalpably abused its discretion in refusing
to provide [Appellant] with a complete evidentiary hearing into [Juror 11]âs
expressed bias.â Appellantâs Brief at 160-61. In this regard, Appellant
believes the trial court erred by failing to call other prospective jurors to testify
regarding Juror 11âs alleged comment. Second, Appellant argues that the trial
court âcommitted a palpable abuse of discretion in refusing to strike [Juror 11]
based on the evidence that was adduced at [the] hearing.â Id. at 162. Thus,
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Appellant essentially argues that Juror 11 should have been removed for cause
based on the record that was developed below and, alternatively, that even if
he was not entitled to relief based upon the record as it stands, the trial court
should have heard additional testimony.
A trial courtâs decision regarding whether to disqualify a juror for
cause is within its sound discretion and will not be reversed in the
absence of a palpable abuse of discretion. Commonwealth v.
Stevens, [] 739 A.2d 507, 521 ([Pa.] 1999). In determining if a
motion to strike a prospective juror for cause was properly denied
our Court is guided by the following precepts:
The test for determining whether a prospective juror should
be disqualified is whether he is willing and able to eliminate
the influence of any scruples and render a verdict according
to the evidence, and this is to be determined on the basis of
answers to questions and demeanor.... It must be
determined whether any biases or prejudices can be put
aside on proper instruction of the court.... A challenge for
cause should be granted when the prospective juror has
such a close relationship, familial, financial, or situational,
with the parties, counsel, victims, or witnesses that the
court will presume a likelihood of prejudice or demonstrates
a likelihood of prejudice by his or her conduct or answers to
questions.
Commonwealth v. Briggs, 12 A.3d 291, 332-33 (Pa. 2011) (quoting
Commonwealth v. Cox, 983 A.2d 666, 682 (Pa. 2009)). Additionally,
[t]he refusal of a new trial on grounds of alleged misconduct of a
juror is largely within the discretion of the trial judge. When the
facts surrounding the possible misconduct are in dispute, the trial
judge should examine the various witnesses on the question, and
his findings of fact will be sustained unless there is an abuse of
discretion.
Commonwealth v. Posavek, 420 A.2d 532, 537 (Pa. Super. 1980) (citation
omitted).
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Here, the trial court rejected Appellantâs biased-juror claims, stating:
Based on this [c]ourtâs observations of the demeanor of all of the
people questioned regarding the statement and its review of the
declarations attached to the Motion [to remove the juror], the
[c]ourt denied the motion on credibility grounds. Juror 11
answered the questions without hesitation. This [c]ourt did not
find [p]rospective Juror 9 to be credible. Prospective Juror 9
claimed that she heard people talking about a comedy
performance by [Appellant]; no other interviewed juror heard any
such conversation. Additionally, prospective Juror 9 had a history
with the District Attorneyâs Office. She had previously been
required to complete community service and at the time of this
allegation had been interviewed in connection with an ongoing
fraud investigation. Based on the foregoing, this court did not
abuse its discretion in refusing to strike Juror 11.
TCO at 88 (citations omitted).
We ascertain no abuse of discretion in the trial courtâs decision not to
remove Juror 11 from the jury based on the record before us. The trial court,
as factfinder, determined that prospective Juror 9âs accusation was not
credible, and that Juror 11âs testimony, which directly contradicted
prospective Juror 9âs testimony, was credible. Indeed, the courtâs credibility
determination was buttressed by the testimony of three other seated jurors
who were in the immediate vicinity of prospective Juror 9 and Juror 11 at the
time the purported statement was made. We are bound by the trial courtâs
credibility determination that Juror 11 did not make any statement prejudging
Appellantâs culpability.
We are unpersuaded by Appellantâs reliance on State v. Ess, 453
S.W.3d 196 (Mo. 2015). Ess is not a controlling authority in this jurisdiction.
In any event, that case did not involve similar circumstances to the instant
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matter. In Ess, a juror had purportedly evinced prejudgment of a case during
a break in voir dire by stating to another juror that it was a âcut-and-dry
[]case.â Id. at 200. Ess filed a motion for a new trial based on juror
misconduct, and the prosecutor objected. The trial court ultimately âsustained
the prosecutorâs objections, which were to a lack of foundation, speculation,
and hearsay.â Id. The Supreme Court of Missouri reversed, because, inter
alia, the trial court had failed to make any credibility assessment regarding
the jurorâs purported statement. Id. at 203. Instead, the trial court had
determined that, even if the statement had been made, it was not alone
sufficient to demonstrate bias against the defendant rather than the
prosecution. Id. The instant case is clearly disanalogous to Ess. Here, the
trial court conducted a hearing, assessed the credibility of multiple witnesses,
and ultimately determined that Juror 11 did not make the at-issue statement.
We also disagree with Appellantâs claim that he was entitled to a more
extensive hearing that would have included additional witnesses. Appellant
cites no authorities to support his argument. As is evident from the record,
the trial court conducted a hearing, at which no less than five witnesses
testifiedâall of whom were in the small room at the time when Juror 11
supposedly made his biased statement. Appellant fails to produce a cogent
argument that more was required. Neither case cited by Appellant suggests
otherwise.
For instance, Appellant suggests a more extensive hearing was required
under Commonwealth v. Horton, 401 A.2d 320 (Pa. 1979). We disagree.
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In Horton, â[i]n the presence of the judge and jury panel from which his jury
was later selected, [Horton] was asked by the court clerk how he pleaded to
the charges against him.â Id. at 322. Horton (mistakenly) answered,
âGUILTY.â Id. During the subsequent voir dire, a juror indicated that Hortonâs
initial response of âGUILTYâ had âpreconditionedâ his mind against Horton.
Id. When defense counsel sought to disqualify the entire jury panel, the court
refused his request.
Defense counsel then asked to be allowed to pose an appropriate
question to the jurors to determine whether or not any other
jurors had heard [Horton] respond âguiltyâ when asked how he
would plead, and, if so, whether they had been predisposed by
that statement to believe [Horton was] guilty. This request was
also denied by the trial judge.
Id. at 323. Our Supreme Court held in Horton that the trial court had âerred
when it refused to examine the jurors regarding this incident.â Id.
However, here, unlike what occurred in Horton, where the whole jury
was potentially influenced by a statement by the defendant (the content of
which was not disputed), the only accusation of potential bias pertained to the
alleged comment made by a single juror. In Horton, the trial court refused
to hold a hearing to question the jurors. Here, the trial court held a hearing
and questioned more than five witnesses. The court questioned four seated
jurors and prospective Juror 9, who had made the accusation, and concluded
that prospective Juror 9âs accusation was simply not credible. In Horton, by
contrast, the content of Hortonâs statement was not in dispute, and it was also
undisputed that he made the problematic statement in front of the jury; the
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only issue that remained was how many of the jurors had heard him make the
statement. Thus, we conclude that Horton provides no support for
Appellantâs assertion that he was entitled to a more extensive hearing on Juror
11âs alleged statement. Accordingly, for the aforementioned reasons,
Appellant is not entitled to a new trial based on his allegation of Juror 11âs
bias.
H. Constitutionality of Applying SORNA II to Appellantâs 2004
Offense
Finally, Appellant, challenges the constitutionality of his SVP
designation, as well as his registration and reporting requirements under
SORNA II. Appellant contends that the SVP provisions of SORNA II impose
punitive sanctions that cannot be retroactively applied to his 2004 crime
without violating the ex post facto clauses of the Pennsylvania and Federal
Constitutions. He also argues that his SVP designation was imposed under a
constitutionally insufficient standard of proof.
As background,
[c]ourts have also referred to SORNA as the Adam Walsh Act.
SORNA [I was] the General Assemblyâs fourth enactment of the
law commonly referred to as Meganâs Law. Meganâs Law I, the
Act of October 24, 1995, P.L. 1079 (Spec. Sess. No. 1), was
enacted on October 24, 1995, and became effective 180 days
thereafter. Meganâs Law II was enacted on May 10, 2000[,] in
response to Meganâs Law I being ruled unconstitutional by our
Supreme Court in Commonwealth v. Williams, ⊠733 A.2d 593
([Pa.] 1999). Our Supreme Court held that some portions of
Meganâs Law II were unconstitutional in Commonwealth v.
Gomer Williams, ⊠832 A.2d 962 ([Pa.] 2003), and the General
Assembly responded by enacting Meganâs Law III on November
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24, 2004. The United States Congress expanded the public
notification requirements of state sexual offender registries in the
Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C.
§§ 16901-16945, and the Pennsylvania General Assembly
responded by passing SORNA [I] on December 20, 2011[,] with
the stated purpose of âbring[ing] the Commonwealth into
substantial compliance with the Adam Walsh Child Protection and
Safety Act of 2006.â 42 Pa. C.S. § 9799.10(1). SORNA [I] went
into effect a year later on December 20, 2012. Meganâs Law III
was also struck down by our Supreme Court for violating the single
subject rule of Article III, Section 3 of the Pennsylvania
Constitution. [Commonwealth] v. Neiman, ⊠84 A.3d 603, 616
([Pa.] 2013). However, by the time it was struck down, Meganâs
Law III had been replaced by SORNA [I].
M.S. v. Pennsylvania State Police, 212 A.3d 1142, 1143 n.1 (Pa. Cmwlth.
2019) (quoting Dougherty v. Pennsylvania State Police, 138 A.3d 152,
155 n.8 (Pa. Cmwlth. 2016) (en banc)).
SORNA I also failed to withstand constitutional scrutiny. In
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied,
Pennsylvania v. Muniz, 138 S.Ct. 925 (2018), our Supreme Court held that
1) SORNAâs registration provisions constitute punishment
notwithstanding the General Assemblyâs identification of the
provisions as nonpunitive; 2) retroactive application of SORNAâs
registration provisions violates the federal ex post facto clause;
and 3) retroactive application of SORNAâs registration provisions
also violates the ex post facto clause of the Pennsylvania
Constitution.
Id. at 1193. The Muniz Court deemed SORNA Iâs registration provisions to
be punitive by applying the seven-factor test established in Kennedy v.
MendozaâMartinez, 372 U.S. 144 (1963). Applying Muniz, in conjunction
with Alleyne v. United States, 570 U.S. 99 (2013), this Court deemed
unconstitutional the SVP assessment provision of SORNA I, 42 Pa.C.S. §
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9799.24, because âit increases the criminal penalty to which a defendant is
exposed without the chosen fact-finder making the necessary factual findings
beyond a reasonable doubt.â Commonwealth v. Butler, 173 A.3d 1212,
1218 (Pa. Super. 2017), reargument denied (Jan. 3, 2018), appeal granted,
190 A.3d 581 (Pa. 2018).
In direct response to Muniz and Butler, our General Assembly passed
SORNA II, which became effective on June 12, 2018. See 42 Pa.C.S. §
9799.51(d)(4) (indicating the âintention of the General Assemblyâ to
â[a]ddress the Pennsylvania Supreme Courtâs decision in ⊠MunizâŠ, and the
Pennsylvania Superior Courtâs decision in ⊠ButlerâŠ.â). This Court has
already addressed a constitutional challenge to SORNA II. In
Commonwealth v. Moore, ---A.3d----, 2019 PA Super 320 (Pa. Super. filed
Oct. 23, 2019), a panel of this Court held that the internet registration
provisions of SORNA II violate the federal ex post facto clause. Id. at *9.
However, the Moore Court also determined that âthe Internet provisions of
SORNA II are severable from the rest of the statutory scheme.â Id.
Additionally, the constitutionality of SORNA II as a whole is currently before
our Supreme Court. See Commonwealth v. Lacombe, 35 MAP 2018 (Pa.
2018).
Instantly, Appellant claims âSORNA II still violates ⊠Alleyne. A
sexually violent predator determination still punishes a defendant with
automatic lifetime registration and counseling.â Appellantâs Brief at 172. He
continues:
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Specifically, with the Aggravated Assault conviction for which
[Appellant] has been convicted, the registration period was
extended from ten years to lifetime; thereby drastically increasing
his punishment without the benefit of trial, and without a jury
finding beyond a reasonable doubt.
Id. Appellant then goes on to present a challenge to SORNA II in its entirety.
See id. at 173-75.
The Commonwealth contends that:
As an initial matter, if [Appellant] now attempts to challenge the
imposition of his non-SVP registration requirements under
[SORNA II], that claim is waived, as he did not raise it in his
1925(b) statement. See ... Lord, 719 A.2d [at] 309 ⊠(any issues
not raised in a 1925(b) statement are waived on appeal). In that
statement, [Appellant] stated only that â[t]he trial court abused
its discretion, erred, and infringed on [Appellantâs] constitutional
rights in applying the [SVP] provisions of [SORNA II] for a 2004
offense in violation of the [e]x [p]ost [f]acto [c]lauses of the State
and Federal Constitutions.â [Appellantâs 1925(b) Statement] at ¶
11. Accordingly, he has only preserved a challenge to the SVP
provisions of Subchapter I.
Commonwealthâs Brief at 198.
We agree with the Commonwealth. Appellant only challenged the trial
courtâs application of the SVP provisions of SORNA II on ex post facto grounds
in his Rule 1925(b) statement. As such, he has waived any challenge to the
general provisions of SORNA II that are unrelated to his designation as an
SVP. Lord, supra. He has also waived his claim that his SVP status was
imposed below the beyond-a-reasonable-doubt standard of proof. Thus, the
only issue raised in Appellantâs Rule 1925(b) statement that was preserved
for appellate review is whether the trial courtâs application to Appellant of the
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SVP provisions of SORNA II violates the ex post facto clauses of the
Pennsylvania and Federal Constitutions.
Before we address the merits of Appellantâs constitutional claim,
however, the Commonwealth presents a second waiver argument based on
Appellantâs ostensible failure to adequately develop the SVP claim in his brief.
The failure to provide a relevant analysis that discusses pertinent facts may
result in waiver under Pa.R.A.P. 2119. See Commonwealth v. Rhodes, 54
A.3d 908, 915 (Pa. Super. 2012); see also Pa.R.A.P. 2119(a) (âThe argument
shall be divided into as many parts as there are questions to be argued; and
shall have at the head of each part--in distinctive type or in type distinctively
displayed--the particular point treated therein, followed by such discussion
and citation of authorities as are deemed pertinent.â) (emphasis added).
As noted by the Commonwealth:
[Appellant] has presented no pertinent discussion here. His claim
rests on the premise that Subchapter I [of SORNA II] constitutes
criminal punishment. Although he notes the existence of the
seven-factor Mendoza-Martinez test for determining whether a
statute is punitive, [Appellant]âs Brief ⊠at 173-[]74, he never
applies the test to the statute. Instead, he identifies three
random provisions of Subchapter I and asserts that â[SORNA II]
is still punitive.â Id. His failure to provide any meaningful
analysis of how the statute is supposedly punitive in light of the
Mendoza-Martinez factors renders his claim waived.
Commonwealthâs Brief at 199 (footnote omitted; emphasis in original).
We agree. The portion of Appellantâs argument that specifically
addresses the constitutionality of his registration and reporting requirements
as an SVP is poorly developed. Appellant citesâbut fails to adequately applyâ
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the Mendoza-Martinez test to the provisions of SORNA II triggered by his
SVP status. While he identifies several aspects of SORNA II that have
remained virtually unchanged since SORNA I, he fails to provide any
discussion, whatsoever, concerning the alterations made by the General
Assembly in crafting SORNA II in response to Muniz and Butler. This
omission is fatal under Rule 2119, as the discussion of such changes is critical
to any pertinent analysis of whether SORNA IIâs SVP provisions are punitive
and, thus, subject to state and federal prohibitions of ex post facto laws.
Most importantly, Appellant fails to discuss the impact of the addition of
42 Pa.C.S. § 9799.59(a) in SORNA II. Unlike in SORNA I, or in any prior
version of Meganâs Law for that matter, Section 9799.59(a) provides a
mechanism by which sex offender registrants, including SVPs, can be relieved
of part or all of their registration, reporting, and counseling requirements
under SORNA II. Specifically, an SVP may petition the sentencing court for
complete relief from their obligations under SORNA II after 25 years, or after
âthe petitionerâs release from custody following the petitionerâs most recent
conviction for an offense, whichever is later.â 42 Pa.C.S. § 9799.59(a)(1).
Upon receiving such a petition, the sentencing court must direct the Sexual
Offender Assessment Board to assess whether, if the petitioner is granted
relief, he or she âis likely to pose a threat to the safety of any other persons.â
42 Pa.C.S. § 9799.59(a)(2). The Sexual Offender Assessment Board must
respond to the sentencing court with its report within 90 days. 42 Pa.C.S. §
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9799.59(a)(3). The petitioner is then entitled to a hearing within 120 days of
the petition, where the
petitioner and the district attorney shall be given notice of the
hearing and an opportunity to be heard, the right to call witnesses
and the right to cross-examine witnesses. The petitioner shall
have the right to counsel and to have a lawyer appointed to
represent the petitioner if the petitioner cannot afford one.
42 Pa.C.S. § 9799.59(a)(4). The petitioner may then be exempted
from application of any or all of the requirements of this
subchapter, at the discretion of the court, only upon a finding of
clear and convincing evidence that exempting the petitioner from
a particular requirement or all of the requirements of this
subchapter is not likely to pose a threat to the safety of any other
person.
42 Pa.C.S. § 9799.59(a)(5). Both the Commonwealth and the petitioner are
entitled to appellate review from that decision. 42 Pa.C.S. § 9799.59(a)(7).
Moreover, if denied relief, the âpetitioner may file an additional petition with
the sentencing court no sooner than five years from the date of the final
determination of a court regarding the petition and every five years
thereafter.â 42 Pa.C.S. § 9799.59(a)(8).
In his brief, Appellant provides no accounting for Section 9799.59 in his
constitutional challenge to the SVP-triggered provisions of SORNA II.
Appellant does not discuss how that provision impacts the Mendoza-
Martinez test for determining whether SORNA II is punitive. Thus, Appellant
does not provide a pertinent discussion of whether this Courtâs concerns in
Butler have been adequately alleviated by the General Assemblyâs crafting of
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SORNA II. Accordingly, we agree with the Commonwealth that Appellant has
waived this claim by failing to provide a meaningful analysis for our review.
In any event, for the same reason, had we reached the merits of his
claim, it would fail.
When an appellant challenges the constitutionality of a statute,
the appellant presents this Court with a question of law. See
Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super. 2001)
(citation omitted). Our consideration of questions of law is
plenary. See id. ⊠(citation omitted). A statute is presumed to
be constitutional and will not be declared unconstitutional unless
it clearly, palpably, and plainly violates the constitution. See
Commonwealth v. Etheredge, 794 A.2d 391, 396 (Pa. Super.
2002) (citations omitted). Thus, the party challenging the
constitutionality of a statute has a heavy burden of persuasion.
See id. ⊠(citation omitted).
Commonwealth v. Howe, 842 A.2d 436, 441 (Pa. Super. 2004).
Here, Appellantâs failure to address the changes between SORNA I and
SORNA II, and in particular, whether the SVP provisions of SORNA II remain
punitive despite the addition of Section 9799.59, demonstrates that he cannot
overcome the heavy burden of persuasion to demonstrate that the SVP-
triggered provisions of SORNA II clearly, palpably, and plainly violate the state
and federal ex post facto clauses. Accordingly, had we reached the merits of
his claim, Appellant would still not be entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/19
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Case Information
- Court
- Superior Court of Pennsylvania
- Decision Date
- December 10, 2019
- Citation
- 224 A.3d 372
- Status
- Precedential