Past Bad Acts Evidence; Unwritten Non-Prosecution Agreement

Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019), allocatur granted June 23, 2020, appeal docket 39 MAP 2020

The Pennsylvania Supreme Court granted allocatur to determine whether live testimony and deposition testimony in which Bill Cosby testified related to the drug-facilitated sexual assaults of five women, and his admissions about his knowledge and use of Quaaludes was relevant and admissible evidence and whether a non-prosecution agreement allegedly entered into by the District Attorney to secure Cosby’s deposition testimony barred Cosby’s prosecution.

In 2018, a jury found Cosby guilty of three counts of aggravated indecent assault based on Andrea Constand’s allegations that he sexually assaulted her in 2004. As a result, Cosby was sentenced to three to 10 years of imprisonment. Cosby appealed to the Superior Court challenging, inter alia, the trial court’s admission of past bad act (PBA) evidence and its finding that the Commonwealth was not barred from prosecuting Cosby due to an alleged non-prosecution agreement.

Past Bad Acts Evidence

At trial, the Commonwealth moved to admit evidence of 19 prior bad acts under the common plan or scheme and absence of mistake exceptions, as well as the “doctrine of chances” theory. The trial court granted the motion in part, permitting it to present allegations of uncharged misconduct involving sexual contact with five women and the use of Quaaludes through the women’s live testimony that occurred closest in time to the sexual assault of Ms. Constand, as well as Cosby’s civil deposition testimony. In its 1925(a) opinion, the lower court asserted that the PBA evidence was admissible under both the common plan, scheme or design exception and the lack of accident or mistake exception, with the admissibility further supported by the doctrine of chances.

On appeal, Superior Court agreed with the trial court that the past bad act evidence was admissible, noting that “the PBA evidence established Appellant’s unique sexual assault playbook” and his  “assault of Victim followed a predictable pattern based on the PBA evidence.” Slip op. at 36. Superior Court found that while “the time period in question is substantial, especially in relation to existing case law… several factors tend to demonstrate that the probative value of the PBA evidence remains strong, despite that substantial time gap,” noting the “distinctive similarities between the PBA evidence and Appellant’s sexual assault of Victim” and that “there were multiple prior sexual assaults, not merely one, and all of those prior assaults evidenced the same, signature pattern of misconduct.” Slip op. at 41. Superior Court found it unnecessary to address the doctrine of chances cited by the trial court as Superior Court agreed that the PBA evidence was admissible under both the common plan/scheme/design and the absence-of-mistake exceptions to Rule 404(b)(1)’s prohibition on PBA evidence.

In his brief to the Supreme Court, Cosby argues the trial court erred in allowing the past bad act testimony. Specifically, Cosby argues that that the past allegations were inadmissible because they are (1) unduly remote in time in that the allegations were more than fifteen years old and, in some instances, dated back to the 1970s; (2) lack any striking similarities or close factual nexus to the conduct for which Cosby was on trial; (3) are unduly prejudicial; (4) are not actually probative of the crimes for which Cosby was on trial; and (5) constitute nothing but improper propensity evidence. Cosby further argued that the doctrine of chances (a rule of evidence that allows evidence to show that it is unlikely a defendant would be repeatedly, innocently involved in similar, suspicious circumstances) cited in the court’s 1925(a) opinion could did not apply absent a claim of accident or mistake.

In its brief before the Supreme Court, the Commonwealth argues that:

Evidence that defendant committed drug-induced sexual assaults of five women in a strikingly similar fashion to his assault on Andrea Constand was logically relevant to establish a distinct pattern or plan where he could not have been mistaken about whether she was conscious enough to consent. It was also admissible under the “doctrine of chances” to demonstrate the objective improbability that defendant mistakenly assessed Ms. Constand’s level of consciousness and her ability to consent.

Defendant’s civil deposition admissions about his access to, knowledge of, and use of Quaaludes with women he wanted to have sex with were also relevant. They demonstrated his knowledge, motive, and intent to knowingly use a central nervous system depressant that he knew could render a female unconscious, for the purpose of engaging in sex acts.

Given the similarities between the acts, the Commonwealth’s need for the evidence, and the cautionary instructions given by the court, the probative value of the evidence outweighed a potential for unfair prejudice.

Commonwealth Br. at 14. Additionally, the Commonwealth argues that Cosby’s argument that the Commonwealth was required to show past bad acts fit into an “overarching plan” in order to establish a logical connection to support admissibility is contradicted by case law and was nonetheless waived as Cosby raised the argument for the first time in his brief to the Supreme Court.

Alleged Promise Not to Prosecute

Superior Court summarized the factual background relevant to the alleged non-prosecution agreement as follows:

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]’s 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.,][ Mr. Phillips passed away in early 2015] and his longtime general counsel John P. Schmitt, Esq., when he provided his statement to police.

[. . .]

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]’s attorneys, Dolores Troiani, Esq., and Bebe Kivitz, Esq., first learned of Mr. Castor’s decision not to prosecute when a reporter arrived at Ms. Troiani’s 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]’s 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. 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. Castor’s promise not to prosecute.

[. . .]

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. [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 [Appellant’s] giving an interview about [Victim]’s 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 case unsealed the records in response to a media request. As a result, in July 2015, the Montgomery County District Attorney’s Office, led by then District Attorney Ferman, reopened the investigation. On September 22, 2015, at 10:30 am, Brian McMonagle, Esq. and Patrick O’Connor, Esq., met with then District Attorney Ferman and then First Assistant District Attorney Kevin Steele at the Montgomery County District Attorney’s Office for a discussion regarding [Appellant], who was represented by Mr. McMonagle and Mr. O’Connor.

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 Defendant’s Exhibit 5 at the February 2016 Habeas Corpus hearing held in this matter. In this September 23, 2015 email, Mr. Castor indicated “[a]gain with the agreement of the defense lawyer and [Victim]’s [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.” The correspondence further stated, I signed the press release for precisely this reason, at the request of [Victim]’s counsel, and with the acquiescence of [Appellant]’s 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 ‘take the 5th….’ [B]ut one thing is fact: the Commonwealth, defense and [Victim]’s 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]’s 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 Defendant’s Habeas Exhibit 5 to Mr. McMonagle.

On September 25, 2015, then District Attorney Ferman sent a letter to Mr. Castor by way of hand delivery. In her letter[,] Ms. Ferman stated, “[t]he first I heard of such a binding agreement was your email sent this past Wednesday.” On September 25, 2015, at 3:41 pm, Mr. Castor sent an email to District Attorney Ferman. In this email, he wrote Ms. Ferman, “[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.”

On September 25, 2015, at 3:59 pm, Mr. Castor forwarded the letter from Ms. Ferman, identified above as Defendant’s Habeas Exhibit 6, to Mr. McMonagle. On September 25, 2015, at 4:19 pm, Mr. Castor forwarded the email identified above as Defendant’s Habeas Exhibit 7 to Mr. McMonagle along with the message “Latest.” In his final email to Ms. Ferman on the subject, Mr. Castor stated, “I never said we would not prosecute [Appellant].”

Slip Op. at 7- 13 (footnotes omitted).

After he was charged by the current District Attorney of Montgomery County on December 30, 2015, Cosby filed a habeas corpus petition alleging that his prosecution was barred by an unwritten non-prosecution agreement with the District Attorney’s Office that he would not be prosecuted in exchange for testifying in a related civil lawsuit.  While no written, formalized non-prosecution agreement existed and neither Cosby nor Mr. Castor sought an order granting Cosby immunity from prosecution, Cosby argued that the 2005 press release and testimonial evidence regarding Mr. Castor’s intent to bar Appellant’s prosecution (and communication of that intent to Cosby’s now deceased, former attorney in 2005) constituted a de facto agreement. Alternatively, Cosby argued that promissory estoppel barred his trials because Mr. “Castor’s promise was tailored to force [Appellant] to relinquish his Fifth Amendment right and sit for a civil deposition[,]’ even if the promise was formally defective in conveying immunity from prosecution.” Slip Op. at 51. The trial court refused to find a de facto agreement existed, reasoning that no agreement or promise not to prosecute ever existed and the prosecutor could not unilaterally confer transactional immunity through a declaration as the sovereign without following the procedures set forth in the immunity statute. The trial court likewise found that promissory estoppel did not bar prosecution, reasoning that:

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 these attorneys obtained Mr. Castor’s 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.

Slip Op. at 51-52.

Superior Court agreed with the trial court that the District Attorney could not “unilaterally confer transactional immunity through a declaration as the sovereign.”  Rather, the court found that the “exclusive authority for conferring immunity from prosecution rests within the immunity statute itself, 42 Pa.C.S. § 5947,” which provides that “a district attorney may request an immunity order from any judge of a designated court.” Slip Op. at 53 (emphasis in original).

The Supreme Court granted allocatur limited to the following issues:

(1) Where allegations of uncharged misconduct involving sexual contact with five women (and a de facto sixth) and the use of Quaaludes were admitted at trial through the women’s live testimony and Petitioner’s civil deposition testimony despite: (a) being unduly remote in time in that the allegations were more than fifteen years old and, in some instances, dated back to the 1970s; (b) lacking any striking similarities or close factual nexus to the conduct for which Petitioner was on trial; (c) being unduly prejudicial; (d) being not actually probative of the crimes for which Petitioner was on trial; and (e) constituting nothing but improper propensity evidence, did the Panel err in affirming the admission of this evidence?

(2) Where: (a) the Montgomery County District Attorney (“MCDA”) agreed that Petitioner would not be prosecuted in order to force Petitioner’s testimony at a deposition in Complainant’s civil action; (b) the MCDA’s Office issued a formal public statement reflecting that agreement; and (c) Petitioner reasonably relied upon those oral and written statements by providing deposition testimony in the civil action, thus forfeiting his constitutional right against self-incrimination, did the Panel err in affirming the trial court’s decision to allow not only the prosecution of Petitioner but the admission of Petitioner’s civil deposition testimony?

For more information, contact Kevin McKeon or Dennis Whitaker.