Commonwealth v. Cosby, Jr., W., Aplt.

[J-100-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 39 MAP 2020

:

Appellee : Appeal from the Order of Superior

: Court at No. 3314 EDA 2018 dated

: December 10, 2019 Affirming the

v. : Judgment of Sentence dated

: September 25, 2018 of the

: Montgomery Court of Common

WILLIAM HENRY COSBY JR., : Pleas, Criminal Division, at No. CP-

: 46-CR-3932-2016

Appellant :

: ARGUED: December 1, 2020

OPINION

JUSTICE WECHT DECIDED: June 30, 2021

In 2005, Montgomery County District Attorney Bruce Castor learned that Andrea

Constand had reported that William Cosby had sexually assaulted her in 2004 at his

Cheltenham residence. Along with his top deputy prosecutor and experienced detectives,

District Attorney Castor thoroughly investigated Constand’s claim. In evaluating the

likelihood of a successful prosecution of Cosby, the district attorney foresaw difficulties

with Constand’s credibility as a witness based, in part, upon her decision not to file a

complaint promptly. D.A. Castor further determined that a prosecution would be

frustrated because there was no corroborating forensic evidence and because testimony

from other potential claimants against Cosby likely was inadmissible under governing

laws of evidence. The collective weight of these considerations led D.A. Castor to

conclude that, unless Cosby confessed, “there was insufficient credible and admissible

evidence upon which any charge against Mr. Cosby related to the Constand incident

could be proven beyond a reasonable doubt.”1

Seeking “some measure of justice” for Constand, D.A. Castor decided that the

Commonwealth would decline to prosecute Cosby for the incident involving Constand,

thereby allowing Cosby to be forced to testify in a subsequent civil action, under penalty

of perjury, without the benefit of his Fifth Amendment privilege against self-incrimination.2

Unable to invoke any right not to testify in the civil proceedings, Cosby relied upon the

district attorney’s declination and proceeded to provide four sworn depositions. During

those depositions, Cosby made several incriminating statements.

D.A. Castor’s successors did not feel bound by his decision, and decided to

prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s reliance

upon D.A. Castor’s decisionCosby’s sworn inculpatory testimonywere then used by

D.A. Castor’s successors against Cosby at Cosby’s criminal trial. We granted allowance

of appeal to determine whether D.A. Castor’s decision not to prosecute Cosby in

exchange for his testimony must be enforced against the Commonwealth.3

I. Factual and Procedural History

In the fall of 2002, Constand, a Canadian-born former professional basketball

player, was employed as the Director of Basketball Operations at Temple University. It

was in this capacity that Constand first met Cosby, who had close ties to, and was heavily

1 Notes of Testimony (“N.T.”), Habeas Corpus Hearing, 2/2/2016, at 60.

2 Id. at 63.

3 As we discuss in more detail below, at Cosby’s trial, the trial court permitted the

Commonwealth to call five witnesses who testified that Cosby had engaged in similar

sexually abusive patterns with each of them. We granted allowance of appeal here as

well to consider the admissibility of that prior bad act evidence pursuant to Pa.R.E. 404(b).

However, because our decision on the Castor declination issue disposes of this appeal,

we do not address the Rule 404(b) claim.

[J-100-2020] - 2

involved with, the university. That fall, she, along with a few other Temple administrators,

showed Cosby around the university’s then-recently renovated basketball facilities. Over

the course of several telephone conversations concerning the renovations, Cosby and

Constand developed a personal relationship.

Soon after this relationship began, Cosby invited Constand to his Cheltenham

residence. When Constand arrived, Cosby greeted her, escorted her to a room, and left

her alone to eat dinner and drink wine. Cosby later returned, sat next to Constand on a

couch, and placed his hand on her thigh. Constand was not bothered by Cosby’s

advance, even though it was the first time that any physical contact had occurred between

the two. Shortly thereafter, Constand left the residence.

As the personal nature of the relationship progressed, Cosby eventually met

Constand’s mother and sister, both of whom attended one of Cosby’s comedy

performances. Soon thereafter, Cosby invited Constand to return to his home for dinner.

Constand arrived at the residence and again ate alone, in the same room in which she

had eaten during her first visit. When Constand finished eating, Cosby approached and

sat next to her on the couch. At first, the two discussed Constand’s desire to work as a

sports broadcaster, but Cosby soon attempted physical contact. Cosby reached over to

Constand and attempted to unbutton her pants. When she leaned forward to prevent him

from doing so, Cosby immediately ceased his efforts. Constand believed that her actions

had communicated to Cosby clearly that she did not want to engage in a physical

relationship with him. She expected that no further incidents like this one would occur.

Toward the end of 2003, Cosby invited Constand to meet at the Foxwoods Casino

in Connecticut. Constand accepted the invitation and, once at the casino, dined with

Cosby and a casino employee, Tom Cantone. After dinner, Cantone walked Constand

to her hotel room. Cosby called Constand and asked her to meet him for dessert in his

[J-100-2020] - 3

room. Constand agreed. When she arrived, she sat on the edge of Cosby’s bed as the

two discussed their customary topics: Temple athletics and sports broadcasting. Cosby

then reclined on the bed next to Constand. Eventually, he drifted off to sleep. After

remaining in Cosby’s room for a few minutes, Constand left and returned to her own room.

Constand interpreted Cosby’s actions as another sexual overture. Notwithstanding these

unwelcome advances, Constand still regarded Cosby as a mentor, remained grateful for

his career advice and assistance, and did not feel physically threatened or intimidated.4

Eventually, Constand decided to leave her job at Temple and return to Canada to

work as a masseuse. In January 2004, Constand went to Cosby’s Cheltenham residence

to discuss that decision. As on her previous visits to Cosby’s home, Constand entered

through the kitchen door. On this occasion, however, Constand noticed that Cosby

already had placed a glass of water and a glass of wine on the kitchen table. While she

sat at the table with Cosby and discussed her future, Constand initially chose not to

sample the wine because she had not yet eaten and did not want to consume alcohol on

an empty stomach. At Cosby’s insistence, however, Constand began to drink.

At one point, Constand rose to use the restroom. When she returned, Cosby was

standing next to the kitchen table with three blue pills in his hand. He reached out and

offered the pills to Constand, telling her that the pills were her “friends,” and that they

would “help take the edge off.”5 Constand took the pills from Cosby and swallowed them.

The two then sat back down and resumed their discussion of Constand’s planned

departure from Temple.

Constand soon began experiencing double vision. Her mouth became dry and

she slurred her speech. Although Constand could not immediately identify the source of

4 N.T., Trial, 4/13/2018, at 53, 55.

5 N.T., Trial, 4/13/2018, at 59-60.

[J-100-2020] - 4

her sudden difficulties, she knew that something was wrong. Cosby tried to reassure her.

He told her that she had to relax. When Constand attempted to stand up, she needed

Cosby’s assistance to steady herself. Cosby guided her to a sofa in another room so that

she could lie down. Constand felt weak and was unable to talk. She started slipping out

of consciousness.

Moments later, Constand came to suddenly, finding Cosby sitting behind her on

the sofa. She remained unable to move or speak. With Constand physically incapable

of stopping Cosby or of telling him to stop, Cosby began fondling her breasts and

penetrating her vagina with his fingers. Cosby then took Constand’s hand and used it to

masturbate himself. At some point, Constand lost consciousness.

When Constand eventually awakened on Cosby’s couch in the early morning

hours, she discovered that her pants were unzipped and that her bra was raised and out

of place. Constand got up, adjusted her clothing, and prepared to leave the residence.

She found Cosby standing in a doorway, wearing a robe and slippers. Cosby told

Constand that there was a muffin and a cup of tea on a table for her. She took a sip of

the tea, broke off a piece of the muffin, and left.

After the January 2004 incident, Constand and Cosby continued to talk over the

telephone about issues involving Temple University athletics. In March of that year,

Cosby invited Constand to dinner at a Philadelphia restaurant. She accepted the

invitation in hopes of confronting Cosby about the January episode, but the two did not

discuss that matter during dinner. Afterward, Cosby invited Constand to his residence.

She agreed. Once there, Constand attempted to broach the subject by asking Cosby to

identify the pills that he had provided to her. She then tried to ask him why he took

advantage of her when she was under the influence of those pills. Cosby was evasive

and would not respond directly. Realizing that Cosby was not going to answer her

[J-100-2020] - 5

questions, Constand got up and left. She did not report to the authorities what Cosby had

done to her.

A few months later, Constand moved back to her native Canada. She spoke with

Cosby over the telephone, mostly about an upcoming Toronto performance that he had

scheduled. Cosby invited Constand and her family to the show, which especially excited

Constand’s mother, who had attended two of Cosby’s other performances and who

brought a gift for Cosby to the show.

Constand kept the January 2004 incident to herself for nearly a year, until one night

in January 2005, when she bolted awake crying and decided to call her mother for advice.

Initially, Constand’s mother could not talk because she was en route to work, but she

returned Constand’s call immediately upon arrival. During the call, Constand told her

mother that Cosby had sexually assaulted her approximately one year earlier. Together,

the two decided that the best course of action was to contact the Durham Regional Police

Department in Ontario, Canada, and to attempt to retain legal counsel in the United

States.

That night, Constand filed a police report with the Durham Regional Police

Department. Shortly thereafter, Constand called Cosby, but he did not answer his phone.

When Cosby returned the call the next day, both Constand and her mother were on the

line. Constand brought up the January 2004 incident and asked Cosby to identify the

three blue pills that he had given to her that night. Cosby apologized vaguely. As to the

pills, Cosby feigned ignorance, promising Constand that he would check the label on the

prescription bottle from which they came and relay that information to her.

Frustrated, Constand left the call, but her mother remained on the line and

continued to speak with Cosby. Cosby assured Constand’s mother that he did not have

sexual intercourse with Constand while she was incapacitated. Neither Constand nor her

[J-100-2020] - 6

mother informed Cosby that Constand had filed a police report accusing him of sexual

assault.

Constand later telephoned Cosby again and, unbeknownst to Cosby, recorded the

conversation with a tape recorder that she had purchased. During this conversation,

Cosby offered to continue assisting Constand if she still desired to work in sports

broadcasting. He also indicated that he would pay for Constand to continue her

education. Cosby asked Constand to meet him in person to discuss these matters further,

and told her that he would have someone contact her to set up the meeting. As with the

previous call, Cosby again refused to identify the pills that he had provided to Constand

on the night of the alleged assault.

Within days of filing the police report, Constand received two telephone messages

from people associated with Cosby. The first message was from one of Cosby’s

assistants, calling on Cosby’s behalf to invite Constand and her mother to Cosby’s

upcoming performance in Miami, Florida. Constand called the representative back and

recorded the call. The representative asked for certain details about Constand and her

mother so that he could book flights and hotel rooms for them. Constand declined the

offer and did not provide the requested information. Constand then received a message

from one of Cosby’s attorneys, who stated that he was calling to discuss the creation of

a trust that Cosby wanted to set up in order to provide financial assistance for Constand’s

education. Constand never returned the attorney’s call.

In the meantime, the Durham Regional Police Department referred Constand’s

police report to the Philadelphia Police Department, which, in turn, referred it to the

Cheltenham Police Department in Montgomery County, where Cosby’s residence was

located. The case was assigned to Sergeant Richard Schaeffer, who worked in tandem

[J-100-2020] - 7

with the Montgomery County Detective Bureau and the Montgomery County District

Attorney’s Office to investigate Constand’s allegation.

Sergeant Schaeffer first spoke with Constand by telephone on January 19, 2005.

According to Sergeant Schaeffer, Constand seemed nervous throughout this brief initial

interview. Thereafter, Constand traveled from Canada to Cheltenham to meet with the

investigating team in person. Because this was Constand’s first time meeting with law

enforcement personnel, she felt nervous and uncomfortable while discussing with them

the intimate nature of her allegations.

On January 24, 2005, then-Montgomery County District Attorney Bruce Castor

issued a press release informing the public that Cosby was under investigation for sexual

assault. Sergeant Schaeffer and other law enforcement officials interviewed Cosby in

New York City, utilizing a written question and answer format. Cosby was accompanied

by his attorneys, Walter M. Phillips, Esquire, and John P. Schmitt, Esquire. Cosby

reported that Constand had come to his home at least three times during their social and

romantic relationship. Cosby claimed that, on the night in question, Constand came to

his house complaining of an inability to sleep. Cosby stated that he told Constand that,

when he travels, he takes Benadryl, an antihistamine, which immediately makes him

drowsy. According to Cosby, he then handed Constand one-and-a-half Benadryl pills,

but did not tell her what they were.

Cosby recalled that, once Constand ingested the pills, they kissed and touched

each other on the couch. Cosby admitted that he touched Constand’s breasts and vagina,

but he insisted that she neither resisted nor told him to stop. Additionally, Cosby told the

investigators that he never removed his clothing and that Constand did not touch any part

of his body under his clothes. Cosby denied having sexual intercourse with Constand

and disclaimed any intent to do so that night. In fact, Cosby claimed that the two never

[J-100-2020] - 8

had sexual intercourse on any occasion. Cosby admitted that he told Constand and her

mother that he would write down the name of the pills and provide them that information,

but he acknowledged that he never actually did so. After the interview—and without being

asked to do so—Cosby provided the police with pills, which laboratory testing confirmed

to be Benadryl.

In February 2005, then-District Attorney Castor reviewed Constand’s interviews

and Cosby’s written answers in order to assess the viability of a prosecution of Cosby.

The fact that Constand had failed to promptly file a complaint against Cosby troubled the

district attorney. In D.A. Castor’s view, such a delay diminished the reliability of any

recollections and undermined the investigators’ efforts to collect forensic evidence.

Moreover, D.A. Castor identified a number of inconsistences in Constand’s various

statements to investigators. After Cosby provided his written answers, police officers

searched his Cheltenham residence and found no evidence that, in their view, could be

used to confirm or corroborate Constand’s allegations. Following the search of Cosby’s

home, Constand was interviewed by police again. D.A. Castor noted that there were

inconsistences in that interview, which further impaired Constand’s credibility in his eyes.

He also learned that, before she contacted the police in Canada, Constand had contacted

civil attorneys in Philadelphia, likely for the purpose of pursuing financial compensation in

a lawsuit against Cosby.

Additionally, according to D.A. Castor, Constand’s behavior in the year since the

alleged assault complicated any effort to secure a conviction against Cosby. As

evidenced by the number of telephone calls that she recorded, Constand continued to

talk with Cosby on the phone, and she also continued to meet with him in person after

the incident. D.A. Castor found these recurring interactions between a complainant and

an alleged perpetrator to be atypical. D.A. Castor also reasoned that the recordings likely

[J-100-2020] - 9

were illegal and included discussions that could be interpreted as attempts by Constand

and her mother to get Cosby to pay Constand so that she would not contact the

authorities. The totality of these circumstances ultimately led D.A. Castor to conclude

that “there was insufficient credible and admissible evidence upon which any charge

against [] Cosby related to the Constand incident could be proven beyond a reasonable

doubt.” N.T., 2/2/2016, at 60.

Having determined that a criminal trial likely could not be won, D.A. Castor

contemplated an alternative course of action that could place Constand on a path to some

form of justice. He decided that a civil lawsuit for money damages was her best option.

To aid Constand in that pursuit, “as the sovereign,” the district attorney “decided that [his

office] would not prosecute [] Cosby,” believing that his decision ultimately “would then

set off the chain of events that [he] thought as a Minister of Justice would gain some

justice for Andrea Constand.” Id. at 63-64. By removing the threat of a criminal

prosecution, D.A. Castor reasoned, Cosby would no longer be able in a civil lawsuit to

invoke his Fifth Amendment privilege against self-incrimination for fear that his statements

could later be used against him by the Commonwealth. Mr. Castor would later testify that

this was his intent:

The Fifth Amendment to the United States Constitution states that a person

may not be compelled to give evidence against themselves. So you can’t

subpoena somebody and make them testify that they did something

illegalor evidence that would lead someone to conclude they did

something illegalon the threat of if you don’t answer, you’ll be subject to

sanctions because you’re under subpoena.

So the way you remove that from a witness isif you want to, and what I

did in this caseis I made the decision as the sovereign that Mr. Cosby

would not be prosecuted no matter what. As a matter of law, that then made

it so that he could not take the Fifth Amendment ever as a matter of law.

So I have heard banter in the courtroom and in the press the term

“agreement,” but everybody has used the wrong word. I told [Cosby’s

attorney at the time, Walter] Phillips that I had decided that, because of

[J-100-2020] - 10

defects in the case, that the case could not be won and that I was going to

make a public statement that we were not going to charge Mr. Cosby.

I told him that I was making it as the sovereign Commonwealth of

Pennsylvania and, in my legal opinion, that meant that Mr. Cosby would not

be allowed to take the Fifth Amendment in the subsequent civil suit that

Andrea Constand’s lawyers had told us they wanted to bring.

[Attorney] Phillips agreed with me that that is, in fact, the law of

Pennsylvania and of the United States and agreed that if Cosby was

subpoenaed, he would be required to testify.

But those two things were not connected one to the other. Mr. Cosby was

not getting prosecuted at all ever as far as I was concerned. And my belief

was that, as the Commonwealth and the representative of the sovereign,

that I had the power to make such a statement and that, by doing so, as a

matter of law Mr. Cosby would be unable to assert the Fifth Amendment in

a civil deposition.

[Attorney] Phillips, a lawyer of vastly more experience even than meand

I had 20 years on the job by that pointagreed with my legal assessment.

And he said that he would communicate that to the lawyers who were

representing Mr. Cosby in the pending civil suit.

Id. at 64-66. Recalling his thought process at the time, the former district attorney further

emphasized that it was “absolutely” his intent to remove “for all time” the possibility of

prosecution, because “the ability to take the Fifth Amendment is also for all time removed.”

Id. at 67.

Consistent with his discussion with Attorney Phillips, D.A. Castor issued another

press release, this time informing the public that he had decided not to prosecute Cosby.

The press release stated, in full:

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. Cosby maintains a residence in Cheltenham Township,

Montgomery County.

A 31 year old female, a former employee of the Athletic Department of

Temple University complained to detectives that Cosby touched her

inappropriately during a visit to his home in January of 2004. The woman

reported the allegation to police in her native Canada on January 13, 2005.

[J-100-2020] - 11

Canadian authorities, in turn, referred the complaint to Philadelphia Police.

Philadelphia forwarded the complaint to Cheltenham Police. The District

Attorney’s Office became involved at the request of the Cheltenham Chief

of Police John Norris.

Everyone involved in this matter cooperated with investigators including the

complainant and Mr. Cosby. The level of cooperation has helped the

investigation proceed smoothly and efficiently. The District Attorney

commends all parties for their assistance.

The District Attorney has reviewed the statements of the parties involved,

those of all witnesses who might have first hand knowledge of the alleged

incident including family, friends and co-workers of the complainant, and

professional acquaintances and employees of Mr. Cosby. Detectives

searched Mr. Cosby’s 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. Cosby’s 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. In making this finding, the District

Attorney has analyzed the facts in relation to the elements of any applicable

offenses, including whether Mr. Cosby possessed the requisite criminal

intent. In addition, District Attorney Castor applied the Rules of Evidence

governing 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 for proof is possible, the

District Attorney renders no opinion concerning the credibility of any party

involved so as to not 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. Much exists in this investigation that could be used (by

others) to portray persons on both sides of the issue in a less than flattering

[J-100-2020] - 12

light. The District Attorney encourages the parties to resolve their dispute

from this point forward with a minimum of rhetoric.

Press Release, 2/17/2005; N.T., 2/2/2016, Exh. D-4.

D.A. Castor did not communicate to Constand or her counsel his decision to

permanently forego prosecuting Cosby. In fact, Constand did not learn of the decision

until a reporter appeared at one of her civil attorney’s offices later that evening. With the

resolution of her allegations removed from the criminal courts, Constand turned to the

civil realm. On March 8, 2005, less than one month after the district attorney’s press

release, Constand filed a lawsuit against Cosby in the United States District Court for the

Eastern District of Pennsylvania.6

During discovery in that lawsuit, Cosby sat for four depositions. Cosby’s attorney

for the civil proceedings, John Schmitt, had learned about the non-prosecution decision

from Cosby’s criminal counsel, Walter Phillips. From the perspective of Cosby’s

attorneys, the district attorney’s decision legally deprived Cosby of any right or ability to

invoke the Fifth Amendment. Accordingly, not once during the four depositions did Cosby

invoke the Fifth Amendment or even mention it. During one deposition, Attorney Schmitt

advised Cosby not to answer certain questions pertaining to Constand, but he did not

specifically invoke the Fifth Amendment.7 Nor did Cosby claim the protections of the Fifth

Amendment when asked about other alleged victims of his sexual abuse, presumably

because he believed that he no longer retained that privilege. In fact, no one involved

with either side of the civil suit indicated on the record a belief that Cosby could be

prosecuted in the future. D.A. Castor’s decision was not included in any written

stipulations, nor was it reduced to writing.

6 See Constand v. Cosby, Docket No. 2:05-cv-01099-ER.

7 Constand’s attorneys subsequently filed a motion to compel Cosby to answer.

[J-100-2020] - 13

At deposition, Cosby testified that he developed a romantic interest in Constand

as soon as he met her, but did not reveal his feelings. He acknowledged that he always

initiated the in-person meetings and visits to his home. He also stated that he engaged

in consensual sexual activity with Constand on three occasions, including the January

2004 incident.

Throughout the depositions, Cosby identified the pills that he provided to Constand

in 2004 as Benadryl. Cosby claimed to know the effects of Benadryl well, as he frequently

took two of the pills to help himself fall asleep. Thus, when Constand arrived at his house

on the night in question stressed, tense, and having difficulty sleeping, Cosby decided to

give her three half-pills of Benadryl to help her relax. According to Cosby, Constand took

the pills without asking what they were, and he did not volunteer that information to her.

Cosby explained that, after fifteen or twenty minutes, he suggested that they move

from the kitchen to the living room, where Constand met him after going to the restroom.

Cosby testified that Constand sat next to him on the couch and they began kissing and

touching each other. According to Cosby, they laid together on the couch while he

touched her breasts and inserted his fingers into her vagina. Afterwards, Cosby told her

to try to get some sleep, and then he went upstairs to his bedroom. He came back

downstairs two hours later to find Constand awake. He then escorted her to the kitchen

where they had a muffin and tea.

Cosby was questioned about his telephone conversations with Constand’s mother.

Cosby admitted that he told Constand and her mother that he would write down the name

of the pills that he gave her and then send it to them, but that he failed to do so. He further

explained that he would not admit what the pills were over the phone with Constand and

her mother because he did not want Constand’s mother to think that he was a perverted

old man who had drugged her daughter. He also noted that he had suspected that the

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phone calls were being recorded. Although he did not believe that Constand was making

these allegations in an attempt to get money from him, Cosby explained that, after

Constand and her mother confronted him, he offered to pay for her education and asked

his attorney to commence discussions regarding setting up a trust for that purpose.

Cosby admitted that it would be in his best interests if the public believed that Constand

had consented to the encounter, and that he believed he would suffer financial

consequences if the public believed that he had drugged and assaulted her.

Notably, during his depositions, Cosby confessed that, in the past, he had provided

Quaaludes8not Benadrylto other women with whom he wanted to have sexual

intercourse.

Eventually, Constand settled her civil suit with Cosby for $3.38 million. 9 Initially,

the terms of the settlement and the records of the case, including Cosby’s depositions,

were sealed. However, following a media request, the federal judge who presided over

the civil suit unsealed the records in 2015.

By that point, then-D.A. Castor had moved on from the district attorney’s office and

was serving as a Montgomery County Commissioner. He was succeeded as district

attorney by his former first assistant, Risa Vetri Ferman, Esquire.10 Despite her

predecessor’s decision not to prosecute Cosby, upon release of the civil records, District

Attorney Ferman reopened the criminal investigation of Constand’s allegations. Then-

8 “Quaalude” is a brand name for methaqualone, a central nervous system

depressant that was a popular recreational drug from the 1960s through the 1980s, until

the federal government classified methaqualone as a controlled substance.

9 Constand also received $20,000 from American Media, Inc., which was a party to

the lawsuit as a result of an interview that Cosby gave to the National Enquirer about

Constand’s allegations.

10 D.A Ferman, now Judge Ferman, was subsequently elected to a seat on the Court

of Common Pleas of Montgomery County.

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First Assistant District Attorney Kevin R. Steele11 was present during the initial stages of

the newly-revived investigation and participated in early discussions with Cosby’s new

lawyers, Brian J. McMonagle, Esquire, and Patrick J. O’Conner, Esquire.

On September 23, 2015, upon learning that D.A. Ferman had reopened the case,

former D.A. Castor sent her an email, to which he attached his February 17, 2005 press

release, stating the following:

Dear Risa,

I certainly know better than to believe what I read in the newspaper, and I

have witnessed first hand your legal acumen. So you almost certainly know

this already. I’m writing to you just in case you might have forgotten what

we did with Cosby back in 2005. Attached is my opinion from then.

Once we decided that the chances of prevailing in a criminal case were too

remote to make an arrest, I concluded that the best way to achieve justice

was to create an atmosphere where [Constand] would have the best chance

of prevailing in a civil suit against Cosby. With the agreement of [Attorney]

Phillips and [Constand’s] lawyers, I wrote the attached as the ONLY

comment I would make while the civil case was pending. Again, with the

agreement of the defense lawyer and [Constand’s] lawyers, I intentionally

and specifically bound the Commonwealth that there would be no state

prosecution of Cosby 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. [Attorney Phillips] was speaking for Cosby’s

side at the time, but he was in contact with Cosby’s civil lawyers who did

not deal with me directly that I recall. I only discovered today that [Attorney

Phillips] had died. But those lawyers representing [Constand] civilly, whose

names I did not remember until I saw them in recent media accounts, were

part of this agreement because they wanted to make Cosby testify. I

believed at the time that they thought making him testify would solidify their

civil case, but the only way to do that was for us (the Commonwealth) to

promise not to prosecute him. So in effect, that is what I did. I never made

an important decision without discussing it with you during your tenure as

First Assistant.

Knowing the above, I can see no possibility that Cosby’s deposition could

be used in a state criminal case, because I would have to testify as to what

happened, and the deposition would be subject to suppression. I cannot

11 Mr. Steele has since been elected District Attorney of Montgomery County.

[J-100-2020] - 16

believe any state judge would allow that deposition into evidence, nor

anything derived therefrom. In fact, that was the specific intent of all parties

involved including the Commonwealth and the plaintiff’s lawyers. Knowing

this, unless you can make out a case without that deposition and without

anything the deposition led you to, I think Cosby would have an action

against the County and maybe even against you personally. That is why I

have publically suggested looking for lies in the deposition as an alternative

now that we have learned of all these other victims we did not know about

at the time we had made the go, no-go decision on arresting Cosby. I

publically suggested that the DA in California might try a common plan

scheme or design case using [Constand’s] case as part of the res gestae in

their case. Because I knew Montgomery County could not prosecute Cosby

for a sexual offense, if the deposition was needed to do so. But I thought

the DA in California might have a shot because I would not have the power

to bind another state’s prosecutor.

Some of this, of course, is my opinion and using Cosby’s deposition in the

CA case, might be a stretch, but one thing is fact: the Commonwealth,

defense, and civil plaintiff’s lawyers were all in the agreement that the

attached decision from me stripped Cosby of this Fifth Amendment privilege

against self-incrimination, forcing him to be deposed. That led to Cosby

paying [Constand] a lot of money, a large percentage of which went to her

lawyers on a contingent fee basis. In my opinion, those facts will render

Cosby’s deposition inadmissible in any prosecution in Montgomery County

for the incident that occurred in January 2004 in Cheltenham Township.

Bruce

N.T., 2/2/2016, Exh. D-5.

Replying by letter, D.A. Ferman asserted that, despite the public press release,

this was the first she had learned about a binding understanding between the

Commonwealth and Cosby. She requested a copy of any written agreement not to

prosecute Cosby. D.A. Castor replied with the following email:

The attached Press Release is the written determination that we would not

prosecute Cosby. That was what the lawyers for [Constand] wanted and I

agreed. The reason I agreed and the plaintiff’s lawyers wanted it in writing

is so that Cosby could not take the 5th Amendment to avoid being deposed

or testifying. A sound strategy to employ. That meant to all involved,

including Cosby’s lawyer at the time, Mr. Phillips, that what Cosby said in

the civil litigation could not be used against him in a criminal prosecution for

the event we had him under investigation for in early 2005. I signed the

press release for precisely this reason, at the request of [Constand’s]

counsel, and with the acquiescence of Cosby’s counsel, with full and

[J-100-2020] - 17

complete intent to bind the Commonwealth that anything Cosby said in the

civil case could 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.” I decided to create the best possible environment for [Constand] to

prevail and be compensated. By signing my name as District Attorney and

issuing the attached, I was “signing off” on the Commonwealth not being

able to use anything Cosby said in the civil case against him in a criminal

prosecution, because I was stating the Commonwealth will not bring a case

against Cosby for this incident based upon then-available evidence in order

to help [Constand] prevail in her civil action. Evidently, that strategy worked.

The attached, which was on letterhead and signed by me as District

Attorney, the concept approved by [Constand’s] lawyers was a “written

declaration” from the Attorney for the Commonwealth there would be no

prosecution based on anything Cosby said in the civil action. Naturally, if a

prosecution could be made out without using what Cosby said, or anything

derived from what Cosby said, I believed then and continue to believe that

a prosecution is not precluded.

Id., Exh. D-7.

Despite her predecessor’s concerns, D.A. Ferman and the investigators pressed

forward, reopening the criminal case against Cosby. Members of the prosecutorial team

traveled to Canada and met with Constand, asking her to cooperate with their efforts to

prosecute Cosby, even though she had specifically agreed not to do so as part of the civil

settlement. Investigators also began to identify, locate, and interview other women that

had claimed to have been assaulted by Cosby.

Nearly a decade after D.A. Castor’s public decision not to prosecute Cosby, the

Commonwealth charged Cosby with three counts of aggravated indecent assault12

stemming from the January 2004 incident with Constand in Cosby’s Cheltenham

residence. On January 11, 2016, Cosby filed a petition for a writ of habeas corpus13

12 By this time, Mr. Steele had replaced Judge Ferman as District Attorney. See 18

Pa.C.S. § 3125(a)(1), (a)(4), and (a)(5).

13 Cosby styled the petition as a “Petition for Writ of Habeas Corpus and Motion to

Disqualify the Montgomery County District Attorney’s Office.” The trial court treated the

omnibus motion as three separate motions: (1) a motion to dismiss the charges based

upon the alleged non-prosecution agreement; (2) a motion to dismiss the charges based

[J-100-2020] - 18

seeking, inter alia, dismissal of the charges based upon the former D.A. Castor’s

purported promise—made in his representative capacity on behalf of the

Commonwealth—that Cosby would not be prosecuted. The Commonwealth filed a

response to the motion, to which Cosby replied.

From February 2-3, 2016, the trial court conducted hearings on Cosby’s habeas

petition, which it ultimately denied. Later, in its Pa.R.A.P. 1925(a) opinion, the trial court

explained that “the only conclusion that was apparent” from the record “was that no

agreement or promise not to prosecute ever existed, only the exercise of prosecutorial

discretion.” Tr. Ct. Op. (“T.C.O.”), 5/14/2019, at 62. In support of this conclusion, the trial

court provided a lengthy summary of what it found to be the pertinent facts developed at

the habeas corpus hearing. Because our analysis in this case focuses upon the trial

court’s interpretation of those testimonies, we reproduce that court’s synopsis here:

On January 24, 2005, then District Attorney Bruce L. Castor, Jr., issued a

signed press release announcing an investigation into Ms. Constand’s

allegations. Mr. Castor testified that as the District Attorney in 2005, he

oversaw the investigation into Ms. Constand’s allegations. Ms. Ferman

supervised the investigation along with County Detective Richard Peffall

and Detective Richard Schaffer of Cheltenham. Mr. Castor testified that “I

assigned who I thought were our best people to the case. And I took an

active role as District Attorney because I thought I owed it to Canada to

show that, in America, we will investigate allegations against celebrities.”

Mr. Castor testified that Ms. Constand went to the Canadian police almost

exactly one year after the alleged assault and that the case was ultimately

referred to Montgomery County. The lack of a prompt complaint was

significant to Mr. Castor in terms of Ms. Constand’s credibility and in terms

of law enforcement’s ability to collect physical evidence. He also placed

significance on the fact that Ms. Constand told the Canadian authorities that

she contacted a lawyer in Philadelphia prior to speaking with them. He also

reviewed Ms. Constand’s statements to police. Mr. Castor felt that there

were inconsistences in her statements. Mr. Castor did not recall press

quotes attributed to him calling the case “weak” at a 2005 press conference.

upon pre-arrest delay; and (3) a motion to disqualify the Montgomery County District

Attorney’s Office.

[J-100-2020] - 19

Likewise, he did not recall the specific statement, “[i]n Pennsylvania we

charged people for criminal conduct. We don’t charge people with making

a mistake or doing something foolish;” however, he indicated that it is a true

statement.

As part of the 2005 investigation, [Cosby] gave a full statement to law

enforcement and his Pennsylvania and New York homes were searched.

[Cosby] was accompanied by counsel and did not invoke the Fifth

Amendment at any time during the statement. After [Cosby’s] interview,

Ms. Constand was interviewed a second time. Mr. Castor never personally

met with Ms. Constand. Following that interview of Ms. Constand, Mr.

Castor spoke to [Cosby’s] attorney Walter M. Phillips, Jr. Mr. Phillips told

Mr. Castor that during the year between the assault and the report, Ms.

Constand had multiple phone contacts with [Cosby]. Mr. Phillips was also

concerned that Ms. Constand had recorded phone calls with [Cosby]. Mr.

Phillips told Mr. Castor that if he obtained the phone records and the

recorded calls he would conclude that Ms. Constand and her mother were

attempting was to get money from [Cosby] so they would not go to the

police. While he did not necessarily agree with the conclusions Mr. Phillips

thought would be drawn from the records, Mr. Castor directed the police to

obtain the records. Mr. Castor’s recollection was that there was an

“inordinate number of [phone] contacts” between [Cosby] and Ms. Constand

after the assault. He also confirmed the existence of at least two “wire

interceptions,” which he did not believe would be admissible.

As part of the 2005 investigation, allegations made by other women were

also investigated. Mr. Castor delegated that investigation to Ms. Ferman.

He testified that he determined that, in his opinion, these allegations were

unreliable.

Following approximately one month of investigation, Mr. Castor concluded

that “there was insufficient credible and admissible evidenced upon which

any charge against Mr. Cosby related to the Constand incident could be

proven beyond a reasonable doubt.” He testified that he could either leave

the case open at that point or definitively close the case to allow a civil case.

He did not believe there was a chance that the criminal case could get any

better. He believed Ms. Constand’s actions created a credibility issue that

could not be overcome.

* * *

Mr. Castor further indicated, “Mr. Phillips never agreed to anything in

exchange for Mr. Cosby not being prosecuted.” Mr. Castor testified that he

told Mr. Philips of his legal assessment and then told Ms. Ferman of the

analysis and directed her to contact Constand’s attorneys. He testified that

she was to contact the attorneys to let them know that “Cosby was not going

to be prosecuted and that the purpose for that was that I wanted to create

[J-100-2020] - 20

the atmosphere or the legal conditions such that Mr. Cosby would never be

allowed to assert the Fifth Amendment in the civil case.” He testified that

she did not come back to him with any objection from Ms. Constand’s

attorneys and that any objection from Ms. Constand’s attorneys would not

have mattered anyway. He later testified that he did not have any specific

recollection of discussing his legal analysis with Ms. Ferman, but would be

surprised if he did not.

Mr. Castor testified that he could not recall any other case where he made

this type of binding legal analysis in Montgomery County. He testified that

in a half dozen cases during his tenure in the District Attorney’s office,

someone would attempt to assert the Fifth Amendment in a preexisting civil

case. The judge in that case would then call Mr. Castor to determine if he

intended to prosecute the person asserting the privilege. He could confirm

that he did not and the claim of privilege would be denied. Mr. Castor was

unable to name a case in which this happened.

After making his decision not to prosecute, Mr. Castor personally issued a

second, signed press release on February 17, 2005. Mr. Castor testified

that he signed the press release at the request of Ms. Constand’s attorneys

in order to bind the Commonwealth so it “would be evidence that they could

show to a civil judge that Cosby is not getting prosecuted.” The press

release stated, “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.” Mr. Castor testified that this

language made it absolute that [Cosby] would never be prosecuted, “[s]o I

used the present tense, [exists], . . . So I’m making it absolute. I said I

found that there was no evidencethere was insufficient credible and

admissible evidence in existence upon which any charge against [Cosby]

could be sustained. And the use of ‘exists’ and ‘could’ I meant to be

absolute.”

The press release specifically cautioned the parties that the decision could

be revisited, “District Attorney Castor cautions all parties to this matter that

he will reconsider this decision should the need arise.” He testified that

inclusion of this sentence, warning that the decision could be revisited, in

the paragraph about a civil case and the use of the word “this,” was intended

to make clear that it applied to the civil case and not to the prosecution. Mr.

Castor testified that this sentence was meant to advise the parties that if

they criticized his decision, he would contact the media and explain that Ms.

Constand’s actions damaged her credibility, which would severely hamper

her civil case. He testified that once he was certain a prosecution was not

viable “I operated under the certainty that a civil suit was coming and set up

the dominoes to fall in such a way that Mr. Cosby would be required to

testify.” He included the language “much exists in this investigation that

could be used by others to portray persons on both sides of the issue in a

[J-100-2020] - 21

less than flattering light,” as a threat to Ms. Constand and her attorneys

should they attack his office. In a 2016 Philadelphia Inquirer article, in

reference to this same sentence, Castor stated, “I put in there that if any

evidence surfaced that was admissible I would revisit the issue. And

evidently, that is what the D.A. is doing.” He testified that he remembered

making that statement but that it referred to the possibility of a prosecution

based on other victims in Montgomery County or perjury.

He testified that the press release was intended for three audiences, the

media, the greater legal community, and the litigants. He testified about

what meaning he hoped that each audience would glean from the press

release. He did not intend for any of the three groups to understand the

entirety of what he meant. The media was to understand only that [Cosby]

would not be arrested. Lawyers would parse every word and understand

that he was saying there was enough evidence to arrest [Cosby] but that

Mr. Castor thought the evidence was not credible or admissible. The third

audience was the litigants, and they were to understand that they did not

want to damage the civil case. He then stated that the litigants would

understand the entirety of the press release, the legal community most of it

and the press little of it.

Mr. Castor testified that in November of 2014 he was contacted by the

media as a result of a joke a comedian made about [Cosby]. Again, in the

summer of 2015 after the civil depositions were released, media

approached Mr. Castor. He testified that he told every reporter that he

spoke to in this time frame that the reason he had declined the charges was

to strip Mr. Cosby of his Fifth Amendment privilege. He testified that he did

not learn the investigation had been reopened until he read in the paper that

[Cosby] was arrested in December 2015, but there was media speculation

in September 2015 that an arrest might be imminent.

On September 23, 2015, apparently in response to this media speculation,

unprompted and unsolicited, Mr. Castor sent an email to then District

Attorney Risa Vetri Ferman. His email indicated, in pertinent part,

I’m writing you just in case you might have forgotten what we

did with Cosby back in 2005. . . Once we decided that the

chances of prevailing in a criminal case were too remote to

make an arrest, I concluded that the best way to achieve

justice was to create an atmosphere where [Constand] would

have the best chance of prevailing in a civil suit against Cosby.

With the agreement of [Attorney Phillips] and [Constand’s]

lawyer, I wrote the attached [press release] as the ONLY

comment I would make while the civil case was pending.

Again, with the agreement of the defense lawyer and

[Constand’s] lawyers, I intentionally and specifically bound the

Commonwealth that there would be no state prosecution of

[J-100-2020] - 22

Cosby 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. . . . But those lawyers

representing [Constand] civilly . . . were part of this agreement

because they wanted to make Cosby testify. I believed at the

time that they thought making him testify would solidify their

civil case, but the only way to do that was for us (the

Commonwealth) to promise not to prosecute him. So in effect,

that is what I did. I never made an important decision without

discussing it with you during your tenure as First Assistant.

* * *

[B]ut one thing is fact. The Commonwealth, defense and civil

plaintiff’s lawyers were all in agreement that the attached

decision from me stripped Cosby of his Fifth Amendment

privilege against self-incrimination forcing him to be deposed.

He indicated in his email that he learned Mr. Phillips had died on the date

of his email. The email also suggested that the deposition might be subject

to suppression.

Ms. Ferman responded to Mr. Castor’s email by letter of September 25,

2015, requesting a copy of the “written declaration” indicating that [Cosby]

would not be prosecuted. In her letter, Ms. Ferman indicated that “[t]he first

I heard of such a binding agreement was your email sent this past

Wednesday. The first I heard of a written declaration documenting the

agreement not to prosecute was authored on 9/24/15 and published today

by Margaret Gibbons of the Intelligencer. . . . We have been in contact with

counsel for both Mr. Cosby and Ms. Constand and neither has provided us

with any information about such an agreement.”

Mr. Castor responded by email. His email indicated,

The attached Press Release is the written determination that

we would not prosecute Cosby. That was what the lawyers

for the plaintiffs wanted and I agreed. The reason I agreed

and the plaintiff’s wanted it in writing was so Cosby could not

take the 5th Amendment to avoid being deposed or

testifying. . . . That meant to all involved, including Cosby’s

lawyer at the time, Mr. Phillips, that what Cosby said in the

civil litigation could not be used against him in a criminal

prosecution for the event we had him under investigation for

in early 2005. I signed the press release for precisely this

reason, at the request of Plaintiff’s counsel, and with the

acquiescence of Cosby’s counsel, with full and complete

intent to bind the Commonwealth that anything Cosby said in

[J-100-2020] - 23

the civil case could not be used against him, thereby forcing

him to be deposed and perhaps testify in a civil trial without

the ability to “take the 5th.” I decided to create the best

possible environment for the Plaintiff to prevail and be

compensated. By signing my name as District Attorney and

issuing the attached, I was “signing off” on the Commonwealth

not being able to use anything Cosby said in the civil case

against him in a criminal prosecution, because I was stating

the Commonwealth will not bring a case against Cosby for the

incident based on the then-available evidence in order to help

the Plaintiff prevail in her civil action . . . [n]aturally, if a

prosecution could be made out without using what Cosby

said, or anything derived from what Cosby said, I believed

then and continue to believe that a prosecution is not

precluded.

Mr. Castor testified that he intended to confer transactional immunity upon

[Cosby] and that his power to do so as the sovereign was derived from

common law not from the statutes of Pennsylvania. In his final email to Ms.

Ferman, Mr. Castor stated, “I never agreed we would not prosecute Cosby.”

As noted, Ms. Constand’s civil attorneys also testified at the hearing.

Dolores Troiani, Esq. testified that during the 2005 investigation, she had

no contact with the District Attorney’s office and limited contact with the

Cheltenham Police Department. Bebe Kivitz, Esq. testified that during the

2005 investigation she had limited contact with then-First Assistant District

Attorney Ferman. The possibility of a civil suit was never discussed with

anyone from the Commonwealth or anyone representing [Cosby] during the

criminal investigation. At no time did anyone from Cheltenham Police, or

the District Attorney’s Office, convey to Ms. Troiani, or Ms. Kivitz, that

[Cosby] would never be prosecuted. They learned that the criminal case

was declined from a reporter who came to Ms. Troiani’s office in 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 receive any prior

notification of the decision not to prosecute.

Ms. Constand and her attorneys did not request a declaration from Mr.

Castor that [Cosby] would not be prosecuted. Ms. Troiani testified that if

[Cosby] attempted to invoke the Fifth Amendment during his civil

depositions they would have filed a motion and he would have likely been

precluded since he had given a statement to police. If he was permitted to

assert a Fifth Amendment privilege, they would have been entitled to an

adverse inference jury instruction. Additionally, if [Cosby] asserted the Fifth

Amendment, Ms. Constand’s version of the story would have been the only

version for the jury to consider. Ms. Constand and her counsel had no

reason to request immunity. At no time during the civil suit did Ms. Troiani

[J-100-2020] - 24

receive any information in discovery or from [Cosby’s] attorneys indicating

that [Cosby] could never be prosecuted.

Ms. Troiani testified that she understood the press release to say that Mr.

Castor was not prosecuting at that time but if additional information arose,

he would change his mind. She did not take the language, “District Attorney

Castor cautions all parties to this matter that he will reconsider this decision

should the need arise,” to be a threat not to speak publicly. She continued

to speak to the press; Mr. Castor did not retaliate.

Ms. Troiani was present for [Cosby’s] depositions. At no point during the

depositions was there any mention of an agreement or promise not to

prosecute. In her experience, such a promise would have been put on the

record at the civil depositions. She testified that during the four days of

depositions, [Cosby] was not cooperative and the depositions were

extremely contentious. Ms. Troiani had to file motions to compel [Cosby’s]

answers. [Cosby’s] refusal to answer questions related to Ms. Constand’s

allegations formed the basis of a motion to compel. When Ms. Troiani

attempted to question [Cosby] about the allegations, [Cosby’s] attorneys

sought to have his statement to police read into the record in lieu of cross

examination.

Ms. Troiani testified that one of the initial provisions [Cosby] wanted in the

civil settlement was a release from criminal liability. [Cosby’s civil attorney

Patrick] O’Conner’s letter to Ms. Ferman does not dispute this fact. [Cosby]

and his attorneys also requested that Ms. Troiani agree to destroy her file,

she refused. Eventually, the parties agreed on the language that Ms.

Constand would not initiate any criminal complaint. The first Ms. Troiani

heard of a promise not to prosecute was in 2015. The first Ms. Kivitz learned

of the purported promise was in a 2014 newspaper article.

John P. Schmitt, Esq., testified that he has represented [Cosby] since 1983.

In the early 1990s, he became [Cosby’s] general counsel. In 2005, when

he became aware of the instant allegations, he retained criminal counsel,

William Phillips, Esq., on [Cosby’s] behalf. Mr. Phillips dealt directly with

the prosecutor’s office and would then discuss all matters with Mr. Schmitt.

[Cosby’s] January 2005 interview took place at Mr. Schmitt’s office. Both

Mr. Schmitt and Mr. Phillips were present for the interview. Numerous

questions were asked the answers to which could lead to criminal charges.

At no time during his statement to police did [Cosby] invoke the Fifth

Amendment or refuse to answer questions. Mr. Schmitt testified that he had

interviewed [Cosby] prior to his statement and was not concerned about his

answers. Within weeks of the interview, the District Attorney declined to

bring a prosecution. Mr. Schmitt testified that Mr. Phillips told him that the

decision was an irrevocable commitment that District Attorney Castor was

not going to prosecute [Cosby]. He received a copy of the press release.

[J-100-2020] - 25

On March 8, 2005, Ms. Constand filed her civil suit and Mr. Schmitt retained

Patrick O’Conner, Esq., as civil counsel. Mr. Schmitt participated in the civil

case. [Cosby] sat for four days of depositions. Mr. Schmitt testified that

[Cosby] did not invoke the Fifth Amendment in those depositions and that

he would not have let him sit for the depositions if he knew the criminal case

could be reopened.

He testified that generally he does try to get agreements on [Cosby’s] behalf

in writing. During this time period, Mr. Schmitt was involved in written

negotiations with the National Enquirer. He testified that he relied on the

press release, Mr. Castor’s word and Mr. Phillips’ assurances that what Mr.

Castor did was sufficient. Mr. Schmitt did not personally speak to Mr. Castor

or get the assurance in writing. During the depositions, Mr. O’Conner

objected to numerous questions. At the time of the depositions, Mr. Schmitt,

through his negotiations with the National Enquirer, learned that there were

Jane Doe witnesses making allegations against [Cosby]. [Cosby] did not

assert a Fifth Amendment privilege when asked about these other women.

Mr. Schmitt testified that he had not formed an opinion as to whether Mr.

Castor’s press release would cover that testimony.

Mr. Schmitt testified that during negotiations of the settlement agreement

there were references to a criminal case. The settlement agreement

indicated that Ms. Constand would not initiate a criminal case against Mr.

Cosby. Mr. Schmitt did not come forward when he learned the District

Attorney’s office re-opened the case in 2015.

T.C.O. at 47-61 (cleaned up).

Notably, when District Attorney Castor decided not to prosecute Cosby, he

“absolutely” intended to remove “for all time” the possibility of prosecution, because “the

ability to take the Fifth Amendment is also for all time removed.” N.T., 2/2/2016, at 67.

The trial court sought clarification from Mr. Castor about his statement in his second email

to D.A. Ferman that he still believed that a prosecution was permissible as long as

Cosby’s depositions were not used in such proceedings. Former D.A. Castor explained

to the court that he meant that a prosecution may be available only if other victims were

discovered, with charges related only to those victims, and without the use of Cosby’s

depositions in the Constand matter. Specifically, former D.A. Castor stated that what he

was “trying to convey to Mrs. Ferman [was that his] binding of the Commonwealth not to

prosecute Cosby was not for any crime in Montgomery County for all time. It was only

[J-100-2020] - 26

for the sexual assault crime in the Constand case.” N.T., 2/2/2016, at 224-25. He

continued, “[s]o if they had evidence that some of these other women had been sexually

assaulted at Cosby’s home in Cheltenham, then I thought they could go ahead with the

prosecution of that other case with some other victim, so long as they realized they could

not use the Constand deposition and anything derived therefrom.” Id.

As noted, the trial court denied the motion, finding that then-D.A. Castor never, in

fact, reached an agreement with Cosby, or even promised Cosby that the Commonwealth

would not prosecute him for assaulting Constand. T.C.O. at 62. Instead, the trial court

considered the interaction between the former district attorney and Cosby to be an

incomplete and unauthorized contemplation of transactional immunity. The trial court

found no authority for the “proposition that a prosecutor may unilaterally confer

transactional immunity through a declaration as the sovereign.” Id. Rather, the court

noted, such immunity can be conferred only upon strict compliance with Pennsylvania’s

immunity statute, which is codified at 42 Pa.C.S. § 5947.14 Per the terms of the statute,

14 The immunity statute provides, in relevant part:

(a) General rule.--Immunity orders shall be available under this section in

all proceedings before:

(1) Courts.

* * *

(b) Request and issuance.--The Attorney General or 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:

(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.

[J-100-2020] - 27

permission from a court is a prerequisite to any offer of transactional immunity. See id.

§ 5947(b) (“The Attorney General or a district attorney may request an immunity order

from any judge of a designated court.”). Because D.A. Castor did not seek such

permission, and instead acted of his own volition, the trial court concluded that any

purported immunity offer was defective, and thus invalid. Consequently, according to the

trial court, the “press release, signed or not, was legally insufficient to form the basis of

an enforceable promise not to prosecute.” T.C.O. at 62.

The trial court also found that “Mr. Castor’s testimony about what he did and how

he did it was equivocal at best.” Id. at 63. The court deemed the former district attorney’s

characterization of his decision-making and intent to be inconsistent, inasmuch as he

testified at times that he intended transactional immunity, while asserting at other times

that he intended use and derivative-use immunity. The trial court specifically credited

Attorney Troiani’s statements that she never requested that Cosby be provided with

immunity and that she did not specifically agree to any such offer.

(c) Order to testify.--Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or provide other information in

a proceeding specified in subsection (a), and the person presiding at such

proceeding communicates to the witness an immunity order, that witness

may not refuse to testify based on his privilege against self-incrimination.

(d) Limitation on use.--No testimony or other information compelled under

an immunity order, or any information directly or indirectly derived from such

testimony or other information, may be used against a witness in any

criminal case, except that such information may be used:

(1) in a prosecution under 18 Pa.C.S. § 4902 (relating to perjury) or

under 18 Pa.C.S. § 4903 (relating to false swearing);

(2) in a contempt proceeding for failure to comply with an immunity

order; or

(3) as evidence, where otherwise admissible, in any proceeding

where the witness is not a criminal defendant.

42 Pa.C.S. § 5947(a)-(d).

[J-100-2020] - 28

As further support for the view that no agreement was reached, nor any promise

extended, the trial court noted that, in his initial statement to police, which was voluntarily

provided and not under oath, Cosby did not invoke his Fifth Amendment rights. Instead,

Cosby presented a narrative of a consensual sexual encounter with Constand, which he

asserted again later in his depositions. “Thus,” the trial court explained, “there was

nothing to indicate that [Cosby’s] cooperation would cease if a civil case were filed.” Id.

at 65. Since Cosby previously had discussed the incident without invoking his right to

remain silent, the court found no reason to believe that Cosby subsequently would do so

in a civil case so as to necessitate the remedy that the former district attorney purported

to provide in anticipation of that litigation.

The trial court further held that, even if there was a purported grant of immunity,

Cosby could not insist upon its enforcement based upon the contractual theory of

promissory estoppel, because “any reliance on a press release as a grant of immunity

was unreasonable.” Id. Specifically, the court noted that Cosby was represented at all

times by a competent team of attorneys, but none of them “obtained [D.A.] Castor’s

promise in writing or memorialized it in any way.” Id. at 65-66. The failure to demand

written documentation was evidence that no promise not to prosecute was ever extended.

For these reasons, the trial court found no legal basis to estop the Commonwealth from

prosecuting Cosby.

Cosby filed a notice of appeal and a petition for review with the Superior Court. In

response to the filings, the Superior Court temporarily stayed the proceedings below.

However, upon a motion by the Commonwealth, the Superior Court quashed the appeal

and lifted the stay. This Court likewise rejected Cosby’s pre-trial efforts to appeal the

adverse rulings, denying his petition for allowance of appeal, his petition for review, and

his emergency petition for a stay of the proceedings.

[J-100-2020] - 29

On May 24, 2016, following a preliminary hearing, all of Cosby’s charges were held

for trial. Thereafter, Cosby filed a number of pretrial motions, including a petition for a

writ of habeas corpus, a motion to dismiss the charges on due process grounds, and,

most pertinent here, a “Motion to Suppress the Contents of his Deposition Testimony and

Any Evidence Derived therefrom on the Basis that the District Attorney’s Promise not to

Prosecute Him Induced Him to Waive his Fifth Amendment Right Against Self-

Incrimination.” After holding a hearing on the suppression motion, at which no new

testimony was taken, the trial court again concluded that former District Attorney Castor’s

testimony was equivocal, credited the testimony of Constand’s attorneys, and found that

no promise or agreement not to prosecute existed. Having so determined, the court

discerned “no [c]onstitutional barrier to the use of [Cosby’s] civil deposition testimony”

against him at trial, and it denied the suppression motion.15 Later, the Commonwealth

would introduce portions of Cosby’s deposition testimony against Cosby, including his

admissions to using Quaaludes during sexual encounters with women in the past.

On September 6, 2016, the Commonwealth filed a “Motion to Introduce Evidence

of Other Bad Acts of the Defendant,” which Cosby opposed by written response. The

Commonwealth sought to introduce evidence and testimony from other women who

alleged that Cosby had sexually assaulted them, instances that could not be prosecuted

due to the lapse of applicable statutes of limitations. On February 24, 2017, the trial court

granted the Commonwealth’s motion, but permitted only one of these alleged past victims

to testify at Cosby’s trial.

On December 30, 2016, Cosby filed a motion seeking a change in venue or venire.

The trial court kept the case in Montgomery County, but agreed that the jury should be

15 T.C.O. at 72 (quoting Findings of Fact, Conclusions of Law and Order Sur

Defendant’s Motion to Suppress Evidence Pursuant to Pa.R.Crim.P. 581(I), 12/5/2016,

at 5).

[J-100-2020] - 30

selected from a different county. Thus, Cosby’s jury was selected from residents of

Allegheny County, and trial commenced. On June 17, 2017, after seven days of

deliberation, the jury announced that it could not reach a unanimous verdict. The trial

court dismissed the jury and declared a mistrial.

Ahead of the second trial, the Commonwealth filed a motion seeking to introduce

the testimony of a number of additional women who offered to testify about Cosby’s prior

acts of sexual abuse. Generally, the women averred that, in the 1980s, each had an

encounter with Cosby that involved either alcohol, drugs, or both, that each became

intoxicated or incapacitated after consuming those substances, and that Cosby engaged

in some type of unwanted sexual contact with each of them while they were unable to

resist. The dates of the conduct that formed the basis of these allegations ranged from

1982 to 1989, approximately fifteen to twenty-two years before the incident involving

Constand. Again, Cosby opposed the motion. Following oral argument, and despite

there being no change in circumstances other than the first jury’s inability to reach a

unanimous verdict, the trial court granted the Commonwealth’s motion in part, increasing

the number of prior bad acts witnesses allowed at trial from one to five. The selection of

the five witnesses from a pool of at least nineteen women was left entirely to the

Commonwealth.

The Commonwealth selected, and introduced testimony at Cosby’s second trial

from, the following women:

Janice Baker-Kinney. In 1982, Baker-Kinney worked at a Harrah’s Casino in

Reno, Nevada. During that year, a friend invited her to a party that, unbeknownst to her,

was being held at a temporary residence used by Cosby in Reno. At the time, Baker-

Kinney was twenty-four years old; Cosby was forty-five. When Baker-Kinney arrived at

the residence, she realized that there actually was no party, at least as she understood

[J-100-2020] - 31

the term. Besides Cosby, Baker-Kinney and her friend were the only people there. Cosby

gave Baker-Kinney a beer and a pill, which she believed may have been a Quaalude. A

short time later, Cosby gave her a second pill. She took both voluntarily, after which she

became dizzy and passed out. When she awakened, she was on a couch in another

room. Her shirt was unbuttoned and her pants were unzipped. Cosby approached and

sat next to her. Cosby then leaned her against his chest. He fondled her breasts and her

vagina. Still intoxicated, Baker-Kinney followed Cosby to an upstairs bedroom. She had

no memory of what happened after entering the bedroom until the following morning,

when she woke up naked next to Cosby, who also was naked. Although she could not

remember for sure, Baker-Kinney believed that they had had sex. She dressed and left.

Janice Dickinson. Also in 1982, Janice Dickinson met Cosby. She was twenty-

seven years old. Dickinson was an aspiring model, and Cosby contacted her modeling

agency to arrange a meeting. Supposedly, Cosby wanted to mentor Dickinson. Along

with her agent, Dickinson met with Cosby. Sometime later, while she was on a modeling

job, Cosby called her and offered to fly her to Lake Tahoe. There, Dickinson met with

Cosby’s musical director and practiced her vocal skills. At dinner that night, Cosby arrived

and met with Dickinson, who was drinking wine. Dickinson mentioned that she was

suffering from menstrual cramps. Cosby provided her with a pill to help relieve the

discomfort. The musical director eventually left, and Cosby offered to discuss Dickinson’s

career in his hotel room. She agreed and accompanied him there. When they got to the

room, Cosby put on a robe and made a phone call. Dickinson felt lightheaded and had

trouble speaking. Cosby got off the phone, climbed on top of Dickinson, and had sexual

intercourse with her. Dickinson stated that she was unable to move and that she passed

out soon after Cosby had finished. When she woke up the next morning, she did not

[J-100-2020] - 32

recall how she had arrived at Cosby’s room. She was naked from the waist down, had

semen on her legs, and felt pain in her anus.

Heidi Thomas: In 1984, Heidi Thomas was twenty-seven years old, and Cosby

was forty-six. Thomas wanted to be an actress and a model. Her agent told her that

Cosby was looking to mentor a promising young talent. Eventually, Cosby invited

Thomas to Reno for some personal acting lessons. Thomas believed that she would be

staying at a hotel, but, when she got to Reno, a car took her to a ranch house where

Cosby was staying. Cosby arranged a room in the house for her. When they were the

only two people left in the house, Cosby asked Thomas to audition for him by pretending

to be an intoxicated person, which she explained to Cosby would be a challenge for her

because she had never been intoxicated. Cosby asked how she could play such a role

without ever having had that experience. So, he gave her some wine. Thomas drank

only a little of the wine before becoming extremely intoxicated. She faded in and out of

consciousness. At one point she came to on a bed only to find Cosby forcing his penis

into her mouth. She passed out and awoke later feeling sick.

Chelan Lasha. Lasha met Cosby in 1986, while she was working as an actress

and model. She was only seventeen years old. Cosby was forty-eight. Cosby called her

at her home, and later visited her there. Lasha then sent him modeling shots and spoke

with him a number of times on the phone about her career. Cosby invited her to meet

him in Las Vegas, where, he told her, someone would take better pictures of her. He

implied that she could get a role on “The Cosby Show.” Enticed by the prospect, Lasha

went to Las Vegas. As promised, once there, someone took pictures of her. Someone

else gave her a massage. Eventually, Lasha was alone with Cosby. He gave her a blue

pill, which he said was an antihistamine that would help with a cold from which she was

suffering. Cosby also provided her with a shot of liquor. Because Lasha trusted Cosby,

[J-100-2020] - 33

she voluntarily consumed both the alcohol and the pill. Cosby then gave her a second

shot and led her to a couch. Lasha began to feel intoxicated. Lasha was unable to move

on her own, and Cosby helped her to the bed. Cosby laid next to her, pinched her breasts,

and rubbed his genitals against her leg until she felt something warm on her leg. Lasha

woke up the next day wearing only a robe.

Maud Lise-Lotte Lublin. When Cosby met Lublin in 1989, he was fifty-two years

old, and she was twenty-three. Lublin also was an aspiring model and actress. Lublin’s

agent informed her that Cosby wanted to meet her. Soon after, Lublin met with Cosby,

who told her that he would refer her to a modeling agency in New York City. Cosby then

started to call her regularly. Lublin considered Cosby to be a mentor and a father figure.

Once, Cosby invited her to his hotel, where they talked about improvisation. Cosby

poured her a shot of liquor and told her to drink it. Not normally a drinker, Lublin initially

declined the shot. When Cosby insisted, she drank it. He poured her another shot, and

again strongly encouraged her to drink it. Because she trusted him, Lublin drank the

second shot as well. She quickly felt dizzy and unstable, and was unable to stand on her

own. Cosby asked her to sit between his legs and lean against his chest. He stroked her

hair and talked, but she could not hear his words. She could not move or get up. She

awoke two days later at her home, with no idea how she got there.

The trial court rejected Cosby’s arguments that the introduction of testimonies from

the five prior bad acts witnesses violated his due process rights, and that the incidents

were too remote in time and too dissimilar to have probative value, let alone probative

value sufficient to overcome the unduly prejudicial impact of such evidence. The court

noted that prior bad acts evidence generally cannot be used to establish a criminal

propensity or to prove that the defendant acted in conformity with the past acts, but that

such evidence can be used to show motive, opportunity, intent, preparation, plan,

[J-100-2020] - 34

knowledge, identity, or absence of mistake or accident, so long as the probative value of

the evidence outweighs its prejudicial effect.16 The court then determined that the

testimony of the five prior bad act witnessesand the deposition testimony pertaining to

the prior use of Quaaludeswas admissible to demonstrate Cosby’s common plan,

scheme, or design. The trial court reasoned that the similarity and distinctiveness of the

crimes bore a logical connection to Constand’s allegations, and amounted to a “signature

of the same perpetrator.”17 Comparing the past and present allegations, the court noted

that each woman was substantially younger than Cosby and physically fit; that Cosby

initiated the contact with each woman, primarily though her employment; that each

woman came to trust Cosby and view him as a friend or mentor; that each woman

accepted an invitation to a place that Cosby controlled; that each woman consumed a

16 T.C.O. 96-97 (citing Pa.R.E. 404(b)). Rule 404 provides, in relevant part:

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character

trait is not admissible to prove that on a particular occasion the

person acted in accordance with the character or trait.

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the

character.

(2) Permitted Uses. This evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident. In

a criminal case this evidence is admissible only if the probative value

of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

17 Id. at 97 (quoting Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa. Super.

2015) (en banc)).

[J-100-2020] - 35

drink or a pill, often at Cosby’s insistence; that each woman became incapacitated and

unable to consent to sexual contact; and that Cosby sexually assaulted each woman

while each was under the influence of the intoxicant. Id. at 103-04. These “chilling

similarities,” the court explained, rendered Cosby’s actions “so distinctive as to become

a signature,” and therefore the evidence was admissible to demonstrate a common plan,

scheme, or design. Id. at 104.

The court further determined that the prior bad acts evidence was admissible to

demonstrate that Cosby’s actions were not the result of mistake or accident. The court

relied in large part upon then-Chief Justice Saylor’s concurrence in Commonwealth v.

Hicks, 156 A.3d 1114 (Pa. 2017), which suggested the “doctrine of chances” as another

“theory of logical relevance that does not depend on an impermissible inference of bad

character, and which is most greatly suited to disproof of accident or mistake.” Id. at 1131

(Saylor, C.J., concurring). The trial court reasoned that the purpose of the evidence was

not to demonstrate that Cosby behaved in conformity with a criminal propensity, but rather

to “establish the objective improbability of so many accidents befalling the defendant or

the defendant becoming innocently enmeshed in suspicious circumstances so

frequently.” Id. at 1133 (Saylor, C.J., concurring). The court noted that there was no

dispute that a sexual encounter between Cosby and Constand had occurred; the

contested issue was Constand’s consent. The prior bad acts evidence, therefore, was

“relevant to show a lack of mistake, namely, that [Cosby] could not have possibly believed

that [] Constand consented to the digital penetration as well as his intent in administering

an intoxicant.” T.C.O at 108. Similarly, with regard to the “doctrine of chances,” the court

opined that the fact that nineteen women were proffered as Rule 404(b) witnesses “lends

[sic] to the conclusion that [Cosby] found himself in this situation more frequently than the

general population.” Id. Accordingly, “the fact that numerous other women recounted the

[J-100-2020] - 36

same or similar story, further supports the admissibility of this evidence under the doctrine

of chances.” Id.

The trial court recognized that the alleged assaults upon the prior bad acts

witnesses were remote in time, but it explained that remoteness “is but one factor that the

court should consider.” Id. at 97. The court reasoned that the distance in time between

the prior acts and the incident involving Constand was “inversely proportional to the

similarity of the other crimes or acts.” Id. (citing Tyson, 119 A.3d at 359). Stated more

simply, the “more similar the crimes, the less significant the length of time that has

passed.” Id.at 98 (citing Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996)).

The court noted that, while there was a significant temporal gap between the prior

incidents and Constand’s case, the alleged assaults involving the prior bad acts witnesses

occurred relatively close in time to each other. Thus, “[w]hen taken together,” the court

explained, “the sequential nature of the acts coupled with their nearly identical similarities

renders the lapse of time unimportant.” Id. at 109.

To be unfairly prejudicial, the trial court emphasized, the proffered evidence must

be “unfair,” and must have a “tendency to suggest decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence impartially.” Id. at

100 (quoting Pa.R.E. 403 cmt). Evidence “will not be prohibited merely because it is

harmful to the defendant,” and a court “is not required to sanitize the trial to eliminate all

unpleasant facts.” Id. at 100-01 (quoting Commonwealth v. Conte, 198 A.3d 1169, 1180-

81 (Pa. Super. 2018)). For the trial court, the aforementioned similarities between

Constand’s claim and that of the other alleged victims weighed in favor of admissibility,

particularly because the court believed that the Commonwealth had a “substantial need”

for the evidence. Id. at 109. “Where the parties agreed that the digital penetration

occurred, the evidence of other acts was necessary to rebut [Cosby’s] characterization of

[J-100-2020] - 37

the assault as a consensual encounter.” Id. “Furthermore,” the court opined, “Ms.

Constand did not report the assault until approximately one year later, further supporting

the Commonwealth’s need for the evidence.” Id. at 110. With regard to the prejudicial

impact of the evidence, the court suggested that it had sufficiently mitigated any potential

prejudice when it limited the number of witnesses who could testify (at the second trial)

to just five of the nineteen witnesses that the Commonwealth requested. Id. The court

noted that it found all nineteen witness’ testimony to be relevant and admissible, but

limited the number to five so as to mitigate the prejudice to Cosby. The court added that

it gave cautionary instructions on the permissible use of this evidence, designed so as to

limit its prejudicial impact. Id. at 110-11.

Finally, the trial court rejected Cosby’s challenge to the admissibility of the contents

of his deposition testimony to the extent that it concerned his use of Quaaludes in decades

past. The court opined that Cosby’s “own words about his use and knowledge of drugs

with a depressant effect was relevant to show his intent and motive in giving a depressant

to [] Constand.” Id. at 115. Because the evidence demonstrated Cosby’s knowledge of

the effects of drugs such as Quaaludes, the court reasoned, Cosby “either knew

[Constand] was unconscious, or recklessly disregarded the risk that she could be.” Id.

As with the Rule 404(b) witnesses, the court found that any prejudicial effect of this

evidence was mitigated by the court’s cautionary instructions. Id. Accordingly, the court

trial opined that all of the Rule 404(b) evidence was admissible.

At the conclusion of a second jury trial, Cosby was convicted on all three counts of

aggravated indecent assault. Following the denial of a number of post-trial motions, the

trial court deemed Cosby to be a “sexually violent predator” pursuant to the then-

applicable version of the Sex Offender Registration and Notification Act (“SORNA”), 42

Pa.C.S. §§ 9799.10-9799.41. The trial court then sentenced Cosby to three to ten years

[J-100-2020] - 38

in prison. Cosby was denied bail pending an appeal. He filed post-sentence motions

seeking a new trial and a modification of his sentence, which were denied.

Cosby timely filed a notice of appeal, prompting the trial court to order him to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Cosby complied. On May 14, 2019, the trial court responded to Cosby’s concise

statement with its opinion, issued pursuant to Pa.R.A.P. 1925(a).

A unanimous panel of the Superior Court affirmed the judgment of sentence in all

respects. Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019). The Superior Court

began by assessing Cosby’s challenge to the admissibility of the prior bad acts evidence

under Rule 404(b). The panel observed that a reviewing court must evaluate the

admission of evidence pursuant to the abuse-of-discretion standard. Id. at 397.

Addressing the trial court’s rationale regarding the admissibility of prior bad acts evidence

demonstrating a common plan, scheme, or design, the panel noted that the exception

aims to establish a perpetrator’s identity based upon “his or her commission of

extraordinarily similar criminal acts on other occasions. The exception is demanding in

it[s] 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.” Id. at 398 (citing Commonwealth v. Miller, 664 A.2d

1310, 1318 (Pa. 1995)). Although the common plan, scheme, or design rationale typically

is used to establish the identity of a perpetrator of a particular crime, the Superior Court

pointed out that courts previously have also used the exception “to counter [an]

anticipated defense of consent.” Id. (quoting Tyson, 119 A.3d at 361).

In Tyson, Jermeel Omar Tyson brought food to his victim, who was feeling ill.

Tyson, 119 A.3d at 356. While Tyson remained in the residence, the victim fell asleep.

When she awoke some time later, Tyson was having vaginal intercourse with her. She

[J-100-2020] - 39

told Tyson to stop, and he complied. But, when she fell asleep a second time, he resumed

the uninvited sexual contact. Tyson was arrested and charged with sex-related offenses.

Id.

Before trial, the Commonwealth sought to introduce evidence of a rape for which

Tyson had been convicted in Delaware twelve years earlier. Id. The Delaware offense

involved a victim of the same race and of a similar age as the victim in Tyson. Id. The

Delaware victim similarly was casually acquainted with Tyson, invited Tyson into her

home, was in a compromised state, and awoke to find Tyson engaged in vaginal

intercourse with her. Id. at 357. The trial court declined to admit the Rule 404(b) evidence

against Tyson. Id. at 356. On interlocutory appeal, the Superior Court reversed the trial

court’s decision, finding that the proffered evidence was admissible. Id. at 363. The court

reasoned that the “relevant 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.” Id. at 360.18 Notably, the Tyson Court found the twelve-year

gap between Tyson’s Delaware conviction and the offense at issue to be “less important”

when compared to the strength of the similarities between the crimes. Id. at 361.

With Tyson in mind, the Superior Court turned its attention to the case sub judice.

Based upon the similarities between Constand’s allegations and those of Cosby’s other

accusers identified by the trial court, the Superior Court agreed that the accounts of the

18 The en banc majority opinion in Tyson was authored by then-President Judge

Gantman and joined by then-Judge Mundy, President Judge Emeritus Ford Elliott, and

Judges Panella, Shogan, and Olson. Then-Judge Donohue dissented, joined by

President Judge Emeritus Bender and Judge Ott, opining that the majority

“overemphasize[d] the few similarities that exist between Tyson’s prior rape conviction

and the present matter while completely dismissing the several important differences

between the two incidents.” Tyson, 119 A.3d at 363 (Donohue, J., dissenting). The

dissent further disputed the en banc majority’s reliance upon the need for the prior bad

acts evidence “to bolster the credibility of the Commonwealth’s only witness where there

is no indication that the witness is otherwise impeachable.” Id. at 364.

[J-100-2020] - 40

five prior bad acts witnesses established a “predictable pattern” that reflected Cosby’s

“unique sexual assault playbook.” Cosby, 224 A.3d at 402. Accordingly, the panel

concluded that the witnesses’ testimony was admissible to show Cosby’s common plan,

scheme, or design.

The Superior Court further agreed with the trial court that the prior bad acts

evidence was admissible to demonstrate the absence of mistake on Cosby’s part as to

Constand’s consent. The court concluded that Tyson’s rationale was applicable to the

instant case. The court rejected Cosby’s efforts to distinguish Constand’s allegations

from those dating to the 1980s. Cosby emphasized the fact that the relationship between

Cosby and Constand lasted longer than his relationship with any of the prior bad acts

witnesses, that Constand was a guest at Cosby’s home on multiple occasions, that Cosby

and Constand had exchanged gifts, that Cosby had made prior sexual advances toward

Constand, that the nature of the sexual contact differed among the alleged victims, and

that the alleged prior assaults occurred in hotel rooms or at the home of a third party,

while the incident with Constand occurred in Cosby’s home. Id. at 401-02. The Superior

Court dismissed these apparent dissimilarities as unimportant, opining that “[i]t is

impossible for two incidents of sexual assault involving different victims to be identical in

all respects.” Id. at 402. The court added that it would be “simply unreasonable” to require

two incidents to be absolutely identical in order to be admissible under Rule 404(b), and

concluded that “[i]t is the pattern itself, and not the mere presence of some inconsistencies

between the various assaults, that determines admissibility under these exceptions.” Id.

As to the temporal gap between the prior bad acts and the incident involving

Constand, the Superior Court acknowledged that, even if the evidence were otherwise

admissible under Rule 404(b), it “will be rendered inadmissible if it is too remote.” Id. at

405 (quoting Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981)). The panel

[J-100-2020] - 41

agreed with the trial court’s statement that the significance of the age of a prior bad act is

“inversely proportional” to the similarity between the prior bad act and the facts underlying

the charged offense. Id. (quoting Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.

Super. 2010)). Although the panel recognized the significant lag in time between the

events in question, it relied upon the similarities as found by the trial court to conclude

that “the at-issue time gap is relatively inconsequential.” Id. “Moreover,” the panel opined,

“because [Cosby’s] identity in this case was not in dispute (as he claimed he only engaged

in consensual sexual contact with [Constand]), there was no risk of misidentification”

through the admission of the prior bad acts evidence, “despite the gap in time.” Id.

Additionally, the Superior Court rejected Cosby’s contention that the trial court had

failed to weigh adequately the prejudicial impact of the prior bad acts evidence. The panel

highlighted the fact that the trial court provided the jury with cautionary instructions on the

use of the evidence, as well as that court’s decision to limit the number of prior bad acts

witnesses to five. These steps, in the Superior Court’s view, were sufficient to mitigate

the prejudicial impact of the evidence. Id.

The Superior Court dealt separately with Cosby’s Rule 404(b) challenge to the use

of his deposition testimony regarding his provision of Quaaludes to women in the past.

The court rejected Cosby’s “attempts to draw a hard distinction between Quaaludes and

Benadryl,” and noted that “the jury was free to disbelieve [Cosby’s] assertion that he only

provided [Constand] with Benadryl.” Id. at 420. The court credited the Commonwealth’s

argument that Cosby’s familiarity with Quaaludes was suggestive of his mens rea,

inasmuch as it was “highly probative of ‘the circumstances known to him for purposes of

determining whether he acted with the requisite mens rea for the offense of aggravated

indecent assault—recklessness.” Id. (quoting Pa.R.E. 404(b)(2)). Moreover, Cosby’s

“knowledge of the use of central nervous system depressants, coupled with his likely past

[J-100-2020] - 42

use of the same with the [prior bad acts] witnesses, were essential to resolving the

otherwise he-said-she-said nature of [Constand’s] allegations.” Id. The Superior Court

added that the trial court did not err in determining that the probative value of this evidence

outweighed its potential for unfair prejudice, inasmuch as, “in a vacuum, Cosby’s use and

distribution of a then-legal ‘party drug’ nearly half a century ago did not appear highly

prejudicial,” and “only becomes significantly prejudicial, and fairly so, when, in the context

of other evidence, it establishes Cosby’s knowledge of and familiarity with central nervous

system depressants for purposes of demonstrating that he was at least reckless” in giving

Constand such a drug before having sexual contact with her. Id. at 420-21 (emphasis in

original) (cleaned up). The court added that any potential for unfair prejudice was

mitigated substantially by the court’s cautionary instructions, and that, accordingly, there

was no error in the admission of this evidence. Id. at 421.

Turning to Cosby’s claims relating to the enforceability of the non-prosecution or

immunity decision rendered by then-District Attorney Castor, the Superior Court viewed

this as a challenge to the denial of a motion to quash a criminal complaint, which would

be evaluated under an abuse-of-discretion standard. Id. at 410. Like the trial court, the

panel found no “authority suggesting that a district attorney ‘may unilaterally confer

transactional immunity through a declaration as the sovereign.’” Id. at 411 (quoting

T.C.O. at 62). Therefore, the court opined, “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.” Id. The court added: “Even assuming Mr. Castor

promised not to prosecute [Cosby], only a court order can convey such immunity. Such

promises exist only as exercises of prosecutorial discretion, and may be revoked at any

time.” Id. The court discussed the immunity statute and observed that it provides that “a

district attorney may request an immunity order from any judge of a designated

[J-100-2020] - 43

court . . . .” Id. (quoting 42 Pa.C.S. § 5947(b)). Because no such order existed here, the

Superior Court concluded that it could “ascertain no abuse of discretion in the trial court’s

determination that [Cosby] was not immune from prosecution, because Mr. Castor failed

to seek or obtain an immunity order pursuant to Section 5947.” Id. at 412. “Only a court

order conveying such immunity is legally binding in this Commonwealth.” Id.

The Superior Court further rejected Cosby’s invocation of promissory estoppel

asserting reliance upon D.A. Castor’s assurances, as demonstrated by Cosby’s

cooperation with Constand’s civil suit and his decision not to invoke the Fifth Amendment

during his deposition testimony. The panel opined that Cosby failed to cite sufficient

authority to establish that a prosecution may be barred under a promissory estoppel

theory. The panel further agreed with the trial court that, in any event, “it was not

reasonable for [Cosby] to rely on Mr. Castor’s promise, even if the trial court had found

credible the testimony provided by Mr. Castor and [Cosby’s] civil attorney,” Attorney

Schmitt. Id. The panel stated: “We cannot deem reasonable [Cosby’s] 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.” Id. at

413.

The Superior Court further opined that there was “virtually no evidence in the

record that [Cosby] actually declined to assert his Fifth Amendment rights at the civil

deposition based on Mr. Castor’s purported promise not to prosecute.” Id. Although the

court noted that Attorney Schmitt was the only witness who could testify that Cosby

indeed relied upon Castor’s purported promise during his deposition (Attorney Schmitt

did so testify), it emphasized the Commonwealth’s argument that Attorney Schmitt

allowed Cosby to give a statement to the police during the initial investigation, that Cosby

did not incriminate himself at that point, that Attorney Schmitt further negotiated with the

[J-100-2020] - 44

National Enquirer on the details of its published interview with Cosby, and that Attorney

Schmitt negotiated a term of the settlement agreement with Constand that required her

assurance that she would not cooperate with any future criminal investigation. Thus, the

Commonwealth argued, and the Superior Court agreed, that “[i]t was not necessary for

the trial court to specifically state that it rejected . . . Schmitt’s testimony, as it is patently

obvious that his testimony belies his claim that there was some ‘promise’ from [Mr.] Castor

not to prosecute.” Id. (quoting Commonwealth’s Superior Court Brief at 136-37). The

Superior Court agreed that “the evidence was entirely inconsistent with [Cosby’s] alleged

reliance on Mr. Castor’s promise in choosing not to assert his Fifth Amendment privilege

in the civil suit.” Id. at 413-14.

For the same reasons, the Superior Court rejected Cosby’s claim that the trial court

erred in failing to suppress his deposition testimony due to the immunity that he

purportedly should have enjoyed. The court opined that Cosby’s suppression argument

was “contingent upon his claim that Mr. Castor unilaterally immunized [Cosby] from

criminal prosecution, which we have already rejected.” Id. at 414. The panel

distinguished all of the precedents upon which Cosby relied, including this Court’s

decision in Commonwealth v. Stipetich, 652 A.2d 1294 (Pa. 1995).

In Stipetich, Pittsburgh police personnel had promised George and Heidi Stipetich

that, if they answered questions about the source of the drugs found in their home, no

charges would be filed against them. After the Stipetiches fulfilled their part of the

agreement, prosecutors charged them anyway. Id. at 1294-95. The trial court granted

the Stipetiches’ motion to dismiss the charges on the basis of the police promise. Id. at

1295. This Court ultimately held that the Pittsburgh police department had no authority

to bind the Allegheny County District Attorney’s Office to a non-prosecution agreement.

Id. However, this Court opined:

[J-100-2020] - 45

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. Although the Superior Court dismissed this passage from Stipetich as dicta,

it found the situation distinguishable in any event inasmuch as former D.A. Castor testified

that there was no “agreement” or “quid pro quo” with Cosby, and, therefore, any reliance

that Cosby placed upon the district attorney’s promise was unreasonable. Cosby, 224

A.3d at 416-17.

The Superior Court concluded that it was bound by the trial court’s factual findings

and by its credibility determinations. The trial court had “determined that Mr. Castor’s

testimony and, by implication, Attorney Schmitt’s testimony (which was premised upon

information he indirectly received from Mr. Castor) were not credible.” Id. at 417. The

panel added that the trial court had “found that the weight of the evidence supported its

finding that no agreement or grant of immunity was made, and that [Cosby] did not

reasonably rely on any overtures by Mr. Castor to that effect when he sat for his civil

deposition.” Id. Thus, the Superior Court discerned no error in the trial court’s decision

to allow the use of Cosby’s deposition testimony against him at trial.19

19 In addition to the Rule 404(b) and non-prosecutions claims, the Superior Court

rejected a number of other issues raised by Cosby, including an assertion of improper

juror bias, a challenge to an allegedly misleading jury instruction, and a contention that

SORNA was unconstitutional. Cosby, 224 A.3d at 396, 421-431. Because those issues

are not relevant to the matters before us, we need not discuss them herein.

[J-100-2020] - 46

II. Issues:

On June 23, 2020, this Court granted Cosby’s petition for allowance of appeal,

limited to the following two 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 [Cosby’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 [Cosby] was on trial; (c) being unduly prejudicial;

(d) being not actually probative of the crimes for which [Cosby] 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) [District Attorney Castor] agreed that [Cosby] would not be

prosecuted in order to force [Cosby’s] testimony at a deposition in

[Constand’s] civil action; (b) [the district attorney] issued a formal public

statement reflecting that agreement; and (c) [Cosby] 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 [Cosby] but the admission of [Cosby’s] civil deposition

testimony?

Commonwealth v. Cosby, 236 A.3d 1045 (Pa. 2020) (per curiam).20

III. Analysis

We begin with Cosby’s second listed issue, because, if he is correct that the

Commonwealth was precluded from prosecuting him, then the question of whether the

prior bad act testimony satisfied Rule 404(b) will become moot.

On February 17, 2005, then-District Attorney Castor announced to the public, on

behalf of the Commonwealth of Pennsylvania, that he would not prosecute Cosby for any

offense related to the 2004 sexual abuse that Constand alleged. Constand’s potential

20 In his petition, Cosby also sought this Court’s review of his claim of improper juror

bias and his challenge to the constitutionality of SORNA. We denied allocatur as to those

two claims.

[J-100-2020] - 47

credibility issues, and the absence of direct or corroborative proof by which to substantiate

her claim, led the district attorney to believe that the case presented “insufficient, credible,

and admissible evidence upon which any charge could be sustained beyond a reasonable

doubt.” Press Release, 2/17/2005 (cleaned up). Given his “conclu[sion] that a conviction

under the circumstances of this case would be unattainable,” D.A. Castor “decline[d] to

authorize the filing of criminal charges in connection with this matter.” Id. In light of the

non-prosecution decision, Cosby no longer was exposed to criminal liability relating to the

Constand allegations and thus could no longer invoke his Fifth Amendment privilege

against compulsory self-incrimination in that regard. With no legal mechanism available

to avoid testifying in Constand’s civil suit, Cosby sat for depositions and, therein, made a

number of statements incriminating himself.

D.A. Castor’s declination decision stood fast throughout his tenure in office. When

he moved on, however, his successor decided to revive the investigation and to prosecute

Cosby. Ruling upon Cosby’s challenge to this belated prosecution, the trial court

concluded that the former district attorney’s promise did not constitute a binding,

enforceable agreement. To determine whether Cosby permanently was shielded from

prosecution by D.A. Castor’s 2005 declination decision, we first must ascertain the legal

relationship between D.A. Castor and Cosby. We begin with the trial court’s findings.

It is hornbook law that reviewing courts are not fact-finding bodies. O’Rourke v.

Commonwealth, 778 A.2d 1194, 1199 (Pa. 2001). Appellate courts are limited to

determining “whether there is evidence in the record to justify the trial court’s findings.”

Id. at 1199 n.6. “If so, this Court is bound by them.” Id. However, while “we accord

deference to a trial court with regard to factual findings, our review of legal conclusions is

de novo.” Id. at n.7 (citation omitted). Indeed, it is a long-standing appellate principle

that, “[w]ith respect to [] inferences and deductions from facts and [] conclusions of

[J-100-2020] - 48

law, . . . appellate courts have the power to draw their own inferences and make their own

deductions and conclusions.” In re Pruner's Est., 162 A.2d 626, 631 (Pa. 1960) (citations

omitted).

Here, the trial court presided over the habeas corpus hearing, viewing and hearing

the witnesses and their testimonies first-hand. From that vantage point, the trial court

determined that, as a matter of fact, D.A. Castor had not extended a formal promise to

Cosby never to prosecute him, let alone consummated a formal non-prosecution

agreement with Cosby. The factual basis for the court’s findings was two-fold. First, the

court characterized the interaction between the district attorney and Cosby as a failed

attempt to reach a statutorily prescribed transactional immunity agreement. Second, the

court concluded that the former district attorney’s testimony regarding the legal

relationship between him and Cosby was inconsistent and “equivocal at best.” T.C.O. at

63. Both findings are supported adequately by the record.

Pursuant to 42 Pa.C.S. § 5947, when a prosecutor wishes to formalize an immunity

agreement, he or she “may request an immunity order from any judge of a designated

court.” Id. § 5947(b). Presented with such a request, the petitioned court “shall issue

such an order,” id., upon which a witness “may not refuse to testify based on his privilege

against self-incrimination.” Id. § 5947(c). At the habeas hearing, former District Attorney

Castor testified that he intended to provide Cosby with transactional immunity. He

explained that this conferral was predicated upon the state’s common-law authority as a

sovereign rather than any statutory provisions or protocols. T.C.O. at 57 (citing N.T.,

2/2/2016, at 232, 234, 236). The record does not contradict his testimony. There is no

evidence, nor any real contention, that the parties even contemplated a grant of immunity

under Section 5947. The trial court’s finding that the interaction between D.A. Castor and

[J-100-2020] - 49

Cosby was not a formal attempt to bestow transactional immunity upon Cosby is

supported by the record.

The trial court’s description of former D.A. Castor’s testimony as inconsistent and

equivocal finds support in the record as well. At times, the former district attorney was

emphatic that he intended his decision not to prosecute Cosby to bind the Commonwealth

permanently, provided no substantive changes occurred in the case, such as Cosby

confessing to the alleged crimes or proof appearing that Cosby had lied to, or attempted

to deceive, the investigators. In addition to the unconditional nature of the press release,

former D.A. Castor told then-District Attorney Ferman in his first email to her that he

“intentionally and specifically bound the Commonwealth that there would be no state

prosecution.” N.T., 2/2/2016, Exh. D-5. In his second email to D.A. Ferman, Mr. Castor

asserted that, by “signing off” on the press release, he was “stating that the

Commonwealth will not bring a case against Cosby for this incident based upon then-

available evidence.” Id., Exh. D-7.

Further indicative of his intent to forever preclude prosecution of Cosby for the

2004 incident, former D.A. Castor testified that the signed press release was meant to

serve as proof for a future civil judge that Cosby would not be prosecuted, thus stripping

Cosby of his Fifth Amendment right not to testify. Mr. Castor emphasized that his decision

was “absolute that [Cosby] never would be prosecuted.” T.C.O. at 52. The former district

attorney stressed that his intent was to “absolutely” remove “for all time” the prospect of

a prosecution, because, in his view, only a steadfast guarantee would permanently strip

Cosby of his right to invoke the Fifth Amendment. N.T., 2/2/2016, at 67. Mr. Castor also

expounded upon the purpose of his emails to D.A. Ferman, which he claimed were an

attempt to inform her that, while he bound the Commonwealth with regard to the 2004

incident, she was free to prosecute Cosby for any other crimes that she might uncover.

[J-100-2020] - 50

Although former D.A. Castor stated that he intended permanently to bar

prosecution of Cosby, he also testified that he sought to confer some form of transactional

immunity. In his second email to D.A. Ferman, former district attorney Castor suggested

that his intent in “signing off” on the press release was to assure Cosby that nothing that

he said in a civil deposition could or would be used against him in a criminal prosecution.

N.T., 2/2/2016, Exh. D-7. In the same email, he simultaneously expressed his belief that

“a prosecution is not precluded.” Id. As such, the evidence suggests that D.A. Castor

was motivated by conflicting aims when he decided not to prosecute Cosby. On one

hand, the record demonstrates that D.A. Castor endeavored to forever preclude the

Commonwealth from prosecuting Cosby if Cosby testified in the civil case. On the other

hand, the record indicates that he sought to foreclose only the use in a subsequent

criminal case of any testimony that Cosby gave in a civil suit.

The trial court was left to resolve these seeming inconsistencies. The court

concluded that Cosby and D.A. Castor did not enter into a formal immunity agreement.

Because the record supports the trial court’s findings in this regard, we are bound by

those conclusions. Pertinently, we are bound by the trial court’s determination that D.A.

Castor’s actions amounted only to a unilateral exercise of prosecutorial discretion. This

characterization is consistent with the former district attorney’s insistence at the habeas

hearing that what occurred between him and Cosby was not an agreement, a contract,

or any kind of quid pro quo exchange.

We are not, however, bound by the lower courts’ legal determinations that derive

from those factual findings. Thus, the question becomes whether, and under what

circumstances, a prosecutor’s exercise of his or her charging discretion binds future

prosecutors’ exercise of the same discretion. This is a question of law.

[J-100-2020] - 51

For the reasons detailed below, we hold that, when a prosecutor makes an

unconditional promise of non-prosecution, and when the defendant relies upon that

guarantee to the detriment of his constitutional right not to testify, the principle of

fundamental fairness that undergirds due process of law in our criminal justice system

demands that the promise be enforced.

Prosecutors are more than mere participants in our criminal justice system. As we

explained in Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018), prosecutors inhabit three

distinct and equally critical roles: they are officers of the court, advocates for victims, and

administrators of justice. Id. at 52. As the Commonwealth’s representatives, prosecutors

are duty-bound to pursue “equal and impartial justice,” Appeal of Nicely, 18 A. 737, 738

(Pa. 1889), and “to serve the public interest.” Clancy, 192 A.3d 52. Their obligation is

“not merely to convict,” but rather to “seek justice within the bounds of the law.”

Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978).

As an “administrator of justice,” the prosecutor has the power to decide

whether to initiate formal criminal proceedings, to select those criminal

charges which will be filed against the accused, to negotiate plea bargains,

to withdraw charges where appropriate, and, ultimately, to prosecute or

dismiss charges at trial. See, e.g., 16 P.S. § 1402(a) (“The district attorney

shall sign all bills of indictment and conduct in court all criminal and other

prosecutions . . . .”); Pa.R.Crim.P. 507 (establishing the prosecutor’s power

to require that police officers seek approval from the district attorney prior

to filing criminal complaints); Pa.R.Crim.P. 585 (power to move for nolle

prosequi); see also ABA Standards §§ 3-4.2, 3-4.4. The extent of the

powers enjoyed by the prosecutor was discussed most eloquently by United

States Attorney General (and later Supreme Court Justice) Robert H.

Jackson. In his historic address to the nation’s United States Attorneys,

gathered in 1940 at the Department of Justice in Washington, D.C., Jackson

observed that “[t]he prosecutor has more control over life, liberty, and

reputation than any other person in America. His discretion is tremendous.”

Robert H. Jackson, The Federal Prosecutor, 31 AM. INST. CRIM. L. &

CRIMINOLOGY 3, 3 (1940). In fact, the prosecutor is afforded such great

deference that this Court and the Supreme Court of the United States

seldom interfere with a prosecutor’s charging decision. See, e.g., United

States v. Nixon, 418 U.S. 683, 693 (1974) (noting that “the Executive

Branch has exclusive authority and absolute discretion to decide whether

[J-100-2020] - 52

to prosecute a case”); Stipetich, 652 A.2d at 1295 (noting that “the ultimate

discretion to file criminal charges lies in the district attorney”).

Clancy, 192 A.3d at 53 (cleaned up).

As prosecutors are vested with such “tremendous” discretion and authority, our

law has long recognized the special weight that must be accorded to their assurances.

For instance, in the context of statements made during guilty plea negotiations, the

Supreme Court of the United States has held that, as a matter of constitutional due

process and as compelled by the principle of fundamental fairness, a defendant generally

is entitled to the benefit of assurances made by the prosecutor. See Santobello v. New

York, 404 U.S. 257 (1971).21 Santobello holds that, “when a plea rests in any significant

degree on a promise or agreement by the prosecutor, so that it can be said to be part of

the inducement or consideration, such promise must be fulfilled.” Id. at 262 (emphasis

added).

This Court has followed suit with regard to prosecutorial inducements made during

the guilty plea process, insisting that such inducements comport with the due process

guarantee of fundamental fairness. In Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976),

during plea negotiations in a murder case, the prosecutor agreed to recommend to the

sentencing court that Rickey Zuber receive a sentence of seven to fourteen years in

prison if he pleaded guilty. Id. at 442-43. The prosecutor also agreed to consent to a

request that Zuber’s sentence be served concurrently with “back time” that Zuber was

required to serve for a parole violation. Id. at 443. The prosecutor stated the terms of the

agreement on the record, and the trial court accepted the terms of Zuber’s guilty plea and

21 In Santobello, the Supreme Court of the United States did not state explicitly that

it was premising its holding on due process guarantees. Nevertheless, it is only sensible

to read Santobello’s holding as resting upon due process principles because—as Justice

Douglas noted in his concurring opinion—without a constitutional basis the Court would

have lacked jurisdiction over what was otherwise a state law matter. See Santobello, 404

U.S., at 266-67 (Douglas, J. concurring).

[J-100-2020] - 53

sentenced Zuber accordingly. However, because the law requires that “back time”

sentences and new sentences be served consecutively, Zuber was legally obligated to

begin serving his sentences one after the other, instead of simultaneously. Id.

Zuber sought post-conviction relief, arguing that the plea as stated in open court

had to be enforced, statutory law notwithstanding. On appeal to this Court, Zuber argued

that he was “induced by the specific promise made by the Commonwealth,” which

ultimately turned out to be a “false and empty one.” Id. We noted that plea bargaining is

looked upon favorably and that “the integrity of our judicial process demands that certain

safeguards be stringently adhered to so that the resultant plea as entered by a defendant

and accepted by the trial court will always be one made voluntarily and knowingly, with a

full understanding of the consequences to follow.” Id.

[T]here is an affirmative duty on the part of the prosecutor to honor any and

all promises made in exchange for a defendant’s plea. Our courts have

demanded strict compliance with that duty in order to avoid any possible

perversion of the plea bargaining system, evidencing the concern that a

defendant might be coerced into a bargain or fraudulently induced to give

up the very valued constitutional guarantees attendant the right to trial by

jury.

Therefore, in Pennsylvania, it is well settled that where a plea bargain has

been entered into and is violated by the Commonwealth, the defendant is

entitled, at the least, to the benefit of the bargain.

Id. at 444 (cleaned up).

We then turned to the remedy to which Zuber was entitled, which was problematic

because enforcement of the plea necessarily meant compelling an outcome that was

prohibited by statute. Nonetheless, because, inter alia, Zuber had “reasonably relied

upon the advice of his counsel and the expression of that specific promise stated in open

court by the assistant district attorney,” id. at 445, he was entitled to the benefit of the

bargain. Thus, we modified Zuber’s sentence by lowering the minimum range to reflect

[J-100-2020] - 54

the point at which Zuber would have been eligible for parole had the original bargain been

enforceable by law. Id. at 446.

Interactions between a prosecutor and a criminal defendant, including

circumstances where the latter seeks enforcement of some promise or assurance made

by the former, are not immune from the dictates of due process and fundamental fairness.

The contours and attendant obligations of such interactions also can involve basic

precepts of contract law, which inform the due process inquiry. The applicability of

contract law to aspects of the criminal law has been recognized by the Supreme Court of

the United States, see Puckett v. United States, 556 U.S. 129, 137 (2009), by the United

States Court of Appeals for the Third Circuit, see McKeever v. Warden SCI-Graterford,

486 F.3d 81, 86 (3d Cir. 2007), and by this Court. See Commonwealth v. Martinez, 147

A.3d 517, 531 (Pa. 2016). In order to succeed on a claim of promissory estoppel, the

aggrieved party must prove that: (1) the promisor acted in a manner that he or she should

have reasonably expected to induce the other party into taking (or not taking) certain

action; (2) the aggrieved party actually took such action; and (3) an injustice would result

if the assurance that induced the action was not enforced. See Crouse v. Cyclops Indus.,

745 A.2d 606, 610 (Pa. 2000).

In Martinez, we reexamined the enforceability of terms of plea agreements made

by prosecutors pertaining to the applicability of sexual offender registration obligations.

There, three defendants entered into plea bargains with the Commonwealth, each of

which was formulated in a way that either limited or eliminated the defendants’ obligations

under the then-applicable sexual offender registration statute. Martinez, 147 A.3d at 521-

22. However, after some time, our General Assembly enacted the first version of SORNA,

which fundamentally altered the registration and reporting obligations of sexual offenders,

including those of the three offenders in Martinez. Each defendant was notified by the

[J-100-2020] - 55

Pennsylvania State Police that he or she was subject to the intervening statute and thus

had to comply with the new obligations under SORNA, even though those obligations

contradicted the terms of each of their plea deals. Id. at 522-523.

Each of the three offenders filed an action seeking the enforcement of the terms

of his guilty plea, notwithstanding the fact that those terms conflicted with the newly-

enacted statute. Id. at 523-24. Citing Santobello, Zuber, Commonwealth v. Hainesworth,

82 A.3d 444 (Pa. Super. 2013) (en banc), and other decisions, this Court held that the

offenders were entitled to specific performance of the terms of the plea bargains to which

the prosecutors had agreed. Martinez, 147 A.3d at 531-32. We held that, once a

bargained term is enveloped within a plea agreement, a defendant “is entitled to the

benefit of his bargain through specific performance of terms of the plea agreement.” Id.

at 533.

The applicability of contract law principles to criminal negotiations is not limited to

the plea bargaining process. See United States v. Carrillo, 709 F.2d 35 (9th Cir. 1983)

(holding that fundamental fairness requires a prosecutor to uphold his or her end of a

non-prosecution agreement). For instance, the United States Court of Appeals for the

Third Circuit has explained that, like plea agreements, non-prosecution agreements are

binding contracts that must be interpreted according to general principles of contract law,

guided by “special due process concerns.” United States v. Baird, 218 F.3d 221, 229 (3d

Cir. 2000) (citation omitted). And, in Commonwealth v. Ginn, 587 A.2d 314 (Pa. Super.

1991), our Superior Court similarly held that non-prosecution agreements are akin to plea

agreements, necessitating the application of contract law principles to prevent

prosecutors from violating the Commonwealth’s promises or assurances. Id. at 316-17.

Under some circumstances, assurances given by prosecutors during plea

negotiations, even unconsummated ones, may be enforceable on equitable grounds

[J-100-2020] - 56

rather than on contract law principles. Government of Virgin Islands v. Scotland, 614

F.2d 360 (3d Cir. 1980), is instructive. In that case, the parties had reached a tentative,

preliminary plea agreement. But before the defendant could formally enter the plea, the

prosecutor attempted to add another term to the deal. Id. at 361-62. The defendant

rejected the new term and sought specific performance of the original, unconsummated

agreement. Id. The district court denied his request. The Circuit Court of Appeals

affirmed, holding that, because the agreement was not formalized and accepted by the

court, the defendant was not entitled to specific performance under a contract law theory.

Id. at 362. The appellate court noted that, absent detrimental reliance upon the

prosecutor’s offer, a defendant’s due process rights were sufficiently safeguarded by his

right to a jury trial. Id. at 365. The court cautioned, however, that, by contrast, when a

“defendant detrimentally relies on the government’s promise, the resulting harm from this

induced reliance implicates due process guarantees.” Id.22

Considered together, these authorities obligate courts to hold prosecutors to their

word, to enforce promises, to ensure that defendants’ decisions are made with a full

understanding of the circumstances, and to prevent fraudulent inducements of waivers of

one or more constitutional rights. Prosecutors can be bound by their assurances or

decisions under principles of contract law or by application of the fundamental fairness

considerations that inform and undergird the due process of law. The law is clear that,

based upon their unique role in the criminal justice system, prosecutors generally are

bound by their assurances, particularly when defendants rely to their detriment upon

those guarantees.

22 Ultimately, the court did not grant the defendant relief under a theory of detrimental

reliance because there was “no claim in this case of such reliance.” Scotland, 614 F.2d

at 365.

[J-100-2020] - 57

There is no doubt that promises made during plea negotiations or as part of fully

consummated plea agreements differ in kind from the unilateral discretion exercised when

a prosecutor declines to pursue criminal charges against a defendant. As suggested by

the trial court in the present case, such an exercise of discretion is not per se enforceable

in the same way that a bargained-for exchange is under contract law. The prosecutor

enjoys “tremendous” discretion to wield “the power to decide whether to initiate formal

criminal proceedings, to select those criminal charges which will be filed against the

accused, to negotiate plea bargains, to withdraw charges where appropriate, and,

ultimately, to prosecute or dismiss charges at trial.” Clancy, 192 A.3d at 53. Unless

patently abused, this vast discretion is exercised generally beyond the reach of judicial

interference. See Stipetich, 652 A.2d at 1295 (noting that “the ultimate discretion to file

criminal charges lies in the district attorney”).

While the prosecutor’s discretion in charging decisions is undoubtedly vast, it is

not exempt from basic principles of fundamental fairness, nor can it be wielded in a

manner that violates a defendant’s rights. The foregoing precedents make clear that, at

a minimum, when a defendant relies to his or her detriment upon the acts of a prosecutor,

his or her due process rights are implicated. See, e.g., Santobello, Baird, and Scotland,

supra.

The Fourteenth Amendment to the United States Constitution and Article I, Section

9 of the Pennsylvania Constitution mandate that all interactions between the government

and the individual are conducted in accordance with the protections of due process. See

Commonwealth v. Sims, 919 A.2d 931, 941 n.6 (Pa. 2007) (noting that federal and state

due process principles generally are understood as operating co-extensively). We have

explained that review of a due process claim “entails an assessment as to whether the

challenged proceeding or conduct offends some principle of justice so rooted in the

[J-100-2020] - 58

traditions and conscience of our people as to be ranked as fundamental and that defines

the community’s sense of fair play and decency.” Commonwealth v. Kratsas, 764 A.2d

20, 27 (Pa. 2001) (cleaned up). Due process is a universal concept, permeating all

aspects of the criminal justice system. Like other state actors, prosecutors must act within

the boundaries set by our foundational charters. Thus, we discern no cause or reason,

let alone any compelling one, to waive the prosecution’s duty to comply with due process

simply because the act at issue is an exercise of discretion, e.g., whether or not to charge

a particular suspect with a crime.

That is not to say that each and every exercise of prosecutorial discretion with

regard to charging decisions invites a due process challenge. Charging decisions inhere

within the vast discretion afforded to prosecutors and are generally subject to review only

for arbitrary abuses. A prosecutor can choose to prosecute, or not. A prosecutor can

select the charges to pursue, and omit from a complaint or bill of information those

charges that he or she does not believe are warranted or viable on the facts of the case.

A prosecutor can also condition his or her decision not to prosecute a defendant. For

instance, a prosecutor can decide initially not to prosecute, subject to possible receipt or

discovery of new inculpatory evidence. Or, a prosecutor can choose not to prosecute the

defendant at the present time, but may inform the defendant that the decision is not final

and that the prosecutor may change his or her mind within the period prescribed by the

applicable statute of limitations. Similarly, there may be barriers to a prosecution, such

as the unavailability of a witness or evidence, which subsequently may be removed, thus

enabling a prosecution to proceed. Generally, no due process violation arises from these

species of discretionary decision-making, and a defendant is without recourse to seek the

enforcement of any assurances under such circumstances.

[J-100-2020] - 59

An entirely different situation arises when the decision not to prosecute is

unconditional, is presented as absolute and final, or is announced in such a way that it

induces the defendant to act in reliance thereupon. When a non-prosecution decision is

conveyed in such a way, and when a defendant, having no indication to the contrary,

detrimentally relies upon that decision, due process may warrant preclusion of the

prosecution. Numerous state and federal courts have found that a defendant’s

detrimental reliance upon the government’s assurances during the plea bargaining phase

both implicates his due process rights and entitles him to enforcement even of

unconsummated agreements. The cases are legion.23

23 See, e.g., State v. Francis, 424 P.3d 156, 160 (Utah 2017) (holding that, “[w]hen a

defendant has reasonably and detrimentally relied on a plea agreement, the State should

not be able to withdraw a plea agreement just because it has not yet been presented to

the district court”); State v. Johnson, 360 S.W.3d 104, 115 (Ark. 2010) (holding that, “when

the State has entered into an agreement not to prosecute with a prospective defendant

and the defendant has performed and acted to his detriment or prejudice in reliance upon

that agreement, the government must be required to honor such an agreement.”); People

v. Rhoden, 89 Cal. Rptr.2d 819, 824 (Cal. App. 4th Dist. 1999) (explaining “unexecuted

plea bargains generally do not involve constitutional rights absent detrimental reliance on

the bargain”); United States v. Streebing, 987 F.2d 368, 372-73 (6th Cir. 1993) (holding

that the defendant had to demonstrate, inter alia, that he had relied upon the

government’s promise to his detriment before the promise would be enforceable); United

States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (explaining that a defendant’s

detrimental reliance is an exception to the general rule that defendants are not entitled to

enforcement of unconsummated plea agreements); State v. Parkey, 471 N.W.2d 896,

898 (Iowa App. 1991) (finding that, in the absence of a showing that the defendant

detrimentally relied upon an agreement with the prosecutor, dismissal was not

warranted); Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir. 1982) (stating that, when a

promise induces a defendant to waive his Fifth Amendment rights by testifying or

otherwise cooperating with the government to his detriment, due process requires that

the prosecutor’s promise be fulfilled); People v. Reagan, 235 N.W.2d 581, 587 (Mich.

1975) (noting that, where the defendant was prejudiced by submitting to a polygraph in

exchange for an agreement that his prosecution would be dismissed, trial court erred in

refusing to enforce the agreement).

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That is what happened in this case. There has been considerable debate over the

legal significance of District Attorney Castor’s publicly announced decision not to

prosecute Cosby in 2005. Before the trial court, the Superior Court, and now this Court,

the parties have vigorously disputed whether D.A. Castor and Cosby reached a binding

agreement, whether D.A. Castor extended an enforceable promise, or whether any act of

legal significance occurred at all. There is testimony in the record that could support any

of these conclusions. The trial court—the entity charged with sorting through those

facts—found that D.A. Castor made no agreement or overt promise.

Much of that debate, and the attendant factual conclusions, were based upon the

apparent absence of a formal agreement and former D.A. Castor’s various efforts to

defend and explain his actions ten years after the fact. As a reviewing court, we accept

the trial court’s conclusion that the district attorney’s decision was merely an exercise of

his charging discretion.24 As we assess whether that decision, and the surrounding

24 The dissent agrees—as do we —with the trial court’s conclusion that D.A. Castor’s

decision not to prosecute was, at its core, an exercise of the inherent charging discretion

vested in district attorneys. See D.O. at 1. But the dissent would simply end the analysis

there. In the dissent’s view, once a decision is deemed to fall within a prosecutor’s

discretion, that decision “in no way” can bind the actions of future elected prosecutors.

Respectfully, this perspective overlooks the verity that not all decisions are the same. As

to routine discretionary decisions, the dissent may be correct. But as we explain

throughout this opinion, what occurred here was anything but routine. Here, D.A. Castor’s

exercise of discretion was made deliberately to induce the deprivation of a fundamental

right. The typical decision to prosecute, or not to prosecute, is not made for the purpose

of extracting incriminating information from a suspect when there exists no other

mechanism to do so.

The dissent would amalgamate and confine all “present exercise[s] of prosecutorial

discretion” within a single, non-binding, unenforceable, and unreviewable category. Id.

We decline to endorse this blanket approach, as such decisions merit, and indeed require,

individualized evaluation. To rule otherwise would authorize, if not encourage,

prosecutors to choose temporarily not to prosecute, obtain incriminating evidence from

the suspect, and then reverse course with impunity. Due process necessarily requires

that court officials, particularly prosecutors, be held to a higher standard. This is

particularly so in circumstances where the prosecutor’s decision is crafted specifically to

[J-100-2020] - 61

circumstances, implicated Cosby’s due process rights, former D.A. Castor’s post-hoc

attempts to explain or characterize his actions are largely immaterial. The answer to our

query lies instead in the objectively indisputable evidence of record demonstrating D.A.

Castor’s patent intent to induce Cosby’s reliance upon the non-prosecution decision.

In January and February of 2005, then-D.A. Castor led an investigation into

Constand’s allegations. When that investigation concluded, Mr. Castor decided that the

case was saddled with deficiencies such that proving Cosby’s guilt beyond a reasonable

doubt was unlikely, if not impossible. For those reasons, D.A. Castor decided not to

prosecute Cosby. To announce his decision, the district attorney elected to issue a signed

press release—an uncommon tactic in the typical case, but not necessarily so in cases

of high public profile or interest.

In that press statement, D.A. Castor explained the extent and nature of the

investigation and the legal rules and principles that he considered. He then announced

that he was declining to prosecute Cosby. The decision was not conditioned in any way,

shape, or form. D.A. Castor did not say that he would re-evaluate this decision at a future

date, that the investigation would continue, or that his decision was subject to being

overturned by any future district attorney.

There is nothing from a reasonable observer’s perspective to suggest that the

decision was anything but permanent. The trial court found contrary indicia in the latter

portion of the press release, where Mr. Castor “cautioned all parties to this matter that

[District Attorney Castor] will reconsider this decision should the need arise,” Press

Release, 2/17/2005; N.T., 2/2/2016, Exh. D-4. The trial court’s narrow interpretation of

induce a defendant to forfeit a constitutional right, and where the defendant has relied

upon that decision to his detriment. The dissent’s approach would turn a blind eye to the

reality of such inducements. Due process does not.

[J-100-2020] - 62

“this decision” is possible only when this sentence is read in isolation.25 The court ignored

what came before and after, omitting all relevant and necessary context. The entire

passage reads as follows:

Because a civil action with a much lower standard for proof is possible, the

District Attorney renders no opinion concerning the credibility of any party

involved so as to not contribute to the publicity and taint potential 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. Much exists in this investigation that could be used (by

others) to portray persons on both sides of the issue in a less than flattering

light. The District Attorney encourages the parties to resolve their dispute

from this point forward with a minimum of rhetoric.

Id. (emphasis added).

25 There is no doubt that there are two decisions at issue: the decision not to

prosecute and the decision not to discuss that choice in public. The dissent would

endorse the trial court’s selective interpretation of D.A. Castor’s language in the press

release, finding at a minimum that D.A. Castor’s assertion that he would reconsider the

“decision” is ambiguous. But a plain reading of the release belies such a construction.

Like the trial court’s interpretation of the relevant paragraph of the press release, the

dissent’s finding of ambiguity can result only when one overlooks the context and

surrounding statements quite entirely. D.A. Castor stated that he did not intend to discuss

the details of his decision not to prosecute. In the very next sentence, D.A. Castor stated

that he would reconsider “this decision” if the need arose. In context, “this decision” must

naturally refer to the decision not to discuss the matter with the public. This is so because

announcing that particular decision was the very purpose of the immediately preceding

statement, and the subject sentence naturally modifies that prior statement. D.A. Castor

already had stated earlier in the press release that he had decided not to prosecute

Cosby. Thus, when D.A. Castor referred to “this decision” in the particular paragraph

under examination, he was referring not to a decision addressed much earlier in the press

release but rather to the decision that he had stated for the first time in the immediately

preceding sentence. Even more compelling is the fact that the entirety of the paragraph

relates to D.A. Castor’s concern about the potential effect that any public statements that

he would make might have on jurors empaneled in a civil case. Nothing at all in that

paragraph pertains to the decision not to prosecute Cosby. As noted, D.A. Castor already

had addressed the non-prosecution decision. There is no support for the notion that D.A.

Castor was referring to his decision not to prosecute Cosby in the middle of a paragraph

directed exclusively to: (1) the potential impact that any public explication by D.A. Castor

might have upon the fairness of a civil case; and (2) D.A. Castor’s derivative decision not

to discuss the matter publicly in order to avoid that potential impact.

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When we review the statement in its full context, it is clear that, when D.A. Castor

announced that he “will reconsider this decision should the need arise,” the decision to

which he was referring was his decision not to comment publicly “on the details of his

[charging] decision for fear that his opinions and analysis might be given undue weight

by jurors in any contemplated civil action.” The entire paragraph addresses the district

attorney’s concern that he might inadvertently taint a potential civil jury pool by making

public remarks about the credibility of the likely parties in that highly anticipated case.

Then-D.A. Castor expressly stated that he could change his mind on that decision only.

Nothing in this paragraph pertains to his decision not to prosecute Cosby. The trial court’s

conclusion is belied by a plain reading of the entire passage.

Our inquiry does not end there. D.A. Castor’s press release, without more, does

not necessarily create a due process entitlement. Rather, the due process implications

arise because Cosby detrimentally relied upon the Commonwealth’s decision, which was

the district attorney’s ultimate intent in issuing the press release. There was no evidence

of record indicating that D.A. Castor intended anything other than to induce Cosby’s

reliance. Indeed, the most patent and obvious evidence of Cosby’s reliance was his

counseled decision to testify in four depositions in Constand’s civil case without ever

invoking his Fifth Amendment rights.

The Fifth Amendment to the United States Constitution, which is applicable to the

States via incorporation through the Fourteenth Amendment, commands that “[n]o person

... shall be compelled in any criminal case to be a witness against himself.” U.S. CONST.

amend. V. The right to refuse to incriminate oneself is an “essential mainstay” of our

constitutional system of criminal justice. Malloy v. Hogan, 378 U.S. 1, 7 (1964). The

privilege constitutes an essential restraint upon the power of the government, and stands

as an indispensable rampart between that government and the governed. The Fifth

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Amendment’s self-incrimination clause “is not only a protection against conviction and

prosecution but a safeguard of conscience and human dignity and freedom of expression

as well.” Ullmann v. United States, 350 U.S. 422, 445 (1956) (Douglas, J., dissenting).

We recently discussed the centrality of the privilege against compulsory self-

incrimination in the American concept of ordered liberty in Commonwealth v. Taylor, 230

A.3d 1050 (Pa. 2020). There, we noted that certain rights, such as those enshrined in

the Fifth Amendment, are among those privileges “whose exercise a State may not

condition by the exaction of a price.” Id. at 1064 (quoting Garrity v. New Jersey, 385 U.S.

493, 500 (1967)). To ensure that these fundamental freedoms are “scrupulously

observed,” we emphasized that “it is the duty of courts to be watchful for the constitutional

rights of the citizen, and against any stealthy encroachments thereon,” id. at 1063-64

(quoting Boyd v. United States, 116 U.S. 616, 635 (1886)), and that “the Fifth Amendment

is to be “broad[ly] constru[ed] in favor of the right which it was intended to secure.” Id. at

1064 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 (1892), Boyd, 116 U.S. at

635, and Quinn v. United States, 349 U.S. 155, 162 (1955)). We stressed that “[t]he value

of constitutional privileges is largely destroyed if persons can be penalized for relying on

them.” Id. at 1064 (quoting Grunewald v. United States, 353 U.S. 391, 425 (1957) (Black,

J., concurring).26

The right against compulsory self-incrimination accompanies a person wherever

he goes, no matter the legal proceeding in which he participates, unless and until “the

potential exposure to criminal punishment no longer exists.” Taylor, 230 A.3d at 1065. It

26 To that end, the application of the privilege against self-incrimination is not limited

to criminal matters. Its availability “does not turn upon the type of proceeding in which its

protection is invoked, but upon the nature of the statement or admission and the exposure

which it invites.” Id. (quoting Application of Gault, 387 U.S. 1, 49 (1967)). “The privilege

may, for example, be claimed in a civil or administrative proceeding, if the statement is or

may be inculpatory.” Gault, 387 U.S. at 49.

[J-100-2020] - 65

is indisputable that, in Constand’s civil case, Cosby was entitled to invoke the Fifth

Amendment. No court could have forced Cosby to testify in a deposition or at a trial so

long as the potential for criminal charges remained. Here, however, when called for

deposition, Cosby no longer faced criminal charges. When compelled to testify, Cosby

no longer had a right to invoke his right to remain silent.

Cosby was forced to sit for four depositions. That he did not—and could not—

choose to remain silent is apparent from the record. When Cosby attempted to decline

to answer certain questions about Constand, Constand’s attorneys obtained a ruling from

the civil trial judge forcing Cosby to answer. Most significantly, Cosby, having maintained

his innocence in all matters and having been advised by a number of attorneys, provided

critical evidence of his recurring history of supplying women with central nervous system

depressants before engaging in (allegedly unwanted) sexual activity with them—the very

assertion that undergirded Constand’s criminal complaint.

The trial court questioned whether Cosby believed that he no longer had a Fifth

Amendment right to invoke during the civil proceedings, or whether he would have

invoked that right had he still possessed it. The court noted that Cosby voluntarily had

submitted to a police interview and had provided the police with a consent-based defense.

Cosby repeated this narrative in his depositions. The court found no reason to believe

that Cosby would not continue to cooperate as he had, and, thus, discerned no reason

for him to invoke the Fifth Amendment. In other words, it was not that the trial court

surmised that Cosby had no privilege against compulsory self-incrimination to invoke, but

rather that Cosby simply chose not to invoke it.

The trial court’s conjecture was legally erroneous. The trial court surmised that,

although Cosby repeatedly told an exculpatory, consent-based version of the January

2004 incident, he naturally would have been willing to offer inculpatory information about

[J-100-2020] - 66

himself as well. Assuming that a person validly possesses the right to refrain from giving

evidence against himself, he may invoke that right “at any time.” See Miranda v. Arizona,

384 U.S. 436, 473 (1966); Commonwealth v. Dulaney, 295 A.2d 328, 330 (Pa. 1972).

The fact that Cosby did not assert any right to remain silent to the police or while sitting

for the depositions is of no moment. Had his right to remain silent not been removed by

D.A. Castor’s decision, Cosby would have been at liberty to invoke that right at will. That

Cosby did not do so at other junctures is not proof that he held the right but elected not

to invoke it, as the trial court evidently reasoned. To assume an implicit waiver of the

right violates a court’s “duty . . . to be watchful for the constitutional rights of the citizen,”

and to construe the existence of such rights broadly. Taylor, 230 A.3d at 1064 (quoting

Boyd, supra).

These legal commandments compel only one conclusion. Cosby did not invoke

the Fifth Amendment before he incriminated himself because he was operating under the

reasonable belief that D.A. Castor’s decision not to prosecute him meant that “the

potential exposure to criminal punishment no longer exist[ed].” Id. at 1065. Cosby could

not invoke that which he no longer possessed, given the Commonwealth’s assurances

that he faced no risk of prosecution. Not only did D.A. Castor’s unconditional decision

not to prosecute Cosby strip Cosby of a fundamental constitutional right, but, because he

was forced to testify, Cosby provided Constand’s civil attorneys with evidence of Cosby’s

past use of drugs to facilitate his sexual exploits. Undoubtedly, this information hindered

Cosby’s ability to defend against the civil action, and led to a settlement for a significant

amount of money. We are left with no doubt that Cosby relied to his detriment upon the

district attorney’s decision not to prosecute him. The question then becomes whether

that reliance was reasonable. Unreasonable reliance warrants no legal remedy.

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We already have determined that Cosby in fact relied upon D.A. Castor’s decision.

We now conclude that Cosby’s reliance was reasonable, and that it also was reasonable

for D.A. Castor to expect Cosby to so rely. The record establishes without contradiction

that depriving Cosby of his Fifth Amendment right was D.A. Castor’s intended result.27

His actions were specifically designed to that end. The former district attorney may have

equivocated or contradicted himself years later with regard to how he endeavored to

achieve that result, but there has never been any question as to what he intended to

achieve. There can be no doubt that, by choosing not to prosecute Cosby and then

27

This text is long and has been trimmed here. Open the source document for the complete record.