Com. v. Cosby Jr., W.

J-M07001-19

2019 PA Super 354

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

WILLIAM HENRY COSBY, JR.

Appellant No. 3314 EDA 2018

Appeal from the Judgment of Sentence Entered September 25, 2018

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-3932-2016

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and NICHOLS, J.

OPINION BY BENDER, P.J.E.: FILED DECEMBER 10, 2019

Appellant, William Henry Cosby, Jr., appeals from the judgment of

sentence of 3-10 years’ incarceration, imposed following his conviction for

three counts of aggravated indecent assault, pursuant to 18 Pa.C.S. §

3125(a)(1), (4), and (5). After careful review, we affirm.

The trial court summarized the facts adduced at trial as follows:

In January 2004[,]1[] [Appellant] sexually assaulted [the] then

thirty[-]year[-]old [Victim] at his home in Elkins Park,

Cheltenham, Montgomery County. On the evening of the assault,

[Victim] was invited to the then sixty-six[-]year[-]old

[Appellant]’s home to discuss her upcoming career change. She

had decided to leave her position as the Director of Basketball

Operations for the Temple women’s basketball team, and to return

to her native Canada to pursue a career in massage therapy.

When she arrived at the home, she entered through the kitchen

door, as she had on prior visits. She and [Appellant] sat at the

kitchen table and began talking. There was a glass of water and

a glass of wine on the table when she arrived. Initially, she drank

only the water because she had not eaten a lot and did not want

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to drink on an empty stomach. Eventually, [Appellant] convinced

her to taste the wine. They discussed the stress she was feeling

at the prospect of telling [the basketball coach] that she was

leaving Temple. [Victim] left the table to use the restroom. When

she returned, [Appellant] was standing by the table, having gone

upstairs himself while she was in the bathroom. He reached out

his hand and offered her three blue pills. He told her, “These are

your friends. They’ll help take the edge off.” She asked him if she

should put the pills under her tongue. He told her to put them

down with water, and she did.

1 In each of her statements to police, and in prior testimony,

[Victim] indicated that the assault took place in 2004. She

indicated to police that the assault happened prior to her

cousin[’s] visiting from Canada; border crossing records

indicate that he entered the United States on January 22,

2004. There was no evidence to indicate that the assault

happened prior to December 30, 2003.

After she took the pills, [Victim] and [Appellant] sat back down

at the kitchen table and continued their conversation. She began

to have double vision and told [Appellant] that she could see two

of him. Her mouth became cottony and she began to slur her

words. [Appellant] told her that he thought she needed to relax.

[Victim] did not know what was happening to her, but felt that

something was wrong. They stood up from the table and

[Appellant] took her arm to help steady her. Her legs felt rubbery

as he walked her through the dining room to a sofa in another

room. He placed her on the sofa on her left side and told her to

relax there. She began to panic and did not know what was

happening to her body. She felt weak and was unable to speak.

She was unable to maintain consciousness. She was jolted awake

by [Appellant] forcefully penetrating her vagina with his fingers.

[Appellant] had positioned himself behind her on the couch,

penetrated her vagina with his fingers, and fondled her breasts.

He took her hand[,] placed it on his penis[,] and masturbated

himself with her hand. [Victim] was unable to tell him to stop or

to physically stop the assault.

She awoke sometime between four and five a.m. to find her

pants unzipped and her bra up around her neck. She fixed her

clothing and began to head towards the front door. As she walked

towards the door, she saw [Appellant] standing in the doorway

between the kitchen and the dining room. He was wearing a robe

and slippers and told her there was a muffin and tea for her on

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the table. She sipped the tea[,] took a piece of the muffin with

her[,] and drove herself home.

At the time of assault, [Victim] had known [Appellant] since

the fall of 2002 when she met him in her capacity as the Director

of Basketball Operations. She was introduced to [Appellant] by

Joan Ballast at a basketball game at the Liacouras Center.

[Victim] accompanied Ms. Ballast and several others [who were]

giving [Appellant] a tour of the newly renovated facilities. Several

days after the initial introduction, [Appellant] called Temple with

some questions about the renovations and spoke to [Victim] on

the phone. Several weeks later, she again spoke to him on the

phone at her office. They discussed having met at the game at

Temple. They began having more regular conversations, mostly

pertaining to Temple sports. The conversations also included

personal information about [Victim]’s history as a professional

basketball player, her educational background and her career

goals.

After several phone conversations, [Appellant] invited [Victim]

to his home for dinner. When she arrived at the home, [Appellant]

greeted her and took her to the room where she ate her dinner.

The chef served her meal and a glass of wine and she ate alone.

As she was finishing her meal, [Appellant] came into the room and

sat next to her on the couch. At this point, he placed his hand on

her thigh. She was aware that this was the first time [Appellant]

touched her, but thought nothing of it and left shortly after as she

had been preparing to do.

Subsequently, [Appellant] invited her to attend a blues concert

in New York City with other young women who shared similar

interests, particularly related to health and homeopathic

remedies. She did not see [Appellant] in person on that trip.

Sometime later, she was again invited to dine at [Appellant]’s

home alone. The chef called her about the meal and again she

ate in the same room as she had on the first occasion. For a

second time, when she was finished [with] her meal, [Appellant]

sat beside her on the couch. The conversation again revolved

around things [Victim] could do to … break into sports

broadcasting. On this occasion, [Appellant] reached over and

attempted to unbutton and to unzip her pants. She leaned

forward to prevent him from undoing her pants. He stopped. She

believed that she had made it clear she was not interested in any

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of that. She did not feel threatened by him and did not expect

him to make a romantic or sexual advance towards her again.

[Victim] continued to have contact with [Appellant], primarily

by phone and related to Temple sports. [Appellant] also had

contact with [Victim]’s family. [Victim]’s mother … and … sister …

attended one of [Appellant]’s performances in Ontario, and

afterward, met him backstage.

In late 2003, [Appellant] invited [Victim] to meet him at the

Foxwoods Casino in Connecticut. He put her in touch with Tom

Cantone, who worked at the casino. When she arrived at the

casino, she had dinner with [Appellant] and Mr. Cantone. After

dinner, Mr. Cantone escorted [Victim] to her room. She thanked

him and told him that she would have to leave early in the morning

and would not have time to tour the Indian reservation that was

on the property. [Appellant] called her and asked her to come

back upstairs to his room for some baked goods. When she

arrived at the room, he invited her in and continued to unpack his

luggage cart. She believed that the baked goods were on the cart.

During this time, they discussed their usual topics of conversation,

Temple and sports broadcasting. [Victim] was seated on the edge

of the bed. [Appellant] laid down on the bed. He fell asleep.

[Victim] remained in the room for several minutes, and then she

went back to her own room.

[Victim] testified that during this time, she came to view

[Appellant] as a mentor and a friend.2 He was well respected at

Temple as a trustee and alumni, and [Victim] was grateful for the

help that he tried to give her in her career. She continued her

friendship with him, despite what she felt were two sexual

advances; she was a young, fit woman who did not feel physically

threatened by [Appellant].

2 In his statement to police, [Appellant] agreed and

indicated that [Victim] saw him as a mentor and that he

encouraged that relationship as a mentor.

Following the assault, between January[] 2004 and March[]

2004, [Victim] and [Appellant] continued to have telephone

contact, solely regarding Temple sports. In March 2004[,

Appellant] invited [Victim] to a dinner at a restaurant in

Philadelphia. [Victim] attended the dinner, hoping to speak to

[Appellant] about the assault. After the dinner, [Appellant] invited

her to his home to talk. Once at the home, she attempted to

confront him to find out what he gave her and why he assaulted

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her. She testified that he was evasive and told her that he thought

she had an orgasm. Unable to get an answer, she lost her courage

and left the home.

At the end of March 2004, [Victim] moved back to Canada.

[Victim]’s mother … testified that when her daughter returned

home, she seemed to be depressed and was not herself. She

would hear her daughter screaming in her sleep, but [Victim]

denied that anything was wrong.

After returning to Canada, [Victim] had some phone contact

with [Appellant] related to his performance in the Toronto area.

[Appellant] invited [Victim] and her family to attend that show.

Her parents were excited to attend the show, and her mother had

previously spoken with [Appellant] on the phone and attended two

of his shows prior to the assault. [Victim’s] mother brought

[Appellant] a gift to the show.

In January 2005, [Victim] disclosed the assault to her mother.

She woke up crying and called her mother. [Victim’s mother] was

on her way to work and called [Victim] back once she arrived at

work. They decided to contact the Durham Regional Police in

Ontario, Canada[,] when [Victim’s mother] returned home from

work. Unsure of how the American criminal justice system

worked, and afraid that [Appellant] could retaliate against her or

her family, [Victim] attempted to reach two attorneys in the

Philadelphia area during the day.

Ultimately, that evening, [Victim] and her mother contacted

the Durham Regional Police and filed a police report. Following

the report, [Victim’s mother] asked for [Appellant]’s phone

number and called him. [Appellant] returned [Victim’s mother]’s

call the next day. During this call, both [Victim] and her mother

spoke to [Appellant] on separate phone extensions. [Victim]

confronted him about what happened and the three blue pills that

he gave her. [Appellant] apologized, but would not tell her what

he had given her. He indicated that he would have to check the

prescription bottle and that he would write the name down and

send it to them. [Victim] hung up the phone and her mother

continued to speak to [Appellant]. He told [Victim’s mother] that

there was no penile penetration. [Victim] did not tell [Appellant]

that she had filed a police report.

After this initial phone conversation with [Appellant], [Victim’s

mother] purchased a tape recorder and called him again. In the

call, [Appellant] indicated that he wanted to talk about a “mutual

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feeling or friendship,” and “to see if [Victim] is still interested in

sports [broad]casting or something in T.V.” [Appellant] also

discussed paying for [Victim] to continue her education. He

continued to refuse to give [Victim’s mother] the name of the

medication he had given [Victim]. Additionally, he invited her and

[Victim] to meet him in another city to meet with him to discuss

these offers in person and told her that someone would call them

to arrange the trip.

Subsequently, [Victim] received a phone message from Peter

Weiderlight, one of [Appellant]’s representatives. Mr. Weiderlight

indicated in his message that he was calling on behalf of

[Appellant] to offer [Victim] a trip to see [Appellant]’s upcoming

performance in Florida.

When [Victim] returned Mr. Weiderlight’s call, she recorded the

conversation. During this conversation, Mr. Weiderlight discussed

[Appellant]’s offer for [Victim] and her mother to attend a

performance … in Miami and sought to obtain her information so

that he could book flights and make reservations. [Victim] did not

give him that information or call him back to provide the same.

[Victim] also received a message from [Appellant]’s attorney,

Marty Singer, Esq., wherein he indicated that [Appellant] wished

to set up an educational trust for [Victim]. [Victim] did not return

Mr. Singer’s call. Both of these calls were received within days of

[Victim]’s report to police.

The Durham Regional Police referred the report to the

Philadelphia Police, who ultimately referred it to the Cheltenham

Police Department in Montgomery County, Pennsylvania.

Sergeant Richard Schaeffer, of the Cheltenham Township Police

Department, was assigned to the case in 2005. Cheltenham police

investigated jointly with the Montgomery County Detective

Bureau. On January 19, 2005, Sgt. Schaeffer spoke to [Victim]

by phone to obtain a brief description of her allegations. He

testified that [Victim] was nervous and anxious during this call.

She then drove from Canada to meet with law enforcement in

person in Montgomery County. She testified that in each of her

meetings with law enforcement she was very nervous. She had

never had any previous contact with law enforcement, and

discussing the nature of the assault made her uncomfortable. She

testified that she cooperated with the police and signed releases

for her mental health, banking and phone records.

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On January 24, 2005, then Montgomery County District

Attorney Bruce L. Castor, Jr., issued a signed press release

indicating that an investigation had commenced following

[Victim]’s January 13, 2005[] report to authorities in Canada. As

part of the investigation, law enforcement, including Sgt.

Schaeffer, took a written[] question and answer statement from

[Appellant] in New York City on January 26, 2005. [Appellant]

was accompanied by counsel, both his criminal defense attorney

Walter M. Phillips[, Esq.,]3[] and his longtime general counsel John

P. Schmitt, Esq., when he provided his statement to police.

3 Mr. Phillips passed away in early 2015.

In his statement to police, [Appellant] stated that he met

[Victim] in 2002 at the Liacouras Center. He stated [that] they

had a social and romantic relationship that began on her second

visit to his home. He stated that she was alone with him in the

home on three occasions. As to the night of the assault, he stated

that [Victim] had come to his home and they were talking in the

kitchen about her inability to sleep. He told police that he gave

her Benadryl that he uses to help him sleep when he travels. He

stated that he would take two Benadryl and would become sleepy

right away. He gave [Victim] one and [one-]half pills. He did not

tell [Victim] what the pills were. He stated that he was

comfortable giving her pills to relax her. He stated that she did

not appear to be under the influence when she arrived at his home

that night.

He stated that after he gave her the pills, they began to touch

and kiss on the couch with clothes on. He stated that she never

told him to stop and that he touched her bare breasts and

genitalia. He stated that he did not remove his clothing and

[Victim] did not touch him under his clothes. He told police, “I

never intended to have sexual intercourse, like naked bodies with

[Victim]. We were fully clothed. We are petting. I enjoyed it.

And then I stopped and went up to bed. We stopped and then we

talked.”

He stated that there were at least three other occasions where

they engaged in similar petting in his home. When asked if they

had ever had intercourse, he stated, “[n]ever asleep or awake.”

He stated that on each occasion, he initiated the petting. He

stated that on her second visit to his home, they were kissing in

the hallway and he lifted her bra to kiss her breasts and she told

him to stop.

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He stated that, just prior to the date of his statement, he spoke

to [Victim’s mother] on the phone and she asked him what he had

given her daughter. He told her that he gave [Victim] some pills

and that he would send her the name of them. He further stated

that [he] told [Victim’s mother] there was no penile penetration,

just petting and touching of private parts. He also stated that he

did not recall using the word ‘consensual’ when describing the

encounter to [Victim’s mother]. He also answered “no,” when

asked if he ever knew [Victim] to be untruthful. Following that

interview, [Appellant], unprompted, provided law enforcement

with pills that were later identified as Benadryl.

On February 17, 2005, law enforcement had a strategy

meeting where they created a plan for the next steps in the

investigation. Later that same day, then District Attorney, Bruce

L. Castor, Jr., issued a second, signed press release, this time

stating that he had decided not to prosecute [Appellant]. The

press release cautioned that the decision could be reconsidered.

Mr. Castor never personally met with [Victim].

[Victim]’s attorneys, Dolores Troiani, Esq., and Bebe Kivitz,

Esq., first learned of Mr. Castor’s decision not to prosecute when

a reporter arrived at Ms. Troiani’s office on the evening of

February 17, 2005[,] seeking comment about what Bruce Castor

had done. The reporter informed her that Mr. Castor had issued

a press release in which he declined prosecution. Ms. Troiani had

not received any prior notification of the decision not to prosecute.

At a pretrial hearing held on February 2 and 3, 2016, Mr. Castor

testified that it was his intention in 2005 to strip [Appellant] of his

Fifth Amendment right to force him to sit for a deposition in a yet[-

]to[-]be[-]filed civil case, and that Mr. Phillips, [Appellant]’s

criminal attorney, agreed with his legal assessment. Mr. Castor

also testified that he relayed this intention to then First Assistant

District Attorney Risa V. Ferman.4

4 Ms. Ferman is now a Judge on the Court of Common Pleas.

Disappointed with the declination of the charges, [Victim]

sought justice civilly. On March 8, 2005, she filed a civil suit

against [Appellant] in federal court. As part of the lawsuit, both

parties were deposed. On four dates, September 28 and 29,

2005[,] and March 28 and 29, 2006, [Appellant] sat for

depositions in the civil matter. He was accompanied by counsel,

including Mr. Schmitt. Mr. Schmitt testified that Mr. Phillips had

informed him of Mr. Castor’s promise not to prosecute.

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[Appellant] did not invoke the Fifth Amendment during the

depositions; however, counsel did advise him not to answer

questions pertaining to [Victim] and her attorneys filed motions to

compel his testimony. [Appellant] did not invoke the Fifth

Amendment when asked about other alleged victims. At no time

during the civil litigation did any of the attorneys for [Appellant]

indicate on the record that [Appellant] could not be prosecuted.

There was no attempt by defense attorneys to confirm the

purported promise before the depositions, even though Mr. Castor

was still the District Attorney; it was never referenced in the

stipulations at the outset of the civil depositions.

In his depositions, [Appellant] testified that he met [Victim] at

the Liacouras Center and developed a romantic interest in her

right away. He did not tell her of his interest. He testified that he

was open to “sort of whatever happens” and that he did not want

his wife to know about any relationship with [Victim]. When asked

what he meant by a romantic interest, he testified “[r]omance in

terms of steps that will lead to some kind of permission or no

permission or how you go about getting to wherever you’re going

to wind up.” After their first meeting, they spoke on the phone on

more than one occasion. He testified that every time [Victim]

came to his Elkins Park home it was at his invitation; she did not

initiate any of the visits.

He testified that there were three instances of consensual

sexual contact with [Victim], including the night he gave her the

pills. [During] one of the encounters, he testified that he tried to

suck her breasts and she told him “no, stop,” but she permitted

him to put his hand inside of her vagina. He also testified about

the pills he gave law enforcement at the January 26, 2005

interview. Additionally, he testified that he believed the incident

during which he gave [Victim] the pills was in the year 2004,

“[b]ecause it’s not more than a year away. That’s a time period

that I knew-it’s a ballpark of when I knew [Victim].”

He testified that he and [Victim] had discussed herbal

medicines and that he gave [Victim] pills on one occasion, that he

identified to police as Benadryl[]. He testified about his

knowledge of the types of Benadryl and their effects. He indicated

that he would take two pills to help him go to sleep.

[Appellant] testified that on the night of the assault, [Victim]

accepted his invitation to come to his home. They sat at a table

in the kitchen and talked about [Victim]’s position at Temple as

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well as her trouble concentrating, tension and relaxation. By his

own admission, he gave [Victim] one and one[-]half Benadryl and

told her to take it, indicating, “I have three friends to make you

relax.” He did not tell her the pills were Benadryl. He testified

that he gave her the three half pills because he takes two and she

was about his height. He testified that she looked at the pills, but

did not ask him what they were.

[Appellant] testified that, after he gave her the pills, they

continued to talk for 15-20 minutes before he suggested they

move into the living room. He testified that [Victim] went to the

bathroom and returned to the living room where he asked her to

sit down on the sofa. He testified that they began to “neck and

we began to touch and feel and kiss, and kiss back,” and that he

opened his shirt. He then described the encounter,

[t]hen I lifted her bra up and our skin-so our skin could

touch. We rubbed. We kissed. We stopped. I moved back

to the sofa, coming back in a position. She’s on top of me.

I place my knee between her legs. She’s up. We kiss. I

hold her. She hugs. I move her to the position of down.

She goes with me down. I’m behind her. I have [my left

arm behind] her neck...[.] Her neck is there and her head.

There’s a pillow, which is a pillow that goes with the

decoration of the sofa. It’s not a bedroom pillow. I am

behind her. We are in what would be called … a spooning

position. My face is right on the back of her head, around

her ear. I go inside her pants. She touches me. It’s

awkward. It’s uncomfortable for her. She pulls her hand-I

don’t know if she got tired or what. She then took her hand

and put it on top of my hand to push it in further. I move

my fingers. I do not talk, she does not talk but she makes

a sound, which I feel was an orgasm, and she was wet. She

was wet when I went in.

He testified that after the encounter he told her to try to go to

sleep and then he went upstairs. He set an alarm and returned

downstairs about two hours later when it was still dark out.

[Victim] was awake and they went to the kitchen where he gave

her some tea and a blueberry muffin that she took a bite of and

wrapped up before she left.

During his depositions, [Appellant] also discussed his phone

calls with [Victim’s mother]. He testified that he told [Victim] and

her mother that he would write the name of the pills he gave

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[Victim] on a piece of paper and send it to her. He testified that

he did not tell them it was Benadryl because,

I’m on the phone. I’m listening to two people. And at first

I’m thinking the mother is coming at me for being a dirty

old man, which is also bad-which is bad also, but then, what

did you give my daughter? And [if] I put these things in the

mail and these people are in Canada, what are they going

to do if they receive it? What are they going to say if I tell

them about it? And also, to be perfectly frank, I’m thinking

and praying no one is recording me.

He testified that after his first, unrecorded phone call with

[Victim], he had “Peter” from William Morris contact [Victim] to

see if she would be willing to meet him in Miami. He also testified

that he apologized to [Victim’s mother] “because I’m thinking this

is a dirty old man with a young girl. I apologized. I said to the

mother it was digital penetration.” He later offered to pay for

[Victim] to attend graduate school. [Appellant] contacted his

attorney Marty Singer and asked him to contact [Victim] regarding

an educational trust.

He also testified that he did not believe that [Victim] was after

money. When asked if he believed it was in his best interest that

the public believe [Victim] consented, he replied “yes.” He

believed there would be financial consequences if the public

believed that he drugged [Victim] and gave her something other

than Benadryl.

In his deposition testimony, [Appellant] also testified about his

use of Quaaludes with women with whom he wanted to have sex.

On November 8, 2006, the civil case settled and [Victim]

entered into a confidential settlement agreement with [Appellant],

Marty Singer and American Media.5 [Appellant] agreed to pay

[Victim] $3.38 million[,] and American Media agreed to pay her

$20,000. As part of the settlement agreement, [Victim] agreed

that she would not initiate a criminal complaint arising from the

instant assault.

5 American Media was a party to the lawsuit as a result of

[Appellant’s] giving an interview about [Victim]’s allegations

to the National Enquirer.

The 2005-2006 civil depositions remained under temporary

seal until 2015 when the federal judge who presided over the civil

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case unsealed the records in response to a media request. As a

result, in July 2015, the Montgomery County District Attorney’s

Office, led by then District Attorney Ferman, reopened the

investigation.

On September 22, 2015, at 10:30 am, Brian McMonagle, Esq.

and Patrick O’Connor, Esq., met with then District Attorney

Ferman and then First Assistant District Attorney Kevin Steele at

the Montgomery County District Attorney’s Office for a discussion

regarding [Appellant], who was represented by Mr. McMonagle

and Mr. O’Connor. On September 23, 2015, at 1:30 pm, Bruce L.

Castor, Jr., Esq., now a County Commissioner, sent an unsolicited

email to then District Attorney Ferman.6

6 This email was marked and admitted as Defendant’s

Exhibit 5 at the February 2016 Habeas Corpus hearing held

in this matter.

In this September 23, 2015 email, Mr. Castor indicated “[a]gain

with the agreement of the defense lawyer and [Victim]’s

[lawyers,] I intentionally and specifically bound the

Commonwealth that there would be no state prosecution of

[Appellant] in order to remove from him the ability to claim his

Fifth Amendment protection against self-incrimination, thus

forcing him to sit for a deposition under oath.” The

correspondence further stated,

I signed the press release for precisely this reason, at the

request of [Victim]’s counsel, and with the acquiescence of

[Appellant]’s counsel, with full and complete intent to bind

the Commonwealth that anything [Appellant] said in the

civil case would not be used against him, thereby forcing

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

him having the ability to ‘take the 5th….’ [B]ut one thing is

fact: the Commonwealth, defense and [Victim]’s lawyers

were all in agreement that the attached decision [February

17, 2005 press release] from me stripped [Appellant] of his

Fifth Amendment privilege, forcing him to be deposed.[]

However, in his testimony at the hearing on [Appellant]’s

Petition for Habeas Corpus, Mr. Castor indicated that there was no

agreement and no quid pro quo. On September 23, 2015, at 1:47

pm, Mr. Castor forwarded this email identified above as

Defendant’s Habeas Exhibit 5 to Mr. McMonagle.

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On September 25, 2015, then District Attorney Ferman sent a

letter to Mr. Castor by way of hand delivery.7 In her letter[,] Ms.

Ferman stated, “[t]he first I heard of such a binding agreement

was your email sent this past Wednesday.” On September 25,

2015, at 3:41 pm, Mr. Castor sent an email to District Attorney

Ferman.8 In this email, he wrote Ms. Ferman, “[n]aturally, if a

prosecution could be made out without using what [Appellant]

said, or anything derived from what [Appellant] said, I believed

then and continue to believe that a prosecution is not precluded.”

7 This letter was marked and admitted as Defendant’s

Exhibit 6 at the February 2016 Habeas Corpus hearing held

in this matter. At 3:02 pm that same day, Mr. Castor’s

secretary forwarded a scanned copy of the letter to him by

way of email.

8 This email was marked and admitted as Defendant’s

Exhibit 7 at the February 2016 Habeas Corpus hearing in

this matter.

On September 25, 2015, at 3:59 pm, Mr. Castor forwarded the

letter from Ms. Ferman, identified above as Defendant’s Habeas

Exhibit 6, to Mr. McMonagle. On September 25, 2015, at 4:19

pm, Mr. Castor forwarded the email identified above as

Defendant’s Habeas Exhibit 7 to Mr. McMonagle along with the

message “Latest.” In his final email to Ms. Ferman on the subject,

Mr. Castor stated, “I never said we would not prosecute

[Appellant].”

In 2015, prosecutors and [d]etectives from Montgomery

County visited [Victim] in Canada and asked her if she would

cooperate in the instant case. As a part of the reopened

investigation in 2015, the Commonwealth interviewed numerous

women who claimed that [Appellant] had sexually assaulted them.

The Commonwealth proffered nineteen women for this [c]ourt’s

consideration[;] ultimately, five such women were permitted to

testify at trial.

Heidi Thomas testified that in 1984, she was a twenty-two[-

]year[-]old aspiring actress working as a model, represented by

JF [I]mages. JF Images was owned by Jo Farrell.9 In April of

1984, her agent told her that a prominent figure in the

entertainment world was interested in mentoring young talent.

She learned that [Appellant] was going to call her to arrange for

one-on-one acting sessions. [Appellant] called Ms. Thomas at her

home and spoke to both of her parents. Ms. Thomas’ agency paid

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for her to travel to Reno, Nevada[,] to meet with [Appellant] and

booked her a room at Harrah’s. Her family took a photo of her

with her father and boyfriend when she was leaving for the

airport; she testified that she dressed professionally because she

wanted [Appellant] to know she took this opportunity very

seriously. Ms. Thomas purchased a postcard of Harrah’s when she

arrived in Reno to commemorate her trip and kept several other

mementos. When she arrived in Reno, Ms. Thomas was met by a

driver. She eventually realized that they were driving out of Reno.

They pulled up to a house, the driver told her that this is where

the coaching would take place and that she should go in.

9 In his deposition testimony, [Appellant] testified that Jo

Farrell would send her clients to see him perform in Denver,

C[olorado].

She rang the doorbell and [Appellant] answered the door. The

driver showed her to her room. [Appellant] instructed her to

change into something more comfortable and to come back out

with her prepared monologue. She returned to a kitchen area and

performed her monologue for [Appellant]. Unimpressed with her

monologue, [Appellant] suggested that she try a cold read. In the

script he gave her, her character was supposed to be intoxicated.

She performed the scene. Again, unimpressed, [Appellant]

questioned whether she had ever been drunk. She told him that

she did not really drink, but that she had seen her share of drunk

people in college. He asked her what she would drink if she were

to have a drink and she indicated perhaps a glass of white wine.

He got up and returned with a glass of white wine. He told her it

was a prop and to sip on it to see if she could get more into

character. She took a sip and then remembers only “snap shots”

of what happened next. She remember[ed] [Appellant’s] asking

her if she was relaxing into the part. She remember[ed] waking

up in a bed, fully clothed with [Appellant] forcing his penis into

her mouth. In her next memory, she awoke with her head at the

foot of the bed, and hear[d] [Appellant] say[,] “your friend is

going to come again.” Her next memory [wa]s slamming the door

and then apologizing to [Appellant].

She awoke, presumably the next morning, feeling unwell. She

decided to get some fresh air. She went to the kitchen, where she

saw someone other than the driver for the first time. The woman

in the kitchen offered her breakfast, but she declined. She went

outside with her camera that she always carried with her, and took

pictures of the estate. She took a number of photos of both the

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interior and exterior of the house where she was staying. She

also remembers going to a show and being introduced to the

Temptations and being in [Appellant]’s dressing room. She

testified that it did not occur to her to report the assault to her

agent, and that she felt she must have given [Appellant] some

signal to think it was okay to do that to her.

Two months later, in June 1984, [Ms.] Thomas called

[Appellant], as he told her she could, in an attempt to meet with

him to find out what had happened; she was told by his

representative that she would be able to see him. She made

arrangements to see him in St. Louis, using her own money.

When she arrived in St. Louis, she purchased a postcard. On this

trip, she photographed her hotel room and the driver who picked

her up. Ms. Thomas attended the show, but was not allowed

backstage. After [Appellant]’s performance, she accompanied

him and others to a dinner. There were a number of people at the

dinner and Ms. Thomas was unable to confront [Appellant] about

what happened in Reno. As the evening came to a close and it

became clear she would not be able to speak to him, she asked

the driver or valet to take her picture with [Appellant]. She had

no further contact with [Appellant]. At some time later, she told

both a psychologist and her husband what happened.

Chelan Lasha testified that in 1986[,] when she was a

seventeen-year-old senior in high school[] in Las Vegas, Nevada,

a connection of her father’s ex-wife put her in touch with

[Appellant]. At that time, Ms. Lasha lived with her

grandparents[.] [Appellant] called her home and spoke to her and

to her grandmother. [Appellant] told her that he was looking

forward to meeting her and to helping her with her education and

pursuit of a career in acting and modeling. The first time she met

[Appellant] in person, he came to her grandparents’ home for a

meal. They remained in phone contact and she sent headshots to

his agency in New York.

After she graduated from high school that same year, she

worked at the Las Vegas Hilton. [Appellant] returned to Las

Vegas and invited Ms. Lasha to meet him at the Las Vegas Hilton.

When she arrived at the hotel, she called [Appellant] and a

bellman took her to the Elvis [Presley] Suite. Ms. Lasha

understood the purpose of their meeting was to help her break

into modeling and that someone from the Ford Modeling Agency

would be meeting her and taking her picture. Ms. Lasha testified

that she had a cold on the day of the meeting. [Appellant]

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directed her to wet her hair to see what it looked like, and

someone took some photographs of her. The photographer left.

A second person came into the suite, who [Appellant] said was a

therapist related to stress and relaxation; this person also left the

suit[e].

Ms. Lasha was congested and blowing her nose, [and

Appellant] offered her a decongestant. He gave her a shot of

amaretto and a little blue pill. She took the pill. He gave her a

second shot of amaretto. He sat behind her and began to rub her

shoulders. She began to feel woozy and he told her that she

needed to lay down. [Appellant] took her to the back bedroom;

prior to that time, they had been in the living area of the suite.

When she stood up[,] she could barely move and [Appellant]

guided her to the back bedroom. He laid her on the bed, at which

point she could no longer move. He laid down next to her and

began pinching her breasts and rubbing his genitals on her leg.

She felt something warm on her leg. Her next memory is

[Appellant] clapping to wake her up. When she awoke, she had a

Hilton robe and her shorts on, but her top had been removed. Her

top was folded neatly on a table with money on top. [Appellant]

told her to hurry up and get dressed and to use the money to buy

something nice for herself and her grandmother. During her

incapacitation, she was aware of what was happening but was

powerless to stop it. When she left the hotel, she drove to her

guidance counselor’s house and told her what happened. She also

told her sister.

The day after the assault, Ms. Lasha’s mother and grandmother

attended a performance at the Hilton where [Appellant] was a

participant. [Appellant] called her and asked her why she did not

attend, [and] she told him she was sick and hung up the phone.

A couple days later, Ms. Lasha attended a performance at the

Hilton with her grandmother, where she heckled [Appellant].

Afterwards, she told her grandmother what happened. She was

ultimately fired from her position at the Hilton. She reported the

assault to the police in 2014.

Janice Baker-Kinney testified that she lived in Reno, Nevada[,]

and worked at Harrah’s Casino from 1981-1983. In 1982, Ms.

Baker-Kinney was a twenty-four[-]year[-]old bartender at

Harrah’s. During the course of her employment, she met several

celebrities who performed in one of Harrah’s two showrooms.

Performers could stay either in the hotel, or in a home owned by

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Mr. Harrah, just outside of town. Ms. Baker[-]Kinney attended a

party at that home hosted by Wayne Newton.

On one particular evening, one of the cocktail waitresses

invited her to go to a pizza party being hosted by [Appellant].

[Appellant] was staying at Mr. Harrah’s home outside of town. Ms.

Baker-Kinney agreed to attend the party and met her friend at the

front door of the home. [Appellant] answered the door. Ms.

Baker-Kinney was surprised to find that there was no one else in

the home for a party. She began to think that her friend was

romantically interested in [Appellant] and asked her to come along

so she would not be alone. She decided to stay for a little while

and have a slice of pizza and a beer.

[Appellant] offered Ms. Baker-Kinney a pill, which she believes

he said were Quaaludes. She accepted the pill and then he gave

her a second pill, which she also accepted. Having no reason not

to trust [Appellant], she ingested the pills. After taking the pill,

she sat down to play backgammon with [Appellant]. Shortly after

starting the game, she became dizzy and her vision blurred. She

told [Appellant] that the game was not fair anymore because she

could not see the board and fell forward and passed out on[] the

game.

Ms. Baker-Kinney next remembers hearing voices behind her

and finding herself on a couch. She realized it was her friend

leaving the house. She looked down at her clothing and realized

that her shirt was unbuttoned and her pants were unzipped.

[Appellant] sat down on the couch behind her and propped her up

against his chest. She remembers him speaking, but could not

recall … the words he said. His arm was around her, inside her

shirt, fondling her. He then moved his hand toward her pants.

She was unable to move.

Her next memory is of [Appellant] helping her into a bed and

then being awoken the next day by the phone ringing. She heard

[Appellant] speaking on the phone and realized that they were in

bed together and both naked. When [Appellant] got off of the

phone, Ms. Baker-Kinney apologized for passing out and tried to

explain that dieting must have affected her ability to handle the

pills. She had a sticky wetness between her legs that she knew

indicated they had sex at some point, which she could not

remember.

Afraid that someone she worked with would be coming to clean

the home, Ms. Baker-Kinney rushed to get herself dressed and get

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out of the home. [Appellant] walked her to the front door and told

her that it was just between them and that she should not tell

anyone. She made a joke that she would not alert the media and

left, feeling mortified.

The day after the assault, she worked a shift at Harrah’s. At

the end of her shift, she was leaving with a friend and heard

[Appellant] calling her name across the room. She gave a slight

wave and asked her friend to get her out of there and they left.

Within days of the assault, she told her roommate, one of her

sisters, and a friend what had happened.

Mary Chokran testified that in 1982, Ms. Baker-Kinney called

her and was very distraught. Ms. Baker[-]Kinney told Ms.

Chokran that she had taken what she thought was a Quaalude and

that [Appellant] had given it to her. Ms. Baker-Kinney told her

that she thought it was a mood-enhancing party drug, not

something that would render her unconscious as it did.

Janice Dickinson testified that in 1982, when she was a twenty-

seven[-]year[-]old[] established model represented by Elite

Modeling Agency, [Appellant] contacted the agency seeking to

meet with her. She first met [Appellant] at his townhouse in New

York City. She went to the home with her business manager. She

was excited about the meeting; she had been told that [Appellant]

mentored people and had taken an interest in her. During the

meeting[,] they discussed her potential singing career as well as

acting. [Appellant] gave her a book about acting. After the

meeting[,] she and her manager left the home.

Sometime later, Ms. Dickinson was working on a calendar shoot

in Bali, Indonesia[,] when [Appellant] contacted her. [Appellant]

offered her a plane ticket and a wardrobe to come meet him in

Lake Tahoe to further discuss her desire to become an actress.

She accepted the invitation and left her boyfriend in Bali to go

meet [Appellant] to discuss the next steps to further her career.

When she arrived at the airport in Reno, Nevada, she was met

by Stu Gardner, [Appellant]’s musical director. He took Ms.

Dickinson to the hotel where she checked in to her room and put

on the clothes … provided for her by the hotel boutique. She

arranged to meet [Mr.] Gardner on a sound stage to go over her

vocal range. [Appellant] arrived in the room. She attended

[Appellant]’s performance and had dinner afterwards with

[Appellant] and [Mr.] Gardner.

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During the dinner, Ms. Dickinson drank some red wine. She

began to experience menstrual cramps, which she expressed to

the table. [Appellant] said he had something for that and gave

her a little, round blue pill. She ingested the pill. Shortly after

taking the pill, she began to feel woozy and dizzy. When they

finished in the restaurant, Mr. Gardner left and [Appellant] invited

her to his room to finish their conversation.

Ms. Dickinson traveled with a camera and took photographs of

[Appellant], including one of him making a phone call, inside of

his hotel room. She testified that after taking the photos, she felt

very lightheaded and like she could not get her words to come

out. When [Appellant] finished his phone call, he got on top of

her and his robe opened. Before she passed out, she felt vaginal

pain as he penetrated her vagina. She awoke the next morning

in her room with semen between her legs and she felt anal pain.

Later that day, she saw [Appellant] and they went to Bill

Harrah’s house. At the house, she confronted [Appellant] and

asked him to explain what happened the previous evening. He

did not answer her. She left Lake Tahoe the next day on a flight

to Los Angeles with [Appellant] and Mr. Gardner. From Los

Angeles, she returned to Bali to complete her photo shoot. Ms.

Dickinson did not report the assault; she was having commercial

success as a model and feared that it would impact her career.

In 2002, Ms. Dickinson sought to include the rape in her

memoir, No Lifeguard on Duty, but the publishing house’s legal

team would not allow her to include it. Judith Regan testified that

she was the publisher of Ms. Dickinson’s 2002 memoir. She

testified that Ms. Dickinson told her that [Appellant] had raped her

and that she wanted to include that in her book. Ms. Regan told

Ms. Dickinson that the legal department would not allow her to

include the story without corroboration. Ms. Dickinson was angry

and upset when she learned she could not include her account in

the book.

In 2010, Ms. Dickinson disclosed what happened to her to Dr.

Drew Pinsky in the course of her participation in the reality show

Celebrity Rehab. That conversation was never broadcast. She

testified that she also disclosed [it] to a hairdresser and makeup

artist.

Maud Lise-Lotte Lublin testified that when she was in her early

twenties and living in Las Vegas, she modeled as a way to make

money to finance her education. She met [Appellant] in 1989,

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when she was twenty-three years old. Her modeling agency told

her that [Appellant] wanted to meet her. The first time she met

with him in person, he was reviewing other headshots from her

agency; he told her that he would send her photos to a New York

agency to see if runway or commercial modeling was the best fit

for her.

She had subsequent contact with [Appellant]. [Appellant] also

developed a relationship with her family. On one occasion, she

and her mother went to the [University of Nevada, Las Vegas]

track with [Appellant] where he introduced her to people as his

daughter. She and her sister spent time with [Appellant] on more

than one occasion. He was aware that her goal was to obtain an

education and thought that modeling or acting would help her earn

enough money to reach her educational goals. She felt that

[Appellant] was a father figure or mentor. Eventually, that

relationship changed.

[Appellant] called her and invited her to the Hilton in Las Vegas.

She arrived at the suite and he began talking to her about

improvisation and acting, as she had not done any acting at this

point. During the conversation, he went over to a bar and poured

her a shot, told her to drink it and that it would relax her. She

told him that she did not drink alcohol. He insisted that it would

help her work on improvisation and help the lines flow. She

trusted his advice and took the drink. He went back to the bar

and prepared her a second drink, which she accepted.

Within a few minutes, she started to feel dizzy and woozy and

her hearing became muffled. [Appellant] asked her to come sit

with him. He was seated on the couch; Ms. Lise-Lotte Lublin was

standing. He asked her to come sit between his knees. She sat

down; he began stroking her hair. [Appellant] was speaking to

her, but the sound was muffled. She felt very relaxed and also

confused about what this had to do with learning improvisation.

She testified that she remembers walking towards a hallway and

being surprised at how many rooms were in the suite. She has

no further memory of the night. When she woke up, she was at

home. She thought she had a bad reaction to the alcohol and told

her family about the meeting. In the days that followed, she told

additional friends that she thought she had accidentally had too

much to drink and gotten sick and embarrassed herself. She

continued to have contact with [Appellant].

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On one occasion[,] she traveled to see [Appellant] at Universal

Studios in California. She invited a friend to go with her as she

felt uncomfortable seeing him alone after what happened. On the

drive to Universal Studios, she told her friend that she was

uncomfortable because [Appellant] had her sit down and he

stroked her hair and she could not remember what happened.

She came forward in 2014.

Trial Court Opinion (TCO), 5/14/19, at 1-33 (citations to the record omitted).

It is unnecessary to recount fully the tortured procedural history of this

case, but for the following summary of the pertinent procedural events. On

December 30, 2015, the Commonwealth charged Appellant by criminal

complaint with three counts of aggravated indecent assault, 18 Pa.C.S. §

3125(a)(1), (4), and (5), for the incident involving Victim that occurred in

Appellant’s home in January of 2004.1 Appellant filed a Petition for Writ of

Habeas Corpus (“Habeas Motion I”) on January 11, 2016, arguing for, inter

alia, the dismissal of the charges based on Former District Attorney Castor’s

alleged promise not to prosecute Appellant.2 See Reproduced Record (“RR”)

at 389a.3 The trial court heard testimony and argument at a hearing held on

____________________________________________

1 The Commonwealth later filed a criminal information setting forth the same

charges on July 13, 2016.

2 Appellant has not raised the other issues preserved in Habeas Motion I in

the instant appeal.

3 Due to the massive size of the certified record in this case, we will primarily

cite to the reproduced record for ease of disposition. We note that the

Commonwealth has not issued any objections to the contents of the

reproduced record.

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February 2 and 3, 2016. Id. at 412a-1047a. On February 4, 2016, the trial

court denied Habeas Motion I.4 Id. at 1048a.

Following a preliminary hearing held on May 24, 2016, the magistrate

held the aforementioned charges over for trial. Subsequently, Appellant and

the Commonwealth filed numerous pretrial motions.5 On August 12, 2016,

Appellant filed a motion to suppress the contents of his civil deposition

testimony. Id. at 6271a-6290a. On September 6, 2016, the Commonwealth

filed a motion to introduce evidence of Appellant’s prior bad acts (“First PBA

Motion”). Both matters were addressed at hearings held on November 1 and

2, 2016. Id. at 1049a-1191a. Appellant’s suppression motion was denied on

December 5, 2016. Id. at 1197a. The trial court granted in part and denied

in part the First PBA Motion on February 24, 2017. Id. at 1198a (granting the

motion with respect to a single prior-bad-acts witness, but denying the motion

with respect to twelve other proffered witnesses).

Appellant’s first jury trial began on June 5, 2017, and concluded on June

17, 2017, when the jury deadlocked on all three counts, leading the trial court

to issue an order declaring a mistrial based upon “manifest necessity.” Order,

____________________________________________

4 Appellant filed an interlocutory appeal from the denial of Habeas Motion I.

After initially granting a temporary stay, this Court granted the

Commonwealth’s motion to quash that appeal on April 25, 2016. Our

Supreme Court denied further review on June 20, 2016. Indeed, Appellant

filed numerous, unsuccessful interlocutory appeals from the decisions of the

trial court. The remainder have been omitted as none impact our decision

today.

5 We will discuss only the pretrial motions that have at least some relevance

to the issues raised in the current appeal.

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6/17/17, at 1 (single page). On July 6, 2017, the trial court ordered a new

trial. Order, 7/6/17, at 1 (single page).

On January 18, 2018, the Commonwealth filed a second motion in

limine, seeking to introduce Appellant’s prior bad acts (“Second PBA Motion”).

RR at 1200a-1206a; Id. at 1208a-1308a (memorandum in support thereof).

On January 25, 2018, Appellant filed a motion seeking to incorporate all of his

previous pretrial motions from his first trial. On March 15, 2018, the trial

court granted the Commonwealth’s Second PBA Motion in part, and denied it

in part. Id. at 1672a-1673a (permitting five of the nineteen proffered prior-

bad-acts witnesses to testify).

Appellant’s second trial commenced on April 2, 2018. On April 6, 2018,

Appellant filed a motion seeking to excuse Juror 11 for cause. Id. at 2541a-

2548a. The trial court denied the motion. Id. at 2714a (N.T., 4/9/18, at

153). On April 26, 2018, the jury returned a verdict of guilty on all counts.

Id. at 5813a (N.T., 4/26/18, at 10). Sentencing was deferred pending an

assessment by the Sexual Offender Assessment Board.

On July 25, 2018, Appellant filed a post-trial motion challenging the

constitutionality of the trial court’s retroactively applying to him the current

version of Pennsylvania’s Sex Offender Registration and Notification Act

(“SORNA II”), 42 Pa.C.S. § 9799.10 et seq. Id. at 6291a-6297a. Appellant

also filed a post-trial motion seeking recusal of the trial court judge on

September 11, 2018, alleging newly-discovered evidence that the judge

harbored a bias toward one of Appellant’s pretrial hearing witnesses, Mr.

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Castor. Id. at 5874a-5886a. The trial court denied the recusal motion on

September 19, 2018. Id. at 5887a-5894a.

The trial court conducted a combined Sexually Violent Predator (SVP)

and sentencing hearing on September 24 and 25, 2018. The trial court

deemed Appellant to be an SVP under a clear-and-convincing-evidence

standard. Id. at 6213a. The trial court also denied Appellant’s constitutional

challenge to SORNA II, which was later memorialized in an order dated

September 27, 2018. Id. at 6214a. The trial court then sentenced Appellant

to 3-10 years’ incarceration. Id. at 6198a (N.T., 9/25/18, at 120).

Appellant filed a timely post-sentence motion, which the trial court

denied on October 23, 2018. He then filed a timely notice of appeal on

November 19, 2018, and a timely, court-ordered Pa.R.A.P. 1925(b) statement

on December 11, 2018. The trial court issued its Rule 1925(a) opinion on May

14, 2019.

Appellant now presents the following questions for our review:

A. Where the lower court permitted testimony from five women

(and a de facto sixth via deposition), as well as purported

admissions from [Appellant]’s civil deposition, concerning

alleged uncharged misconduct by [Appellant] that was: (a)

more than fifteen years old; (b) lacking any striking

similarities or close factual nexus to the conduct for which

he was on trial; and (c) unduly prejudicial[;] was the lower

court’s decision clearly erroneous and an abuse of

discretion, thus requiring that a new trial be granted?

B. Did the lower court abuse its discretion in failing to disclose

his acrimonious relationship with an imperative defense

witness[,] which not only created the appearance of

impropriety[,] but was evidenced by actual bias?

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C. Did the lower court err in denying the writ of habeas

[corpus] filed on January 11, 2016[,] and failing to dismiss

the criminal complaint where the Commonwealth, in 2005

through District Attorney Castor, promised [Appellant] that

he would not be charged for the allegations made by

[Victim]?

D. Did the lower court err in denying the motion to suppress

where [Appellant], relying on the Commonwealth’s promise

not to prosecute him for the allegations by [Victim], had no

choice but to abandon his constitutional rights under the

Fifth Amendment of the U[.]S[.] Constitution and testify at

a civil deposition?

E. Where the excerpts of [Appellant]’s deposition concerning

his possession and distribution of Quaaludes to women in

the 1970s had no relevance to the issue at trial, was the

lower court’s decision to allow this evidence to be presented

to the jury clearly erroneous and an abuse of discretion,

thus requiring that a new trial be granted?

F. Where the lower court’s final charge to the jury erroneously

included an instruction on “consciousness of guilt,” a charge

which was misleading and had no application to

[Appellant]’s case, was the charge legally deficient, thus

requiring a new trial [to] be granted?

G. Where the lower court allowed a juror to be impaneled,

despite evidence demonstrating that the juror had

prejudged [Appellant]’s guilt, did the lower court abuse its

discretion and deprive [Appellant] of his constitutional right

to a fair and impartial jury, thus, requiring that a new trial

be granted?

H. Did the lower court abuse its discretion in applying SORNA

II to the 2004 offenses for which [Appellant] had been

convicted, in violation of the ex post facto clauses of the

state and federal constitutions?

Appellant’s Brief at 11-13.

A. Prior Bad Acts Evidence

Appellant’s first claim concerns the trial court’s admission of prior bad

acts (“PBA”) evidence. The court admitted the testimony of five witnesses

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who essentially testified that Appellant had drugged and then sexually

assaulted them in circumstances similar to that recounted by Victim. The PBA

evidence was admitted under the ‘common plan/scheme/design’ and ‘absence

of mistake’ exceptions to the general evidentiary ban on PBA evidence. See

Pa.R.E. 404(b). Appellant asserts that this PBA evidence was not admissible

because it did not satisfy any exception.

The at-issue PBA evidence was the subject of the Commonwealth’s

January 18, 2018 Second PBA Motion. RR at 1200a-1206a. Pursuant to that

motion, the Commonwealth sought to admit the testimony of 19 prior victims

of Appellant’s alleged sexual misconduct. Following a hearing held on March

5 and 6, 2018, the trial court granted the Second PBA Motion in part, and

denied it in part. Id. at 1672a-1673a (Order, 3/15/18, at 1-2). The

Commonwealth was thereby permitted to present the PBA testimony of five

witnesses: Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice

Dickinson, and Maud Lise-Lotte Lublin. The trial court did not permit the

Commonwealth to introduce the testimony of the remaining 14 PBA witnesses

proffered by the Commonwealth.

“The admission of evidence is committed to the sound discretion of the

trial court, and a trial court’s ruling regarding the admission of evidence will

not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.” Commonwealth v. Minich, 4 A.3d 1063,

1068 (Pa. Super. 2010) (citations and quotation marks omitted).

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Pennsylvania Rule of Evidence 404(b)(1) prohibits “[e]vidence of a crime,

wrong, or other act … to prove a person’s character in order to show that on

a particular occasion the person acted in accordance with the character.”

Pa.R.E. 404(b)(1). This is because “[t]he Commonwealth must prove beyond

a reasonable doubt that a defendant has committed the particular crime of

which he is accused, and it may not strip him of the presumption of innocence

by proving that he has committed other criminal acts.” Commonwealth v.

Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (citations omitted). However,

PBA “evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident[,]” if “the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

Here, the trial court admitted the testimony of Heidi Thomas, Chelan

Lasha, Janice Baker-Kinney, Janice Dickinson, and Maud Lise-Lotte Lublin

under two PBA exceptions: the common plan/scheme/design exception, and

the absence-of-mistake exception. Both exceptions were invoked to serve

similar evidentiary goals for the Commonwealth. The Commonwealth sought

to demonstrate that Appellant engaged in a pattern of non-consensual sex

acts with his victims that were “quite distinct from a typical sexual abuse

pattern; so distinct, in fact, that they are all recognizable as the handiwork of

the same perpetrator—[Appellant].” Commonwealth’s Brief at 44.

A determination of admissibility under the common plan/scheme/design

exception

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must be made on a case by case basis in accordance with the

unique facts and circumstances of each case. However, we

recognize that in each case, the trial court is bound to follow the

same controlling, albeit general, principles of law. When ruling

upon the admissibility of evidence under the common plan

exception, the trial court must first examine the details and

surrounding circumstances of each criminal incident to assure that

the evidence reveals criminal conduct which is distinctive and so

nearly identical as to become the signature of the same

perpetrator. Relevant to such a finding will be the habits or

patterns of action or conduct undertaken by the perpetrator to

commit crime, as well as the time, place, and types of victims

typically chosen by the perpetrator. Given this initial

determination, the court is bound to engage in a careful balancing

test to assure that the common plan evidence is not too remote

in time to be probative. If the evidence reveals that the details of

each criminal incident are nearly identical, the fact that the

incidents are separated by a lapse of time will not likely prevent

the offer of the evidence unless the time lapse is excessive.

Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).

Thus, the common plan/scheme/design exception aids in identifying a

perpetrator based on his or her commission of extraordinarily similar criminal

acts on other occasions. The exception is demanding in it constraints,

requiring nearly unique factual circumstances in the commission of a crime,

so as to effectively eliminate the possibility that it could have been committed

by anyone other than the accused. See Commonwealth v. Miller, 664 A.2d

1310, 1318 (Pa. 1995) (holding admissible, to prove a common scheme, plan,

or design, evidence that the defendant lured other victims of similar race and

weight into his car, took them to remote areas to force sex upon them, beat

them in a similar manner, and killed or attempted to kill them), abrogation on

other grounds recognized by Commonwealth v. Hicks, 156 A.3d 1114 (Pa.

2017); Commonwealth v. Clayton, 483 A.2d 1345, 1349–50 (Pa. 1984)

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(holding admissible, to prove a common scheme, plan, or design, evidence of

a subsequent crime for which the defendant had already been acquitted,

because it was strikingly similar in geographic location, motive and method of

execution); but see Commonwealth v. Fortune, 346 A.2d 783, 787 (Pa.

1975) (holding inadmissible in a trial for felony murder, under the common

scheme, plan, or design exception, evidence of defendant’s commission of six

prior robberies where “too many details … [were] unexplained or incongruous

to say that one crime naturally tend[ed] to show that the accused [was] the

person who committed the other”).

This Court has also permitted PBA evidence under the common

plan/scheme/design exception “to counter [an] anticipated defense of

consent.” Commonwealth v. Tyson, 119 A.3d 353, 361 (Pa. Super. 2015).

In Tyson, the defendant was accused of rape and related offenses based on

the following course of conduct:

On July 31, 2010, [the victim,] G.B.[,] left work because she felt

ill after donating plasma. G.B. asked [Tyson], whom she knew

casually, to bring her some food. [Tyson] arrived at G.B.’s

apartment and stayed as she fell asleep. During the early morning

hours of August 1, 2010, G.B. claims she awoke to find [Tyson]

having vaginal intercourse with her. [Tyson] told G.B. she had

taken her pants off for him. G.B. claims she told [Tyson] to stop,

and he complied. After falling back asleep, G.B. woke again later

that night and went into her kitchen, where she allegedly found

[Tyson] naked. G.B. claims she told [Tyson] she did not want to

have sex with him and returned to bed. Shortly thereafter, G.B.

claims, she woke up[,] and [Tyson] was again having vaginal

intercourse with her. G.B. told [Tyson] to stop and asked him

what he was doing. [Tyson] told G.B. her eyes were open the

whole time.

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Id. at 356.

The Commonwealth filed a motion in limine seeking to introduce

evidence of Tyson’s then 12-year-old rape conviction in Delaware, which the

trial court denied. On appeal, the Commonwealth argued that the PBA

evidence regarding the prior rape was admissible under both the common

plan/scheme/design and absence-of-mistake exceptions, because Tyson

“engaged in a pattern of non-consensual sexual intercourse with

acquaintances who were in an unconscious or diminished state.” Id. at 357.

This Court noted

numerous similarities between the two incidents: (1) the victims

were the same race and similar in age; (2) both victims were

casually acquainted with [Tyson]; (3) [Tyson]’s initial interaction

with each victim was legitimate, where [Tyson] was invited into

the victim’s home; (4) [Tyson] had vaginal intercourse with each

victim in her bedroom; (5) both incidents involved vaginal

intercourse with an alleged unconscious victim who woke up in the

middle of the act; and (6) in each case, [Tyson] knew the victim

was in a compromised state.

Id.

This Court reversed the trial court’s determination that the PBA evidence

was not admissible, reasoning 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. The Tyson Court further stated:

The factual overlap between the two incidents goes beyond the

commission of crimes or conduct ‘of the same general class.’ The

evidence does not merely show [Tyson] sexually assaulted two

different women or that [his] actions are generically common to

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many sexual assault cases. To the contrary, the incidents reflect

a clear pattern where [Tyson] was legitimately in each victim’s

home; [he] was cognizant of each victim’s compromised state;

and [he] had vaginal intercourse with each victim in her bedroom

in the middle of the night while the victim was unconscious.

Id. The Tyson Court also opined that the lapse in time between the rapes

did not undermine its probative value, both because Tyson was incarcerated

for a majority of that time, and because the “similarities [between] the two

incidents render[ed] the five-year time gap even less important.” Id. at 361.

The absence-of-mistake exception typically applies in circumstances

where the identity of the accused is not at issue, such as where the evidence

serves to prove that the cause of an injury was not accidental. A

quintessential example of the absence-of-mistake exception to the ban on PBA

evidence occurred in Commonwealth v. Boczkowski, 846 A.2d 75 (Pa.

2004), where the defendant’s wife, Maryann, was found unconscious in the

couple’s hot tub. She later died. Maryann had alcohol in her blood, and

paramedics observed the defendant trying to revive her when they arrived on

the scene, suggesting that her death may have been accidental. However,

other injuries to the victim’s body suggested that she had been the target of

foul play.

The defendant’s former wife, Elaine, had died under similar

circumstances just 4 years earlier.

Elaine died in her bathtub, Maryann in a hot tub. Both women

were in their thirties and in good health. [The defendant] reported

to the North Carolina police that Elaine had been drinking alcoholic

beverages before entering the bathtub; he told Ross Township

police that Maryann had been drinking prior to entering the hot

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tub. [The defendant] told police in both jurisdictions that he and

his wife had a minor argument on the evening before the death.

In each case, police noticed that [the defendant] had fresh scratch

marks on his arms, hands and torso shortly after his wife’s death.

The autopsies of both women revealed that they had died from

asphyxiation, not drowning.

Id. at 82. The Commonwealth presented evidence of Elaine’s death in

Boczkowski’s trial pursuant to Rule 404(b)(2) in order to demonstrate that

Maryann’s death was not an accident. Our Supreme Court determined that

such evidence was admissible even if the defendant does not “actually forward

a formal defense of accident, or even present an argument along those lines,”

because “the Commonwealth may have a practical need to exclude the theory

of accidental death.” Id. at 89.

The absence-of-mistake exception has also been used to defeat an

anticipated defense of consent in a case of sexual misconduct. The Tyson

Court permitted the PBA evidence at issue in that case under the absence-of-

mistake exception, reasoning that:

[Tyson] disputes G.B.’s account that she was asleep when [he]

initiated sexual intercourse with her—[Tyson] maintains he

thought G.B. consented to the act. Given the relevant similarities

between the two incidents, evidence of [Tyson]’s prior rape would

tend to prove he did not “mistakenly believe” G.B. was awake or

gave her consent. [Tyson] was invited into G.B.’s home for

another reason, [he] knew G.B. was in a compromised state, and

G.B. awoke to find [him] having vaginal intercourse with her.

[Tyson]’s prior conviction would likewise show he had been invited

into the home of an acquaintance, knew the victim was in a

compromised state, and had non-consensual sex with the victim

while the victim was unconscious. The prior conviction would tend

to prove [Tyson] was previously in a very similar situation and

suffered legal consequences from his decision to have what

proved to be non[-]consensual vaginal intercourse with an

unconscious victim. Thus, the evidence would tend to show

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[Tyson] recognized or should have recognized that, as with T.B.,

G.B.’s physical condition rendered her unable to consent.

Tyson, 119 A.3d at 362–63.

Instantly, Appellant contends that the PBA evidence—the testimony of

Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice Dickinson, and Maud

Lise-Lotte Lublin—should not have been permitted under either exception.

Appellant argues that their testimony involved “strikingly dissimilar acts” and

were too distant in time to outweigh the potential for undue prejudice.

Appellant’s Brief at 42. Thus, he asserts that the trial court abused its

discretion by admitting the PBA evidence. Notably, under both exceptions,

the standard for admission is virtually the same. The PBA evidence must be

“distinctive and so nearly identical as to become the signature of the same

perpetrator,” and its probative value must not be undermined by the lapse in

time between incidents. Frank, 577 A.2d at 614; see also Tyson, 119 A.3d

at 359-60. Appellant first contends that the acts in question were too

dissimilar to be admitted under either exception, and second, that the lapse

in time between the conduct at issue in this case and the PBA evidence

undermined its probative value.

The trial court justified its admission of the PBA evidence as follows:

The testimony of the five 404(b) witnesses was admissible under

both the common plan, scheme or design exception and the lack

of accident or mistake exception, with admissibility further

supported by the doctrine of chances. Therefore, this claim must

fail.

First, [Appellant] asserts that testimony of the permitted

witnesses was too dissimilar to [Victim]’s allegations. This claim

is belied by the record. Victim’s testimony can be summarized as

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follows: 1) [Victim] was substantially younger than the married

[Appellant] and physically fit; 2) she met him through her

employment at Temple University; 3) they developed what she

believed to be a genuine friendship and mentorship. Over the

course of that friendship, she accepted invitations to see

[Appellant] socially, both with other people and alone; 4) after a

period of time, during which he gained her trust, he invited her to

his home to discuss her upcoming career change; 5) he offered

her three blue pills and urged her to take them; 6) once she took

the pills, she became incapacitated and was unable to verbally or

physically stop the assault[; s]he did not consent to sexual contact

with [Appellant]; [and] 7) during intermittent bouts of

consciousness, she was aware of [Appellant’s] digitally

penetrating her vagina and using her hand to masturbate himself.

The allegations of the Commonwealth’s 404(b) witnesses

may be summarized as follows: 1) each woman was substantially

younger than the married [Appellant] and physically fit; 2)

[Appellant] initiated the contact with each woman, primarily

through her employment; 3) over the course of their time

together, she came to trust him and often developed what the

woman believed to be a genuine friendship or mentorship; 4) each

woman accepted an invitation from [Appellant] to a place in his

control, where she was ultimately alone with him; 5) each woman

accepted the offer of a drink or a pill, often after insistence on the

part of [Appellant]; 6) after ingesting the pill or drink, each woman

was rendered incapacitated and unable to consent to sexual

contact; [and] 7) [Appellant] sexually assaulted her while she was

under the influence of the intoxicant he administered. These

chilling similarities rendered the 404(b) testimony admissible

under the common plan, scheme or design and the absence[-]of[-

]mistake exceptions.

TCO at 102-04 (footnotes omitted).

Appellant points to various dissimilarities between the PBA incidents and

the instant matter. Appellant’s Brief at 59-62. For instance, Appellant’s

relationship with Victim lasted longer than his relationship with any of the PBA

witnesses. Id. at 59. Prior to the at-issue assault, Victim was a guest at

Appellant’s home for dinner on multiple occasions, and Appellant and Victim

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had exchanged gifts. Id. at 59-60. Appellant had made prior attempts at

sexual contact with Victim, unlike with the other victims. Id. at 60.

Additionally, the nature of the sexual contact between Appellant and his

victims varied in each incident. Id. at 60-61. Finally, Appellant’s assault of

Victim was the only reported assault to occur in Appellant’s home, whereas

the PBA evidence only involved incidents “in a hotel room or in some third

person’s house.” Id. at 62.

We disagree that these differences render the PBA evidence inadmissible

under the common plan/scheme/design or absence of mistake exceptions. It

is impossible for two incidents of sexual assault involving different victims to

be identical in all respects. Indeed, we instead subscribe to the statement

offered by Amicus Curiae, the Office of the Attorney General of Pennsylvania,

when it states:

A distinct pattern does not require outlandish or bizarre criminal

conduct, nor does it demand proof that the conduct was part of a

greater master plan. Rather, what is essential is that the

similarities “are not confined to insignificant details that would

likely be common elements regardless of who had committed the

crimes.” Commonwealth v. Hughes, 555 A.2d 1264, 1283 (Pa.

1989). A criminal “plan” may be analogized to a script or playbook

of criminal tactics that worked for the offender when committing

past crimes.

Brief of Amicus Curiae, the Office of the Attorney General of Pennsylvania, at

18. We further observe that no two events will ever be identical, and it is

simply unreasonable to hold the admission of PBA evidence to such a

standard. The question for the trial court was whether the pattern of

misconduct demonstrated by the PBA evidence was sufficiently distinctive to

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warrant application of the Rule 404(b)(2) exceptions. It is the pattern itself,

and not the mere presence of some inconsistencies between the various

assaults, that determines admissibility under these exceptions.

Here, the PBA evidence established Appellant’s unique sexual assault

playbook. His assault of Victim followed a predictable pattern based on the

PBA evidence:

[E]ach woman was substantially younger than the married

[Appellant]; each woman met [Appellant] through her

employment or career; most of the women believed he truly

wanted to mentor them; [Appellant] was legitimately in each

victim’s presence because each had accepted an invitation to get

together with him socially; each incident occurred in a setting

controlled by [Appellant], where he would be without interruption

and undiscovered by a third party; [Appellant] had the

opportunity to perpetrate each crime because he instilled trust in

his victims due to his position of authority, his status in the

entertainment industry, and his social and communication skills;

he administered intoxicants to each victim; the intoxicant

incapacitated each victim; [Appellant] was aware of each victim’s

compromised state because he was the one who put each victim

into that compromised state; he had access to sedating drugs and

knew their effects on his victims; he sexually assaulted each

victim—or in the case of one of his victims, engaged in, at

minimum, untoward sexual conduct—while she was not fully

conscious and, thus, unable to resist his unwelcomed sexual

contact; and, none of the victims consented to any sexual contact

with [Appellant].

Commonwealth Brief’s at 42-44 (footnotes omitted). Indeed, not only did the

PBA evidence tend to establish a predictable pattern of criminal sexual

behavior unique to Appellant, it simultaneously tended to undermine any claim

that Appellant was unware of or mistaken about Victim’s failure to consent to

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the sexual contact that formed the basis of the aggravated indecent assault

charges. Thus, both exceptions applied to the circumstances of this case.

Appellant argues that the trial court’s admission of the PBA evidence

conflicts with this Court’s recent ruling in Commonwealth v. Bidwell, 195

A.3d 610 (Pa. Super. 2018), reargument denied (Nov. 13, 2018), appeal

denied, 208 A.3d 459 (Pa. 2019). In Bidwell, the victim was discovered

“hanging from an electrical heating wire tied to a refrigeration unit that was

located in a trailer” in the appellee’s scrap yard. Id. at 612. However, the

victim’s “face was not swollen or discolored, as is commonly seen in victims

of hanging or ligature strangulation.” Id. Nevertheless, “the original

investigators and the coroner concluded that the [v]ictim committed suicide

by hanging.” Id.

Other evidence emerged linking Bidwell to the death, including a witness

who claimed that he had admitted to killing the victim and to having arranged

it to look like a suicide. It was also revealed that Bidwell had been involved

in an extra-marital affair with the victim. Id. Bidwell also “made several

contradictory statements regarding the circumstances of the [v]ictim’s death

and his whereabouts at that time.” Id. at 613. The Commonwealth charged

Bidwell with criminal homicide.

The Commonwealth subsequently filed a motion in limine, seeking to

introduce PBA evidence, including evidence of Bidwell’s prior violent conduct

toward other women. The trial court granted admission of some PBA evidence

(such as evidence concerning Bidwell’s infidelity), but denied, inter alia,

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evidence of his prior violent behavior toward other women.6 The

Commonwealth sought to use such evidence to demonstrate that the victim’s

death was not a suicide, and to show Bidwell’s motive. The trial court excluded

the evidence because “it was ‘improper propensity evidence of [Bidwell]’s

prior, dissimilar assaults on other women.’” Id. at 618 (emphasis added).

The Commonwealth filed an interlocutory appeal from that order.

On appeal, this Court affirmed, ruling that the trial court had not abused

its discretion in excluding the proffered PBA evidence regarding Bidwell’s prior

violent conduct. The Bidwell Court reasoned that:

The Commonwealth’s evidence failed to show that each woman

was assaulted in the same manner or had been involved in a

sexual relationship with [Bidwell] or that [he] was under the

influence of alcohol or drugs at the time of the encounters with

the women. To the contrary, the women’s testimony establishes,

at most, the commission of crimes or conduct in the past “of the

same general class,” namely physical and/or sexual assaults.

Their testimony does not evidence any particular distinctive

pattern of behavior by [Bidwell] in that [Bidwell]’s allegedly

abusive behavior appears to have been triggered in each incident

by different causes. For instance, it is alleged that [Bidwell]

assaulted his wives during the course of their marriages, but he

spontaneously attacked Ms. Sickle whom he had just met while

she interviewed for a job. Ms. Benek indicated [Bidwell] did not

physically accost her.

In addition, the trial court found that the [PBA] testimony was not

admissible to prove a “common scheme, plan or design.” Under

Pennsylvania law, evidence of prior bad acts is admissible to prove

“a common scheme, plan or design where the crimes are so

related that proof of one tends to prove the others.”

Commonwealth v. Elliott, … 700 A.2d 1243, 1249 ([Pa.] 1997).

____________________________________________

6 The trial court in Bidwell did not prohibit PBA evidence concerning Bidwell’s

prior violent conduct toward the deceased victim. Id. at 618.

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In Elliott, the appellant had been accused of sexually assaulting

and killing a young woman whom he had approached outside a

nightclub at 4:30 a.m. The Pennsylvania Supreme Court affirmed

the trial court’s decision to permit three other young women to

testify that the appellant also had preyed upon and physically

and/or sexually assaulted each of them as they left the same club

in the early morning hours. Id. at … 1250–51. Our Supreme

Court held that evidence of the similarities among the assaults

was admissible to establish a common scheme, plan or design.

Id.

As the trial court found herein, the proposed testimony of Denise

Bidwell, Jennifer Bidwell, Alyssa Benek and Danielle Sickle does

not establish a pattern of conduct on the part of [Bidwell] so

distinctive that proof of one tends to prove the others. Instead,

the prior bad acts testimony demonstrates that [Bidwell] was a

domestic abuser of women, some of whom he was involved in on-

going romantic relationships in the past, but it does not show a

unique “signature” modus operandi relevant to the [v]ictim’s

murder.

Bidwell, 195 A.3d at 626–27.

We find Bidwell easily distinguishable from the instant case. First, the

procedural posture here is not the same as this Court confronted in Bidwell.

In Bidwell, the Commonwealth appealed from the denial of a motion in limine

concerning the admissibility of evidence. The burden was on the

Commonwealth in that case to demonstrate that the trial court abused its

discretion in deeming the PBA evidence inadmissible. Here, Appellant bears

the burden on appeal of demonstrating that the trial court abused its discretion

by deeming admissible the at-issue PBA evidence. Given the deference we

pay to trial courts under the abuse of discretion standard, it would not

necessarily follow that the holding in Bidwell dictates the same result in the

instant case.

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Second, the evidence in this case is not comparable to the facts in

Bidwell, as the circumstances here present a far more compelling argument

for admission of the PBA evidence under Rule 404(b)(2). Here, the PBA

evidence established a distinct, signature pattern: Appellant presented himself

as a mentor or potential mentor to much younger women in order to establish

trust, and then he abused that trust by drugging those women in order to

sexually assault them. This constitutes far more distinctive behavior than the

PBA evidence of prior domestic abuse considered by the Bidwell Court. The

PBA evidence does not, as Appellant claims, merely “match[] the alleged act

on trial only in its general nature.” Appellant’s Brief at 65. Accordingly, we

reject his contention that Bidwell supports his claim.

Appellant also alleges that his assault on Victim and the assaults detailed

in the PBA evidence are too remote in time to be probative. He argues:

Baker-Kinney and Dickinson claim that [Appellant]’s alleged

inappropriate contact with them occurred in 1982, more than two

decades before the alleged incident with [Victim]. Thomas claims

that [Appellant] forced her to perform oral sex on him in 1984;

Lasha claims that her contact with [Appellant] was in 1986; and

Lublin claimed that she became intoxicated with [Appellant] in

1989…. As to “Jane Doe 1,” [Appellant] gave her a Quaalude,

which she took knowing that it was a Quaalude, in the 70s.

Id. at 66-67 (citations omitted). The allegation of sexual assault in this case

concerned conduct that occurred in 2004. Thus, the PBA evidence spanned

between 15-22 years prior to the conduct in this case for the testifying

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witnesses, and at least a few years prior to that for the incident involving Jane

Doe 1, about whom Appellant testified in his civil deposition.7

As our Supreme Court has stated, “even if evidence of prior criminal

activity is [otherwise] admissible under [Rule 404(b)(2)], said evidence will

be rendered inadmissible if it is too remote.” Commonwealth v. Shively,

424 A.2d 1257, 1259 (Pa. 1981). However, this Court has also held that

“while remoteness in time is a factor to be considered in determining the

probative value of other crimes evidence under the theory of common scheme,

plan or design, the importance of the time period is inversely proportional to

the similarity of the crimes in question.” Commonwealth v. Aikens, 990

A.2d 1181, 1185 (Pa. Super. 2010) (citation omitted).

Here, the time period in question is substantial, especially in relation to

existing case law. Nevertheless, several factors tend to demonstrate that the

probative value of the PBA evidence remains strong, despite that substantial

time gap. There are distinctive similarities between the PBA evidence and

Appellant’s sexual assault of Victim. Furthermore, there were multiple prior

sexual assaults, not merely one, and all of those prior assaults evidenced the

same, signature pattern of misconduct. Had there only been a single prior

bad act, it would be easier to write off the similarities as coincidental,

____________________________________________

7 We will not separately address Appellant’s contention that Jane Doe 1 was

effectively a sixth PBA witness, as Appellant only challenged the admission of

the testimony of the five PBA witnesses in his Rule 1925(b) statement. See

Appellant’s 1925(b) Statement, 12/11/18, at ¶ 6; Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (holding that any issues not raised in a 1925(b)

statement are waived).

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especially given the passage of time. However, because the pattern here was

well-established in this case, both in terms of frequency and similarity, the at-

issue time gap is relatively inconsequential. Moreover, because Appellant’s

identity in this case was not in dispute (as he claimed he only engaged in

consensual sexual contact with Victim), there was no risk of misidentification

by use of the PBA evidence despite the gap in time. Accordingly, we conclude

that the remoteness of the PBA evidence was so substantial as to undermine

its probative value.

Appellant also contends that the trial court failed to make “any

assessment of the highly prejudicial nature” of the PBA evidence. Appellant’s

Brief at 83. The record belies this claim. The Commonwealth sought the

admission of 19 witnesses, and the trial court “found that the testimony of all

19 witnesses was relevant and admissible” under Rule 404(b)(2). TCO at 110.

Nevertheless, “the [c]ourt sought to mitigate any prejudicial effect of such

evidence by limiting the number of witnesses” to five. Id. Moreover, the trial

court

gave a cautionary instruction no less than four times during trial,

and again in its concluding instructions, limiting the prejudicial

effect of the testimony. N.T.[, 4/11/18,] at 45-46, 50-51; N.T.[,

4/12/18,] at 69, 167. Jurors are presumed to follow the court’s

instructions. Commonwealth v. La Cava, 666 A.2d 221, 228

(Pa. 1995). Limiting instructions weigh in favor of upholding

admission of other bad acts evidence. … Boczkowski, 846 A.2d

[at] 89….

Id. at 110-11. By limiting the number of relevant and admissible witnesses,

as well as by issuing multiple cautionary instructions, the trial court

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necessarily recognized the potential for unfair prejudice presented by the PBA

evidence. Thus, Appellant’s argument to the contrary is baseless.

Finally, we deem it unnecessary to address Appellant’s claim that the

trial court abused its discretion by relying on the ‘Doctrine of Chances’8 in

admitting the PBA evidence,9 as we agree with the trial court that the PBA

evidence was admissible under both the common plan/scheme/design and the

absence-of-mistake exceptions to Rule 404(b)(1)’s prohibition on PBA

evidence. For all the aforementioned reasons, we conclude that the trial court

did not abuse its discretion by admitting the PBA evidence and, therefore,

Appellant’s first claim lacks merit.

B. Trial Judge’s Failure to Disclose Prior Relationship with Former

District Attorney Castor

Next, Appellant asserts that he is entitled to a new trial because the trial

judge in this case, the Honorable Steven T. O’Neill (“Judge O’Neill”), failed to

disclose his prior and allegedly “acrimonious” relationship with former District

Attorney Castor (“Mr. Castor”). Appellant’s Brief at 92. As discussed in more

detail infra, Mr. Castor purportedly promised not to prosecute Appellant while

he was serving as Montgomery County’s District Attorney during the initial

____________________________________________

8 In his concurring opinion in Commonwealth v. Hicks, 156 A.3d 1114 (Pa.

2017), Chief Justice Saylor endorsed the ‘Doctrine of Chances’ theory, which

holds, generally, that PBA evidence may be admissible where a logical

inference can be drawn “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 1132 (Saylor, J., concurring).

9 See Appellant’s Brief at 79-82; TCO at 99-100.

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investigation into Victim’s accusations against Appellant. Judge O’Neill

received testimony from Mr. Castor regarding that issue at a pretrial hearing,

and Mr. Castor was essentially a witness for the defense. Appellant contends

that Judge O’Neill was biased against Mr. Castor due to interactions between

the two that are alleged to have occurred in 1999. The Commonwealth

contends that Appellant waived this claim by failing to raise it at the earliest

possible opportunity.

It is undisputed that, in 1999, Judge O’Neill and Mr. Castor were both

“seeking the [R]epublican nomination for District Attorney in Montgomery

County.” Id. at 94. Mr. Castor won the nomination, and ultimately was

elected as District Attorney. However, Appellant alleges that Mr. Castor’s use

of smear tactics during that campaign (allegedly prompting a confrontation

with Judge O’Neill at a campaign event) produced a long-held bias in Judge

O’Neill toward Mr. Castor. Appellant asserts that this purported bias calls into

question the propriety of Judge O’Neill’s making credibility determinations

regarding Mr. Castor’s purported promise not to prosecute Appellant, which

occurred at a hearing held on February 2, 2016. Appellant essentially claims

that Judge O’Neill should have recused himself from hearing testimony from

Mr. Castor as a result of this bias. Appellant argues:

The fact that the lower court and [Mr.] Castor had a previous

relationship and disagreement is not a valid reason, alone, for the

lower court to have recused himself. However, the issue is not

their prior relationship, or a mere confrontation. Rather, then-

Candidate O’Neill engaged [Mr.] Castor, in a contentious and very

public confrontation over two highly sensitive topics: love and

politics. Despite knowing [Mr.] Castor would be a crucial witness

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in deciding whether the high-profile, nationally publicized trial of

Cosby would be allowed to go forward, the lower court made the

decision not to disclose his history with [Mr.] Castor.

Id. at 96-97.

In his Rule 1925(a) opinion, Judge O’Neill flatly denies that he harbors

any bias against Mr. Castor, and states that he had nothing to disclose to the

defense, and no reason to recuse. TCO at 125 (“This [c]ourt cannot disclose

that which does not exist. This [c]ourt simply has no bias against Mr. Castor,

thus no disclosure was necessary.”). In any event, the trial court agrees with

the Commonwealth that Appellant waived this claim. Id. at 126 (finding that

Appellant “failed to raise the alleged issue at th[e] earliest possible moment”).

“The standards for recusal are well established. It is the burden of the

party requesting recusal to produce evidence establishing bias, prejudice or

unfairness which raises a substantial doubt as to the jurist’s ability to preside

impartially.” Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)

(citations omitted). Until evidence establishes a jurist’s bias, “[t]his Court

presumes judges of this Commonwealth are ‘honorable, fair and competent,’

and, when confronted with a recusal demand, have the ability to determine

whether they can rule impartially and without prejudice.” Commonwealth

v. Luketic, 162 A.3d 1149, 1157 (Pa. Super. 2017) (quoting

Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004)).

Before we address the merits of this claim, we must address the

Commonwealth’s contention that Appellant waived our consideration of this

issue, as

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the law is clear. In this Commonwealth, a party must seek recusal

of a jurist at the earliest possible moment, i.e., when the party

knows of the facts that form the basis for a motion to recuse. If

the party fails to present a motion to recuse at that time, then the

party’s recusal issue is time-barred and waived.

Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017).

The Commonwealth contends that Appellant waived his recusal issue by

waiting 167 days to raise it after discovering the factual basis for the claim.

We agree. Although Mr. Castor testified before Judge O’Neill on February 2,

2016, prior to Appellant’s first trial, Appellant did not raise the instant claim

until after his second trial, and just prior to sentencing, on September 11,

2018. Appellant initially asserted this after-discovered-evidence-recusal claim

based on a Radar Online article published on March 28, 2018. See Motion for

Disclosure, Recusal, and for Reconsideration of Recusal, 9/11/18, at 3 ¶¶ 7-8

(asserting that neither Appellant nor his attorneys had any knowledge of the

1999 incident until the article was published). In the article, Appellant’s

spokesperson, Andrew Wyatt, was quoted as having just learned of the

purported 1999 confrontation between Mr. Castor and Judge O’Neill. RR at

1679a (“A spokesman for Cosby, Andrew Wyatt, told Radar: ‘It’s very

interesting—it’s my first time hearing about it.’”).

Appellant provided virtually no argument in his September 11, 2018

motion, nor does he provide any argument in his brief, indicating why he

waited 167 days to seek Judge O’Neill’s recusal based on the factual

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allegations contained in the Radar Online article.10 Appellant has not denied

that his spokesperson, Mr. Wyatt, made the quoted statement, nor has he

asserted that Mr. Wyatt withheld that information from him or his attorneys.

In any event, even if we were inclined to disregard the obvious—that Mr.

Wyatt would have no rational reason for withholding such information from

Appellant or Appellant’s counsel—Appellant has not offered any explanation

as to why he was unable to discover the Radar Online article at an earlier time.

Accordingly, we agree with the trial court and the Commonwealth that

Appellant waived this claim, as he failed to raise it at the earliest possible

opportunity.11 See Reilly by Reilly v. S.E. Pennsylvania Transp. Auth.,

____________________________________________

10 Appellant attempts to claim that his sentencing counsel had no knowledge

of the Radar Online article until after June 14, 2018, when sentencing counsel

entered his appearance. Appellant’s Brief at 114. This excuse borders on

frivolity. It is undisputed that Appellant was represented by counsel at every

stage of the proceedings below. Yet, he has thus far failed to argue why he

or his prior attorneys were unable to ascertain the contents of the Radar

Online article at an earlier time.

In any event, even if we were to countenance the notion that only sentencing

counsel’s oversight of Appellant’s defense was relevant to our analysis,

Appellant has still not justified the delay of 89 days from when sentencing

counsel entered his appearance until the recusal motion was filed.

Furthermore, nowhere in Appellant’s numerous filings has he ever stated a

specific date, or even a general range of dates, establishing when he or his

attorneys actually learned of the contents of the Radar Online article. This

alone demonstrates that Appellant has failed to satisfy his burden of

demonstrating why he did not raise the matter at the earliest possible time.

11 We note that Appellant provided this Court with an affidavit from Mr. Castor

in the reproduced record (hereinafter “Castor’s Affidavit”). See RR at 6215a-

6223a. Castor’s Affidavit is dated October 20, 2018. Id. at 6223a. Therein,

Mr. Castor ostensibly provides additional details concerning his prior

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489 A.2d 1291, 1300 (Pa. 1985) (holding that an 8-month delay in raising a

recusal motion after the facts were known to the moving party resulted in

waiver of the recusal claim); see also Lomas, 170 A.3d at 391 (“[I]t is

obvious that October 15, 2007, was not ‘the earliest possible moment’ that

[the a]ppellants could have raised their objections regarding recusal, as all of

____________________________________________

relationship with Judge O’Neill not contained in the Radar Online article, such

as his recollections concerning the 1999 campaign, as well as various opinions

held by Mr. Castor regarding Judge O’Neill’s purported bias against him over

the ensuing years. However, it is undisputed that Castor’s Affidavit was never

presented in the trial court, and it does not appear in the certified record in

this case.

[A]s an appellate court, our review is limited by the contents of

the certified record. Pa.R.A.P.1921; Commonwealth v. Young,

… 317 A.2d 258, 264 ([Pa.] 1974) (“only the facts that appear in

[the] record may be considered by a court”). See also Ritter v.

Ritter, … 518 A.2d 319, 323 ([Pa. Super.] 1986) (“the appellate

court can only look at the certified record on appeal when

reviewing a case”). All documents in a criminal matter must be

filed with the clerk of courts in order to become part of the certified

record. 42 Pa.C.S. § 2756(a)(1). Additionally, [the a]ppellant has

the duty to ensure that all documents essential to his case are

included in the certified record. Fiore v. Oakwood Plaza

Shopping Ctr., … 585 A.2d 1012, 1019 ([Pa. Super.] 1991) ( “It

is the obligation of the appellant to make sure that the record

forwarded to an appellate court contains those documents

necessary to allow a complete and judicious assessment of the

issues raised on appeal[.]”). If a document is not in the certified

record then this Court cannot take it into account.

Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005).

Thus, we cannot consider the contents of Castor’s Affidavit.

Nonetheless, even if we could consider it, we would still deem Appellant’s

recusal claim waived due to his failure to raise it at the earliest opportunity,

as the basic, underlying facts were contained in the Radar Online article

published on March 28, 2018.

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the facts underlying the recusal issue were known to [them] … on September

6, 2007.”).

C. Mr. Castor’s Alleged Promise Not to Prosecute

Appellant next argues that the trial court abused its discretion when it

denied his habeas corpus motion seeking to quash the criminal complaint and

bar his trial based on Mr. Castor’s purported promise in 2005 not to prosecute

him for his sexual assault of Victim. As noted in the trial court’s summary of

the facts, supra, the original investigation into Appellant’s 2004 sexual assault

of Victim began in January of 2005, and ended the following month when, on

February 17, 2005, Mr. Castor personally issued a press release in his capacity

as District Attorney, which read in pertinent part as follows:

Montgomery County District Attorney Bruce L. Castor, Jr. has

announced that a joint investigation by his office and the

Cheltenham Township Police Department into allegations against

actor and comic Bill Cosby is concluded.

…

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…. 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.

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In making this finding, the District Attorney has analyzed the facts

in relation to the elements of any applicable offenses, including

whether or not evidence is admissible. Evidence may be

inadmissible if it is too remote in time to be considered legally

relevant or if it was illegally obtained pursuant to Pennsylvania

law. After this analysis, the District Attorney concludes that a

conviction under the circumstances of this case would be

unattainable. As such, District Attorney Castor declines to

authorize the filing of criminal charges in connection with this

matter.

Because a civil action with a much lower standard of proof is

possible, the District Attorney renders no opinion concerning the

credibility of any party involved so as not to contribute to the

publicity, and taint prospective jurors. The District Attorney does

not intend to expound publicly on the details of his decision for

fear that his opinions and analysis might be given undue weight

by jurors in any contemplated civil action. District Attorney Castor

cautions all parties to this matter that he will reconsider this

decision should the need arise.

RR at 382a-383a.

After he was charged by the current District Attorney of Montgomery

County on December 30, 2015, Appellant filed a habeas corpus petition

alleging that his prosecution was barred by a non-prosecution agreement. Id.

at 389a-391a (Appellant’s Petition for Writ of Habeas Corpus, 1/11/16).

However, it is undisputed that no written, formalized non-prosecution

agreement exists in this case. Additionally, no order granting Appellant

immunity from prosecution was previously sought by Appellant or Mr. Castor.

Appellant contends that the above-stated press release, coupled with

testimonial evidence regarding Mr. Castor’s intent to bar Appellant’s

prosecution (and communication of that intent to Appellant’s now deceased,

former attorney in 2005), constituted a de facto “agreement, contract,

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arrangement, or promise” not to prosecute him.12 Appellant’s Brief at 127.

Alternatively, Appellant argues that the principle of promissory estoppel

barred his trials, reasoning that Mr. “Castor’s promise was tailored to force

[Appellant] to relinquish his Fifth Amendment right and sit for a civil

deposition[,]” even if the promise was formally defective in conveying

immunity from prosecution.13 Id. at 129.

The trial court rejected both claims. The court first determined that

the only conclusion that was apparent to this [c]ourt was that no

agreement or promise not to prosecute ever existed, only the

exercise of prosecutorial discretion. A press release, signed or

not, was legally insufficient to form the basis of an enforceable

promise not to prosecute. The parties did not cite, nor has this

[c]ourt found any support in Pennsylvania law for the proposition

that a prosecutor may unilaterally confer transactional immunity

through a declaration as the sovereign. Thus, the District

Attorney was required to utilize the immunity statute, which

provides the only means for granting immunity in Pennsylvania.

TCO at 62.

In rejecting Appellant’s claim that the principle of promissory estoppel

barred his prosecution, the trial court reasoned:

Even assuming, arguendo, that there was a defective grant of

immunity, as would support a theory of promissory estoppel, any

reliance on a press release as a grant of immunity was

unreasonable. [Appellant] was represented by a competent team

of attorneys who were versed in written negotiations. Yet none of

____________________________________________

12 As noted by the trial court, Mr. Castor also “testified that he intended to

confer transactional immunity upon [Appellant] and that his power to do so

as the sovereign was derived from common law not from the statutes of

Pennsylvania.” TCO at 57 (citing N.T., 2/2/16, at 232-36 (RR 643a-647a)).

13 Elements of Appellant’s civil deposition were used as evidence against him

at trial as discussed, infra.

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these attorneys obtained Mr. Castor’s promise in writing or

memorialized it in any way, further supporting the conclusion that

there was no promise. Therefore, the Commonwealth was not

estopped from proceeding with the prosecution following their

reinvestigation. The [c]ourt did not abuse its discretion and this

claim must fail.

Id. at 65-66.

We review the denial of a motion seeking to quash a criminal complaint

or information under a well-settled standard of review.

The decision to grant or deny a motion to quash is within the

sound discretion of the trial judge and will be reversed on appeal

only where there has been a clear abuse of discretion. See

Commonwealth v. Hackney, … 178 A. 417, 418 ([Pa. Super.]

1935)…. A court, moreover, “should not sustain a motion to quash

... except in a clear case where it is convinced that harm has been

done to the defendant by improper conduct that interfered with

his substantial rights.”

Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa. Super. 1980).

Additionally, to the extent that denying such a motion turns in some

part on issues of fact, this Court is highly deferential to the findings of the trial

court.

Questions of credibility and conflicts in the evidence presented are

for the trial court to resolve, not our appellate courts.

As long as sufficient evidence exists in the record which is

adequate to support the finding found by the trial court, as

factfinder, we are precluded from overturning that finding[.]

Commonwealth of Pennsylvania, Dept. of Transp., Bureau of Traffic

Safety v. O’Connell, 555 A.2d 873, 875 (Pa. 1989) (citations omitted);

accord Commonwealth v. Doolin, 24 A.3d 998, 1003 (Pa. Super. 2011)

(“It is well settled that the decision to grant a pretrial motion to dismiss a

criminal charge is vested in the sound discretion of the trial court and may be

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overturned only upon a showing of abuse of discretion or error of law.”)

(internal brackets, quotation marks, and citation omitted).

We first address whether a non-prosecution agreement existed that

precluded Appellant’s prosecution for the instant offenses. As a matter of law

and based on the uncontested facts, independent of any credibility

determination by the trial court, we hold that Appellant was not immune from

prosecution based on Mr. Castor’s alleged promise not to prosecute.

Like the trial court, we cannot uncover any authority suggesting that a

district attorney “may unilaterally confer transactional immunity through a

declaration as the sovereign.” TCO at 62. Appellant has yet to present any

authority suggesting otherwise and, therefore, it is clear on the face of the

record that the trial court did not abuse its discretion in determining that there

was no enforceable non-prosecution agreement in this case; i.e., there was

no legal grant of immunity from criminal prosecution conferred to Appellant

by Mr. Castor. Even assuming Mr. Castor promised not to prosecute Appellant,

only a court order can convey such immunity. Such promises exist only as

exercises of prosecutorial discretion, and may be revoked at any time.

The exclusive authority for conferring immunity from prosecution rests

within the immunity statute itself, 42 Pa.C.S. § 5947. Section 5947 provides,

in pertinent part, that

a district attorney may request an immunity order from any

judge of a designated court, and that judge shall issue such an

order, when in the judgment of the Attorney General or district

attorney:

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(1) the testimony or other information from a witness may be

necessary to the public interest; and

(2) a witness has refused or is likely to refuse to testify or provide

other information on the basis of his privilege against self-

incrimination.

42 Pa.C.S. § 5947(b) (emphasis added).

Mr. Castor indicated that he never sought such an order, and no

evidence of such an order exists in this case.14 Instead, Mr. Castor testified

that he “made the decision as the sovereign that [Appellant] would not be

prosecuted no matter what.” RR at 475a (N.T., 2/2/16, at 64). Mr. Castor

did not suggest under what statute or relevant case law he relied in exercising

such authority outside the parameters of Section 5947. Indeed, Appellant

makes no attempt in his brief to legally support Mr. Castor’s contention at all.

Thus, we ascertain no abuse of discretion in the trial court’s determination

that Appellant was not immune from prosecution, because Mr. Castor failed

to seek or obtain an immunity order pursuant to Section 5947. At most, Mr.

Castor exercised his prosecutorial discretion in promising not to prosecute

Appellant. We have not discovered any case law, nor does Appellant cite to

any relevant authority, holding that when a prosecutor exercises his or her

____________________________________________

14 Nor does it appear that such an order would have been granted by a trial

court had it been sought. Even if Mr. Castor’s speculation was reasonable that

a civil suit against Appellant was inevitable, and that it was equally inevitable

that Appellant would have likely attempted to refuse to testify based on his

5th Amendment right against self-incrimination, there is no reason to believe

that his testimony was “necessary to the public interest.” 42 Pa.C.S. §

5947(b)(1). It was, at best, potentially helpful to Victim’s private interest in

a civil suit. However, regardless of whether Mr. Castor could have procured

such an order, he did not even attempt to obtain one.

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discretion not to prosecute, such action conveys immunity from future

prosecution for the same accusation or offense, even if such a decision takes

the form of an agreement. Only a court order conveying such immunity is

legally binding in this Commonwealth.

Alternatively, Appellant argues that the trial court abused its discretion

when it denied his habeas corpus motion seeking to bar his trial based on a

promissory estoppel theory. As Appellant contends:

The Commonwealth through [Mr.] Castor made a promise not to

prosecute. In reliance on that promise, [Appellant] testified in a

civil deposition without asserting his Fifth Amendment rights.

Justice can only be served by holding the Commonwealth to their

promise and upholding the non-prosecution agreement.

Appellant’s Brief at 130.

Initially, we note that Appellant fails to cite any precedent for the

proposition that a prosecution can be barred based on a contract theory of

promissory estoppel, or anything similar. Rather, he merely provides this

Court with boilerplate law concerning the theory and its application in contract

law. As such, Appellant has utterly failed to convince us of the applicability of

such a theory in barring a criminal prosecution. Accordingly, he is not entitled

to relief on this basis alone.

In any event, even if we were to countenance Appellant’s novel theory,

we agree with the trial court that he cannot establish the necessary elements

of a promissory estoppel claim. “Promissory estoppel enables a person to

enforce a contract-like promise that would be otherwise unenforceable under

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contract law principles.” Peluso v. Kistner, 970 A.2d 530, 532 (Pa. Cmwlth.

2009).

To establish promissory estoppel, the plaintiff must prove that:

(1) the promisor made a promise that would reasonably be

expected to induce action or forbearance on the part of the

promisee; (2) the promisee actually took action or refrained from

taking action in reliance on the promise; and (3) injustice can be

avoided only by enforcing the promise. These factors are strictly

enforced to guard against the “loose application” of promissory

estoppel.

Id. (citation omitted).

With regard to the first element, we agree with the trial court that it was

not reasonable for Appellant to rely on Mr. Castor’s promise, even if the trial

court had found credible the testimony provided by Mr. Castor and Appellant’s

civil attorney, John Patrick Schmitt, Esq.15 As noted above, there is simply no

authority for the proposition that immunity from criminal prosecution can be

conveyed by a prosecutor absent a valid court order pursuant to the immunity

statute, 42 Pa.C.S. § 5947. We cannot deem reasonable Appellant’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.

With regard to the second element, there is virtually no evidence in the

record that Appellant actually declined to assert his Fifth Amendment rights

at the civil deposition based on Mr. Castor’s purported promise not to

____________________________________________

15 The trial court did not find Mr. Castor’s testimony regarding the promise not

to prosecute to be credible.

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prosecute. Appellant did not testify to this fact at either hearing on the at-

issue habeas petition. Appellant’s only witnesses were Mr. Castor and

Attorney Schmitt. Mr. Castor testified that he had made such a promise

through the press release, in part, and through conversations he had with

Appellant’s prior criminal defense attorney, Walter Phillips, Esq. (now

deceased).

Yet, Attorney Schmitt was the only witness who could ostensibly testify

as to whether Appellant relied on the alleged promise not to prosecute by

sitting for a deposition in the civil case. Attorney Schmitt testified regarding

his conversations with Mr. Phillips, indicating that Mr. Phillips had assured him

that Mr. Castor’s promise not to prosecute was binding,16 and therefore

Appellant could be compelled to testify during any subsequent civil litigation.

RR at 703a (N.T., 2/3/16, at 11). However, as the Commonwealth accurately

notes,

Schmitt was forced to admit on cross-examination that he

permitted [Appellant] to be questioned by police and, during an

interview in advance of that questioning, did not believe that

[Appellant] could incriminate himself[. N.T., 2/3/16, at 22-24].

He also admitted to negotiating with the National Enquirer on the

details of a published interview with [Appellant] regarding the

criminal investigation while the criminal investigation was

ongoing, and also trying to negotiate the settlement agreement to

prohibit [Victim] from ever cooperating with police in the future[.

____________________________________________

16 As noted above, Mr. Phillips was clearly mistaken in that regard, as

immunity from prosecution can only be obtained by a court order pursuant to

42 Pa.C.S. § 5947.

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Id. at 31-33, 44-48]. It was not necessary for the trial court to

specifically state that it rejected … 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. at 25-

27.] Further, by crediting the testimony of Troiani and Kivitz the

trial court necessarily discredited Schmitt just as it did [Mr.]

Castor.[17]

While [Appellant] seemingly takes issue with the trial court’s

treatment of Schmitt’s testimony in its findings of fact and

conclusions of law, he completely ignores the trial court’s

thorough analysis of his testimony in its 1925([a]) opinion, which

makes it abundantly clear that Schmitt’s conduct in representing

[Appellant] was totally and completely inconsistent with the

existence of any promise or agreement not to prosecute from

[Mr.] Castor.

Commonwealth’s Brief at 136-37.

We agree with the Commonwealth and the trial court that the evidence

was entirely inconsistent with Appellant’s alleged reliance on Mr. Castor’s

promise in choosing not to assert his Fifth Amendment privilege in the civil

suit. It is axiomatic that:

The privilege against self-incrimination can only be asserted when

the witness is being asked to testify to self-incriminating facts and

only when a witness is asked a question demanding an

incriminating answer. The witness has the burden of

demonstrating that he or she has a reasonable ground for

asserting the privilege.

McDonough v. Com., Dept. of Transp., Bureau of Driver Licensing, 618

A.2d 1258, 1261 (Pa. Cmwlth. 1992) (citation omitted).

____________________________________________

17 Troiani, one of Victim’s attorneys in her civil case against Appellant, testified

that she never received any information from Appellant’s civil attorneys

indicating that he could never be prosecuted. N.T., 2/3/16, at 177. She also

indicated several reasons why it would not have been to Appellant’s advantage

to assert his Fifth Amendment rights during a civil trial in any event. Id. at

176.

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Attorney Schmitt believed that Appellant could not incriminate himself

based on the testimony he intended to provide. If this was the case, then

there was no basis for Appellant to assert the Fifth Amendment privilege in

the civil suit, which is consistent with Appellant’s prior decision to sit for an

interview with criminal investigators. Moreover, Attorney Schmitt’s actions

were entirely inconsistent with reliance on the purported promise, as he failed

to mention the alleged promise to Victim’s civil attorneys, and he attempted

to negotiate a settlement with Victim to prevent her from cooperating with the

police in the future. Thus, even if Appellant’s promissory estoppel theory were

cognizable (and we hold that it is not), he would not be entitled to relief.

D. Motion to Suppress the Contents of Appellant’s Civil Deposition

Appellant next argues that the trial court abused its discretion when it

denied his motion to suppress the contents of his civil deposition.

[O]ur standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether

the factual findings are supported by the record and whether the

legal conclusions drawn from those facts are correct. We are

bound by the suppression court’s factual findings so long as they

are supported by the record; our standard of review on questions

of law is de novo. Where, as here, the defendant is appealing the

ruling of the suppression court, we may consider only the evidence

of the Commonwealth and so much of the evidence for the defense

as remains uncontradicted. Our scope of review of suppression

rulings includes only the suppression hearing record and excludes

evidence elicited at trial.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

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Appellant’s suppression argument is contingent upon his claim that Mr.

Castor unilaterally immunized Appellant from criminal prosecution, which we

have already rejected. We have also rejected Appellant’s promissory estoppel

theory as a basis for barring his prosecution, and we agree with the trial court

that suppression is not warranted for the following reasons:

1. Instantly, this [c]ourt concludes that there was neither an

agreement nor a promise not to prosecute, only an exercise of

prosecutorial discretion, memorialized by the February 17, 2005

press release.

2. In the absence of an enforceable agreement, [Appellant] relies

on a theory of promissory estoppel and the principles of due

process and fundamental fairness to support his motion to

suppress.

3. Where there is no enforceable agreement between parties

because the agreement lacked consideration, the agreement may

still be enforceable on a theory of promissory estoppel to avoid

injustice. Crouse v. Cyclops Indus., 745 A.2d 606 (Pa. 2000).

4. The party who asserts promissory estoppel must show (1) the

promisor made a promise that he should have reasonably

expected would induce action or forbearance on the part of the

promisee; (2) the promisee actually took action or refrained from

taking action in reliance on the promise; and (3) injustice can be

avoided only by enforcing the promise. Id. (citing Restatement

(Second) of Contracts § 90). Satisfaction of the third requirement

may depend, inter alia, on the reasonableness of the promisee’s

reliance and the formality with which the promise was made.

Thatcher’s Drug Store of W. Goshen, Inc. v. Consol.

Supermarkets, Inc., 636 A.2d 156, 160 (Pa. 1994) (citing

Restatement (Second) of Contracts § 90, comment b).

5. Because there was no promise, there can be no reliance on the

part of [Appellant] and principles of fundamental fairness and due

process have not been violated.

6. This [c]ourt finds that there is no Constitutional barrier to the

use of [Appellant]’s civil deposition testimony.

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TCO at 72 (quoting Findings of Fact and Conclusions of Law, 12/5/16, at 5 (RR

at 1196a)).

Appellant cites several cases in support of his claim, discussed below.

However, we conclude that none of these cases suggest, much less compel, a

ruling that the trial court abused its discretion in denying suppression of

Appellant’s civil deposition testimony in this matter.

Appellant first cites Commonwealth v. Eiland, 301 A.2d 651 (Pa.

1973), for the proposition that: “If the Commonwealth makes a promise to a

defendant, who acts in detriment to their protected rights as a result of that

promise, the District Attorney, as an ‘administrator of justice,’ cannot then

renege on the promise and seek to benefit from the deceit.” Appellant’s Brief

at 131.

However, Eiland did not involve circumstances comparable to the

matter at hand. There, the defendant had claimed that his incriminating

statement, given while in custody, was unlawfully induced through physical

coercion and a substantial delay between his arrest and his arraignment. The

Eiland Court ultimately granted relief, based on the following facts:

The record evinces [u]ncontradicted evidence that [the

defendant], a 20-year-old with a tenth grade education, was

isolated for several periods of time; that upon his initial

interrogation he refused to admit involvement in the shooting;

that eleven hours later when told by the police he would get more

lenient treatment if he confessed, he signed an incriminating

statement; and that he was not arraigned until some twenty-five

hours after arrest.

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Eiland, 301 A.2d at 654. The Eiland Court concluded that the defendant had

been subject to “impermissible psychological coercion.” Id. at 655.

Accordingly, the Court ruled that his incriminating statement should have been

suppressed.

Here, Appellant was not in custody when he was deposed. The at-issue

statement was given in the presence of experienced counsel at a civil

deposition, and his civil deposition testimony was not compelled based on a

promise that he would be shown leniency if he confessed directly to criminal

conduct. Thus, Eiland is completely inapposite.

Next Appellant argues that relief is due pursuant to United States v.

Hayes, 946 F.2d 230 (3d Cir. 1991). In Hayes, the defendant alleged that

the Commonwealth had breached the terms of his plea agreement, which

stated, in writing, that the district attorney would not recommend a specific

sentence at sentencing. The Commonwealth breached that agreement by

recommending a sentence in its sentencing memorandum. On that basis, the

Hayes Court granted relief and vacated the defendant’s sentence, reasoning

that, “the government must honor its bargain with the defendant.” Id. at

233.

The instant case does not involve a promise made pursuant to a plea

agreement. Moreover, the agreement in Hayes was memorialized in writing

and accepted by the trial court, and the specific terms of that agreement were

not in dispute. Here, the purported promise by Mr. Castor was not

memorialized in writing, and Appellant’s alleged consideration for that promise

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was nonexistent at the time; indeed, the Commonwealth in this case claims

that no agreement or promise existed at all. Furthermore, there is no

evidence that the purported promise not to prosecute was the product of a

negotiation, rather than merely being a unilateral declaration made by Mr.

Castor. Thus, Hayes does not support Appellant’s claim.

Appellant also cites Commonwealth v. Stipetich, 652 A.2d 1294 (Pa.

1995). In that case, Pittsburgh police searched George and Heidi Stipetich’s

home pursuant to a warrant and discovered a small quantity of drugs and

related paraphernalia.

Sergeant Thomas, the officer in charge of the search, was

subsequently contacted by the Stipetiches’ attorney, Charles

Scarlata. Thomas and Scarlata reached an agreement that, if

George Stipetich would answer questions concerning the source

of the controlled substances and drug paraphernalia found in his

residence, no charges would be filed against either of the

Stipetiches. George Stipetich then fulfilled his part of the

agreement by answering all questions posed by the police.

Nevertheless, … on the basis of the contraband recovered in the

foregoing search, Allegheny County authorities charged the

Stipetiches with possession of controlled substances. Citing the

non-prosecution agreement entered with the Pittsburgh police,

the Stipetiches filed a motion seeking dismissal of the charges.

The motion was granted by the [C]ourt of [C]ommon [P]leas.

Id. at 1294-95. Our Supreme Court reversed that decision because the “non-

prosecution agreement was, in short, invalid. The Pittsburgh police did not

have authority to bind the Allegheny County District Attorney’s office as to

whether charges would be filed.” Id. at 1295.

However, the Stipetich Court opined that:

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The decisions below, barring prosecution of the Stipetiches,

embodied concern that allowing charges to be brought after

George Stipetich had performed his part of the agreement by

answering questions about sources of the contraband discovered

in his residence would be fundamentally unfair because in

answering the questions he may have disclosed information that

could be used against him. The proper response to this concern

is not to bar prosecution; rather, it is to suppress, at the

appropriate juncture, any detrimental evidence procured through

the inaccurate representation that he would not be prosecuted.

Id. at 1296.

This language from Stipetich, relied upon by Appellant, is merely dicta.

The holding in Stipetich was solely that the Stipetiches’ prosecution was not

barred by the invalid non-prosecution agreement. Nevertheless, Stipetich is

also factually distinguishable from the instant case. Here, there was no

negotiated agreement, just a unilateral declaration by Mr. Castor, which on its

face did not grant Appellant immunity from prosecution. Moreover, as Mr.

Castor testified, “there wasn’t any quid pro quo here.” RR at 99 (N.T., 2/2/16,

at 99). Indeed, at the time of Mr. Castor’s statement, Victim had not yet filed

a civil claim against Appellant. Additionally, as discussed above, there was no

reasonable reliance on a defective grant of immunity when the suit was filed

and Appellant was ultimately deposed. Accordingly, Stipetich does not

support Appellant’s suppression claim.

Appellant also relies on Commonwealth v. Peters, 373 A.2d 1055 (Pa.

1977), but provides practically no analysis of that case. We find that Peters

is easily distinguishable from the instant matter. In Peters, an uncounseled

defendant waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

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and gave an incriminating statement when promised by a detective with the

District Attorney’s Office that he would not be prosecuted. Our Supreme Court

held that the Commonwealth had not “carried its burden” to demonstrate that

the defendant had knowingly, intelligently, and voluntarily waived his

Miranda rights, where “[n]o explanation of this promise was provided by the

Commonwealth.” Peters, 373 A.2d at 1062. Here, Appellant was

represented by multiple attorneys throughout the initial criminal investigation

and civil proceedings, and gave the at-issue statement during a civil

deposition, not during a custodial interrogation.

Appellant offers another cursory analysis of Commonwealth v. Bryan,

818 A.2d 537 (Pa. Super. 2003), but that case also does not suggest that he

is entitled to relief. In Bryan, the defendant failed to comply with an invalid

and unenforceable non-prosecution agreement with police. The trial court

dismissed the subsequently filed charges due to a delay in filing the charges.

We reversed, ruling, in part, that there was no demonstrable prejudice to the

defendant due to the delay. Id. at 541-42. We then, in dicta, suggested that,

“[h]ad incriminating information been obtained against [the defendant] as a

result of the unauthorized agreement, he would be entitled to have that

evidence suppressed.” Id. at 542. In any event, in that case, the police

offered not to prosecute in exchange for the defendant’s assistance in

unrelated criminal matters. The offer was made while the uncounseled

defendant was detained for blood testing during a DUI arrest. Again, in this

case, Appellant was represented by counsel, and there was no negotiation.

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The Commonwealth did not receive any benefit from Mr. Castor’s promise,

and Appellant provided testimony while counseled at a civil deposition, not

while under duress from a custodial interrogation.

Finally, in assessing the trial court’s denial of Appellant’s motion to

suppress, we are bound by the court’s factual determinations. The trial court

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. The court found that the weight

of the evidence supported its finding that no agreement or grant of immunity

was made, and that Appellant did not reasonably rely on any overtures by Mr.

Castor to that effect when he sat for his civil deposition. Thus, for all of the

aforementioned reasons, we do not ascertain any abuse of discretion in the

trial court’s denial of Appellant’s motion to suppress his civil deposition.

E. Evidence from Appellant’s Civil Deposition Concerning His

Possession and Distribution of Quaaludes in the 1970’s

Next, Appellant challenges the admission of the portion of his civil

deposition testimony pertaining to his possession and distribution of

Quaaludes in the 1970s. Appellant asserts that such evidence was

inadmissible under Pa.R.E. 404(b), and that it did not satisfy any exception

thereto as set forth in Rule 404(b)(2). Specifically, Appellant challenges the

admission at trial of his civil deposition testimony pertaining to

the circumstances under which [Appellant] was prescribed the

Quaaludes[, RR at 4789a-4790a;] the number of scripts

obtained[, id. at 4790;] and his decision to share the Quaaludes,

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noting that, at that time (i.e., the 1970s), “Quaaludes happen to

be the drug that kids, young people, were using to party with and

there were times when I wanted to have them just in case.” [id.

at 4793a].

Appellant’s Brief at 138.

The trial court determined that this evidence was admissible to establish

Appellant’s intent and motive in giving “a depressant to [Victim]” for the

purpose of impairing her ability to refuse to consent to sexual activity. TCO

at 115; see Pa.R.E. 404(b)(2) (permitting the admission of PBA evidence that

demonstrates “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident[,]” if “the probative value of

the evidence outweighs its potential for unfair prejudice.”).

Appellant contends:

The [r]ecord is barren of any evidence which reflects that

[Appellant] had Quaaludes in his possession in 2004[,] and that

the pills [Victim] was given were Quaaludes. In fact, the [r]ecord

reflects otherwise. Moreover, the fact that [Appellant] may have

shared Quaaludes with women in the 1970s is not probative of his

motive or intent concerning providing Benadryl to [Victim] in

2004.

Quaaludes were legal in the 1970s and were a “party drug” widely

used in the 1970s and early 1980s. [RR at 4969a-4970a]. The

fact that [Appellant] possessed but unlawfully shared Quaaludes

in the 1970s while partying with other individuals may be

salacious, but it does not establish any material fact in this case,

nor does it make a fact at issue (i.e., whether [Appellant] had

non[-]consensual sexual contact with [Victim][)] more or less

probable…. Further, it does not raise any reasonable inference

supporting a material fact. It had no probative value and was not

relevant but was extraordinarily prejudicial.

The prosecution offered this evidence to raise the innuendo that

[Appellant] supplied women with Quaaludes back in the 1970s and

then had sex with them. No facts were presented, however, to

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support the conclusion that the women: (a) were forced to take

the Quaaludes; (b) did not know that they were taking Quaaludes;

(c) actually had sex with [Appellant]; and (d) if they had sex with

[Appellant], had nonconsensual sex with [him]. The fact is, a

person can be impaired by voluntarily taking a controlled or

noncontrolled substance, or by consuming alcohol, and still

engage in consensual sexual contact. That such may have

happened between [Appellant] and some women in the 1970s in

no way establishes whether, on some night in 2004, [Appellant]

had nonconsensual contact with [Victim]. This prejudicial evidence

was offered for no reason other than to smear [Appellant], a

reason which certainly does not support the admissibility of the

evidence. A new trial is warranted.

Appellant’s Brief at 142-44.

The Commonwealth responds, first, that Appellant’s admissions

regarding his distribution of Quaaludes “were relevant because they tended to

establish that he had knowledge of substances—particularly, central nervous

system depressants—that would induce unconsciousness and facilitate a

sexual assault.” Commonwealth’s Brief at 151.

[Appellant] specifically testified in his deposition that he obtained

numerous prescriptions for Quaaludes, without intending to use

the pills himself, but to give to “young women [he] wanted to have

sex with[.]” [N.T.], 4/18/18, at 35, 40-42, 47…. He admitted

that he knew the drugs caused at least one woman—“Jane Doe

Number 1”—to get “high,” appear “unsteady,” and “walk[] like

[she] had too much to drink[.]” [Id.] at 35-37…. He knew the

drug was a central nervous system “depressant” because he had

taken a similar medication following surgery. For that that reason,

he did not take the drugs himself because he “get[s] sleepy” and

he “want[s] to stay awake[.]” [Id.] at 41-43….

Id. at 151-52.

The Commonwealth argues that these admissions were critical to the

prosecution in order to prove Appellant’s commission of an aggravated

indecent assault, where the Commonwealth was required to prove that he

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engaged in “penetration, however slight, of the genitals or anus of a

complainant with a part of the person’s body for any purpose other than good

faith medical, hygienic or law enforcement procedures” and

(1) the person does so without the complainant’s consent; …

(4) the complainant is unconscious or the person knows that the

complainant is unaware that the penetration is occurring;

(5) the person has substantially impaired the complainant’s power

to appraise or control his or her conduct by administering or

employing, without the knowledge of the complainant, drugs,

intoxicants or other means for the purpose of preventing

resistance….

18 Pa.C.S. § 3125(a).

The Commonwealth correctly notes, and Appellant does not dispute,

that the minimum mens rea for these offenses is recklessness. “A person acts

recklessly with respect to a material element of an offense when he

consciously disregards a substantial and unjustifiable risk that the material

element exists or will result from his conduct.” 18 Pa.C.S. § 302(b)(3). That

risk “must be of such a nature and degree that, considering the nature and

intent of the actor’s conduct and the circumstances known to him, its

disregard involves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor’s situation.” Id. (emphasis

added).

The Commonwealth argues that Appellant’s

admissions that he gave other women central nervous system

depressants (Quaaludes), knowing their effects, helped prove that

he knew that the supposed Benadryl he gave to [Victim] would

render her unconscious, or nearly unconscious, and[,] thus[,

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make her] unable to consent to sex with him—at the very least,

he disregarded this risk. Indeed, [Appellant]’s admission to

knowing the effect of a central nervous system depressant was

critically relevant to the case because it demonstrated his

familiarity with a certain prescription drug that falls within the

same class of drugs as that which he alleges to have given

[Appellant] on the night of the assault.

Commonwealth’s Brief at 154-55.18 The Commonwealth maintains that

Appellant’s

familiarity with one drug and its effects in an overall class of drugs

is highly probative where he claimed, in this prosecution, to have

used a different drug in the same class with effects he knows to

be similar. That is, his own words about his use and knowledge

of a central nervous system depressant drug, when coupled with

the admissions he made claiming to have provided [Victim]

Benadryl, and the expert testimony indicating that the effects

experienced by [Victim] are consistent with being given a central

nervous system depressant, were relevant to demonstrate

[Appellant]’s intent and motive in giving [Victim] a central nervous

system depressant; to wit, to render her unconscious so that he

could facilitate a sexual assault.

Id. at 156-57.

Second, the Commonwealth contends that Appellant’s admissions

regarding his distribution of Quaaludes were relevant to strengthen evidence

provided by the five PBA witnesses, discussed supra. The Commonwealth

____________________________________________

18 The Commonwealth’s expert forensic toxicologist, Dr. Timothy Rohrig,

testified that both Benadryl and Quaaludes fall in the same class of central

nervous system depressants. See N.T., 4/18/18, at 60, 85. Dr. Rohrig also

indicated his knowledge of several cases where Benadryl (or its active

ingredient, diphenhydramine) had been used to facilitate sexual assaults. Id.

at 74-76. He testified that numerous other central nervous system

depressants are manufactured as small, blue pills. Id. at 81-82. In any event,

the Commonwealth notes that it never conceded that Appellant had given

Victim Benadryl rather than another central nervous system depressant.

Commonwealth’s Brief at 154 n.34.

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argues that, in combination, such evidence was necessary to establish

Appellant’s “motive and intent in administering these intoxicants. The ability

of the Commonwealth to establish [Appellant]’s motive and intent through the

absence of mistake was particularly critical here, where consent was a

defense.” Id. at 160.

We agree with the Commonwealth, and we are not convinced that

Appellant’s attempts to draw a hard distinction between Quaaludes and

Benadryl present a meaningful argument for our consideration. First, the jury

was free to disbelieve Appellant’s assertion that he only provided Victim with

Benadryl. Second, even accepting that Appellant gave Benadryl to Victim, his

testimony regarding his knowledge of the effects of other central nervous

system depressants, such as Quaaludes, was highly probative of “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. 18 Pa.C.S. § 302(b)(3). This was particularly relevant where

Appellant’s own admissions to his sexual contact with Victim left him

contesting only her consent. His knowledge of the use of central nervous

system depressants, coupled with his likely past use of the same with the PBA

witnesses, were essential to resolving the otherwise he-said-she-said nature

of Victim’s allegations. Thus, this evidence was highly probative of Appellant’s

mens rea.

Furthermore, we do not ascertain any abuse of discretion in the trial

court’s determination that the probative value of this evidence outweighed its

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“potential for unfair prejudice.” Pa.R.E. 404(b)(2). In a vacuum, Appellant’s

use and distribution of a then-legal ‘party drug’ nearly half a century ago, does

not appear highly prejudicial, at least not to the extent that there was a

serious risk that it would overwhelm the good sense of a rational juror. It

only becomes significantly prejudicial, and fairly so, when, in the context of

other evidence, it establishes Appellant’s knowledge of and familiarity with

central nervous system depressants for purposes of demonstrating that he

was at least reckless in providing a central nervous system depressant to

Victim before engaging in sexual acts with her, as he should have been aware

that it would substantially impair her ability to consent.

Moreover, whatever potential for unfair prejudice existed was

substantially mitigated by the trial court’s issuance of cautionary instructions

regarding the admission of this evidence. It is undisputed that the jury was

instructed to consider the evidence in question only for its admitted purpose.

See Tyson, 119 A.3d at 362 (holding that “to alleviate the potential for unfair

prejudice, the court can issue a cautionary instruction to the jury, to advise

the jury of the limited purpose of the evidence and to clarify that the jury

cannot treat the prior crime as proof of [Tyson’s] bad character or criminal

tendencies”). Moreover, “[j]urors are presumed to follow the trial court’s

instructions.” Id. Accordingly, we ascertain no abuse of discretion in the trial

court’s admission of Appellant’s civil deposition statements regarding his use

and distribution of Quaaludes in the 1970s.

F. Consciousness-of-Guilt Jury Charge

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Appellant claims that the trial court abused its discretion when it issued

a consciousness-of-guilt jury charge. The Commonwealth argues that this

claim is waived, and the trial court agrees. See Commonwealth’s Brief at

170-71; TCO at 116-18. We agree that Appellant waived this claim by failing

to adequately preserve it below.

The Commonwealth contends that, “[a]lthough [Appellant] argued prior

to the jury charge that the trial court should not issue a consciousness of guilt

instruction, he made no objection to the actual instructions after they were

given….” Commonwealth’s Brief at 170. Indeed, regardless of any prior

discussions, when the court concluded giving the instructions to the jury,

neither the Commonwealth nor Appellant offered any objections. N.T.,

4/25/18, at 61. At 11:08 a.m., the jury retired to deliberate. Id. at 66. The

following day, Appellant filed written objections to the court’s jury instructions.

See Defendant William H. Cosby, Jr.’s Objections to Jury Instructions,

4/26/18, at 2 ¶ 5. Appellant contends that he adequately preserved his

objection by 1) opposing the instruction during the charging conference; and

2) filing the written objections the day after the jury retired to deliberate. We

disagree that those actions were sufficient to preserve his claim.

“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore, a “general

exception to the charge to the jury will not preserve an issue for appeal.

Specific exception shall be taken to the language or omission complained of.”

Pa.R.A.P. 302(b). “In order to preserve a claim that a jury instruction was

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erroneously given, the [a]ppellant must have objected to the charge at trial.”

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014); see also

Pa.R.Crim.P. 647(C) (“No portions of the charge nor omissions from the

charge may be assigned as error, unless specific objections are made thereto

before the jury retires to deliberate.”).

In Parker, as here, the defendant contested a jury charge “at the

charging conference.” Parker, 104 A.3d at 29. However, he failed to object

immediately after the jury was charged when prompted by the court. Id. We

held in that case that Parker’s objection at the charging conference was not

sufficient to preserve a claim challenging that instruction on appeal. Id.; see

also Commonwealth v. Smallhoover, 567 A.2d 1055, 1059 (Pa. Super.

1989) (deeming waived a challenge to a jury instruction under similar

circumstances).

Here, under Parker, Appellant’s objections at the charging conference

were not sufficient to preserve his challenge to the consciousness-of-guilt jury

charge issued by the trial court because he did not also object when the charge

was given to the jury. Moreover, Appellant’s attempt to preserve that

challenge in the subsequently-filed written objections does not satisfy the

explicit requirement in Rule 647(C) that the objection must be filed “before

the jury retires to deliberate.” Pa.R.Crim.P. 647(C). Thus, we agree with the

trial court that Appellant waived this claim.

Nevertheless, had Appellant not waived this claim, we would deem it

meritless.

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[W]hen evaluating the propriety of jury instructions, this Court will

look to the instructions as a whole, and not simply isola

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