# Com. v. Cosby Jr., W.

> Superior Court of Pennsylvania · December 10, 2019 · 224 A.3d 372

URL: https://www.frixlaw.com/law-library/cases/10781980

## Case

- **Court:** Superior Court of Pennsylvania
- **Decided:** December 10, 2019
- **Citations:** 224 A.3d 372; 2019 Pa. Super. 354
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Bender
- **Cited by:** 46 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10781980

## How later opinions describe it (automated extraction)

- concluding that prior bad acts evidence “established a distinct, signature pattern[ where the a]ppellant 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 sexua…
- finding the appellant’s challenge to the constitutionality of his registration and reporting requirements as an SVP under SORNA II to be not sufficiently developed when the appellant cited, but did not adequately apply the Mendoza-Martinez test to the applicable provisions of …
- holding that appellant failed to develop his challenge to the constitutionality of SORNA II where he cited, but did not adequately apply, the Mendoza-Martinez test to challenged provisions of SORNA II
- holding failure to discuss alterations in SORNA II made in response to Muniz and Butler resulted in waiver of claim under Pa.R.A.P. 2119(a

## Opinion text

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 con

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10781980. Public record. Not legal advice.