Petition for Writ of Certiorari — Pennsylvania, Petitioner v. William Henry Cosby, Jr.

APPENDIX TABLE OF CONTENTS

Opinion of the Supreme Court of Pennsylvania,

Middle District (June 30, 2021)................................ 1a

Concurring and Dissenting Opinion of

Justice Dougherty (June 30, 2021) ................ 110a

Dissenting Opinion of Justice Saylor

(June 30, 2021) ............................................... 121a

Opinion of the Superior Court of Pennsylvania

(December 30, 2019) ............................................. 126a

Judgment and Deferred Sentence,

Montgomery County Court of Common Pleas

(September 25, 2018) ............................................ 247a

App.1a

OPINION OF THE

SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

(JUNE 30, 2021)

252 A.3d 1092

[J-100-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

________________________

COMMONWEALTH OF PENNSYLVANIA,

Appellee,

v.

WILLIAM HENRY COSBY JR.,

Appellant.

________________________

No. 39 MAP 2020

Appeal from the Order of Superior Court at

No. 3314 EDA 2018 dated December 10, 2019

Affirming the Judgment of Sentence dated

September 25, 2018 of the Montgomery Court of

Common Pleas, Criminal Division, at

No. CP-46-CR-3932-2016

Argued: December 1, 2020

Before: BAER, C.J., SAYLOR, TODD, DONOHUE,

DOUGHERTY, WECHT, MUNDY, JJ.

App.2a

OPINION

JUSTICE WECHT

DECIDED: June 30, 2021

In 2005, Montgomery County District Attorney

Bruce Castor learned that Andrea Constand had

reported that William Cosby had sexually assaulted

her in 2004 at his Cheltenham residence. Along with

his top deputy prosecutor and experienced detectives,

District Attorney Castor thoroughly investigated

Constand’s claim. In evaluating the likelihood of a

successful prosecution of Cosby, the district attorney

foresaw difficulties with Constand’s credibility as a

witness based, in part, upon her decision not to file a

complaint promptly. D.A. Castor further determined

that a prosecution would be frustrated because there

was no corroborating forensic evidence and because

testimony from other potential claimants against

Cosby likely was inadmissible under governing laws

of evidence. The collective weight of these considerations led D.A. Castor to conclude that, unless Cosby

confessed, “there was insufficient credible and admissible evidence upon which any charge against Mr.

Cosby related to the Constand incident could be proven

beyond a reasonable doubt.”1

Seeking “some measure of justice” for Constand,

D.A. Castor decided that the Commonwealth would

decline to prosecute Cosby for the incident involving

Constand, thereby allowing Cosby to be forced to

testify in a subsequent civil action, under penalty of

perjury, without the benefit of his Fifth Amendment

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

at 60.

App.3a

privilege against self-incrimination.2 Unable to invoke

any right not to testify in the civil proceedings, Cosby

relied upon the district attorney’s declination and

proceeded to provide four sworn depositions. During

those depositions, Cosby made several incriminating

statements.

D.A. Castor’s successors did not feel bound by

his decision, and decided to prosecute Cosby notwithstanding that prior undertaking. The fruits of Cosby’s

reliance upon D.A. Castor’s decision—Cosby’s sworn

inculpatory testimony—were then used by D.A. Castor’s successors against Cosby at Cosby’s criminal

trial. We granted allowance of appeal to determine

whether D.A. Castor’s decision not to prosecute Cosby

in exchange for his testimony must be enforced against

the Commonwealth.3

I. Factual and Procedural History

In the fall of 2002, Constand, a Canadian-born

former professional basketball player, was employed

as the Director of Basketball Operations at Temple

University. It was in this capacity that Constand first

met Cosby, who had close ties to, and was heavily

involved with, the university. That fall, she, along with

a few other Temple administrators, showed Cosby

2 Id. at 63.

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

court permitted the Commonwealth to call five witnesses who

testified that Cosby had engaged in similar sexually abusive

patterns with each of them. We granted allowance of appeal

here as well to consider the admissibility of that prior bad act

evidence pursuant to Pa.R.E. 404(b). However, because our

decision on the Castor declination issue disposes of this appeal,

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

App.4a

around the university’s then-recently renovated basketball facilities. Over the course of several telephone

conversations concerning the renovations, Cosby and

Constand developed a personal relationship.

Soon after this relationship began, Cosby invited

Constand to his Cheltenham residence. When Constand

arrived, Cosby greeted her, escorted her to a room,

and left her alone to eat dinner and drink wine.

Cosby later returned, sat next to Constand on a

couch, and placed his hand on her thigh. Constand

was not bothered by Cosby’s advance, even though it

was the first time that any physical contact had

occurred between the two. Shortly thereafter, Constand

left the residence.

As the personal nature of the relationship progressed, Cosby eventually met Constand’s mother and

sister, both of whom attended one of Cosby’s comedy

performances. Soon thereafter, Cosby invited Constand

to return to his home for dinner. Constand arrived at

the residence and again ate alone, in the same room

in which she had eaten during her first visit. When

Constand finished eating, Cosby approached and sat

next to her on the couch. At first, the two discussed

Constand’s desire to work as a sports broadcaster,

but Cosby soon attempted physical contact. Cosby

reached over to Constand and attempted to unbutton

her pants. When she leaned forward to prevent him

from doing so, Cosby immediately ceased his efforts.

Constand believed that her actions had communicated

to Cosby clearly that she did not want to engage in a

physical relationship with him. She expected that no

further incidents like this one would occur.

Toward the end of 2003, Cosby invited Constand

to meet at the Foxwoods Casino in Connecticut. Con-

App.5a

stand accepted the invitation and, once at the casino,

dined with Cosby and a casino employee, Tom Cantone.

After dinner, Cantone walked Constand to her hotel

room. Cosby called Constand and asked her to meet

him for dessert in his room. Constand agreed. When

she arrived, she sat on the edge of Cosby’s bed as the

two discussed their customary topics: Temple athletics

and sports broadcasting. Cosby then reclined on the

bed next to Constand. Eventually, he drifted off to

sleep. After remaining in Cosby’s room for a few

minutes, Constand left and returned to her own room.

Constand interpreted Cosby’s actions as another sexual

overture. Notwithstanding these unwelcome advances,

Constand still regarded Cosby as a mentor, remained

grateful for his career advice and assistance, and did

not feel physically threatened or intimidated.4

Eventually, Constand decided to leave her job at

Temple and return to Canada to work as a masseuse.

In January 2004, Constand went to Cosby’s Cheltenham residence to discuss that decision. As on her

previous visits to Cosby’s home, Constand entered

through the kitchen door. On this occasion, however,

Constand noticed that Cosby already had placed a glass

of water and a glass of wine on the kitchen table.

While she sat at the table with Cosby and discussed

her future, Constand initially chose not to sample

the wine because she had not yet eaten and did not

want to consume alcohol on an empty stomach. At

Cosby’s insistence, however, Constand began to drink.

At one point, Constand rose to use the restroom.

When she returned, Cosby was standing next to the

kitchen table with three blue pills in his hand. He

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

App.6a

reached out and offered the pills to Constand, telling

her that the pills were her “friends,” and that they

would “help take the edge off.”5 Constand took the

pills from Cosby and swallowed them. The two then

sat back down and resumed their discussion of

Constand’s planned departure from Temple.

Constand soon began experiencing double vision.

Her mouth became dry and she slurred her speech.

Although Constand could not immediately identify

the source of her sudden difficulties, she knew that

something was wrong. Cosby tried to reassure her.

He told her that she had to relax. When Constand

attempted to stand up, she needed Cosby’s assistance

to steady herself. Cosby guided her to a sofa in

another room so that she could lie down. Constand

felt weak and was unable to talk. She started slipping

out of consciousness.

Moments later, Constand came to suddenly, finding Cosby sitting behind her on the sofa. She remained

unable to move or speak. With Constand physically

incapable of stopping Cosby or of telling him to stop,

Cosby began fondling her breasts and penetrating

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

some point, Constand lost consciousness.

When Constand eventually awakened on Cosby’s

couch in the early morning hours, she discovered that

her pants were unzipped and that her bra was raised

and out of place. Constand got up, adjusted her

clothing, and prepared to leave the residence. She

found Cosby standing in a doorway, wearing a robe

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

App.7a

and slippers. Cosby told Constand that there was a

muffin and a cup of tea on a table for her. She took a

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

After the January 2004 incident, Constand and

Cosby continued to talk over the telephone about issues

involving Temple University athletics. In March of that

year, Cosby invited Constand to dinner at a Philadelphia restaurant. She accepted the invitation in

hopes of confronting Cosby about the January episode,

but the two did not discuss that matter during

dinner. Afterward, Cosby invited Constand to his

residence. She agreed. Once there, Constand attempted

to broach the subject by asking Cosby to identify the

pills that he had provided to her. She then tried to

ask him why he took advantage of her when she was

under the influence of those pills. Cosby was evasive

and would not respond directly. Realizing that Cosby

was not going to answer her questions, Constand got

up and left. She did not report to the authorities

what Cosby had done to her.

A few months later, Constand moved back to her

native Canada. She spoke with Cosby over the telephone, mostly about an upcoming Toronto performance

that he had scheduled. Cosby invited Constand and

her family to the show, which especially excited Constand’s mother, who had attended two of Cosby’s other

performances and who brought a gift for Cosby to the

show.

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

2005, when she bolted awake crying and decided to

call her mother for advice. Initially, Constand’s mother

could not talk because she was en route to work, but

she returned Constand’s call immediately upon arrival.

App.8a

During the call, Constand told her mother that

Cosby had sexually assaulted her approximately one

year earlier. Together, the two decided that the best

course of action was to contact the Durham Regional

Police Department in Ontario, Canada, and to attempt

to retain legal counsel in the United States.

That night, Constand filed a police report with the

Durham Regional Police Department. Shortly thereafter, Constand called Cosby, but he did not answer

his phone. When Cosby returned the call the next

day, both Constand and her mother were on the line.

Constand brought up the January 2004 incident and

asked Cosby to identify the three blue pills that he

had given to her that night. Cosby apologized vaguely.

As to the pills, Cosby feigned ignorance, promising

Constand that he would check the label on the

prescription bottle from which they came and relay

that information to her.

Frustrated, Constand left the call, but her mother

remained on the line and continued to speak with

Cosby. Cosby assured Constand’s mother that he did

not have sexual intercourse with Constand while she

was incapacitated. Neither Constand nor her mother

informed Cosby that Constand had filed a police

report accusing him of sexual assault.

Constand later telephoned Cosby again and, unbeknownst to Cosby, recorded the conversation with a

tape recorder that she had purchased. During this

conversation, Cosby offered to continue assisting

Constand if she still desired to work in sports broadcasting. He also indicated that he would pay for Constand to continue her education. Cosby asked Constand to meet him in person to discuss these matters

further, and told her that he would have someone

App.9a

contact her to set up the meeting. As with the previous call, Cosby again refused to identify the pills that

he had provided to Constand on the night of the

alleged assault.

Within days of filing the police report, Constand

received two telephone messages from people associated

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

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

in Miami, Florida. Constand called the representative

back and recorded the call. The representative asked

for certain details about Constand and her mother so

that he could book flights and hotel rooms for them.

Constand declined the offer and did not provide the

requested information. Constand then received a

message from one of Cosby’s attorneys, who stated

that he was calling to discuss the creation of a trust

that Cosby wanted to set up in order to provide

financial assistance for Constand’s education. Constand never returned the attorney’s call.

In the meantime, the Durham Regional Police

Department referred Constand’s police report to the

Philadelphia Police Department, which, in turn,

referred it to the Cheltenham Police Department in

Montgomery County, where Cosby’s residence was

located. The case was assigned to Sergeant Richard

Schaeffer, who worked in tandem with the Montgomery

County Detective Bureau and the Montgomery County

District Attorney’s Office to investigate Constand’s

allegation.

Sergeant Schaeffer first spoke with Constand by

telephone on January 19, 2005. According to Sergeant

Schaeffer, Constand seemed nervous throughout this

brief initial interview. Thereafter, Constand traveled

App.10a

from Canada to Cheltenham to meet with the investigating team in person. Because this was Constand’s

first time meeting with law enforcement personnel,

she felt nervous and uncomfortable while discussing

with them the intimate nature of her allegations.

On January 24, 2005, then-Montgomery County

District Attorney Bruce Castor issued a press release

informing the public that Cosby was under investigation for sexual assault. Sergeant Schaeffer and other

law enforcement officials interviewed Cosby in New

York City, utilizing a written question and answer

format. Cosby was accompanied by his attorneys,

Walter M. Phillips, Esquire, and John P. Schmitt,

Esquire. Cosby reported that Constand had come to

his home at least three times during their social and

romantic relationship. Cosby claimed that, on the

night in question, Constand came to his house

complaining of an inability to sleep. Cosby stated

that he told Constand that, when he travels, he takes

Benadryl, an antihistamine, which immediately makes

him drowsy. According to Cosby, he then handed

Constand one-and-a-half Benadryl pills, but did not

tell her what they were.

Cosby recalled that, once Constand ingested the

pills, they kissed and touched each other on the

couch. Cosby admitted that he touched Constand’s

breasts and vagina, but he insisted that she neither

resisted nor told him to stop. Additionally, Cosby told

the investigators that he never removed his clothing

and that Constand did not touch any part of his body

under his clothes. Cosby denied having sexual

intercourse with Constand and disclaimed any intent

to do so that night. In fact, Cosby claimed that the

two never had sexual intercourse on any occasion.

App.11a

Cosby admitted that he told Constand and her mother

that he would write down the name of the pills and

provide them that information, but he acknowledged

that he never actually did so. After the interview—

and without being asked to do so—Cosby provided

the police with pills, which laboratory testing confirmed

to be Benadryl.

In February 2005, then-District Attorney Castor

reviewed Constand’s interviews and Cosby’s written

answers in order to assess the viability of a prosecution

of Cosby. The fact that Constand had failed to

promptly file a complaint against Cosby troubled the

district attorney. In D.A. Castor’s view, such a delay

diminished the reliability of any recollections and

undermined the investigators’ efforts to collect forensic

evidence. Moreover, D.A. Castor identified a number

of inconsistences in Constand’s various statements to

investigators. After Cosby provided his written answers,

police officers searched his Cheltenham residence

and found no evidence that, in their view, could be

used to confirm or corroborate Constand’s allegations.

Following the search of Cosby’s home, Constand was

interviewed by police again. D.A. Castor noted that

there were inconsistences in that interview, which

further impaired Constand’s credibility in his eyes.

He also learned that, before she contacted the police

in Canada, Constand had contacted civil attorneys in

Philadelphia, likely for the purpose of pursuing

financial compensation in a lawsuit against Cosby.

Additionally, according to D.A. Castor, Constand’s

behavior in the year since the alleged assault

complicated any effort to secure a conviction against

Cosby. As evidenced by the number of telephone calls

that she recorded, Constand continued to talk with

App.12a

Cosby on the phone, and she also continued to meet

with him in person after the incident. D.A. Castor

found these recurring interactions between a complainant and an alleged perpetrator to be atypical.

D.A. Castor also reasoned that the recordings likely

were illegal and included discussions that could be

interpreted as attempts by Constand and her mother

to get Cosby to pay Constand so that she would not

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

“there was insufficient credible and admissible evidence upon which any charge against [ ] Cosby related

to the Constand incident could be proven beyond a

reasonable doubt.” N.T., 2/2/2016, at 60.

Having determined that a criminal trial likely

could not be won, D.A. Castor contemplated an alternative course of action that could place Constand on a

path to some form of justice. He decided that a civil

lawsuit for money damages was her best option. To

aid Constand in that pursuit, “as the sovereign,” the

district attorney “decided that [his office] would not

prosecute [ ] Cosby,” believing that his decision ultimately “would then set off the chain of events that

[he] thought as a Minister of Justice would gain

some justice for Andrea Constand.” Id. at 63-64. By

removing the threat of a criminal prosecution, D.A.

Castor reasoned, Cosby would no longer be able in a

civil lawsuit to invoke his Fifth Amendment privilege

against self-incrimination for fear that his statements

could later be used against him by the Commonwealth.

Mr. Castor would later testify that this was his

intent:

The Fifth Amendment to the United States

Constitution states that a person may not

App.13a

be compelled to give evidence against themselves. So you can’t subpoena somebody and

make them testify that they did something

illegal—or evidence that would lead someone

to conclude they did something illegal—on

the threat of if you don’t answer, you’ll be

subject to sanctions because you’re under

subpoena.

So the way you remove that from a witness

is—if you want to, and what I did in this

case—is I made the decision as the sovereign

that Mr. Cosby would not be prosecuted no

matter what. As a matter of law, that then

made it so that he could not take the Fifth

Amendment ever as a matter of law.

So I have heard banter in the courtroom

and in the press the term “agreement,” but

everybody has used the wrong word. I told

[Cosby’s attorney at the time, Walter] Phillips

that I had decided that, because of defects

in the case, that the case could not be won

and that I was going to make a public statement that we were not going to charge Mr.

Cosby.

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

in my legal opinion, that meant that Mr.

Cosby would not be allowed to take the

Fifth Amendment in the subsequent civil

suit that Andrea Constand’s lawyers had

told us they wanted to bring.

[Attorney] Phillips agreed with me that that

is, in fact, the law of Pennsylvania and of

App.14a

the United States and agreed that if Cosby

was subpoenaed, he would be required to

testify.

But those two things were not connected

one to the other. Mr. Cosby was not getting

prosecuted at all ever as far as I was concerned. And my belief was that, as the

Commonwealth and the representative of

the sovereign, that I had the power to make

such a statement and that, by doing so, as a

matter of law Mr. Cosby would be unable to

assert the Fifth Amendment in a civil deposition.

[Attorney] Phillips, a lawyer of vastly more

experience even than me—and I had 20

years on the job by that point—agreed with

my legal assessment. And he said that he

would communicate that to the lawyers who

were representing Mr. Cosby in the pending

civil suit.

Id. at 64-66. Recalling his thought process at the

time, the former district attorney further emphasized

that it was “absolutely” his intent to remove “for all

time” the possibility of prosecution, because “the ability

to take the Fifth Amendment is also for all time

removed.” Id. at 67.

Consistent with his discussion with Attorney

Phillips, D.A. Castor issued another press release,

this time informing the public that he had decided

not to prosecute Cosby. The press release stated, in

full:

Montgomery County District Attorney Bruce

L. Castor, Jr. has announced that a joint

App.15a

investigation by his office and the Cheltenham

Township Police Department into allegations

against actor and comic Bill Cosby is

concluded. Cosby maintains a residence in

Cheltenham Township, Montgomery County.

A 31 year old female, a former employee of

the Athletic Department of Temple University

complained to detectives that Cosby touched

her inappropriately during a visit to his home

in January of 2004. The woman reported

the allegation to police in her native Canada

on January 13, 2005.

Canadian authorities, in turn, referred the

complaint to Philadelphia Police. Philadelphia

forwarded the complaint to Cheltenham

Police. The District Attorney’s Office became

involved at the request of the Cheltenham

Chief of Police John Norris.

Everyone involved in this matter cooperated

with investigators including the complainant

and Mr. Cosby. The level of cooperation has

helped the investigation proceed smoothly

and efficiently. The District Attorney commends all parties for their assistance.

The District Attorney has reviewed the

statements of the parties involved, those of

all witnesses who might have first hand

knowledge of the alleged incident including

family, friends and co-workers of the

complainant, and professional acquaintances

and employees of Mr. Cosby. Detectives

searched Mr. Cosby’s Cheltenham home for

potential evidence. Investigators further

App.16a

provided District Attorney Castor with phone

records and other items that might have

evidentiary value. Lastly, the District Attorney reviewed statements from other persons

claiming that Mr. Cosby behaved inappropriately with them on prior occasions. However, the detectives could find no instance in

Mr. Cosby’s past where anyone complained to

law enforcement of conduct, which would

constitute a criminal offense.

After reviewing the above and consulting

with County and Cheltenham detectives,

the District Attorney finds insufficient,

credible, and admissible evidence exists

upon which any charge against Mr. Cosby

could be sustained beyond a reasonable

doubt. In making this finding, the District

Attorney has analyzed the facts in relation

to the elements of any applicable offenses,

including whether Mr. Cosby possessed the

requisite criminal intent. In addition, District

Attorney Castor applied the Rules of Evidence

governing whether or not evidence is admissible. Evidence may be inadmissible if it is

too remote in time to be considered legally

relevant or if it was illegally obtained pursuant to Pennsylvania law. After this analysis, the District Attorney concludes that a

conviction under the circumstances of this

case would be unattainable. As such, District Attorney Castor declines to authorize

the filing of criminal charges in connection

with this matter.

App.17a

Because a civil action with a much lower

standard for proof is possible, the District

Attorney renders no opinion concerning the

credibility of any party involved so as to not

contribute to the publicity and taint prospective jurors. The District Attorney does

not intend to expound publicly on the

details of his decision for fear that his opinions and analysis might be given undue

weight by jurors in any contemplated civil

action. District Attorney Castor cautions all

parties to this matter that he will reconsider

this decision should the need arise. Much

exists in this investigation that could be

used (by others) to portray persons on both

sides of the issue in a less than flattering

light. The District Attorney encourages the

parties to resolve their dispute from this

point forward with a minimum of rhetoric.

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

D.A. Castor did not communicate to Constand or

her counsel his decision to permanently forego prosecuting Cosby. In fact, Constand did not learn of the

decision until a reporter appeared at one of her civil

attorney’s offices later that evening. With the resolution

of her allegations removed from the criminal courts,

Constand turned to the civil realm. On March 8,

2015, less than one month after the district attorney’s

press release, Constand filed a lawsuit against Cosby

in the United States District Court for the Eastern

District of Pennsylvania.6

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

App.18a

During discovery in that lawsuit, Cosby sat for

four depositions. Cosby’s attorney for the civil proceedings, John Schmitt, had learned about the nonprosecution decision from Cosby’s criminal counsel,

Walter Phillips. From the perspective of Cosby’s

attorneys, the district attorney’s decision legally

deprived Cosby of any right or ability to invoke the

Fifth Amendment. Accordingly, not once during the

four depositions did Cosby invoke the Fifth Amendment

or even mention it. During one deposition, Attorney

Schmitt advised Cosby not to answer certain questions

pertaining to Constand, but he did not specifically

invoke the Fifth Amendment.7 Nor did Cosby claim

the protections of the Fifth Amendment when asked

about other alleged victims of his sexual abuse,

presumably because he believed that he no longer

retained that privilege. In fact, no one involved with

either side of the civil suit indicated on the record a

belief that Cosby could be prosecuted in the future.

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

stipulations, nor was it reduced to writing.

At deposition, Cosby testified that he developed

a romantic interest in Constand as soon as he met

her, but did not reveal his feelings. He acknowledged

that he always initiated the in-person meetings and

visits to his home. He also stated that he engaged in

consensual sexual activity with Constand on three

occasions, including the January 2004 incident.

Throughout the depositions, Cosby identified the

pills that he provided to Constand in 2004 as Benadryl.

Cosby claimed to know the effects of Benadryl well,

7 Constand’s attorneys subsequently filed a motion to compel

Cosby to answer.

App.19a

as he frequently took two of the pills to help himself

fall asleep. Thus, when Constand arrived at his house

on the night in question stressed, tense, and having

difficulty sleeping, Cosby decided to give her three

half-pills of Benadryl to help her relax. According to

Cosby, Constand took the pills without asking what

they were, and he did not volunteer that information

to her.

Cosby explained that, after fifteen or twenty

minutes, he suggested that they move from the

kitchen to the living room, where Constand met him

after going to the restroom. Cosby testified that Constand sat next to him on the couch and they began

kissing and touching each other. According to Cosby,

they laid together on the couch while he touched her

breasts and inserted his fingers into her vagina.

Afterwards, Cosby told her to try to get some sleep,

and then he went upstairs to his bedroom. He came

back downstairs two hours later to find Constand

awake. He then escorted her to the kitchen where

they had a muffin and tea.

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

that he told Constand and her mother that he would

write down the name of the pills that he gave her

and then send it to them, but that he failed to do so.

He further explained that he would not admit what

the pills were over the phone with Constand and her

mother because he did not want Constand’s mother

to think that he was a perverted old man who had

drugged her daughter. He also noted that he had

suspected that the phone calls were being recorded.

Although he did not believe that Constand was

making these allegations in an attempt to get money

App.20a

from him, Cosby explained that, after Constand and

her mother confronted him, he offered to pay for her

education and asked his attorney to commence discussions regarding setting up a trust for that purpose. Cosby admitted that it would be in his best

interests if the public believed that Constand had

consented to the encounter, and that he believed he

would suffer financial consequences if the public

believed that he had drugged and assaulted her.

Notably, during his depositions, Cosby confessed

that, in the past, he had provided Quaaludes8—not

Benadryl—to other women with whom he wanted to

have sexual intercourse.

Eventually, Constand settled her civil suit with

Cosby for $3.38 million.9 Initially, the terms of the

settlement and the records of the case, including

Cosby’s depositions, were sealed. However, following

a media request, the federal judge who presided over

the civil suit unsealed the records in 2015.

By that point, then-D.A. Castor had moved on

from the district attorney’s office and was serving as a

Montgomery County Commissioner. He was succeeded

as district attorney by his former first assistant, Risa

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

system depressant that was a popular recreational drug from

the 1960s through the 1980s, until the federal government

classified methaqualone as a controlled substance.

9 Constand also received $20,000 from American Media, Inc., which

was a party to the lawsuit as a result of an interview that

Cosby gave to the National Enquirer about Constand’s allegations.

App.21a

Vetri Ferman, Esquire.10 Despite her predecessor’s

decision not to prosecute Cosby, upon release of the

civil records, District Attorney Ferman reopened the

criminal investigation of Constand’s allegations. ThenFirst Assistant District Attorney Kevin R. Steele11

was present during the initial stages of the newlyrevived investigation and participated in early

discussions with Cosby’s new lawyers, Brian J. McMonagle, Esquire, and Patrick J. O’Conner, Esquire.

On September 23, 2015, upon learning that D.A.

Ferman had reopened the case, former D.A. Castor

sent her an email, to which he attached his February

17, 2005 press release, stating the following:

Dear Risa,

I certainly know better than to believe what

I read in the newspaper, and I have witnessed first hand your legal acumen. So you

almost certainly know this already. I’m

writing to you just in case you might have

forgotten what we did with Cosby back in

2005. Attached is my opinion from then.

Once we decided that the chances of prevailing

in a criminal case were too remote to make

an arrest, I concluded that the best way to

achieve justice was to create an atmosphere

where [Constand] would have the best

chance of prevailing in a civil suit against

Cosby. With the agreement of [Attorney]

10 D.A Ferman, now Judge Ferman, was subsequently elected

to a seat on the Court of Common Pleas of Montgomery County.

11 Mr. Steele has since been elected District Attorney of

Montgomery County.

App.22a

Phillips and [Constand’s] lawyers, I wrote

the attached as the ONLY comment I would

make while the civil case was pending.

Again, with the agreement of the defense

lawyer and [Constand’s] lawyers, I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him

the ability to claim his Fifth Amendment

protection against self-incrimination, thus

forcing him to sit for a deposition under

oath. [Attorney Phillips] was speaking for

Cosby’s side at the time, but he was in

contact with Cosby’s civil lawyers who did

not deal with me directly that I recall. I only

discovered today that [Attorney Phillips]

had died. But those lawyers representing

[Constand] civilly, whose names I did not

remember until I saw them in recent media

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

believed at the time that they thought

making him testify would solidify their civil

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

(the Commonwealth) to promise not to prosecute him. So in effect, that is what I did. I

never made an important decision without

discussing it with you during your tenure as

First Assistant.

Knowing the above, I can see no possibility

that Cosby’s deposition could be used in a

state criminal case, because I would have to

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

App.23a

believe any state judge would allow that

deposition into evidence, nor anything derived

therefrom. In fact, that was the specific

intent of all parties involved including the

Commonwealth and the plaintiff’s lawyers.

Knowing this, unless you can make out a

case without that deposition and without

anything the deposition led you to, I think

Cosby would have an action against the

County and maybe even against you

personally. That is why I have publically

suggested looking for lies in the deposition

as an alternative now that we have learned

of all these other victims we did not know

about at the time we had made the go, no-go

decision on arresting Cosby. I publically

suggested that the DA in California might

try a common plan scheme or design case

using [Constand’s] case as part of the res

gestae in their case. Because I knew

Montgomery County could not prosecute

Cosby for a sexual offense, if the deposition

was needed to do so. But I thought the DA

in California might have a shot because I

would not have the power to bind another

state’s prosecutor.

Some of this, of course, is my opinion and

using Cosby’s deposition in the CA case,

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

Commonwealth, defense, and civil plaintiff’s

lawyers were all in the agreement that the

attached decision from me stripped Cosby of

this Fifth Amendment privilege against

self-incrimination, forcing him to be deposed.

App.24a

That led to Cosby paying [Constand] a lot of

money, a large percentage of which went to

her lawyers on a contingent fee basis. In my

opinion, those facts will render Cosby’s

deposition inadmissible in any prosecution

in Montgomery County for the incident that

occurred in January 2004 in Cheltenham

Township.

Bruce

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

Replying by letter, D.A. Ferman asserted that,

despite the public press release, this was the first she

had learned about a binding understanding between

the Commonwealth and Cosby. She requested a copy

of any written agreement not to prosecute Cosby.

D.A. Castor replied with the following email:

The attached Press Release is the written

determination that we would not prosecute

Cosby. That was what the lawyers for [Constand] wanted and I agreed. The reason I

agreed and the plaintiff’s lawyers wanted it

in writing is so that Cosby could not take

the 5th Amendment to avoid being deposed

or testifying. A sound strategy to employ.

That meant to all involved, including Cosby’s

lawyer at the time, Mr. Phillips, that what

Cosby said in the civil litigation could not be

used against him in a criminal prosecution

for the event we had him under investigation

for in early 2005. I signed the press release

for precisely this reason, at the request of

[Constand’s] counsel, and with the acquiescence of Cosby’s counsel, with full and

App.25a

complete intent to bind the Commonwealth

that anything Cosby said in the civil case

could not be used against him, thereby forcing

him to be deposed and perhaps testify in a

civil trial without him having the ability to

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

possible environment for [Constand] to prevail

and be compensated. By signing my name

as District Attorney and issuing the attached,

I was “signing off” on the Commonwealth

not being able to use anything Cosby said in

the civil case against him in a criminal prosecution, because I was stating the Commonwealth will not bring a case against Cosby

for this incident based upon then-available

evidence in order to help [Constand] prevail

in her civil action. Evidently, that strategy

worked.

The attached, which was on letterhead and

signed by me as District Attorney, the concept

approved by [Constand’s] lawyers was a

“written declaration” from the Attorney for

the Commonwealth there would be no prosecution based on anything Cosby said in the

civil action. Naturally, if a prosecution could

be made out without using what Cosby said,

or anything derived from what Cosby said, I

believed then and continue to believe that a

prosecution is not precluded.

Id., Exh. D-7.

Despite her predecessor’s concerns, D.A. Ferman

and the investigators pressed forward, reopening the

criminal case against Cosby. Members of the prosecutorial team traveled to Canada and met with Con-

App.26a

stand, asking her to cooperate with their efforts to

prosecute Cosby, even though she had specifically

agreed not to do so as part of the civil settlement.

Investigators also began to identify, locate, and interview other women that had claimed to have been

assaulted by Cosby.

Nearly a decade after D.A. Castor’s public decision

not to prosecute Cosby, the Commonwealth charged

Cosby with three counts of aggravated indecent

assault12 stemming from the January 2004 incident

with Constand in Cosby’s Cheltenham residence. On

January 11, 2016, Cosby filed a petition for a writ of

habeas corpus13 seeking, inter alia, dismissal of the

charges based upon the former D.A. Castor’s purported

promise—made in his representative capacity on

behalf of the Commonwealth—that Cosby would not

be prosecuted. The Commonwealth filed a response

to the motion, to which Cosby replied.

From February 2-3, 2016, the trial court conducted

hearings on Cosby’s habeas petition, which it ultimately

denied. Later, in its Pa.R.A.P. 1925(a) opinion, the

trial court explained that “the only conclusion that

was apparent” from the record “was that no agreement

or promise not to prosecute ever existed, only the

12 By this time, Mr. Steele had replaced Judge Ferman as District Attorney. See 18 Pa.C.S. § 3125(a)(1), (a)(4), and (a)(5).

13 Cosby styled the petition as a “Petition for Writ of Habeas

Corpus and Motion to Disqualify the Montgomery County District Attorney’s Office.” The trial court treated the omnibus

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

charges based upon the alleged non-prosecution agreement; (2)

a motion to dismiss the charges based upon pre-arrest delay;

and (3) a motion to disqualify the Montgomery County District

Attorney’s Office.

App.27a

exercise of prosecutorial discretion.” Tr. Ct. Op.

(“T.C.O.”), 5/14/2019, at 62. In support of this conclusion, the trial court provided a lengthy summary of

what it found to be the pertinent facts developed at

the habeas corpus hearing. Because our analysis in

this case focuses upon the trial court’s interpretation of

those testimonies, we reproduce that court’s synopsis

here:

On January 24, 2005, then District Attorney

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

release announcing an investigation into

Ms. Constand’s allegations. Mr. Castor testified that as the District Attorney in 2005,

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

the investigation along with County Detective

Richard Peffall and Detective Richard Schaffer of Cheltenham. Mr. Castor testified that

“I assigned who I thought were our best

people to the case. And I took an active role

as District Attorney because I thought I

owed it to Canada to show that, in America,

we will investigate allegations against

celebrities.”

Mr. Castor testified that Ms. Constand went

to the Canadian police almost exactly one

year after the alleged assault and that the

case was ultimately referred to Montgomery

County. The lack of a prompt complaint was

significant to Mr. Castor in terms of Ms.

Constand’s credibility and in terms of law

enforcement’s ability to collect physical evidence. He also placed significance on the

fact that Ms. Constand told the Canadian

App.28a

authorities that she contacted a lawyer in

Philadelphia prior to speaking with them.

He also reviewed Ms. Constand’s statements

to police. Mr. Castor felt that there were

inconsistences in her statements. Mr. Castor

did not recall press quotes attributed to him

calling the case “weak” at a 2005 press

conference.

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

for criminal conduct. We don’t charge people

with making a mistake or doing something

foolish;” however, he indicated that it is a

true statement.

As part of the 2005 investigation, [Cosby]

gave a full statement to law enforcement

and his Pennsylvania and New York homes

were searched. [Cosby] was accompanied by

counsel and did not invoke the Fifth Amendment at any time during the statement.

After [Cosby’s] interview, Ms. Constand was

interviewed a second time. Mr. Castor never

personally met with Ms. Constand. Following

that interview of Ms. Constand, Mr. Castor

spoke to [Cosby’s] attorney Walter M.

Phillips, Jr. Mr. Phillips told Mr. Castor

that during the year between the assault

and the report, Ms. Constand had multiple

phone contacts with [Cosby]. Mr. Phillips

was also concerned that Ms. Constand had

recorded phone calls with [Cosby]. Mr.

Phillips told Mr. Castor that if he obtained

the phone records and the recorded calls he

would conclude that Ms. Constand and her

App.29a

mother were attempting was to get money

from [Cosby] so they would not go to the

police. While he did not necessarily agree

with the conclusions Mr. Phillips thought

would be drawn from the records, Mr.

Castor directed the police to obtain the

records. Mr. Castor’s recollection was that

there was an “inordinate number of [phone]

contacts” between [Cosby] and Ms. Constand

after the assault. He also confirmed the

existence of at least two “wire interceptions,”

which he did not believe would be admissible.

As part of the 2005 investigation, allegations

made by other women were also investigated.

Mr. Castor delegated that investigation to

Ms. Ferman. He testified that he determined

that, in his opinion, these allegations were

unreliable.

Following approximately one month of investigation, Mr. Castor concluded that “there

was insufficient credible and admissible evidenced upon which any charge against Mr.

Cosby related to the Constand incident

could be proven beyond a reasonable doubt.”

He testified that he could either leave the

case open at that point or definitively close

the case to allow a civil case. He did not

believe there was a chance that the criminal

case could get any better. He believed Ms.

Constand’s actions created a credibility issue

that could not be overcome.

* * *

App.30a

Mr. Castor further indicated, “Mr. Phillips

never agreed to anything in exchange for

Mr. Cosby not being prosecuted.” Mr. Castor

testified that he told Mr. Philips of his legal

assessment and then told Ms. Ferman of

the analysis and directed her to contact

Constand’s attorneys. He testified that she

was to contact the attorneys to let them

know that “Cosby was not going to be prosecuted and that the purpose for that was

that I wanted to create the atmosphere or

the legal conditions such that Mr. Cosby

would never be allowed to assert the Fifth

Amendment in the civil case.” He testified

that she did not come back to him with any

objection from Ms. Constand’s attorneys

and that any objection from Ms. Constand’s

attorneys would not have mattered anyway.

He later testified that he did not have any

specific recollection of discussing his legal

analysis with Ms. Ferman, but would be

surprised if he did not.

Mr. Castor testified that he could not recall

any other case where he made this type of

binding legal analysis in Montgomery County.

He testified that in a half dozen cases

during his tenure in the District Attorney’s

office, someone would attempt to assert the

Fifth Amendment in a preexisting civil case.

The judge in that case would then call Mr.

Castor to determine if he intended to prosecute the person asserting the privilege. He

could confirm that he did not and the claim

of privilege would be denied. Mr. Castor was

App.31a

unable to name a case in which this

happened.

After making his decision not to prosecute,

Mr. Castor personally issued a second, signed

press release on February 17, 2005. Mr.

Castor testified that he signed the press

release at the request of Ms. Constand’s

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

could show to a civil judge that Cosby is not

getting prosecuted.” The press release stated,

“After reviewing the above and consulting

with County and Cheltenham Detectives,

the District Attorney finds insufficient,

credible and admissible evidence exists

upon which any charge against Mr. Cosby

could be sustained beyond a reasonable

doubt.” Mr. Castor testified that this language made it absolute that [Cosby] would

never be prosecuted, “[s]o I used the present

tense, [exists], . . . So I’m making it absolute. I said I found that there was no evidence there was insufficient credible and

admissible evidence in existence upon which

any charge against [Cosby] could be

sustained. And the use of ‘exists’ and ‘could’

I meant to be absolute.”

The press release specifically cautioned the

parties that the decision could be revisited,

“District Attorney Castor cautions all parties

to this matter that he will reconsider this

decision should the need arise.” He testified

that inclusion of this sentence, warning that

the decision could be revisited, in the para-

App.32a

graph about a civil case and the use of the

word “this,” was intended to make clear

that it applied to the civil case and not to

the prosecution. Mr. Castor testified that

this sentence was meant to advise the

parties that if they criticized his decision,

he would contact the media and explain

that Ms. Constand’s actions damaged her

credibility, which would severely hamper

her civil case. He testified that once he was

certain a prosecution was not viable “I

operated under the certainty that a civil

suit was coming and set up the dominoes to

fall in such a way that Mr. Cosby would be

required to testify.” He included the language

“much exists in this investigation that could

be used by others to portray persons on both

sides of the issue in a less than flattering

light,” as a threat to Ms. Constand and her

attorneys should they attack his office. In a

2016 Philadelphia Inquirer article, in reference to this same sentence, Castor stated, “I

put in there that if any evidence surfaced

that was admissible I would revisit the

issue. And evidently, that is what the D.A.

is doing.” He testified that he remembered

making that statement but that it referred

to the possibility of a prosecution based on

other victims in Montgomery County or

perjury.

He testified that the press release was

intended for three audiences, the media, the

greater legal community, and the litigants.

He testified about what meaning he hoped

App.33a

that each audience would glean from the

press release. He did not intend for any of

the three groups to understand the entirety

of what he meant. The media was to

understand only that [Cosby] would not be

arrested. Lawyers would parse every word

and understand that he was saying there

was enough evidence to arrest [Cosby] but

that Mr. Castor thought the evidence was

not credible or admissible. The third audience

was the litigants, and they were to understand

that they did not want to damage the civil

case. He then stated that the litigants

would understand the entirety of the press

release, the legal community most of it and

the press little of it.

Mr. Castor testified that in November of

2014 he was contacted by the media as a

result of a joke a comedian made about

[Cosby]. Again, in the summer of 2015 after

the civil depositions were released, media

approached Mr. Castor. He testified that he

told every reporter that he spoke to in this

time frame that the reason he had declined

the charges was to strip Mr. Cosby of his

Fifth Amendment privilege. He testified

that he did not learn the investigation had

been reopened until he read in the paper

that [Cosby] was arrested in December 2015,

but there was media speculation in September 2015 that an arrest might be imminent.

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

and unsolicited, Mr. Castor sent an email to

App.34a

then District Attorney Risa Vetri Ferman.

His email indicated, in pertinent part,

I’m writing you just in case you might

have forgotten what we did with Cosby

back in 2005 . . . Once we decided that

the chances of prevailing in a criminal

case were too remote to make an arrest,

I concluded that the best way to achieve

justice was to create an atmosphere

where [Constand] would have the best

chance of prevailing in a civil suit against

Cosby. With the agreement of [Attorney Phillips] and [Constand’s] lawyer, I

wrote the attached [press release] as

the ONLY comment I would make

while the civil case was pending. Again,

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

Commonwealth that there would be no

state prosecution of

Cosby in order to remove from him the

ability to claim his Fifth Amendment

protection against self-incrimination,

thus forcing him to sit for a deposition

under oath. . . . But those lawyers representing [Constand] civilly . . . were part

of this agreement because they wanted

to make Cosby testify. I believed at the

time that they thought making him

testify would solidify their civil case,

but the only way to do that was for us

(the Commonwealth) to promise not to

prosecute him. So in effect, that is what

App.35a

I did. I never made an important decision without discussing it with you

during your tenure as First Assistant.

* * *

[B]ut one thing is fact. The Commonwealth, defense and civil plaintiff’s lawyers were all in agreement that the

attached decision from me stripped

Cosby of his Fifth Amendment privilege

against self-incrimination forcing him

to be deposed.

He indicated in his email that he learned

Mr. Phillips had died on the date of his

email. The email also suggested that the

deposition might be subject to suppression.

Ms. Ferman responded to Mr. Castor’s

email by letter of September 25, 2015,

requesting a copy of the “written declaration”

indicating that [Cosby] would not be prosecuted. In her letter, Ms. Ferman indicated

that “[t]he first I heard of such a binding

agreement was your email sent this past

Wednesday. The first I heard of a written

declaration documenting the agreement not

to prosecute was authored on 9/24/15 and

published today by Margaret Gibbons of the

Intelligencer. . . . We have been in contact

with counsel for both Mr. Cosby and Ms.

Constand and neither has provided us with

any information about such an agreement.”

Mr. Castor responded by email. His email

indicated,

App.36a

The attached Press Release is the

written determination that we would

not prosecute Cosby. That was what

the lawyers for the plaintiffs wanted

and I agreed. The reason I agreed and

the plaintiff’s wanted it in writing was

so Cosby could not take the 5th Amendment to avoid being deposed or testifying.. . . That meant to all involved,

including Cosby’s lawyer at the time,

Mr. Phillips, that what Cosby said in

the civil litigation could not be used

against him in a criminal prosecution

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

press release for precisely this reason,

at the request of Plaintiff’s counsel, and

with the acquiescence of Cosby’s counsel,

with full and complete intent to bind

the Commonwealth that anything Cosby

said in the civil case could not be used

against him, thereby forcing him to be

deposed and perhaps testify in a civil

trial without the ability to “take the

5th.” I decided to create the best

possible environment for the Plaintiff to

prevail and be compensated. By signing

my name as District Attorney and

issuing the attached, I was “signing off”

on the Commonwealth not being able to

use anything Cosby said in the civil

case against him in a criminal prosecution, because I was stating the

Commonwealth will not bring a case

against Cosby for the incident based on

App.37a

the then-available evidence in order to

help the Plaintiff prevail in her civil

action . . . [n]aturally, if a prosecution

could be made out without using what

Cosby said, or anything derived from

what Cosby said, I believed then and

continue to believe that a prosecution is

not precluded.

Mr. Castor testified that he intended to

confer transactional immunity upon [Cosby]

and that his power to do so as the sovereign

was derived from common law not from the

statutes of Pennsylvania. In his final email

to Ms. Ferman, Mr. Castor stated, “I never

agreed we would not prosecute Cosby.”

As noted, Ms. Constand’s civil attorneys

also testified at the hearing. Dolores Troiani,

Esq. testified that during the 2005 investigation, she had no contact with the District

Attorney’s office and limited contact with

the Cheltenham Police Department. Bebe

Kivitz, Esq. testified that during the 2005

investigation she had limited contact with

then-First Assistant District Attorney

Ferman. The possibility of a civil suit was

never discussed with anyone from the

Commonwealth or anyone representing

[Cosby] during the criminal investigation.

At no time did anyone from Cheltenham

Police, or the District Attorney’s Office, convey

to Ms. Troiani, or Ms. Kivitz, that [Cosby]

would never be prosecuted. They learned

that the criminal case was declined from a

reporter who came to Ms. Troiani’s office in

App.38a

the evening of February 17, 2005 seeking

comment about what Bruce Castor had

done. The reporter informed her that Mr.

Castor had issued a press release in which

he declined prosecution. Ms. Troiani had

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

Ms. Constand and her attorneys did not

request a declaration from Mr. Castor that

[Cosby] would not be prosecuted. Ms. Troiani

testified that if [Cosby] attempted to invoke

the Fifth Amendment during his civil depositions they would have filed a motion and

he would have likely been precluded since

he had given a statement to police. If he

was permitted to assert a Fifth Amendment

privilege, they would have been entitled to

an adverse inference jury instruction. Additionally, if [Cosby] asserted the Fifth Amendment, Ms. Constand’s version of the story

would have been the only version for the

jury to consider. Ms. Constand and her

counsel had no reason to request immunity.

At no time during the civil suit did Ms.

Troiani receive any information in discovery

or from [Cosby’s] attorneys indicating that

[Cosby] could never be prosecuted.

Ms. Troiani testified that she understood

the press release to say that Mr. Castor was

not prosecuting at that time but if additional

information arose, he would change his

mind. She did not take the language, “District Attorney Castor cautions all parties to

this matter that he will reconsider this deci-

App.39a

sion should the need arise,” to be a threat

not to speak publicly. She continued to speak

to the press; Mr. Castor did not retaliate.

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

there any mention of an agreement or promise not to prosecute. In her experience,

such a promise would have been put on the

record at the civil depositions. She testified

that during the four days of depositions,

[Cosby] was not cooperative and the depositions were extremely contentious. Ms. Troiani

had to file motions to compel [Cosby’s]

answers. [Cosby’s] refusal to answer questions

related to Ms. Constand’s allegations formed

the basis of a motion to compel. When Ms.

Troiani attempted to question [Cosby] about

the allegations, [Cosby’s] attorneys sought

to have his statement to police read into the

record in lieu of cross examination.

Ms. Troiani testified that one of the initial

provisions [Cosby] wanted in the civil settlement was a release from criminal liability.

[Cosby’s civil attorney Patrick] O’Conner’s

letter to Ms. Ferman does not dispute this

fact. [Cosby] and his attorneys also requested

that Ms. Troiani agree to destroy her file,

she refused. Eventually, the parties agreed

on the language that Ms. Constand would

not initiate any criminal complaint. The

first Ms. Troiani heard of a promise not to

prosecute was in 2015. The first Ms. Kivitz

learned of the purported promise was in a

2014 newspaper article.

App.40a

John P. Schmitt, Esq., testified that he has

represented [Cosby] since 1983. In the early

1990s, he became [Cosby’s] general counsel.

In 2005, when he became aware of the instant

allegations, he retained criminal counsel,

William Phillips, Esq., on [Cosby’s] behalf.

Mr. Phillips dealt directly with the prosecutor’s office and would then discuss all

matters with Mr. Schmitt. [Cosby’s] January 2005 interview took place at Mr. Schmitt’s

office. Both Mr. Schmitt and Mr. Phillips

were present for the interview. Numerous

questions were asked the answers to which

could lead to criminal charges. At no time

during his statement to police did [Cosby]

invoke the Fifth Amendment or refuse to

answer questions. Mr. Schmitt testified that

he had interviewed [Cosby] prior to his

statement and was not concerned about his

answers. Within weeks of the interview, the

District Attorney declined to bring a prosecution. Mr. Schmitt testified that Mr. Phillips

told him that the decision was an irrevocable

commitment that District Attorney Castor

was not going to prosecute [Cosby]. He

received a copy of the press release.

On March 8, 2005, Ms. Constand filed her

civil suit and Mr. Schmitt retained Patrick

O’Conner, Esq., as civil counsel. Mr. Schmitt

participated in the civil case. [Cosby] sat for

four days of depositions. Mr. Schmitt testified

that [Cosby] did not invoke the Fifth

Amendment in those depositions and that

he would not have let him sit for the deposi-

App.41a

tions if he knew the criminal case could be

reopened.

He testified that generally he does try to get

agreements on [Cosby’s] behalf in writing.

During this time period, Mr. Schmitt was

involved in written negotiations with the

National Enquirer. He testified that he relied

on the press release, Mr. Castor’s word and

Mr. Phillips’ assurances that what Mr.

Castor did was sufficient. Mr. Schmitt did

not personally speak to Mr. Castor or get

the assurance in writing. During the depositions, Mr. O’Conner objected to numerous

questions. At the time of the depositions,

Mr. Schmitt, through his negotiations with

the National Enquirer, learned that there

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

a Fifth Amendment privilege when asked

about these other women. Mr. Schmitt testified that he had not formed an opinion as to

whether Mr. Castor’s press release would

cover that testimony.

Mr. Schmitt testified that during negotiations

of the settlement agreement there were

references to a criminal case. The settlement

agreement indicated that Ms. Constand

would not initiate a criminal case against

Mr. Cosby. Mr. Schmitt did not come forward

when he learned the District Attorney’s

office re-opened the case in 2015.

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

App.42a

Notably, when District Attorney Castor decided

not to prosecute Cosby, he “absolutely” intended to

remove “for all time” the possibility of prosecution,

because “the ability to take the Fifth Amendment is

also for all time removed.” N.T., 2/2/2016, at 67. The

trial court sought clarification from Mr. Castor about

his statement in his second email to D.A. Ferman

that he still believed that a prosecution was permissible

as long as Cosby’s depositions were not used in such

proceedings. Former D.A. Castor explained to the court

that he meant that a prosecution may be available

only if other victims were discovered, with charges

related only to those victims, and without the use of

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

“trying to convey to Mrs. Ferman [was that his]

binding of the Commonwealth not to prosecute Cosby

was not for any crime in Montgomery County for all

time. It was only for the sexual assault crime in the

Constand case.” N.T., 2/2/2016, at 224-25. He

continued, “[s]o if they had evidence that some of

these other women had been sexually assaulted at

Cosby’s home in Cheltenham, then I thought they

could go ahead with the prosecution of that other

case with some other victim, so long as they realized

they could not use the Constand deposition and

anything derived therefrom.” Id.

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

agreement with Cosby, or even promised Cosby that

the Commonwealth would not prosecute him for

assaulting Constand. T.C.O. at 62. Instead, the trial

court considered the interaction between the former

district attorney and Cosby to be an incomplete and

App.43a

unauthorized contemplation of transactional immunity.

The trial court found no authority for the “proposition

that a prosecutor may unilaterally confer transactional

immunity through a declaration as the sovereign.” Id.

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

immunity statute, which is codified at 42 Pa.C.S.

§ 5947.14 Per the terms of the statute, permission from

14 The immunity statute provides, in relevant part:

(a)

General rule.–Immunity orders shall be available

under this section in all proceedings before:

(1)

Courts.

* * *

(b)

Request and issuance.–The Attorney General or a

district attorney may request an immunity order

from any judge of a designated court, and that judge

shall issue such an order, when in the judgment of

the Attorney General or district attorney:

(1)

the testimony or other information from a witness

may be necessary to the public interest; and

(2)

a witness has refused or is likely to refuse to

testify or provide other information on the

basis of his privilege against self-incrimination.

(c)

Order to testify.–Whenever a witness refuses, on the

basis of his privilege against self-incrimination, to

testify or provide other information in a proceeding

specified in subsection (a), and the person presiding

at such proceeding communicates to the witness an

immunity order, that witness may not refuse to testify

based on his privilege against self-incrimination.

(d)

Limitation on use.–No testimony or other information compelled under an immunity order, or any

information directly or indirectly derived from such

testimony or other information, may be used against

App.44a

a court is a prerequisite to any offer of transactional

immunity. See id. § 5947(b) (“The Attorney General

or a district attorney may request an immunity order

from any judge of a designated court.”). Because D.A.

Castor did not seek such permission, and instead

acted of his own volition, the trial court concluded

that any purported immunity offer was defective,

and thus invalid. Consequently, according to the trial

court, the “press release, signed or not, was legally

insufficient to form the basis of an enforceable

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

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

equivocal at best.” Id. at 63. The court deemed the

former district attorney’s characterization of his

decision-making and intent to be inconsistent,

inasmuch as he testified at times that he intended

transactional immunity, while asserting at other times

that he intended use and derivative-use immunity.

The trial court specifically credited Attorney Troiani’s

statements that she never requested that Cosby be

a witness in any criminal case, except that such

information may be used:

(1)

in a prosecution under 18 Pa.C.S. § 4902

(relating to perjury) or under 18 Pa.C.S. § 4903

(relating to false swearing);

(2)

in a contempt proceeding for failure to comply

with an immunity order; or

(3)

as evidence, where otherwise admissible, in

any proceeding where the witness is not a

criminal defendant.

42 Pa.C.S. § 5947(a)-(d).

App.45a

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

As further support for the view that no agreement

was reached, nor any promise extended, the trial

court noted that, in his initial statement to police,

which was voluntarily provided and not under oath,

Cosby did not invoke his Fifth Amendment rights.

Instead, Cosby presented a narrative of a consensual

sexual encounter with Constand, which he asserted

again later in his depositions. “Thus,” the trial court

explained, “there was nothing to indicate that [Cosby’s]

cooperation would cease if a civil case were filed.” Id.

at 65. Since Cosby previously had discussed the

incident without invoking his right to remain silent,

the court found no reason to believe that Cosby subsequently would do so in a civil case so as to

necessitate the remedy that the former district attorney

purported to provide in anticipation of that litigation.

The trial court further held that, even if there

was a purported grant of immunity, Cosby could not

insist upon its enforcement based upon the contractual

theory of promissory estoppel, because “any reliance

on a press release as a grant of immunity was unreasonable.” Id. Specifically, the court noted that Cosby

was represented at all times by a competent team of

attorneys, but none of them “obtained [D.A.] Castor’s

promise in writing or memorialized it in any way.”

Id. at 65-66. The failure to demand written documentation was evidence that no promise not to prosecute was ever extended. For these reasons, the trial

court found no legal basis to estop the

Commonwealth from prosecuting Cosby.

Cosby filed a notice of appeal and a petition for

review with the Superior Court. In response to the

App.46a

filings, the Superior Court temporarily stayed the

proceedings below. However, upon a motion by the

Commonwealth, the Superior Court quashed the appeal

and lifted the stay. This Court likewise rejected

Cosby’s pre-trial efforts to appeal the adverse rulings,

denying his petition for allowance of appeal, his

petition for review, and his emergency petition for a

stay of the proceedings.

On May 24, 2016, following a preliminary hearing,

all of Cosby’s charges were held for trial. Thereafter,

Cosby filed a number of pretrial motions, including a

petition for a writ of habeas corpus, a motion to

dismiss the charges on due process grounds, and, most

pertinent here, a “Motion to Suppress the Contents

of his Deposition Testimony and Any Evidence Derived

therefrom on the Basis that the District Attorney’s

Promise not to Prosecute Him Induced Him to Waive

his Fifth Amendment Right Against Self-Incrimination.” After holding a hearing on the suppression

motion, at which no new testimony was taken, the

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

testimony of Constand’s attorneys, and found that no

promise or agreement not to prosecute existed. Having

so determined, the court discerned “no [c]onstitutional

barrier to the use of [Cosby’s] civil deposition testimony” against him at trial, and it denied the suppression motion.15 Later, the Commonwealth would

introduce portions of Cosby’s deposition testimony

against Cosby, including his admissions to using

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

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

App.47a

Quaaludes during sexual encounters with women in

the past.

On September 6, 2016, the Commonwealth filed

a “Motion to Introduce Evidence of Other Bad Acts of

the Defendant,” which Cosby opposed by written

response. The Commonwealth sought to introduce

evidence and testimony from other women who alleged

that Cosby had sexually assaulted them, instances

that could not be prosecuted due to the lapse of

applicable statutes of limitations. On February 24,

2017, the trial court granted the Commonwealth’s

motion, but permitted only one of these alleged past

victims to testify at Cosby’s trial.

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

the case in Montgomery County, but agreed that the

jury should be selected from a different county. Thus,

Cosby’s jury was selected from residents of Allegheny

County, and trial commenced. On June 17, 2017,

after seven days of deliberation, the jury announced

that it could not reach a unanimous verdict. The trial

court dismissed the jury and declared a mistrial.

Ahead of the second trial, the Commonwealth

filed a motion seeking to introduce the testimony of a

number of additional women who offered to testify

about Cosby’s prior acts of sexual abuse. Generally,

the women averred that, in the 1980s, each had an

encounter with Cosby that involved either alcohol,

drugs, or both, that each became intoxicated or

incapacitated after consuming those substances, and

that Cosby engaged in some type of unwanted sexual

contact with each of them while they were unable to

resist. The dates of the conduct that formed the basis

of these allegations ranged from 1982 to 1989,

App.48a

approximately fifteen to twenty-two years before the

incident involving Constand. Again, Cosby opposed

the motion. Following oral argument, and despite

there being no change in circumstances other than

the first jury’s inability to reach a unanimous verdict,

the trial court granted the Commonwealth’s motion

in part, increasing the number of prior bad acts

witnesses allowed at trial from one to five. The

selection of the five witnesses from a pool of at least

nineteen women was left entirely to the Commonwealth.

The Commonwealth selected, and introduced

testimony at Cosby’s second trial from, the following

women:

Janice Baker-Kinney. In 1982, Baker-Kinney

worked at a Harrah’s Casino in Reno, Nevada. During

that year, a friend invited her to a party that,

unbeknownst to her, was being held at a temporary

residence used by Cosby in Reno. At the time, BakerKinney was twenty-four years old; Cosby was fortyfive. When Baker-Kinney arrived at the residence,

she realized that there actually was no party, at

least as she understood the term. Besides Cosby,

Baker-Kinney and her friend were the only people

there. Cosby gave Baker-Kinney a beer and a pill,

which she believed may have been a Quaalude. A

short time later, Cosby gave her a second pill. She

took both voluntarily, after which she became dizzy

and passed out. When she awakened, she was on a

couch in another room. Her shirt was unbuttoned

and her pants were unzipped. Cosby approached and

sat next to her. Cosby then leaned her against his

chest. He fondled her breasts and her vagina. Still

intoxicated, Baker-Kinney followed Cosby to an upstairs

bedroom. She had no memory of what happened after

App.49a

entering the bedroom until the following morning,

when she woke up naked next to Cosby, who also

was naked. Although she could not remember for

sure, Baker-Kinney believed that they had had sex.

She dressed and left.

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

Dickinson was an aspiring model, and Cosby contacted

her modeling agency to arrange a meeting. Supposedly,

Cosby wanted to mentor Dickinson. Along with her

agent, Dickinson met with Cosby. Sometime later,

while she was on a modeling job, Cosby called her

and offered to fly her to Lake Tahoe. There, Dickinson

met with Cosby’s musical director and practiced her

vocal skills. At dinner that night, Cosby arrived and

met with Dickinson, who was drinking wine. Dickinson

mentioned that she was suffering from menstrual

cramps. Cosby provided her with a pill to help relieve

the discomfort. The musical director eventually left,

and Cosby offered to discuss Dickinson’s career in his

hotel room. She agreed and accompanied him there.

When they got to the room, Cosby put on a robe and

made a phone call. Dickinson felt lightheaded and

had trouble speaking. Cosby got off the phone, climbed

on top of Dickinson, and had sexual intercourse with

her. Dickinson stated that she was unable to move

and that she passed out soon after Cosby had finished.

When she woke up the next morning, she did not

recall how she had arrived at Cosby’s room. She was

naked from the waist down, had semen on her legs,

and felt pain in her anus.

Heidi Thomas: In 1984, Heidi Thomas was twentyseven years old, and Cosby was forty-six. Thomas

wanted to be an actress and a model. Her agent told

App.50a

her that Cosby was looking to mentor a promising

young talent. Eventually, Cosby invited Thomas to

Reno for some personal acting lessons. Thomas believed

that she would be staying at a hotel, but, when she

got to Reno, a car took her to a ranch house where

Cosby was staying. Cosby arranged a room in the

house for her. When they were the only two people

left in the house, Cosby asked Thomas to audition for

him by pretending to be an intoxicated person, which

she explained to Cosby would be a challenge for her

because she had never been intoxicated. Cosby asked

how she could play such a role without ever having

had that experience. So, he gave her some wine.

Thomas drank only a little of the wine before becoming

extremely intoxicated. She faded in and out of consciousness. At one point she came to on a bed only to

find Cosby forcing his penis into her mouth. She

passed out and awoke later feeling sick.

Chelan Lasha. Lasha met Cosby in 1986, while

she was working as an actress and model. She was

only seventeen years old. Cosby was forty-eight. Cosby

called her at her home, and later visited her there.

Lasha then sent him modeling shots and spoke with

him a number of times on the phone about her

career. Cosby invited her to meet him in Las Vegas,

where, he told her, someone would take better pictures

of her. He implied that she could get a role on “The

Cosby Show.” Enticed by the prospect, Lasha went to

Las Vegas. As promised, once there, someone took

pictures of her. Someone else gave her a massage.

Eventually, Lasha was alone with Cosby. He gave

her a blue pill, which he said was an antihistamine

that would help with a cold from which she was

suffering. Cosby also provided her with a shot of

App.51a

liquor. Because Lasha trusted Cosby, she voluntarily

consumed both the alcohol and the pill. Cosby then

gave her a second shot and led her to a couch. Lasha

began to feel intoxicated. Lasha was unable to move

on her own, and Cosby helped her to the bed. Cosby

laid next to her, pinched her breasts, and rubbed his

genitals against her leg until she felt something

warm on her leg. Lasha woke up the next day

wearing only a robe.

Maud Lise-Lotte Lublin. When Cosby met Lublin in 1989, he was fifty-two years old, and she was

twenty-three. Lublin also was an aspiring model and

actress. Lublin’s agent informed her that Cosby wanted

to meet her. Soon after, Lublin met with Cosby, who

told her that he would refer her to a modeling agency

in New York City. Cosby then started to call her

regularly. Lublin considered Cosby to be a mentor

and a father figure. Once, Cosby invited her to his

hotel, where they talked about improvisation. Cosby

poured her a shot of liquor and told her to drink it.

Not normally a drinker, Lublin initially declined the

shot. When Cosby insisted, she drank it. He poured

her another shot, and again strongly encouraged her

to drink it. Because she trusted him, Lublin drank

the second shot as well. She quickly felt dizzy and

unstable, and was unable to stand on her own. Cosby

asked her to sit between his legs and lean against his

chest. He stroked her hair and talked, but she could

not hear his words. She could not move or get up.

She awoke two days later at her home, with no idea

how she got there.

The trial court rejected Cosby’s arguments that

the introduction of testimonies from the five prior

bad acts witnesses violated his due process rights,

App.52a

and that the incidents were too remote in time and

too dissimilar to have probative value, let alone

probative value sufficient to overcome the unduly

prejudicial impact of such evidence. The court noted

that prior bad acts evidence generally cannot be used

to establish a criminal propensity or to prove that

the defendant acted in conformity with the past acts,

but that such evidence can be used to show motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident, so long as

the probative value of the evidence outweighs its prejudicial effect.16 The court then determined that the

16 T.C.O. 96-97 (citing Pa.R.E. 404(b)). Rule 404 provides, in

relevant part:

(a)

Character Evidence.

(1)

Prohibited Uses. Evidence of a person’s character

or character trait is not admissible to prove

that on a particular occasion the person acted

in accordance with the character or trait.

* * *

(b)

Crimes, Wrongs or Other Acts.

(1)

(2)

Prohibited Uses. Evidence of a crime, wrong, or

other act is not admissible to prove a person’s

character in order to show that on a particular

occasion the person acted in accordance with

the character.

Permitted Uses. This evidence may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident. In a criminal

case this evidence is admissible only if the probative

value of the evidence outweighs its potential for

unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

App.53a

testimony of the five prior bad act witnesses—and

the deposition testimony pertaining to the prior use

of Quaaludes—was admissible to demonstrate

Cosby’s common plan, scheme, or design. The trial

court reasoned that the similarity and distinctiveness

of the crimes bore a logical connection to Constand’s

allegations, and amounted to a “signature of the

same perpetrator.”17 Comparing the past and present

allegations, the court noted that each woman was

substantially younger than Cosby and physically fit;

that Cosby initiated the contact with each woman,

primarily though her employment; that each woman

came to trust Cosby and view him as a friend or

mentor; that each woman accepted an invitation to a

place that Cosby controlled; that each woman consumed

a drink or a pill, often at Cosby’s insistence; that

each woman became incapacitated and unable to

consent to sexual contact; and that Cosby sexually

assaulted each woman while each was under the

influence of the intoxicant. Id. at 103-04. These

“chilling similarities,” the court explained, rendered

Cosby’s actions “so distinctive as to become a signature,”

and therefore the evidence was admissible to demonstrate a common plan, scheme, or design. Id. at 104.

The court further determined that the prior bad

acts evidence was admissible to demonstrate that

Cosby’s actions were not the result of mistake or

accident. The court relied in large part upon thenChief Justice Saylor’s concurrence in Commonwealth

v. Hicks, 156 A.3d 1114 (Pa. 2017), which suggested

the “doctrine of chances” as another “theory of logical

17 Id. at 97 (quoting Commonwealth v. Tyson, 119 A.3d 353,

358-59 (Pa. Super. 2015) (en banc)).

App.54a

relevance that does not depend on an impermissible

inference of bad character, and which is most greatly

suited to disproof of accident or mistake.” Id. at 1131

(Saylor, C.J., concurring). The trial court reasoned

that the purpose of the evidence was not to demonstrate

that Cosby behaved in conformity with a criminal

propensity, but rather to “establish the objective

improbability of so many accidents befalling the

defendant or the defendant becoming innocently

enmeshed in suspicious circumstances so frequently.”

Id. at 1133 (Saylor, C.J., concurring). The court noted

that there was no dispute that a sexual encounter

between Cosby and Constand had occurred; the

contested issue was Constand’s consent. The prior

bad acts evidence, therefore, was “relevant to show a

lack of mistake, namely, that [Cosby] could not have

possibly believed that [ ] Constand consented to the

digital penetration as well as his intent in

administering an intoxicant.” T.C.O at 108. Similarly,

with regard to the “doctrine of chances,” the court

opined that the fact that nineteen women were

proffered as Rule 404(b) witnesses “lends [sic] to the

conclusion that [Cosby] found himself in this situation

more frequently than the general population.” Id.

Accordingly, “the fact that numerous other women

recounted the same or similar story, further supports

the admissibility of this evidence under the doctrine

of chances.” Id.

The trial court recognized that the alleged assaults

upon the prior bad acts witnesses were remote in

time, but it explained that remoteness “is but one

factor that the court should consider.” Id. at 97. The

court reasoned that the distance in time between the

prior acts and the incident involving Constand was

App.55a

“inversely proportional to the similarity of the other

crimes or acts.” Id. (citing Tyson, 119 A.3d at 359).

Stated more simply, the “more similar the crimes,

the less significant the length of time that has

passed.” Id.at 98 (citing Commonwealth v. Luktisch,

680 A.2d 877 (Pa. Super. 1996)). The court noted that,

while there was a significant temporal gap between

the prior incidents and Constand’s case, the alleged

assaults involving the prior bad acts witnesses occurred

relatively close in time to each other. Thus, “[w]hen

taken together,” the court explained, “the sequential

nature of the acts coupled with their nearly identical

similarities renders the lapse of time unimportant.”

Id. at 109.

To be unfairly prejudicial, the trial court emphasized, the proffered evidence must be “unfair,” and

must have a “tendency to suggest decision on an

improper basis or to divert the jury’s attention away

from its duty of weighing the evidence impartially.”

Id. at 100 (quoting Pa.R.E. 403 cmt). Evidence “will

not be prohibited merely because it is harmful to the

defendant,” and a court “is not required to sanitize

the trial to eliminate all unpleasant facts.” Id. at

100-01 (quoting Commonwealth v. Conte, 198 A.3d

1169, 1180-81 (Pa. Super. 2018)). For the trial court,

the aforementioned similarities between Constand’s

claim and that of the other alleged victims weighed

in favor of admissibility, particularly because the

court believed that the Commonwealth had a “substantial need” for the evidence. Id. at 109. “Where the

parties agreed that the digital penetration occurred, the

evidence of other acts was necessary to rebut [Cosby’s]

characterization of the assault as a consensual encounter.” Id. “Furthermore,” the court opined, “Ms. Constand

App.56a

did not report the assault until approximately one

year later, further supporting the Commonwealth’s

need for the evidence.” Id. at 110. With regard to the

prejudicial impact of the evidence, the court suggested

that it had sufficiently mitigated any potential prejudice when it limited the number of witnesses who

could testify (at the second trial) to just five of the

nineteen witnesses that the Commonwealth requested.

Id. The court noted that it found all nineteen witness’

testimony to be relevant and admissible, but limited

the number to five so as to mitigate the prejudice to

Cosby. The court added that it gave cautionary instructions on the permissible use of this evidence,

designed so as to limit its prejudicial impact. Id. at

110-11.

Finally, the trial court rejected Cosby’s challenge

to the admissibility of the contents of his deposition

testimony to the extent that it concerned his use of

Quaaludes in decades past. The court opined that

Cosby’s “own words about his use and knowledge of

drugs with a depressant effect was relevant to show

his intent and motive in giving a depressant to [ ]

Constand.” Id. at 115. Because the evidence demonstrated Cosby’s knowledge of the effects of drugs

such as Quaaludes, the court reasoned, Cosby “either

knew [Constand] was unconscious, or recklessly disregarded the risk that she could be.” Id. As with the

Rule 404(b) witnesses, the court found that any prejudicial effect of this evidence was mitigated by the

court’s cautionary instructions. Id. Accordingly, the

court trial opined that all of the Rule 404(b) evidence

was admissible.

At the conclusion of a second jury trial, Cosby

was convicted on all three counts of aggravated

App.57a

indecent assault. Following the denial of a number of

post-trial motions, the trial court deemed Cosby to be

a “sexually violent predator” pursuant to the thenapplicable version of the Sex Offender Registration

and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.109799.41. The trial court then sentenced Cosby to

three to ten years in prison. Cosby was denied bail

pending an appeal. He filed post-sentence motions

seeking a new trial and a modification of his sentence,

which were denied.

Cosby timely filed a notice of appeal, prompting

the trial court to order him to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Cosby complied. On May 14, 2019, the trial

court responded to Cosby’s concise statement with its

opinion, issued pursuant to Pa.R.A.P. 1925(a).

A unanimous panel of the Superior Court affirmed

the judgment of sentence in all respects. Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019). The

Superior Court began by assessing Cosby’s challenge

to the admissibility of the prior bad acts evidence

under Rule 404(b). The panel observed that a reviewing court must evaluate the admission of evidence

pursuant to the abuse-of-discretion standard. Id. at

397. Addressing the trial court’s rationale regarding

the admissibility of prior bad acts evidence

demonstrating a common plan, scheme, or design,

the panel noted that the exception aims to establish

a perpetrator’s identity based upon “his or her commission of extraordinarily similar criminal acts on

other occasions. The exception is demanding in it[s]

constraints, requiring nearly unique factual circumstances in the commission of a crime, so as to effectively eliminate the possibility that it could have

App.58a

been committed by anyone other than the accused.”

Id. at 398 (citing Commonwealth v. Miller, 664 A.2d

1310, 1318 (Pa. 1995)). Although the common plan,

scheme, or design rationale typically is used to establish the identity of a perpetrator of a particular

crime, the Superior Court pointed out that courts

previously have also used the exception “to counter [an]

anticipated defense of consent.” Id. (quoting Tyson,

119 A.3d at 361).

In Tyson, Jermeel Omar Tyson brought food to

his victim, who was feeling ill. Tyson, 119 A.3d at

356. While Tyson remained in the residence, the

victim fell asleep. When she awoke some time later,

Tyson was having vaginal intercourse with her. She

told Tyson to stop, and he complied. But, when she

fell asleep a second time, he resumed the uninvited

sexual contact. Tyson was arrested and charged with

sex-related offenses. Id.

Before trial, the Commonwealth sought to introduce evidence of a rape for which Tyson had been

convicted in Delaware twelve years earlier. Id. The

Delaware offense involved a victim of the same race

and of a similar age as the victim in Tyson. Id. The

Delaware victim similarly was casually acquainted with

Tyson, invited Tyson into her home, was in a compromised state, and awoke to find Tyson engaged in

vaginal intercourse with her. Id. at 357. The trial court

declined to admit the Rule 404(b) evidence against

Tyson. Id. at 356. On interlocutory appeal, the Superior

Court reversed the trial court’s decision, finding that

the proffered evidence was admissible. Id. at 363.

The court reasoned that the “relevant details and

surrounding circumstances of each incident further

reveal criminal conduct that is sufficiently distinctive

App.59a

to establish [that Tyson] engaged in a common plan

or scheme.” Id. at 360.18 Notably, the Tyson Court

found the twelve-year gap between Tyson’s Delaware

conviction and the offense at issue to be “less

important” when compared to the strength of the

similarities between the crimes. Id. at 361.

With Tyson in mind, the Superior Court turned

its attention to the case sub judice. Based upon the

similarities between Constand’s allegations and those

of Cosby’s other accusers identified by the trial court,

the Superior Court agreed that the accounts of the

five prior bad acts witnesses established a “predictable

pattern” that reflected Cosby’s “unique sexual assault

playbook.” Cosby, 224 A.3d at 402. Accordingly, the

panel concluded that the witnesses’ testimony was

admissible to show Cosby’s common plan, scheme, or

design.

The Superior Court further agreed with the trial

court that the prior bad acts evidence was admissible

to demonstrate the absence of mistake on Cosby’s

part as to Constand’s consent. The court concluded

18 The en banc majority opinion in Tyson was authored by thenPresident Judge Gantman and joined by then-Judge Mundy,

President Judge Emeritus Ford Elliott, and Judges Panella,

Shogan, and Olson. Then-Judge Donohue dissented, joined by

President Judge Emeritus Bender and Judge Ott, opining that

the majority “overemphasize[d] the few similarities that exist

between Tyson’s prior rape conviction and the present matter

while completely dismissing the several important differences

between the two incidents.” Tyson, 119 A.3d at 363 (Donohue,

J., dissenting). The dissent further disputed the en banc majority’s

reliance upon the need for the prior bad acts evidence “to bolster

the credibility of the Commonwealth’s only witness where there

is no indication that the witness is otherwise impeachable.” Id.

at 364.

App.60a

that Tyson’s rationale was applicable to the instant

case. The court rejected Cosby’s efforts to distinguish

Constand’s allegations from those dating to the 1980s.

Cosby emphasized the fact that the relationship

between Cosby and Constand lasted longer than his

relationship with any of the prior bad acts witnesses,

that Constand was a guest at Cosby’s home on

multiple occasions, that Cosby and Constand had

exchanged gifts, that Cosby had made prior sexual

advances toward Constand, that the nature of the

sexual contact differed among the alleged victims,

and that the alleged prior assaults occurred in hotel

rooms or at the home of a third party, while the

incident with Constand occurred in Cosby’s home. Id.

at 401-02. The Superior Court dismissed these apparent

dissimilarities as unimportant, opining that “[i]t is

impossible for two incidents of sexual assault involving

different victims to be identical in all respects.” Id. at

402. The court added that it would be “simply unreasonable” to require two incidents to be absolutely

identical in order to be admissible under Rule 404(b),

and concluded that “[i]t is the pattern itself, and not

the mere presence of some inconsistencies between

the various assaults, that determines admissibility

under these exceptions.” Id.

As to the temporal gap between the prior bad

acts and the incident involving Constand, the Superior

Court acknowledged that, even if the evidence were

otherwise admissible under Rule 404(b), it “will be

rendered inadmissible if it is too remote.” Id. at 405

(quoting Commonwealth v. Shively, 424 A.2d 1257,

1259 (Pa. 1981)). The panel agreed with the trial

court’s statement that the significance of the age of a

prior bad act is “inversely proportional” to the similarity

App.61a

between the prior bad act and the facts underlying

the charged offense. Id. (quoting Commonwealth v.

Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010)). Although the panel recognized the significant lag in

time between the events in question, it relied upon

the similarities as found by the trial court to conclude

that “the at-issue time gap is relatively inconsequential.” Id. “Moreover,” the panel opined, “because

[Cosby’s] identity in this case was not in dispute (as

he claimed he only engaged in consensual sexual

contact with [Constand]), there was no risk of

misidentification” through the admission of the prior

bad acts evidence, “despite the gap in time.” Id.

Additionally, the Superior Court rejected Cosby’s

contention that the trial court had failed to weigh

adequately the prejudicial impact of the prior bad

acts evidence. The panel highlighted the fact that the

trial court provided the jury with cautionary instructions on the use of the evidence, as well as that

court’s decision to limit the number of prior bad acts

witnesses to five. These steps, in the Superior Court’s

view, were sufficient to mitigate the prejudicial impact

of the evidence. Id.

The Superior Court dealt separately with Cosby’s

Rule 404(b) challenge to the use of his deposition testimony regarding his provision of Quaaludes to

women in the past. The court rejected Cosby’s

“attempts to draw a hard distinction between

Quaaludes and Benadryl,” and noted that “the jury

was free to disbelieve [Cosby’s] assertion that he only

provided [Constand] with Benadryl.” Id. at 420. The

court credited the Commonwealth’s argument that

Cosby’s familiarity with Quaaludes was suggestive of

his mens rea, inasmuch as it was “highly probative of

App.62a

‘the circumstances known to him for purposes of

determining whether he acted with the requisite

mens rea for the offense of aggravated indecent

assault—recklessness.” Id. (quoting Pa.R.E. 404(b)(2)).

Moreover, Cosby’s “knowledge of the use of central

nervous system depressants, coupled with his likely

past use of the same with the [prior bad acts]

witnesses, were essential to resolving the otherwise

he-said-she-said nature of [Constand’s] allegations.”

Id. The Superior Court added that the trial court did

not err in determining that the probative value of

this evidence outweighed its potential for unfair prejudice, inasmuch as, “in a vacuum, Cosby’s use and

distribution of a then-legal ‘party drug’ nearly half a

century ago did not appear highly prejudicial,” and

“only becomes significantly prejudicial, and fairly so,

when, in the context of other evidence, it establishes

Cosby’s knowledge of and familiarity with central

nervous system depressants for purposes of demonstrating that he was at least reckless” in giving Constand such a drug before having sexual contact with

her. Id. at 420-21 (emphasis in original) (cleaned up).

The court added that any potential for unfair prejudice was mitigated substantially by the court’s

cautionary instructions, and that, accordingly, there

was no error in the admission of this evidence. Id. at

421.

Turning to Cosby’s claims relating to the enforceability of the non-prosecution or immunity decision

rendered by then-District Attorney Castor, the Superior

Court viewed this as a challenge to the denial of a

motion to quash a criminal complaint, which would

be evaluated under an abuse-of-discretion standard.

Id. at 410. Like the trial court, the panel found no

App.63a

“authority suggesting that a district attorney ‘may

unilaterally confer transactional immunity through a

declaration as the sovereign.’” Id. at 411 (quoting

T.C.O. at 62). Therefore, the court opined, “it is clear

on the face of the record that the trial court did not

abuse its discretion in determining that there was no

enforceable non-prosecution agreement in this case.”

Id. The court added: “Even assuming Mr. Castor

promised not to prosecute [Cosby], only a court order

can convey such immunity. Such promises exist only

as exercises of prosecutorial discretion, and may be

revoked at any time.” Id. The court discussed the

immunity statute and observed that it provides that

“a district attorney may request an immunity order

from any judge of a designated court. . . . ” Id. (quoting

42 Pa.C.S. § 5947(b)). Because no such order existed

here, the Superior Court concluded that it could

“ascertain no abuse of discretion in the trial court’s

determination that [Cosby] was not immune from

prosecution, because Mr. Castor failed to seek or

obtain an immunity order pursuant to Section 5947.”

Id. at 412. “Only a court order conveying such

immunity is legally binding in this Commonwealth.”

Id.

The Superior Court further rejected Cosby’s

invocation of promissory estoppel asserting reliance

upon D.A. Castor’s assurances, as demonstrated by

Cosby’s cooperation with Constand’s civil suit and

his decision not to invoke the Fifth Amendment

during his deposition testimony. The panel opined

that Cosby failed to cite sufficient authority to establish

that a prosecution may be barred under a promissory

estoppel theory. The panel further agreed with the

trial court that, in any event, “it was not reasonable

App.64a

for [Cosby] to rely on Mr. Castor’s promise, even if

the trial court had found credible the testimony provided by Mr. Castor and [Cosby’s] civil attorney,”

Attorney Schmitt. Id. The panel stated: “We cannot

deem reasonable [Cosby’s] reliance on such a promise

when he was represented by counsel, especially when

immunity can only be granted by a court order, and

where no court order granting him immunity existed.”

Id. at 413.

The Superior Court further opined that there

was “virtually no evidence in the record that [Cosby]

actually declined to assert his Fifth Amendment

rights at the civil deposition based on Mr. Castor’s

purported promise not to prosecute.” Id. Although

the court noted that Attorney Schmitt was the only

witness who could testify that Cosby indeed relied

upon Castor’s purported promise during his deposition

(Attorney Schmitt did so testify), it emphasized the

Commonwealth’s argument that Attorney Schmitt

allowed Cosby to give a statement to the police

during the initial investigation, that Cosby did not

incriminate himself at that point, that Attorney

Schmitt further negotiated with the National Enquirer

on the details of its published interview with Cosby,

and that Attorney Schmitt negotiated a term of the

settlement agreement with Constand that required

her assurance that she would not cooperate with any

future criminal investigation. Thus, the Commonwealth

argued, and the Superior Court agreed, that “[i]t was

not necessary for the trial court to specifically state

that it rejected . . . Schmitt’s testimony, as it is patently

obvious that his testimony belies his claim that there

was some ‘promise’ from [Mr.] Castor not to prosecute.”

Id. (quoting Commonwealth’s Superior Court Brief at

App.65a

136-37). The Superior Court agreed that “the evidence

was entirely inconsistent with [Cosby’s] alleged reliance

on Mr. Castor’s promise in choosing not to assert his

Fifth Amendment privilege in the civil suit.” Id. at

413-14.

For the same reasons, the Superior Court rejected

Cosby’s claim that the trial court erred in failing to

suppress his deposition testimony due to the immunity

that he purportedly should have enjoyed. The court

opined that Cosby’s suppression argument was

“contingent upon his claim that Mr. Castor unilaterally

immunized [Cosby] from criminal prosecution, which

we have already rejected.” Id. at 414. The panel

distinguished all of the precedents upon which Cosby

relied, including this Court’s decision in Commonwealth

v. Stipetich, 652 A.2d 1294 (Pa. 1995).

In Stipetich, Pittsburgh police personnel had

promised George and Heidi Stipetich that, if they

answered questions about the source of the drugs

found in their home, no charges would be filed against

them. After the Stipetiches fulfilled their part of the

agreement, prosecutors charged them anyway. Id. at

1294-95. The trial court granted the Stipetiches’ motion

to dismiss the charges on the basis of the police

promise. Id. at 1295. This Court ultimately held that

the Pittsburgh police department had no authority

to bind the Allegheny County District Attorney’s

Office to a non-prosecution agreement. Id. However,

this Court opined:

The decisions below, barring prosecution of

the Stipetiches, embodied concern that

allowing charges to be brought after George

Stipetich had performed his part of the

agreement by answering questions about

App.66a

sources of the contraband discovered in his

residence would be fundamentally unfair

because in answering the questions he may

have disclosed information that could be

used against him. The proper response to

this concern is not to bar prosecution;

rather, it is to suppress, at the appropriate

juncture, any detrimental evidence procured

through the inaccurate representation that

he would not be prosecuted.

Id. at 1296. Although the Superior Court dismissed

this passage from Stipetich as dicta, it found the situation distinguishable in any event inasmuch as

former D.A. Castor testified that there was no

“agreement” or “quid pro quo” with Cosby, and,

therefore, any reliance that Cosby placed upon the

district attorney’s promise was unreasonable. Cosby,

224 A.3d at 416-17.

The Superior Court concluded that it was bound

by the trial court’s factual findings and by its credibility

determinations. The trial court had “determined that

Mr. Castor’s testimony and, by implication, Attorney

Schmitt’s testimony (which was premised upon information he indirectly received from Mr. Castor) were

not credible.” Id. at 417. The panel added that the

trial court had “found that the weight of the evidence

supported its finding that no agreement or grant of

immunity was made, and that [Cosby] did not reasonably rely on any overtures by Mr. Castor to that

effect when he sat for his civil deposition.” Id. Thus,

the Superior Court discerned no error in the trial

App.67a

court’s decision to allow the use of Cosby’s deposition

testimony against him at trial.19

II. Issues:

On June 23, 2020, this Court granted Cosby’s

petition for allowance of appeal, limited to the following

two issues:

(1) Where allegations of uncharged misconduct

involving sexual contact with five women

(and a de facto sixth) and the use of

Quaaludes were admitted at trial through

the women’s live testimony and [Cosby’s]

civil deposition testimony despite: (a) being

unduly remote in time in that the allegations

were more than fifteen years old and, in

some instances, dated back to the 1970s; (b)

lacking any striking similarities or close

factual nexus to the conduct for which [Cosby]

was on trial; (c) being unduly prejudicial;

(d) being not actually probative of the

crimes for which [Cosby] was on trial; and

(e) constituting nothing but improper propensity evidence, did the Panel err in

affirming the admission of this evidence?

(2) Where: (a) [District Attorney Castor] agreed

that [Cosby] would not be prosecuted in

order to force [Cosby’s] testimony at a depo19 In addition to the Rule 404(b) and non-prosecutions claims,

the Superior Court rejected a number of other issues raised by

Cosby, including an assertion of improper juror bias, a challenge

to an allegedly misleading jury instruction, and a contention that

SORNA was unconstitutional. Cosby, 224 A.3d at 396, 421-431.

Because those issues are not relevant to the matters before us,

we need not discuss them herein.

App.68a

sition in [Constand’s] civil action; (b) [the

district attorney] issued a formal public

statement reflecting that agreement; and (c)

[Cosby] reasonably relied upon those oral

and written statements by providing deposition testimony in the civil action, thus

forfeiting his constitutional right against

self-incrimination, did the Panel err in

affirming the trial court’s decision to allow

not only the prosecution of [Cosby] but the

admission of [Cosby’s] civil deposition testimony?

Commonwealth v. Cosby, 236 A.3d 1045 (Pa. 2020)

(per curiam).20

III. Analysis

We begin with Cosby’s second listed issue, because,

if he is correct that the Commonwealth was precluded

from prosecuting him, then the question of whether

the prior bad act testimony satisfied Rule 404(b) will

become moot.

On February 17, 2005, then-District Attorney

Castor announced to the public, on behalf of the

Commonwealth of Pennsylvania, that he would not

prosecute Cosby for any offense related to the 2004

sexual abuse that Constand alleged. Constand’s

potential credibility issues, and the absence of direct

or corroborative proof by which to substantiate her

claim, led the district attorney to believe that the

case presented “insufficient, credible, and admissible

20 In his petition, Cosby also sought this Court’s review of his

claim of improper juror bias and his challenge to the constitutionality of SORNA. We denied allocatur as to those two claims.

App.69a

evidence upon which any charge could be sustained

beyond a reasonable doubt.” Press Release, 2/17/2005

(cleaned up). Given his “conclu[sion] that a conviction

under the circumstances of this case would be

unattainable,” D.A. Castor “decline[d] to authorize

the filing of criminal charges in connection with this

matter.” Id. In light of the non-prosecution decision,

Cosby no longer was exposed to criminal liability

relating to the Constand allegations and thus could

no longer invoke his Fifth Amendment privilege

against compulsory self-incrimination in that regard.

With no legal mechanism available to avoid testifying

in Constand’s civil suit, Cosby sat for depositions and,

therein, made a number of statements incriminating

himself.

D.A. Castor’s declination decision stood fast

throughout his tenure in office. When he moved on,

however, his successor decided to revive the investigation and to prosecute Cosby. Ruling upon Cosby’s

challenge to this belated prosecution, the trial court

concluded that the former district attorney’s promise

did not constitute a binding, enforceable agreement.

To determine whether Cosby permanently was

shielded from prosecution by D.A. Castor’s 2005

declination decision, we first must ascertain the legal

relationship between D.A. Castor and Cosby. We

begin with the trial court’s findings.

It is hornbook law that reviewing courts are not

fact-finding bodies. O’Rourke v. Commonwealth, 778

A.2d 1194, 1199 (Pa. 2001). Appellate courts are

limited to determining “whether there is evidence in

the record to justify the trial court’s findings.” Id. at

1199 n.6. “If so, this Court is bound by them.” Id.

However, while “we accord deference to a trial court

App.70a

with regard to factual findings, our review of legal

conclusions is de novo.” Id. at n.7 (citation omitted).

Indeed, it is a long-standing appellate principle that,

“[w]ith respect to [ ] inferences and deductions from

facts and [ ] conclusions of law, . . . appellate courts

have the power to draw their own inferences and

make their own deductions and conclusions.” In re

Pruner’s Est., 162 A.2d 626, 631 (Pa. 1960) (citations

omitted).

Here, the trial court presided over the habeas

corpus hearing, viewing and hearing the witnesses

and their testimonies first-hand. From that vantage

point, the trial court determined that, as a matter of

fact, D.A. Castor had not extended a formal promise

to Cosby never to prosecute him, let alone consummated

a formal non-prosecution agreement with Cosby. The

factual basis for the court’s findings was two-fold.

First, the court characterized the interaction between

the district attorney and Cosby as a failed attempt to

reach a statutorily prescribed transactional immunity

agreement. Second, the court concluded that the former

district attorney’s testimony regarding the legal relationship between him and Cosby was inconsistent

and “equivocal at best.” T.C.O. at 63. Both findings

are supported adequately by the record.

Pursuant to 42 Pa.C.S. § 5947, when a prosecutor

wishes to formalize an immunity agreement, he or

she “may request an immunity order from any judge

of a designated court.” Id. § 5947(b). Presented with

such a request, the petitioned court “shall issue such

an order,” id., upon which a witness “may not refuse

to testify based on his privilege against selfincrimination.” Id. § 5947(c). At the habeas hearing,

former District Attorney Castor testified that he

App.71a

intended to provide Cosby with transactional immunity.

He explained that this conferral was predicated upon

the state’s common-law authority as a sovereign

rather than any statutory provisions or protocols.

T.C.O. at 57 (citing N.T., 2/2/2016, at 232, 234, 236).

The record does not contradict his testimony. There

is no evidence, nor any real contention, that the

parties even contemplated a grant of immunity under

Section 5947. The trial court’s finding that the

interaction between D.A. Castor and Cosby was not a

formal attempt to bestow transactional immunity upon

Cosby is supported by the record.

The trial court’s description of former D.A. Castor’s

testimony as inconsistent and equivocal finds support

in the record as well. At times, the former district

attorney was emphatic that he intended his decision

not to prosecute Cosby to bind the Commonwealth permanently, provided no substantive changes

occurred in the case, such as Cosby confessing to the

alleged crimes or proof appearing that Cosby had lied

to, or attempted to deceive, the investigators. In

addition to the unconditional nature of the press

release, former D.A. Castor told then-District Attorney Ferman in his first email to her that he “intentionally and specifically bound the Commonwealth

that there would be no state prosecution.” N.T.,

2/2/2016, Exh. D-5. In his second email to D.A. Ferman,

Mr. Castor asserted that, by “signing off” on the

press release, he was “stating that the Commonwealth

will not bring a case against Cosby for this incident

based upon then-available evidence.” Id., Exh. D-7.

Further indicative of his intent to forever preclude

prosecution of Cosby for the 2004 incident, former

D.A. Castor testified that the signed press release

App.72a

was meant to serve as proof for a future civil judge

that Cosby would not be prosecuted, thus stripping

Cosby of his Fifth Amendment right not to testify.

Mr. Castor emphasized that his decision was “absolute

that [Cosby] never would be prosecuted.” T.C.O. at

52. The former district attorney stressed that his

intent was to “absolutely” remove “for all time” the

prospect of a prosecution, because, in his view, only a

steadfast guarantee would permanently strip Cosby

of his right to invoke the Fifth Amendment. N.T.,

2/2/2016, at 67. Mr. Castor also expounded upon the

purpose of his emails to D.A. Ferman, which he

claimed were an attempt to inform her that, while he

bound the Commonwealth with regard to the 2004

incident, she was free to prosecute Cosby for any

other crimes that she might uncover.

Although former D.A. Castor stated that he

intended permanently to bar prosecution of Cosby,

he also testified that he sought to confer some form

of transactional immunity. In his second email to

D.A. Ferman, former district attorney Castor suggested

that his intent in “signing off” on the press release

was to assure Cosby that nothing that he said in a

civil deposition could or would be used against him in

a criminal prosecution. N.T., 2/2/2016, Exh. D-7. In

the same email, he simultaneously expressed his

belief that “a prosecution is not precluded.” Id. As

such, the evidence suggests that D.A. Castor was

motivated by conflicting aims when he decided not to

prosecute Cosby. On one hand, the record demonstrates

that D.A. Castor endeavored to forever preclude the

Commonwealth from prosecuting Cosby if Cosby testified in the civil case. On the other hand, the record

indicates that he sought to foreclose only the use in a

App.73a

subsequent criminal case of any testimony that

Cosby gave in a civil suit.

The trial court was left to resolve these seeming

inconsistencies. The court concluded that Cosby and

D.A. Castor did not enter into a formal immunity

agreement. Because the record supports the trial

court’s findings in this regard, we are bound by those

conclusions. Pertinently, we are bound by the trial

court’s determination that D.A. Castor’s actions

amounted only to a unilateral exercise of prosecutorial

discretion. This characterization is consistent with

the former district attorney’s insistence at the habeas

hearing that what occurred between him and Cosby

was not an agreement, a contract, or any kind of quid

pro quo exchange.

We are not, however, bound by the lower courts’

legal determinations that derive from those factual

findings. Thus, the question becomes whether, and

under what circumstances, a prosecutor’s exercise of

his or her charging discretion binds future prosecutors’

exercise of the same discretion. This is a question of

law.

For the reasons detailed below, we hold that, when

a prosecutor makes an unconditional promise of nonprosecution, and when the defendant relies upon that

guarantee to the detriment of his constitutional right

not to testify, the principle of fundamental fairness

that undergirds due process of law in our criminal

justice system demands that the promise be enforced.

Prosecutors are more than mere participants in

our criminal justice system. As we explained in

Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018),

prosecutors inhabit three distinct and equally critical

App.74a

roles: they are officers of the court, advocates for

victims, and administrators of justice. Id. at 52. As

the Commonwealth’s representatives, prosecutors are

duty-bound to pursue “equal and impartial justice,”

Appeal of Nicely, 18 A. 737, 738 (Pa. 1889), and “to

serve the public interest.” Clancy, 192 A.3d 52. Their

obligation is “not merely to convict,” but rather to

“seek justice within the bounds of the law.”

Commonwealth v. Starks, 387 A.2d 829, 831 (Pa. 1978).

As an “administrator of justice,” the prosecutor has the power to decide whether to

initiate formal criminal proceedings, to select

those criminal charges which will be filed

against the accused, to negotiate plea bargains, to withdraw charges where appropriate, and, ultimately, to prosecute or dismiss

charges at trial. See, e.g., 16 P.S. § 1402(a)

(“The district attorney shall sign all bills of

indictment and conduct in court all criminal

and other prosecutions. . . . ”); Pa.R.Crim.P.

507 (establishing the prosecutor’s power to

require that police officers seek approval

from the district attorney prior to filing

criminal complaints); Pa.R.Crim.P. 585

(power to move for nolle prosequi); see also

ABA Standards §§ 3-4.2, 3-4.4. The extent

of the powers enjoyed by the prosecutor was

discussed most eloquently by United States

Attorney General (and later Supreme Court

Justice) Robert H. Jackson. In his historic

address to the nation’s United States Attorneys, gathered in 1940 at the Department of

Justice in Washington, D.C., Jackson observed

that “[t]he prosecutor has more control over

App.75a

life, liberty, and reputation than any other

person in America. His discretion is tremendous.” Robert H. Jackson, The Federal

Prosecutor, 31 Am. Inst. Crim. L. & Criminology 3, 3 (1940). In fact, the prosecutor is

afforded such great deference that this

Court and the Supreme Court of the United

States seldom interfere with a prosecutor’s

charging decision. See, e.g., United States v.

Nixon, 418 U.S. 683, 693 (1974) (noting that

“the Executive Branch has exclusive

authority and absolute discretion to decide

whether to prosecute a case”); Stipetich, 652

A.2d at 1295 (noting that “the ultimate discretion to file criminal charges lies in the

district attorney”).

Clancy, 192 A.3d at 53 (cleaned up).

As prosecutors are vested with such “tremendous”

discretion and authority, our law has long recognized

the special weight that must be accorded to their

assurances. For instance, in the context of statements

made during guilty plea negotiations, the Supreme

Court of the United States has held that, as a matter

of constitutional due process and as compelled by the

principle of fundamental fairness, a defendant generally

is entitled to the benefit of assurances made by the

prosecutor. See Santobello v. New York, 404 U.S. 257

(1971).21 Santobello holds that, “when a plea rests in

21 In Santobello, the Supreme Court of the United States did

not state explicitly that it was premising its holding on due

process guarantees. Nevertheless, it is only sensible to read

Santobello’s holding as resting upon due process principles because—as Justice Douglas noted in his concurring opinion—

without a constitutional basis the Court would have lacked

App.76a

any significant degree on a promise or agreement by

the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be

fulfilled.” Id. at 262 (emphasis added).

This Court has followed suit with regard to prosecutorial inducements made during the guilty plea

process, insisting that such inducements comport with

the due process guarantee of fundamental fairness. In

Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976),

during plea negotiations in a murder case, the prosecutor agreed to recommend to the sentencing court

that Rickey Zuber receive a sentence of seven to

fourteen years in prison if he pleaded guilty. Id. at

442-43. The prosecutor also agreed to consent to a

request that Zuber’s sentence be served concurrently

with “back time” that Zuber was required to serve for

a parole violation. Id. at 443. The prosecutor stated

the terms of the agreement on the record, and the

trial court accepted the terms of Zuber’s guilty plea

and sentenced Zuber accordingly. However, because

the law requires that “back time” sentences and new

sentences be served consecutively, Zuber was legally

obligated to begin serving his sentences one after the

other, instead of simultaneously. Id.

Zuber sought post-conviction relief, arguing that

the plea as stated in open court had to be enforced,

statutory law notwithstanding. On appeal to this

Court, Zuber argued that he was “induced by the

specific promise made by the Commonwealth,” which

ultimately turned out to be a “false and empty one.”

Id. We noted that plea bargaining is looked upon

jurisdiction over what was otherwise a state law matter. See

Santobello, 404 U.S., at 266-67 (Douglas, J. concurring).

App.77a

favorably and that “the integrity of our judicial

process demands that certain safeguards be stringently

adhered to so that the resultant plea as entered by a

defendant and accepted by the trial court will always

be one made voluntarily and knowingly, with a full

understanding of the consequences to follow.” Id.

[T]here is an affirmative duty on the part of

the prosecutor to honor any and all promises

made in exchange for a defendant’s plea.

Our courts have demanded strict compliance

with that duty in order to avoid any possible

perversion of the plea bargaining system,

evidencing the concern that a defendant

might be coerced into a bargain or fraudulently induced to give up the very valued

constitutional guarantees attendant the right

to trial by jury.

Therefore, in Pennsylvania, it is well settled

that where a plea bargain has been entered

into and is violated by the Commonwealth,

the defendant is entitled, at the least, to the

benefit of the bargain.

Id. at 444 (cleaned up).

We then turned to the remedy to which Zuber

was entitled, which was problematic because enforcement of the plea necessarily meant compelling an

outcome that was prohibited by statute. Nonetheless,

because, inter alia, Zuber had “reasonably relied upon

the advice of his counsel and the expression of that specific promise stated in open court by the assistant

district attorney,” id. at 445, he was entitled to the

benefit of the bargain. Thus, we modified Zuber’s

sentence by lowering the minimum range to reflect

App.78a

the point at which Zuber would have been eligible for

parole had the original bargain been enforceable by

law. Id. at 446.

Interactions between a prosecutor and a criminal

defendant, including circumstances where the latter

seeks enforcement of some promise or assurance

made by the former, are not immune from the dictates of due process and fundamental fairness. The

contours and attendant obligations of such interactions also can involve basic precepts of contract law,

which inform the due process inquiry. The applicability

of contract law to aspects of the criminal law has been

recognized by the Supreme Court of the United States,

see Puckett v. United States, 556 U.S. 129, 137 (2009),

by the United States Court of Appeals for the Third

Circuit, see McKeever v. Warden SCI-Graterford, 486

F.3d 81, 86 (3d Cir. 2007), and by this Court. See

Commonwealth v. Martinez, 147 A.3d 517, 531 (Pa.

2016). In order to succeed on a claim of promissory

estoppel, the aggrieved party must prove that: (1) the

promisor acted in a manner that he or she should

have reasonably expected to induce the other party

into taking (or not taking) certain action; (2) the

aggrieved party actually took such action; and (3) an

injustice would result if the assurance that induced

the action was not enforced. See Crouse v. Cyclops

Indus., 745 A.2d 606, 610 (Pa. 2000).

In Martinez, we reexamined the enforceability of

terms of plea agreements made by prosecutors

pertaining to the applicability of sexual offender

registration obligations. There, three defendants

entered into plea bargains with the Commonwealth,

each of which was formulated in a way that either

limited or eliminated the defendants’ obligations under

App.79a

the then-applicable sexual offender registration statute.

Martinez, 147 A.3d at 521 22. However, after some

time, our General Assembly enacted the first version

of SORNA, which fundamentally altered the registration and reporting obligations of sexual offenders,

including those of the three offenders in Martinez.

Each defendant was notified by the Pennsylvania State

Police that he or she was subject to the intervening

statute and thus had to comply with the new obligations under SORNA, even though those obligations

contradicted the terms of each of their plea deals. Id.

at 522-523.

Each of the three offenders filed an action seeking the enforcement of the terms of his guilty plea,

notwithstanding the fact that those terms conflicted

with the newly-enacted statute. Id. at 523-24. Citing

Santobello, Zuber, Commonwealth v. Hainesworth,

82 A.3d 444 (Pa. Super. 2013) (en banc), and other

decisions, this Court held that the offenders were

entitled to specific performance of the terms of the

plea bargains to which the prosecutors had agreed.

Martinez, 147 A.3d at 531-32. We held that, once a

bargained term is enveloped within a plea agreement, a defendant “is entitled to the benefit of his

bargain through specific performance of terms of the

plea agreement.” Id. at 533.

The applicability of contract law principles to

criminal negotiations is not limited to the plea

bargaining process. See United States v. Carrillo, 709

F.2d 35 (9th Cir. 1983) (holding that fundamental

fairness requires a prosecutor to uphold his or her

end of a non-prosecution agreement). For instance,

the United States Court of Appeals for the Third

Circuit has explained that, like plea agreements,

App.80a

non-prosecution agreements are binding contracts

that must be interpreted according to general principles

of contract law, guided by “special due process concerns.” United States v. Baird, 218 F.3d 221, 229 (3d

Cir. 2000) (citation omitted). And, in Commonwealth v.

Ginn, 587 A.2d 314 (Pa. Super. 1991), our Superior

Court similarly held that non-prosecution agreements

are akin to plea agreements, necessitating the application of contract law principles to prevent prosecutors from violating the Commonwealth’s promises

or assurances. Id. at 316-17.

Under some circumstances, assurances given by

prosecutors during plea negotiations, even unconsummated ones, may be enforceable on equitable grounds

rather than on contract law principles. Government

of Virgin Islands v. Scotland, 614 F.2d 360 (3d Cir.

1980), is instructive. In that case, the parties had

reached a tentative, preliminary plea agreement. But

before the defendant could formally enter the plea,

the prosecutor attempted to add another term to the

deal. Id. at 361-62. The defendant rejected the new

term and sought specific performance of the original,

unconsummated agreement. Id. The district court

denied his request. The Circuit Court of Appeals

affirmed, holding that, because the agreement was not

formalized and accepted by the court, the defendant

was not entitled to specific performance under a contract law theory. Id. at 362. The appellate court noted

that, absent detrimental reliance upon the prosecutor’s offer, a defendant’s due process rights were sufficiently safeguarded by his right to a jury trial. Id. at

365. The court cautioned, however, that, by contrast,

when a “defendant detrimentally relies on the government’s promise, the resulting harm from this

App.81a

induced reliance implicates due process guarantees.”

Id.22

Considered together, these authorities obligate

courts to hold prosecutors to their word, to enforce

promises, to ensure that defendants’ decisions are

made with a full understanding of the circumstances,

and to prevent fraudulent inducements of waivers of

one or more constitutional rights. Prosecutors can be

bound by their assurances or decisions under principles

of contract law or by application of the fundamental

fairness considerations that inform and undergird

the due process of law. The law is clear that, based

upon their unique role in the criminal justice system,

prosecutors generally are bound by their assurances,

particularly when defendants rely to their detriment

upon those guarantees.

There is no doubt that promises made during

plea negotiations or as part of fully consummated

plea agreements differ in kind from the unilateral

discretion exercised when a prosecutor declines to

pursue criminal charges against a defendant. As

suggested by the trial court in the present case, such

an exercise of discretion is not per se enforceable in

the same way that a bargained-for exchange is under

contract law. The prosecutor enjoys “tremendous”

discretion to wield “the power to decide whether to

initiate formal criminal proceedings, to select those

criminal charges which will be filed against the

accused, to negotiate plea bargains, to withdraw

charges where appropriate, and, ultimately, to

22 Ultimately, the court did not grant the defendant relief

under a theory of detrimental reliance because there was “no

claim in this case of such reliance.” Scotland, 614 F.2d at 365.

App.82a

prosecute or dismiss charges at trial.” Clancy, 192

A.3d at 53. Unless patently abused, this vast discretion

is exercised generally beyond the reach of judicial

interference. See Stipetich, 652 A.2d at 1295 (noting

that “the ultimate discretion to file criminal charges

lies in the district attorney”).

While the prosecutor’s discretion in charging

decisions is undoubtedly vast, it is not exempt from

basic principles of fundamental fairness, nor can it

be wielded in a manner that violates a defendant’s

rights. The foregoing precedents make clear that, at

a minimum, when a defendant relies to his or her

detriment upon the acts of a prosecutor, his or her

due process rights are implicated. See, e.g., Santobello,

Baird, and Scotland, supra.

The Fourteenth Amendment to the United States

Constitution and Article I, Section 9 of the Pennsylvania

Constitution mandate that all interactions between

the government and the individual are conducted in

accordance with the protections of due process. See

Commonwealth v. Sims, 919 A.2d 931, 941 n.6 (Pa.

2007) (noting that federal and state due process

principles generally are understood as operating coextensively). We have explained that review of a due

process claim “entails an assessment as to whether

the challenged proceeding or conduct offends some

principle of justice so rooted in the traditions and

conscience of our people as to be ranked as

fundamental and that defines the community’s sense

of fair play and decency.” Commonwealth v. Kratsas,

764 A.2d 20, 27 (Pa. 2001) (cleaned up). Due process

is a universal concept, permeating all aspects of the

criminal justice system. Like other state actors, prosecutors must act within the boundaries set by our

App.83a

foundational charters. Thus, we discern no cause or

reason, let alone any compelling one, to waive the

prosecution’s duty to comply with due process simply

because the act at issue is an exercise of discretion,

e.g., whether or not to charge a particular suspect with

a crime.

That is not to say that each and every exercise of

prosecutorial discretion with regard to charging decisions invites a due process challenge. Charging decisions inhere within the vast discretion afforded to

prosecutors and are generally subject to review only

for arbitrary abuses. A prosecutor can choose to

prosecute, or not. A prosecutor can select the charges

to pursue, and omit from a complaint or bill of information those charges that he or she does not believe

are warranted or viable on the facts of the case. A

prosecutor can also condition his or her decision not

to prosecute a defendant. For instance, a prosecutor

can decide initially not to prosecute, subject to possible

receipt or discovery of new inculpatory evidence. Or,

a prosecutor can choose not to prosecute the defendant at the present time, but may inform the defendant that the decision is not final and that the prosecutor may change his or her mind within the period

prescribed by the applicable statute of limitations.

Similarly, there may be barriers to a prosecution,

such as the unavailability of a witness or evidence,

which subsequently may be removed, thus enabling a

prosecution to proceed. Generally, no due process violation arises from these species of discretionary decision-making, and a defendant is without recourse to

seek the enforcement of any assurances under such

circumstances.

App.84a

An entirely different situation arises when the

decision not to prosecute is unconditional, is presented

as absolute and final, or is announced in such a way

that it induces the defendant to act in reliance

thereupon. When a non-prosecution decision is conveyed

in such a way, and when a defendant, having no

indication to the contrary, detrimentally relies upon

that decision, due process may warrant preclusion of

the prosecution. Numerous state and federal courts

have found that a defendant’s detrimental reliance

upon the government’s assurances during the plea

bargaining phase both implicates his due process

rights and entitles him to enforcement even of

unconsummated agreements. The cases are legion.23

23 See, e.g., State v. Francis, 424 P.3d 156, 160 (Utah 2017)

(holding that, “[w]hen a defendant has reasonably and

detrimentally relied on a plea agreement, the State should not

be able to withdraw a plea agreement just because it has not

yet been presented to the district court”); State v. Johnson, 360

S.W.3d 104, 115 (Ark. 2010) (holding that, “when the State has

entered into an agreement not to prosecute with a prospective

defendant and the defendant has performed and acted to his

detriment or prejudice in reliance upon that agreement, the

government must be required to honor such an agreement.”);

People v. Rhoden, 89 Cal. Rptr.2d 819, 824 (Cal. App. 4th Dist.

1999) (explaining “unexecuted plea bargains generally do not

involve constitutional rights absent detrimental reliance on the

bargain”); United States v. Streebing, 987 F.2d 368, 372-73 (6th

Cir. 1993) (holding that the defendant had to demonstrate, inter

alia, that he had relied upon the government’s promise to his

detriment before the promise would be enforceable); United

States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (explaining

that a defendant’s detrimental reliance is an exception to the

general rule that defendants are not entitled to enforcement of

unconsummated plea agreements); State v. Parkey, 471 N.W.2d

896, 898 (Iowa App. 1991) (finding that, in the absence of a showing

that the defendant detrimentally relied upon an agreement

App.85a

That is what happened in this case. There has

been considerable debate over the legal significance

of District Attorney Castor’s publicly announced decision not to prosecute Cosby in 2005. Before the trial

court, the Superior Court, and now this Court, the

parties have vigorously disputed whether D.A. Castor

and Cosby reached a binding agreement, whether

D.A. Castor extended an enforceable promise, or

whether any act of legal significance occurred at all.

There is testimony in the record that could support

any of these conclusions. The trial court—the entity

charged with sorting through those facts—found that

D.A. Castor made no agreement or overt promise.

Much of that debate, and the attendant factual

conclusions, were based upon the apparent absence

of a formal agreement and former D.A. Castor’s various

efforts to defend and explain his actions ten years

after the fact. As a reviewing court, we accept the

trial court’s conclusion that the district attorney’s

decision was merely an exercise of his charging discretion.24 As we assess whether that decision, and

with the prosecutor, dismissal was not warranted); Rowe v.

Griffin, 676 F.2d 524, 528 (11th Cir. 1982) (stating that, when a

promise induces a defendant to waive his Fifth Amendment

rights by testifying or otherwise cooperating with the government to his detriment, due process requires that the prosecutor’s promise be fulfilled); People v. Reagan, 235 N.W.2d 581,

587 (Mich. 1975) (noting that, where the defendant was prejudiced by submitting to a polygraph in exchange for an agreement

that his prosecution would be dismissed, trial court erred in

refusing to enforce the agreement).

24 The dissent agrees—as do we —with the trial court’s conclusion that D.A. Castor’s decision not to prosecute was, at its core,

an exercise of the inherent charging discretion vested in district

attorneys. See D.O. at 1. But the dissent would simply end the

analysis there. In the dissent’s view, once a decision is deemed

App.86a

the surrounding circumstances, implicated Cosby’s

due process rights, former D.A. Castor’s post-hoc

attempts to explain or characterize his actions are

largely immaterial. The answer to our query lies

instead in the objectively indisputable evidence of

record demonstrating D.A. Castor’s patent intent to

induce Cosby’s reliance upon the non-prosecution

decision.

In January and February of 2005, then-D.A.

Castor led an investigation into Constand’s allegations.

When that investigation concluded, Mr. Castor decided

to fall within a prosecutor’s discretion, that decision “in no way”

can bind the actions of future elected prosecutors. Respectfully,

this perspective overlooks the verity that not all decisions are

the same. As to routine discretionary decisions, the dissent may

be correct. But as we explain throughout this opinion, what

occurred here was anything but routine. Here, D.A. Castor’s

exercise of discretion was made deliberately to induce the

deprivation of a fundamental right. The typical decision to prosecute, or not to prosecute, is not made for the purpose of

extracting incriminating information from a suspect when there

exists no other mechanism to do so.

The dissent would amalgamate and confine all “present exercise[s] of prosecutorial discretion” within a single, non-binding,

unenforceable, and unreviewable category. Id. We decline to

endorse this blanket approach, as such decisions merit, and

indeed require, individualized evaluation. To rule otherwise

would authorize, if not encourage, prosecutors to choose

temporarily not to prosecute, obtain incriminating evidence from

the suspect, and then reverse course with impunity. Due process

necessarily requires that court officials, particularly prosecutors, be held to a higher standard. This is particularly so in circumstances where the prosecutor’s decision is crafted specifically to induce a defendant to forfeit a constitutional right, and

where the defendant has relied upon that decision to his

detriment. The dissent’s approach would turn a blind eye to the

reality of such inducements. Due process does not.

App.87a

that the case was saddled with deficiencies such that

proving Cosby’s guilt beyond a reasonable doubt was

unlikely, if not impossible. For those reasons, D.A.

Castor decided not to prosecute Cosby. To announce

his decision, the district attorney elected to issue a

signed press release—an uncommon tactic in the

typical case, but not necessarily so in cases of high

public profile or interest.

In that press statement, D.A. Castor explained

the extent and nature of the investigation and the

legal rules and principles that he considered. He

then announced that he was declining to prosecute

Cosby. The decision was not conditioned in any way,

shape, or form. D.A. Castor did not say that he would

re-evaluate this decision at a future date, that the

investigation would continue, or that his decision

was subject to being overturned by any future district

attorney.

There is nothing from a reasonable observer’s

perspective to suggest that the decision was anything

but permanent. The trial court found contrary indicia

in the latter portion of the press release, where Mr.

Castor “cautioned all parties to this matter that [District Attorney Castor] will reconsider this decision

should the need arise,” Press Release, 2/17/2005;

N.T., 2/2/2016, Exh. D-4. The trial court’s narrow

interpretation of “this decision” is possible only when

this sentence is read in isolation.25 The court ignored

25 There is no doubt that there are two decisions at issue: the

decision not to prosecute and the decision not to discuss that

choice in public. The dissent would endorse the trial court’s

selective interpretation of D.A. Castor’s language in the press

release, finding at a minimum that D.A. Castor’s assertion that

he would reconsider the “decision” is ambiguous. But a plain

App.88a

what came before and after, omitting all relevant and

necessary context. The entire passage reads as follows:

Because a civil action with a much lower

standard for proof is possible, the District

Attorney renders no opinion concerning the

credibility of any party involved so as to not

contribute to the publicity and taint potential

reading of the release belies such a construction. Like the trial

court’s interpretation of the relevant paragraph of the press

release, the dissent’s finding of ambiguity can result only when

one overlooks the context and surrounding statements quite

entirely. D.A. Castor stated that he did not intend to discuss

the details of his decision not to prosecute. In the very next

sentence, D.A. Castor stated that he would reconsider “this decision” if the need arose. In context, “this decision” must naturally

refer to the decision not to discuss the matter with the public.

This is so because announcing that particular decision was the

very purpose of the immediately preceding statement, and the

subject sentence naturally modifies that prior statement. D.A.

Castor already had stated earlier in the press release that he

had decided not to prosecute Cosby. Thus, when D.A. Castor

referred to “this decision” in the particular paragraph under

examination, he was referring not to a decision addressed much

earlier in the press release but rather to the decision that he

had stated for the first time in the immediately preceding

sentence. Even more compelling is the fact that the entirety of

the paragraph relates to D.A. Castor’s concern about the

potential effect that any public statements that he would make

might have on jurors empaneled in a civil case. Nothing at all in

that paragraph pertains to the decision not to prosecute Cosby.

As noted, D.A. Castor already had addressed the non-prosecution decision. There is no support for the notion that D.A.

Castor was referring to his decision not to prosecute Cosby in

the middle of a paragraph directed exclusively to: (1) the potential

impact that any public explication by D.A. Castor might have

upon the fairness of a civil case; and (2) D.A. Castor’s derivative

decision not to discuss the matter publicly in order to avoid that

potential impact.

App.89a

jurors. The District Attorney does not intend

to expound publicly on the details of his

decision for fear that his opinions and analysis might be given undue weight by jurors

in any contemplated civil action. District

Attorney Castor cautions all parties to this

matter that he will reconsider this decision

should the need arise. Much exists in this

investigation that could be used (by others)

to portray persons on both sides of the issue

in a less than flattering light. The District

Attorney encourages the parties to resolve

their dispute from this point forward with a

minimum of rhetoric.

Id. (emphasis added).

When we review the statement in its full context,

it is clear that, when D.A. Castor announced that he

“will reconsider this decision should the need arise,”

the decision to which he was referring was his decision not to comment publicly “on the details of his

[charging] decision for fear that his opinions and

analysis might be given undue weight by jurors in

any contemplated civil action.” The entire paragraph

addresses the district attorney’s concern that he

might inadvertently taint a potential civil jury pool

by making public remarks about the credibility of the

likely parties in that highly anticipated case. ThenD.A. Castor expressly stated that he could change his

mind on that decision only. Nothing in this paragraph

pertains to his decision not to prosecute Cosby. The

trial court’s conclusion is belied by a plain reading of

the entire passage.

Our inquiry does not end there. D.A. Castor’s

press release, without more, does not necessarily

App.90a

create a due process entitlement. Rather, the due

process implications arise because Cosby detrimentally

relied upon the Commonwealth’s decision, which was

the district attorney’s ultimate intent in issuing the

press release. There was no evidence of record

indicating that D.A. Castor intended anything other

than to induce Cosby’s reliance. Indeed, the most

patent and obvious evidence of Cosby’s reliance was

his counseled decision to testify in four depositions in

Constand’s civil case without ever invoking his Fifth

Amendment rights.

The Fifth Amendment to the United States Constitution, which is applicable to the States via incorporation though the Fourteenth Amendment, commands that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.”

U.S. CONST. amend. V. The right to refuse to incriminate oneself is an “essential mainstay” of our constitutional system of criminal justice. Malloy v. Hogan,

378 U.S. 1, 7 (1964). The privilege constitutes an

essential restraint upon the power of the government,

and stands as an indispensable rampart between that

government and the governed. The Fifth Amendment’s self-incrimination clause “is not only a protection against conviction and prosecution but a safeguard

of conscience and human dignity and freedom of

expression as well.” Ullmann v. United States, 350

U.S. 422, 445 (1956) (Douglas, J., dissenting).

We recently discussed the centrality of the

privilege against compulsory self-incrimination in the

American concept of ordered liberty in Commonwealth

v. Taylor, 230 A.3d 1050 (Pa. 2020). There, we noted

that certain rights, such as those enshrined in the

Fifth Amendment, are among those privileges “whose

App.91a

exercise a State may not condition by the exaction of

a price.” Id. at 1064 (quoting Garrity v. New Jersey,

385 U.S. 493, 500 (1967)). To ensure that these

fundamental freedoms are “scrupulously observed,”

we emphasized that “it is the duty of courts to be

watchful for the constitutional rights of the citizen,

and against any stealthy encroachments thereon,” id.

at 1063-64 (quoting Boyd v. United States, 116 U.S.

616, 635 (1886)), and that “the Fifth Amendment is

to be “broad[ly] constru[ed] in favor of the right

which it was intended to secure.” Id. at 1064 (quoting

Counselman v. Hitchcock, 142 U.S. 547, 562 (1892),

Boyd, 116 U.S. at 635, and Quinn v. United States,

349 U.S. 155, 162 (1955)). We stressed that “[t]he

value of constitutional privileges is largely destroyed

if persons can be penalized for relying on them.” Id.

at 1064 (quoting Grunewald v. United States, 353

U.S. 391, 425 (1957) (Black, J., concurring).26

The right against compulsory self-incrimination

accompanies a person wherever he goes, no matter

the legal proceeding in which he participates, unless

and until “the potential exposure to criminal

punishment no longer exists.” Taylor, 230 A.3d at

1065. It is indisputable that, in Constand’s civil case,

Cosby was entitled to invoke the Fifth Amendment.

No court could have forced Cosby to testify in a depo26 To that end, the application of the privilege against selfincrimination is not limited to criminal matters. Its availability

“does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites.” Id. (quoting Application

of Gault, 387 U.S. 1, 49 (1967)). “The privilege may, for example,

be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.” Gault, 387 U.S. at 49.

App.92a

sition or at a trial so long as the potential for criminal

charges remained. Here, however, when called for

deposition, Cosby no longer faced criminal charges.

When compelled to testify, Cosby no longer had a

right to invoke his right to remain silent.

Cosby was forced to sit for four depositions. That

he did not—and could not choose to remain silent is

apparent from the record. When Cosby attempted to

decline to answer certain questions about Constand,

Constand’s attorneys obtained a ruling from the civil

trial judge forcing Cosby to answer. Most significantly,

Cosby, having maintained his innocence in all matters

and having been advised by a number of attorneys,

provided critical evidence of his recurring history of

supplying women with central nervous system

depressants before engaging in (allegedly unwanted)

sexual activity with them—the very assertion that

undergirded Constand’s criminal complaint.

The trial court questioned whether Cosby believed

that he no longer had a Fifth Amendment right to

invoke during the civil proceedings, or whether he

would have invoked that right had he still possessed

it. The court noted that Cosby voluntarily had submitted to a police interview and had provided the

police with a consent-based defense. Cosby repeated

this narrative in his depositions. The court found no

reason to believe that Cosby would not continue to

cooperate as he had, and, thus, discerned no reason

for him to invoke the Fifth Amendment. In other

words, it was not that the trial court surmised that

Cosby had no privilege against compulsory selfincrimination to invoke, but rather that Cosby simply

chose not to invoke it.

App.93a

The trial court’s conjecture was legally erroneous.

The trial court surmised that, although Cosby

repeatedly told an exculpatory, consent-based version

of the January 2004 incident, he naturally would

have been willing to offer inculpatory information

about himself as well. Assuming that a person validly

possesses the right to refrain from giving evidence

against himself, he may invoke that right “at any

time.” See Miranda v. Arizona, 384 U.S. 436, 473

(1966); Commonwealth v. Dulaney, 295 A.2d 328, 330

(Pa. 1972). The fact that Cosby did not assert any

right to remain silent to the police or while sitting for

the depositions is of no moment. Had his right to

remain silent not been removed by D.A. Castor’s

decision, Cosby would have been at liberty to invoke

that right at will. That Cosby did not do so at other

junctures is not proof that he held the right but

elected not to invoke it, as the trial court evidently

reasoned. To assume an implicit waiver of the right

violates a court’s “duty . . . to be watchful for the constitutional rights of the citizen,” and to construe the

existence of such rights broadly. Taylor, 230 A.3d at

1064 (quoting Boyd, supra).

These legal commandments compel only one conclusion. Cosby did not invoke the Fifth Amendment

before he incriminated himself because he was

operating under the reasonable belief that D.A. Castor’s

decision not to prosecute him meant that “the potential

exposure to criminal punishment no longer exist[ed].”

Id. at 1065. Cosby could not invoke that which he no

longer possessed, given the Commonwealth’s

assurances that he faced no risk of prosecution. Not

only did D.A. Castor’s unconditional decision not to

prosecute Cosby strip Cosby of a fundamental consti-

App.94a

tutional right, but, because he was forced to testify,

Cosby provided Constand’s civil attorneys with evidence of Cosby’s past use of drugs to facilitate his

sexual exploits. Undoubtedly, this information

hindered Cosby’s ability to defend against the civil

action, and led to a settlement for a significant amount

of money. We are left with no doubt that Cosby relied

to his detriment upon the district attorney’s decision

not to prosecute him. The question then becomes

whether that reliance was reasonable. Unreasonable

reliance warrants no legal remedy.

We already have determined that Cosby in fact

relied upon D.A. Castor’s decision. We now conclude

that Cosby’s reliance was reasonable, and that it also

was reasonable for D.A. Castor to expect Cosby to so

rely. The record establishes without contradiction

that depriving Cosby of his Fifth Amendment right

was D.A. Castor’s intended result.27 His actions were

27 The dissent asserts that we have predicated our decision

upon the existence of an “unwritten promise,” which was rejected

by the trial court’s credibility findings. D.O. at 3. To the contrary.

As we explained earlier, we have accepted the trial court’s findings in this regard, and those findings, which are supported by

the record, are binding on this Court. See, supra, page 48 (citing

O’Rourke, 778 A.2d at 1199 (Pa. 2001)). However, our deference

is limited to the factual findings only; we may draw our own

inferences therefrom and reach our own legal conclusions. See

In re Pruner’s Est., 162 A.2d at 631. Thus, the trial court’s

factual finding that no formal bargained-for-exchange, written

or unwritten, occurred does not constrain our legal analysis, nor

does it in any way serve to immunize D.A. Castor’s actions from

constitutional scrutiny. That there was no formal promise does

not mean that Cosby no longer had due process rights.

The trial court’s credibility finding regarding the existence vel

non of a particular promise does not allow us to ignore the

remainder of the overwhelming evidence of record. The record

App.95a

specifically designed to that end. The former district

attorney may have equivocated or contradicted himself

years later with regard to how he endeavored to

achieve that result, but there has never been any

question as to what he intended to achieve. There

can be no doubt that, by choosing not to prosecute

Cosby and then announcing it publicly, D.A. Castor

reasonably expected Cosby to act in reliance upon his

charging decision.

We cannot deem it unreasonable to rely upon

the advice of one’s attorneys. The constitutional

guarantee of the effective assistance of counsel is

premised, in part, upon the complexities that inhere

in our criminal justice system. A criminal defendant

confronts a number of important decisions that may

result in severe consequences to that defendant if,

and when, they are made without a full understanding

firmly establishes that D.A. Castor’s desired result was to strip

Cosby of his Fifth Amendment rights. This patent and developed fact stands separate and apart from the trial court’s finding that D.A. Castor never extended a formal promise.

The dissent would ignore the undeniable reality that Cosby

relied to his detriment upon D.A. Castor’s decision. The dissent

does so by shifting the perspective from D.A. Castor’s actions to

Cosby’s, focusing in particular upon the fact that Cosby did not

record the purported agreement or reduce it to writing. As we

note in this opinion, in this context, neither a promise, nor an

agreement, nor a contract, nor evidence of reliance derives legal

validity only upon being recorded or upon written materialization.

The law knows no such prerequisite, and Cosby cannot be

punished for failing to comply with a legal requirement that

does not exist. The proof of Cosby’s reliance is plain on the face

of the record. It is the fact that, upon the advice and assistance

of counsel, Cosby sat for four depositions and incriminated

himself, obviously a decision made after and in direct reliance

upon D.A. Castor’s decision.

App.96a

of the intricacies and nuances of the ever-changing

criminal law. As Justice Black explained in Johnson

v. Zerbst, 304 U.S. 458 (1938):

[The right to counsel] embodies a realistic

recognition of the obvious truth that the

average defendant does not have the professional legal skill to protect himself when

brought before a tribunal with power to

take his life or liberty, wherein the prosecution is presented by experienced and learned

counsel. That which is simple, orderly, and

necessary to the lawyer to the untrained

layman may appear intricate, complex, and

mysterious. Consistently with the wise policy

of the Sixth Amendment and other parts of

our fundamental charter, this Court has

pointed to the humane policy of modern

criminal law, which now provides that a

defendant, if he be poor, may have counsel

furnished [to] him by the state, not infrequently more able than the attorney for the

state.’

The right to be heard would be, in many

cases, of little avail if it did not comprehend

the right to be heard by counsel. Even the

intelligent and educated layman has small

and sometimes no skill in the science of law.

If charged with crime, he is incapable, generally, of determining for himself whether the

indictment is good or bad. He is unfamiliar

with the rules of evidence. Left without the

aid of counsel he may be put on trial without a proper charge, and convicted upon

incompetent evidence, or evidence irrelevant

App.97a

to the issue or otherwise inadmissible. He

lacks both the skill and knowledge adequately

to prepare his defence, even though he [may]

have a perfect one. He requires the guiding

hand of counsel at every step in the proceedings against him.

Id. at 462-63 (cleaned up). Not only was Cosby’s reliance upon the conclusions and advice of his attorneys

reasonable, it was consistent with a core purpose of

the right to counsel.

To hold otherwise would recast our understanding

of reasonableness into something unrecognizable and

unsustainable under our law. If Cosby’s reliance was

unreasonable, as found by the lower courts and as

suggested by the Commonwealth, then reasonableness

would require a defendant in a similar position to

disbelieve an elected district attorney’s public statement

and to discount the experience and wisdom of his

own counsel. This notion of reasonableness would be

manifestly unjust in this context. Defendants, judges,

and the public would be forced to assume fraud or

deceit by the prosecutor. The attorney-client relationship would be predicated upon mistrust, and the

defendant would be forced to navigate the criminal

justice process on his own, despite the substantial

deficit in the critical knowledge that is necessary in

order to do so, as so compellingly explained by Justice

Black.

Such an understanding of reasonableness is

untenable. Instead of facilitating the right to counsel,

it undermines that right. We reject this interpretation.

We find nothing unreasonable about Cosby’s reliance

upon his attorneys and upon D.A. Castor’s public

App.98a

announcement of the Commonwealth’s charging decision.

The trial court alternatively suggested that Cosby’s

belief that he would never be prosecuted, thus stripping

him of his Fifth Amendment rights, based upon little

more than a press release, was unreasonable because

neither Cosby nor his attorneys demanded that the

terms of any offers or assurances by D.A. Castor be

reduced to writing. This reasoning is unpersuasive.

Neither the trial court, nor the Commonwealth for

that matter, cites any legal principle that requires a

prosecutor’s assurances to be memorialized in writing

in order to warrant reasonable reliance. We decline

to construe as unreasonable the failure to do that

which the law does not require.

It also has been suggested that the level of the

defendant’s sophistication is a relevant factor in

assessing whether his reliance upon a prosecutor’s

decision was reasonable. Such a consideration is both

impractical and unfair. There is no equitable method

of assessing a particular defendant’s degree of

sophistication. Any attempt would be an arbitrary

line-drawing exercise that unjustifiably would deem

some sophisticated and some not. Nor are there any

objective criteria that could be used to make that

assessment accurately. Would sophistication for such

purposes be established based upon one’s ability to

hire one or more attorneys? By the level of education

attained by the defendant? Or perhaps by the number

of times the defendant has participated in the criminal

justice system? There is no measure that could

justify assessing reasonableness based upon the socalled sophistication of the defendant.

App.99a

The contours of the right to counsel do not vary

based upon the characteristics of the individual seeking

to invoke it. Our Constitutions safeguard fundamental

rights equally for all. The right to counsel applies

with equal force to the sophisticated and the

unsophisticated alike. The most experienced defendant,

the wealthiest suspect, and even the most-seasoned

defense attorney are each entitled to rely upon the

advice of their counsel. Notwithstanding Cosby’s

wealth, age, number of attorneys, and media savvy,

he, too, was entitled to rely upon the advice of his

counsel. No level of sophistication can alter that fundamental con

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