from the Judgment of Sentence Entered September 25, 2018 In
the Court of Common Pleas of Montgomery County Criminal
Division at No(s): CP-46-CR-3932-2016
BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and NICHOLS, J.
William Henry Cosby, Jr., appeals from the judgment of
sentence of 3-10 years' incarceration, imposed following
his conviction for three counts of aggravated indecent
assault, pursuant to 18 Pa.C.S. § 3125(a)(1), (4), and
(5). After careful review, we affirm.
trial court summarized the facts adduced at trial as follows:
In January 2004[, ]1 [Appellant] sexually
assaulted [the] then thirty[-]year[-]old [Victim] at his home
in Elkins Park, Cheltenham, Montgomery County. On the evening
of the assault, [Victim] was invited to the then
sixty-six[-]year[-]old [Appellant]'s home to discuss her
upcoming career change. She had decided to leave her position
as the Director of Basketball Operations for the Temple
women's basketball team, and to return to her native
Canada to pursue a career in massage therapy. When she
arrived at the home, she entered through the kitchen door, as
she had on prior visits. She and [Appellant] sat at the
kitchen table and began talking. There was a glass of water
and a glass of wine on the table when she arrived. Initially,
she drank only the water because she had not eaten a lot and
did not want to drink on an empty stomach. Eventually,
[Appellant] convinced her to taste the wine. They discussed
the stress she was feeling at the prospect of telling [the
basketball coach] that she was leaving Temple. [Victim] left
the table to use the restroom. When she returned, [Appellant]
was standing by the table, having gone upstairs himself while
she was in the bathroom. He reached out his hand and offered
her three blue pills. He told her, "These are your
friends. They'll help take the edge off." She asked
him if she should put the pills under her tongue. He told her
to put them down with water, and she did.
1 In each of her statements to police, and in
prior testimony, [Victim] indicated that the assault took
place in 2004. She indicated to police that the assault
happened prior to her cousin['s] visiting from Canada;
border crossing records indicate that he entered the United
States on January 22, 2004. There was no evidence to indicate
that the assault happened prior to December 30, 2003.
After she took the pills, [Victim] and [Appellant] sat back
down at the kitchen table and continued their conversation.
She began to have double vision and told [Appellant] that she
could see two of him. Her mouth became cottony and she began
to slur her words. [Appellant] told her that he thought she
needed to relax. [Victim] did not know what was happening to
her, but felt that something was wrong. They stood up from
the table and [Appellant] took her arm to help steady her.
Her legs felt rubbery as he walked her through the dining
room to a sofa in another room. He placed her on the sofa on
her left side and told her to relax there. She began to panic
and did not know what was happening to her body. She felt
weak and was unable to speak. She was unable to maintain
consciousness. She was jolted awake by [Appellant] forcefully
penetrating her vagina with his fingers. [Appellant] had
positioned himself behind her on the couch, penetrated her
vagina with his fingers, and fondled her breasts. He took her
hand[, ] placed it on his penis[, ] and masturbated himself
with her hand. [Victim] was unable to tell him to stop or to
physically stop the assault.
She awoke sometime between four and five a.m. to find her
pants unzipped and her bra up around her neck. She fixed her
clothing and began to head towards the front door. As she
walked towards the door, she saw [Appellant] standing in the
doorway between the kitchen and the dining room. He was
wearing a robe and slippers and told her there was a muffin
and tea for her on the table. She sipped the tea[, ] took a
piece of the muffin with her[, ] and drove herself home.
At the time of assault, [Victim] had known [Appellant] since
the fall of 2002 when she met him in her capacity as the
Director of Basketball Operations. She was introduced to
[Appellant] by Joan Ballast at a basketball game at the
Liacouras Center. [Victim] accompanied Ms. Ballast and
several others [who were] giving [Appellant] a tour of the
newly renovated facilities. Several days after the initial
introduction, [Appellant] called Temple with some questions
about the renovations and spoke to [Victim] on the phone.
Several weeks later, she again spoke to him on the phone at
her office. They discussed having met at the game at Temple.
They began having more regular conversations, mostly
pertaining to Temple sports. The conversations also included
personal information about [Victim]'s history as a
professional basketball player, her educational background
and her career goals.
After several phone conversations, [Appellant] invited
[Victim] to his home for dinner. When she arrived at the
home, [Appellant] greeted her and took her to the room where
she ate her dinner. The chef served her meal and a glass of
wine and she ate alone. As she was finishing her meal,
[Appellant] came into the room and sat next to her on the
couch. At this point, he placed his hand on her thigh. She
was aware that this was the first time [Appellant] touched
her, but thought nothing of it and left shortly after as she
had been preparing to do.
Subsequently, [Appellant] invited her to attend a blues
concert in New York City with other young women who shared
similar interests, particularly related to health and
homeopathic remedies. She did not see [Appellant] in person
on that trip.
Sometime later, she was again invited to dine at
[Appellant]'s home alone. The chef called her about the
meal and again she ate in the same room as she had on the
first occasion. For a second time, when she was finished
[with] her meal, [Appellant] sat beside her on the couch. The
conversation again revolved around things [Victim] could do
to … break into sports broadcasting. On this occasion,
[Appellant] reached over and attempted to unbutton and to
unzip her pants. She leaned forward to prevent him from
undoing her pants. He stopped. She believed that she had made
it clear she was not interested in any of that. She did not
feel threatened by him and did not expect him to make a
romantic or sexual advance towards her again.
[Victim] continued to have contact with [Appellant],
primarily by phone and related to Temple sports. [Appellant]
also had contact with [Victim]'s family. [Victim]'s
mother … and … sister … attended one of
[Appellant]'s performances in Ontario, and afterward, met
In late 2003, [Appellant] invited [Victim] to meet him at the
Foxwoods Casino in Connecticut. He put her in touch with Tom
Cantone, who worked at the casino. When she arrived at the
casino, she had dinner with [Appellant] and Mr. Cantone.
After dinner, Mr. Cantone escorted [Victim] to her room. She
thanked him and told him that she would have to leave early
in the morning and would not have time to tour the Indian
reservation that was on the property. [Appellant] called her
and asked her to come back upstairs to his room for some
baked goods. When she arrived at the room, he invited her in
and continued to unpack his luggage cart. She believed that
the baked goods were on the cart. During this time, they
discussed their usual topics of conversation, Temple and
sports broadcasting. [Victim] was seated on the edge of the
bed. [Appellant] laid down on the bed. He fell asleep.
[Victim] remained in the room for several minutes, and then
she went back to her own room.
[Victim] testified that during this time, she came to view
[Appellant] as a mentor and a friend.2 He was well
respected at Temple as a trustee and alumni, and [Victim] was
grateful for the help that he tried to give her in her
career. She continued her friendship with him, despite what
she felt were two sexual advances; she was a young, fit woman
who did not feel physically threatened by [Appellant].
2 In his statement to police, [Appellant] agreed
and indicated that [Victim] saw him as a mentor and that he
encouraged that relationship as a mentor.
Following the assault, between January 2004 and March
2004, [Victim] and [Appellant] continued to have telephone
contact, solely regarding Temple sports. In March 2004[,
Appellant] invited [Victim] to a dinner at a restaurant in
Philadelphia. [Victim] attended the dinner, hoping to speak
to [Appellant] about the assault. After the dinner,
[Appellant] invited her to his home to talk. Once at the
home, she attempted to confront him to find out what he gave
her and why he assaulted her. She testified that he was
evasive and told her that he thought she had an orgasm.
Unable to get an answer, she lost her courage and left the
At the end of March 2004, [Victim] moved back to Canada.
[Victim]'s mother … testified that when her
daughter returned home, she seemed to be depressed and was
not herself. She would hear her daughter screaming in her
sleep, but [Victim] denied that anything was wrong.
After returning to Canada, [Victim] had some phone contact
with [Appellant] related to his performance in the Toronto
area. [Appellant] invited [Victim] and her family to attend
that show. Her parents were excited to attend the show, and
her mother had previously spoken with [Appellant] on the
phone and attended two of his shows prior to the assault.
[Victim's] mother brought [Appellant] a gift to the show.
In January 2005, [Victim] disclosed the assault to her
mother. She woke up crying and called her mother.
[Victim's mother] was on her way to work and called
[Victim] back once she arrived at work. They decided to
contact the Durham Regional Police in Ontario, Canada[, ]
when [Victim's mother] returned home from work. Unsure of
how the American criminal justice system worked, and afraid
that [Appellant] could retaliate against her or her family,
[Victim] attempted to reach two attorneys in the Philadelphia
area during the day.
Ultimately, that evening, [Victim] and her mother contacted
the Durham Regional Police and filed a police report.
Following the report, [Victim's mother] asked for
[Appellant]'s phone number and called him. [Appellant]
returned [Victim's mother]'s call the next day.
During this call, both [Victim] and her mother spoke to
[Appellant] on separate phone extensions. [Victim] confronted
him about what happened and the three blue pills that he gave
her. [Appellant] apologized, but would not tell her what he
had given her. He indicated that he would have to check the
prescription bottle and that he would write the name down and
send it to them. [Victim] hung up the phone and her mother
continued to speak to [Appellant]. He told [Victim's
mother] that there was no penile penetration. [Victim] did
not tell [Appellant] that she had filed a police report.
After this initial phone conversation with [Appellant],
[Victim's mother] purchased a tape recorder and called
him again. In the call, [Appellant] indicated that he wanted
to talk about a "mutual feeling or friendship," and
"to see if [Victim] is still interested in sports
[broad]casting or something in T.V." [Appellant] also
discussed paying for [Victim] to continue her education. He
continued to refuse to give [Victim's mother] the name of
the medication he had given [Victim]. Additionally, he
invited her and [Victim] to meet him in another city to meet
with him to discuss these offers in person and told her that
someone would call them to arrange the trip.
Subsequently, [Victim] received a phone message from Peter
Weiderlight, one of [Appellant's representatives. Mr.
Weiderlight indicated in his message that he was calling on
behalf of [Appellant] to offer [Victim] a trip to see
[Appellant's upcoming performance in Florida.
When [Victim] returned Mr. Weiderlight's call, she
recorded the conversation. During this conversation, Mr.
Weiderlight discussed [Appellant's offer for [Victim] and
her mother to attend a performance … in Miami and
sought to obtain her information so that he could book
flights and make reservations. [Victim] did not give him that
information or call him back to provide the same. [Victim]
also received a message from [Appellant's attorney, Marty
Singer, Esq., wherein he indicated that [Appellant] wished to
set up an educational trust for [Victim]. [Victim] did not
return Mr. Singer's call. Both of these calls were
received within days of [Victim]'s report to police.
The Durham Regional Police referred the report to the
Philadelphia Police, who ultimately referred it to the
Cheltenham Police Department in Montgomery County,
Pennsylvania. Sergeant Richard Schaeffer, of the Cheltenham
Township Police Department, was assigned to the case in 2005.
Cheltenham police investigated jointly with the Montgomery
County Detective Bureau. On January 19, 2005, Sgt. Schaeffer
spoke to [Victim] by phone to obtain a brief description of
her allegations. He testified that [Victim] was nervous and
anxious during this call. She then drove from Canada to meet
with law enforcement in person in Montgomery County. She
testified that in each of her meetings with law enforcement
she was very nervous. She had never had any previous contact
with law enforcement, and discussing the nature of the
assault made her uncomfortable. She testified that she
cooperated with the police and signed releases for her mental
health, banking and phone records.
On January 24, 2005, then Montgomery County District Attorney
Bruce L. Castor, Jr., issued a signed press release
indicating that an investigation had commenced following
[Victim]'s January 13, 2005 report to authorities in
Canada. As part of the investigation, law enforcement,
including Sgt. Schaeffer, took a written question and
answer statement from [Appellant] in New York City on January
26, 2005. [Appellant] was accompanied by counsel, both his
criminal defense attorney Walter M. Phillips[, Esq.,
]3 and his longtime general counsel John P.
Schmitt, Esq., when he provided his statement to police.
3 Mr. Phillips passed away in early 2015.
In his statement to police, [Appellant] stated that he met
[Victim] in 2002 at the Liacouras Center. He stated [that]
they had a social and romantic relationship that began on her
second visit to his home. He stated that she was alone with
him in the home on three occasions. As to the night of the
assault, he stated that [Victim] had come to his home and
they were talking in the kitchen about her inability to
sleep. He told police that he gave her Benadryl that he uses
to help him sleep when he travels. He stated that he would
take two Benadryl and would become sleepy right away. He gave
[Victim] one and [one-]half pills. He did not tell [Victim]
what the pills were. He stated that he was comfortable giving
her pills to relax her. He stated that she did not appear to
be under the influence when she arrived at his home that
He stated that after he gave her the pills, they began to
touch and kiss on the couch with clothes on. He stated that
she never told him to stop and that he touched her bare
breasts and genitalia. He stated that he did not remove his
clothing and [Victim] did not touch him under his clothes. He
told police, "I never intended to have sexual
intercourse, like naked bodies with [Victim]. We were fully
clothed. We are petting. I enjoyed it. And then I stopped and
went up to bed. We stopped and then we talked."
He stated that there were at least three other occasions
where they engaged in similar petting in his home. When asked
if they had ever had intercourse, he stated, "[n]ever
asleep or awake." He stated that on each occasion, he
initiated the petting. He stated that on her second visit to
his home, they were kissing in the hallway and he lifted her
bra to kiss her breasts and she told him to stop.
He stated that, just prior to the date of his statement, he
spoke to [Victim's mother] on the phone and she asked him
what he had given her daughter. He told her that he gave
[Victim] some pills and that he would send her the name of
them. He further stated that [he] told [Victim's mother]
there was no penile penetration, just petting and touching of
private parts. He also stated that he did not recall using
the word' consensual' when describing the encounter
to [Victim's mother]. He also answered "no,"
when asked if he ever knew [Victim] to be untruthful.
Following that interview, [Appellant], unprompted, provided
law enforcement with pills that were later identified as
On February 17, 2005, law enforcement had a strategy meeting
where they created a plan for the next steps in the
investigation. Later that same day, then District Attorney,
Bruce L. Castor, Jr., issued a second, signed press release,
this time stating that he had decided not to prosecute
[Appellant]. The press release cautioned that the decision
could be reconsidered. Mr. Castor never personally met with
[Victim]'s attorneys, Dolores Troiani, Esq., and Bebe
Kivitz, Esq., first learned of Mr. Castor's decision not
to prosecute when a reporter arrived at Ms. Troiani's
office on the evening of February 17, 2005[, ] seeking
comment about what Bruce Castor had done. The reporter
informed her that Mr. Castor had issued a press release in
which he declined prosecution. Ms. Troiani had not received
any prior notification of the decision not to prosecute.
At a pretrial hearing held on February 2 and 3, 2016, Mr.
Castor testified that it was his intention in 2005 to strip
[Appellant] of his Fifth Amendment right to force him to sit
for a deposition in a yet[-]to[-]be[-]filed civil case, and
that Mr. Phillips, [Appellant's criminal attorney, agreed
with his legal assessment. Mr. Castor also testified that he
relayed this intention to then First Assistant District
Attorney Risa V. Ferman.4
4 Ms. Ferman is now a Judge on the Court of Common
Disappointed with the declination of the charges, [Victim]
sought justice civilly. On March 8, 2005, she filed a civil
suit against [Appellant] in federal court. As part of the
lawsuit, both parties were deposed. On four dates, September
28 and 29, 2005[, ] and March 28 and 29, 2006, [Appellant]
sat for depositions in the civil matter. He was accompanied
by counsel, including Mr. Schmitt. Mr. Schmitt testified that
Mr. Phillips had informed him of Mr. Castor's promise not
[Appellant] did not invoke the Fifth Amendment during the
depositions; however, counsel did advise him not to answer
questions pertaining to [Victim] and her attorneys filed
motions to compel his testimony. [Appellant] did not invoke
the Fifth Amendment when asked about other alleged victims.
At no time during the civil litigation did any of the
attorneys for [Appellant] indicate on the record that
[Appellant] could not be prosecuted. There was no attempt by
defense attorneys to confirm the purported promise before the
depositions, even though Mr. Castor was still the District
Attorney; it was never referenced in the stipulations at the
outset of the civil depositions.
In his depositions, [Appellant] testified that he met
[Victim] at the Liacouras Center and developed a romantic
interest in her right away. He did not tell her of his
interest. He testified that he was open to "sort of
whatever happens" and that he did not want his wife to
know about any relationship with [Victim]. When asked what he
meant by a romantic interest, he testified "[r]omance in
terms of steps that will lead to some kind of permission or
no permission or how you go about getting to wherever
you're going to wind up." After their first meeting,
they spoke on the phone on more than one occasion. He
testified that every time [Victim] came to his Elkins Park
home it was at his invitation; she did not initiate any of
He testified that there were three instances of consensual
sexual contact with [Victim], including the night he gave her
the pills. [During] one of the encounters, he testified that
he tried to suck her breasts and she told him "no,
stop," but she permitted him to put his hand inside of
her vagina. He also testified about the pills he gave law
enforcement at the January 26, 2005 interview. Additionally,
he testified that he believed the incident during which he
gave [Victim] the pills was in the year 2004, "[b]ecause
it's not more than a year away. That's a time period
that I knew-it's a ballpark of when I knew
He testified that he and [Victim] had discussed herbal
medicines and that he gave [Victim] pills on one occasion,
that he identified to police as Benadryl. He testified
about his knowledge of the types of Benadryl and their
effects. He indicated that he would take two pills to help
him go to sleep.
[Appellant] testified that on the night of the assault,
[Victim] accepted his invitation to come to his home. They
sat at a table in the kitchen and talked about [Victim]'s
position at Temple as well as her trouble concentrating,
tension and relaxation. By his own admission, he gave
[Victim] one and one[-]half Benadryl and told her to take it,
indicating, "I have three friends to make you
relax." He did not tell her the pills were Benadryl. He
testified that he gave her the three half pills because he
takes two and she was about his height. He testified that she
looked at the pills, but did not ask him what they were.
[Appellant] testified that, after he gave her the pills, they
continued to talk for 15-20 minutes before he suggested they
move into the living room. He testified that [Victim] went to
the bathroom and returned to the living room where he asked
her to sit down on the sofa. He testified that they began to
"neck and we began to touch and feel and kiss, and kiss
back," and that he opened his shirt. He then described
[t]hen I lifted her bra up and our skin-so our skin could
touch. We rubbed. We kissed. We stopped. I moved back to the
sofa, coming back in a position. She's on top of me. I
place my knee between her legs. She's up. We kiss. I hold
her. She hugs. I move her to the position of down. She goes
with me down. I'm behind her. I have [my left arm behind]
her neck...[.] Her neck is there and her head. There's a
pillow, which is a pillow that goes with the decoration of
the sofa. It's not a bedroom pillow. I am behind her. We
are in what would be called ... a spooning
position. My face is right on the back of her head, around
her ear. I go inside her pants. She touches me. It's
awkward. It's uncomfortable for her. She pulls her hand-I
don't know if she got tired or what. She then took her
hand and put it on top of my hand to push it in further. I
move my fingers. I do not talk, she does not talk but she
makes a sound, which I feel was an orgasm, and she was wet.
She was wet when I went in.
He testified that after the encounter he told her to try to
go to sleep and then he went upstairs. He set an alarm and
returned downstairs about two hours later when it was still
dark out. [Victim] was awake and they went to the kitchen
where he gave her some tea and a blueberry muffin that she
took a bite of and wrapped up before she left.
During his depositions, [Appellant] also discussed his phone
calls with [Victim's mother]. He testified that he told
[Victim] and her mother that he would write the name of the
pills he gave [Victim] on a piece of paper and send it to
her. He testified that he did not tell them it was Benadryl
I'm on the phone. I'm listening to two people. And at
first I'm thinking the mother is coming at me for being a
dirty old man, which is also bad-which is bad also, but then,
what did you give my daughter? And [if] I put these things in
the mail and these people are in Canada, what are they going
to do if they receive it? What are they going to say if I
tell them about it? And also, to be perfectly frank, I'm
thinking and praying no one is recording me.
He testified that after his first, unrecorded phone call with
[Victim], he had "Peter" from William Morris
contact [Victim] to see if she would be willing to meet him
in Miami. He also testified that he apologized to
[Victim's mother] "because I'm thinking this is
a dirty old man with a young girl. I apologized. I said to
the mother it was digital penetration." He later offered
to pay for [Victim] to attend graduate school. [Appellant]
contacted his attorney Marty Singer and asked him to contact
[Victim] regarding an educational trust.
He also testified that he did not believe that [Victim] was
after money. When asked if he believed it was in his best
interest that the public believe [Victim] consented, he
replied "yes." He believed there would be financial
consequences if the public believed that he drugged [Victim]
and gave her something other than Benadryl.
In his deposition testimony, [Appellant] also testified about
his use of Quaaludes with women with whom he wanted to have
On November 8, 2006, the civil case settled and [Victim]
entered into a confidential settlement agreement with
[Appellant], Marty Singer and American Media.5
[Appellant] agreed to pay [Victim] $3.38 million[, ] and
American Media agreed to pay her $20, 000. As part of the
settlement agreement, [Victim] agreed that she would not
initiate a criminal complaint arising from the instant
5 American Media was a party to the lawsuit as a
result of [Appellant's] giving an interview about
[Victim]'s allegations to the National Enquirer.
The 2005-2006 civil depositions remained under temporary seal
until 2015 when the federal judge who presided over the civil
case unsealed the records in response to a media request. As
a result, in July 2015, the Montgomery County District
Attorney's Office, led by then District Attorney Ferman,
reopened the investigation.
On September 22, 2015, at 10:30 am, Brian McMonagle, Esq. and
Patrick O'Connor, Esq., met with then District Attorney
Ferman and then First Assistant District Attorney Kevin
Steele at the Montgomery County District Attorney's
Office for a discussion regarding [Appellant], who was
represented by Mr. McMonagle and Mr. O'Connor. On
September 23, 2015, at 1:30 pm, Bruce L. Castor, Jr., Esq.,
now a County Commissioner, sent an unsolicited email to then
District Attorney Ferman.6
6 This email was marked and admitted as
Defendant's Exhibit 5 at the February 2016 Habeas
Corpus hearing held in this matter.
In this September 23, 2015 email, Mr. Castor indicated
"[a]gain with the agreement of the defense lawyer and
[Victim]'s [lawyers, ] I intentionally and specifically
bound the Commonwealth that there would be no state
prosecution of [Appellant] in order to remove from him the
ability to claim his Fifth Amendment protection against
self-incrimination, thus forcing him to sit for a deposition
under oath." The correspondence further stated,
I signed the press release for precisely this reason, at the
request of [Victim]'s counsel, and with the acquiescence
of [Appellant]'s counsel, with full and complete intent
to bind the Commonwealth that anything [Appellant] said in
the civil case would not be used against him, thereby forcing
him to be deposed and perhaps testify in a civil trial
without him having the ability to 'take the
5th….' [B]ut one thing is fact: the
Commonwealth, defense and [Victim]'s lawyers were all in
agreement that the attached decision [February 17, 2005 press
release] from me stripped [Appellant] of his Fifth Amendment
privilege, forcing him to be deposed.
However, in his testimony at the hearing on [Appellant]'s
Petition for Habeas Corpus, Mr. Castor indicated
that there was no agreement and no quid pro quo. On
September 23, 2015, at 1:47 pm, Mr. Castor forwarded this
email identified above as Defendant's Habeas
Exhibit 5 to Mr. McMonagle.
On September 25, 2015, then District Attorney Ferman sent a
letter to Mr. Castor by way of hand delivery.7 In
her letter[, ] Ms. Ferman stated, "[t]he first I heard
of such a binding agreement was your email sent this past
Wednesday." On September 25, 2015, at 3:41 pm, Mr.
Castor sent an email to District Attorney Ferman.8
In this email, he wrote Ms. Ferman, "[n]aturally, if a
prosecution could be made out without using what [Appellant]
said, or anything derived from what [Appellant] said, I
believed then and continue to believe that a prosecution is
7 This letter was marked and admitted as
Defendant's Exhibit 6 at the February 2016 Habeas
Corpus hearing held in this matter. At 3:02 pm that same
day, Mr. Castor's secretary forwarded a scanned copy of
the letter to him by way of email.
8 This email was marked and admitted as
Defendant's Exhibit 7 at the February 2016 Habeas
Corpus hearing in this matter.
On September 25, 2015, at 3:59 pm, Mr. Castor forwarded the
letter from Ms. Ferman, identified above as Defendant's
Habeas Exhibit 6, to Mr. McMonagle. On September 25,
2015, at 4:19 pm, Mr. Castor forwarded the email identified
above as Defendant's Habeas Exhibit 7 to Mr.
McMonagle along with the message "Latest." In his
final email to Ms. Ferman on the subject, Mr. Castor stated,
"I never said we would not prosecute [Appellant]."
In 2015, prosecutors and [d]etectives from Montgomery County
visited [Victim] in Canada and asked her if she would
cooperate in the instant case. As a part of the reopened
investigation in 2015, the Commonwealth interviewed numerous
women who claimed that [Appellant] had sexually assaulted
them. The Commonwealth proffered nineteen women for this
[c]ourt's consideration[;] ultimately, five such women
were permitted to testify at trial.
Heidi Thomas testified that in 1984, she was a
twenty-two[-]year[-]old aspiring actress working as a model,
represented by JF [I]mages. JF Images was owned by Jo
Farrell.9 In April of 1984, her agent told her
that a prominent figure in the entertainment world was
interested in mentoring young talent. She learned that
[Appellant] was going to call her to arrange for one-on-one
acting sessions. [Appellant] called Ms. Thomas at her home
and spoke to both of her parents. Ms. Thomas' agency paid
for her to travel to Reno, Nevada[, ] to meet with
[Appellant] and booked her a room at Harrah's. Her family
took a photo of her with her father and boyfriend when she
was leaving for the airport; she testified that she dressed
professionally because she wanted [Appellant] to know she
took this opportunity very seriously. Ms. Thomas purchased a
postcard of Harrah's when she arrived in Reno to
commemorate her trip and kept several other mementos. When
she arrived in Reno, Ms. Thomas was met by a driver. She
eventually realized that they were driving out of Reno. They
pulled up to a house, the driver told her that this is where
the coaching would take place and that she should go in.
9 In his deposition testimony, [Appellant]
testified that Jo Farrell would send her clients to see him
perform in Denver, C[olorado].
She rang the doorbell and [Appellant] answered the door. The
driver showed her to her room. [Appellant] instructed her to
change into something more comfortable and to come back out
with her prepared monologue. She returned to a kitchen area
and performed her monologue for [Appellant]. Unimpressed with
her monologue, [Appellant] suggested that she try a cold
read. In the script he gave her, her character was supposed
to be intoxicated. She performed the scene. Again,
unimpressed, [Appellant] questioned whether she had ever been
drunk. She told him that she did not really drink, but that
she had seen her share of drunk people in college. He asked
her what she would drink if she were to have a drink and she
indicated perhaps a glass of white wine. He got up and
returned with a glass of white wine. He told her it was a
prop and to sip on it to see if she could get more into
character. She took a sip and then remembers only "snap
shots" of what happened next. She remember[ed]
[Appellant's] asking her if she was relaxing into the
part. She remember[ed] waking up in a bed, fully clothed with
[Appellant] forcing his penis into her mouth. In her next
memory, she awoke with her head at the foot of the bed, and
hear[d] [Appellant] say[, ] "your friend is going to
come again." Her next memory [wa]s slamming the door and
then apologizing to [Appellant].
She awoke, presumably the next morning, feeling unwell. She
decided to get some fresh air. She went to the kitchen, where
she saw someone other than the driver for the first time. The
woman in the kitchen offered her breakfast, but she declined.
She went outside with her camera that she always carried with
her, and took pictures of the estate. She took a number of
photos of both the interior and exterior of the house where
she was staying. She also remembers going to a show and being
introduced to the Temptations and being in [Appellant]'s
dressing room. She testified that it did not occur to her to
report the assault to her agent, and that she felt she must
have given [Appellant] some signal to think it was okay to do
that to her.
Two months later, in June 1984, [Ms.] Thomas called
[Appellant], as he told her she could, in an attempt to meet
with him to find out what had happened; she was told by his
representative that she would be able to see him. She made
arrangements to see him in St. Louis, using her own money.
When she arrived in St. Louis, she purchased a postcard. On
this trip, she photographed her hotel room and the driver who
picked her up. Ms. Thomas attended the show, but was not
allowed backstage. After [Appellant]'s performance, she
accompanied him and others to a dinner. There were a number
of people at the dinner and Ms. Thomas was unable to confront
[Appellant] about what happened in Reno. As the evening came
to a close and it became clear she would not be able to speak
to him, she asked the driver or valet to take her picture
with [Appellant]. She had no further contact with
[Appellant]. At some time later, she told both a psychologist
and her husband what happened.
Chelan Lasha testified that in 1986[, ] when she was a
seventeen-year-old senior in high school in Las Vegas,
Nevada, a connection of her father's ex-wife put her in
touch with [Appellant]. At that time, Ms. Lasha lived with
her grandparents[.] [Appellant] called her home and spoke to
her and to her grandmother. [Appellant] told her that he was
looking forward to meeting her and to helping her with her
education and pursuit of a career in acting and modeling. The
first time she met [Appellant] in person, he came to her
grandparents' home for a meal. They remained in phone
contact and she sent headshots to his agency in New York.
After she graduated from high school that same year, she
worked at the Las Vegas Hilton. [Appellant] returned to Las
Vegas and invited Ms. Lasha to meet him at the Las Vegas
Hilton. When she arrived at the hotel, she called [Appellant]
and a bellman took her to the Elvis [Presley] Suite. Ms.
Lasha understood the purpose of their meeting was to help her
break into modeling and that someone from the Ford Modeling
Agency would be meeting her and taking her picture. Ms. Lasha
testified that she had a cold on the day of the meeting.
[Appellant] directed her to wet her hair to see what it
looked like, and someone took some photographs of her. The
photographer left. A second person came into the suite, who
[Appellant] said was a therapist related to stress and
relaxation; this person also left the suit[e].
Ms. Lasha was congested and blowing her nose, [and Appellant]
offered her a decongestant. He gave her a shot of amaretto
and a little blue pill. She took the pill. He gave her a
second shot of amaretto. He sat behind her and began to rub
her shoulders. She began to feel woozy and he told her that
she needed to lay down. [Appellant] took her to the back
bedroom; prior to that time, they had been in the living area
of the suite.
When she stood up[, ] she could barely move and [Appellant]
guided her to the back bedroom. He laid her on the bed, at
which point she could no longer move. He laid down next to
her and began pinching her breasts and rubbing his genitals
on her leg. She felt something warm on her leg. Her next
memory is [Appellant] clapping to wake her up. When she
awoke, she had a Hilton robe and her shorts on, but her top
had been removed. Her top was folded neatly on a table with
money on top. [Appellant] told her to hurry up and get
dressed and to use the money to buy something nice for
herself and her grandmother. During her incapacitation, she
was aware of what was happening but was powerless to stop it.
When she left the hotel, she drove to her guidance
counselor's house and told her what happened. She also
told her sister.
The day after the assault, Ms. Lasha's mother and
grandmother attended a performance at the Hilton where
[Appellant] was a participant. [Appellant] called her and
asked her why she did not attend, [and] she told him she was
sick and hung up the phone. A couple days later, Ms. Lasha
attended a performance at the Hilton with her grandmother,
where she heckled [Appellant]. Afterwards, she told her
grandmother what happened. She was ultimately fired from her
position at the Hilton. She reported the assault to the
police in 2014.
Janice Baker-Kinney testified that she lived in Reno,
Nevada[, ] and worked at Harrah's Casino from 1981-1983.
In 1982, Ms. Baker-Kinney was a twenty-four[-]year[-]old
bartender at Harrah's. During the course of her
employment, she met several celebrities who performed in one
of Harrah's two showrooms. Performers could stay either
in the hotel, or in a home owned by Mr. Harrah, just outside
of town. Ms. Baker[-]Kinney attended a party at that home
hosted by Wayne Newton.
On one particular evening, one of the cocktail waitresses
invited her to go to a pizza party being hosted by
[Appellant]. [Appellant] was staying at Mr. Harrah's home
outside of town. Ms. Baker-Kinney agreed to attend the party
and met her friend at the front door of the home. [Appellant]
answered the door. Ms. Baker-Kinney was surprised to find
that there was no one else in the home for a party. She began
to think that her friend was romantically interested in
[Appellant] and asked her to come along so she would not be
alone. She decided to stay for a little while and have a
slice of pizza and a beer.
[Appellant] offered Ms. Baker-Kinney a pill, which she
believes he said were Quaaludes. She accepted the pill and
then he gave her a second pill, which she also accepted.
Having no reason not to trust [Appellant], she ingested the
pills. After taking the pill, she sat down to play backgammon
with [Appellant]. Shortly after starting the game, she became
dizzy and her vision blurred. She told [Appellant] that the
game was not fair anymore because she could not see the board
and fell forward and passed out on the game.
Ms. Baker-Kinney next remembers hearing voices behind her and
finding herself on a couch. She realized it was her friend
leaving the house. She looked down at her clothing and
realized that her shirt was unbuttoned and her pants were
unzipped. [Appellant] sat down on the couch behind her and
propped her up against his chest. She remembers him speaking,
but could not recall … the words he said. His arm was
around her, inside her shirt, fondling her. He then moved his
hand toward her pants. She was unable to move.
Her next memory is of [Appellant] helping her into a bed and
then being awoken the next day by the phone ringing. She
heard [Appellant] speaking on the phone and realized that
they were in bed together and both naked. When [Appellant]
got off of the phone, Ms. Baker-Kinney apologized for passing
out and tried to explain that dieting must have affected her
ability to handle the pills. She had a sticky wetness between
her legs that she knew indicated they had sex at some point,
which she could not remember.
Afraid that someone she worked with would be coming to clean
the home, Ms. Baker-Kinney rushed to get herself dressed and
get out of the home. [Appellant] walked her to the front door
and told her that it was just between them and that she
should not tell anyone. She made a joke that she would not
alert the media and left, feeling mortified.
The day after the assault, she worked a shift at
Harrah's. At the end of her shift, she was leaving with a
friend and heard [Appellant] calling her name across the
room. She gave a slight wave and asked her friend to get her
out of there and they left. Within days of the assault, she
told her roommate, one of her sisters, and a friend what had
Mary Chokran testified that in 1982, Ms. Baker-Kinney called
her and was very distraught. Ms. Baker[-]Kinney told Ms.
Chokran that she had taken what she thought was a Quaalude
and that [Appellant] had given it to her. Ms. Baker-Kinney
told her that she thought it was a mood-enhancing party drug,
not something that would render her unconscious as it did.
Janice Dickinson testified that in 1982, when she was a
twenty-seven[-]year[-]old established model represented by
Elite Modeling Agency, [Appellant] contacted the agency
seeking to meet with her. She first met [Appellant] at his
townhouse in New York City. She went to the home with her
business manager. She was excited about the meeting; she had
been told that [Appellant] mentored people and had taken an
interest in her. During the meeting[, ] they discussed her
potential singing career as well as acting. [Appellant] gave
her a book about acting. After the meeting[, ] she and her
manager left the home.
Sometime later, Ms. Dickinson was working on a calendar shoot
in Bali, Indonesia[, ] when [Appellant] contacted her.
[Appellant] offered her a plane ticket and a wardrobe to come
meet him in Lake Tahoe to further discuss her desire to
become an actress. She accepted the invitation and left her
boyfriend in Bali to go meet [Appellant] to discuss the next
steps to further her career.
When she arrived at the airport in Reno, Nevada, she was met
by Stu Gardner, [Appellant]'s musical director. He took
Ms. Dickinson to the hotel where she checked in to her room
and put on the clothes … provided for her by the hotel
boutique. She arranged to meet [Mr.] Gardner on a sound stage
to go over her vocal range. [Appellant] arrived in the room.
She attended [Appellant]'s performance and had dinner
afterwards with [Appellant] and [Mr.] Gardner.
During the dinner, Ms. Dickinson drank some red wine. She
began to experience menstrual cramps, which she expressed to
the table. [Appellant] said he had something for that and
gave her a little, round blue pill. She ingested the pill.
Shortly after taking the pill, she began to feel woozy and
dizzy. When they finished in the restaurant, Mr. Gardner left
and [Appellant] invited her to his room to finish their
Ms. Dickinson traveled with a camera and took photographs of
[Appellant], including one of him making a phone call, inside
of his hotel room. She testified that after taking the
photos, she felt very lightheaded and like she could not get
her words to come out. When [Appellant] finished his phone
call, he got on top of her and his robe opened. Before she
passed out, she felt vaginal pain as he penetrated her
vagina. She awoke the next morning in her room with semen
between her legs and she felt anal pain.
Later that day, she saw [Appellant] and they went to Bill
Harrah's house. At the house, she confronted [Appellant]
and asked him to explain what happened the previous evening.
He did not answer her. She left Lake Tahoe the next day on a
flight to Los Angeles with [Appellant] and Mr. Gardner. From
Angeles, she returned to Bali to complete her photo shoot.
Ms. Dickinson did not report the assault; she was having
commercial success as a model and feared that it would impact
In 2002, Ms. Dickinson sought to include the rape in her
memoir, No Lifeguard on Duty, but the publishing house's
legal team would not allow her to include it. Judith Regan
testified that she was the publisher of Ms. Dickinson's
2002 memoir. She testified that Ms. Dickinson told her that
[Appellant] had raped her and that she wanted to include that
in her book. Ms. Regan told Ms. Dickinson that the legal
department would not allow her to include the story without
corroboration. Ms. Dickinson was angry and upset when she
learned she could not include her account in the book.
In 2010, Ms. Dickinson disclosed what happened to her to Dr.
Drew Pinsky in the course of her participation in the reality
show Celebrity Rehab. That conversation was never broadcast.
She testified that she also disclosed [it] to a hairdresser
and makeup artist.
Maud Lise-Lotte Lublin testified that when she was in her
early twenties and living in Las Vegas, she modeled as a way
to make money to finance her education. She met [Appellant]
in 1989, when she was twenty-three years old. Her modeling
agency told her that [Appellant] wanted to meet her. The
first time she met with him in person, he was reviewing other
headshots from her agency; he told her that he would send her
photos to a New York agency to see if runway or commercial
modeling was the best fit for her.
She had subsequent contact with [Appellant]. [Appellant] also
developed a relationship with her family. On one occasion,
she and her mother went to the [University of Nevada, Las
Vegas] track with [Appellant] where he introduced her to
people as his daughter. She and her sister spent time with
[Appellant] on more than one occasion. He was aware that her
goal was to obtain an education and thought that modeling or
acting would help her earn enough money to reach her
educational goals. She felt that [Appellant] was a father
figure or mentor. Eventually, that relationship changed.
[Appellant] called her and invited her to the Hilton in Las
Vegas. She arrived at the suite and he began talking to her
about improvisation and acting, as she had not done any
acting at this point. During the conversation, he went over
to a bar and poured her a shot, told her to drink it and that
it would relax her. She told him that she did not drink
alcohol. He insisted that it would help her work on
improvisation and help the lines flow. She trusted his advice
and took the drink. He went back to the bar and prepared her
a second drink, which she accepted.
Within a few minutes, she started to feel dizzy and woozy and
her hearing became muffled. [Appellant] asked her to come sit
with him. He was seated on the couch; Ms. Lise-Lotte Lublin
was standing. He asked her to come sit between his knees. She
sat down; he began stroking her hair. [Appellant] was
speaking to her, but the sound was muffled. She felt very
relaxed and also confused about what this had to do with
learning improvisation. She testified that she remembers
walking towards a hallway and being surprised at how many
rooms were in the suite. She has no further memory of the
night. When she woke up, she was at home. She thought she had
a bad reaction to the alcohol and told her family about the
meeting. In the days that followed, she told additional
friends that she thought she had accidentally had too much to
drink and gotten sick and embarrassed herself. She continued
to have contact with [Appellant].
On one occasion[, ] she traveled to see [Appellant] at
Universal Studios in California. She invited a friend to go
with her as she felt uncomfortable seeing him alone after
what happened. On the drive to Universal Studios, she told
her friend that she was uncomfortable because [Appellant] had
her sit down and he stroked her hair and she could not
remember what happened. She came forward in 2014.
Trial Court Opinion (TCO), 5/14/19, at 1-33 (citations to the
unnecessary to recount fully the tortured procedural history
of this case, but for the following summary of the pertinent
procedural events. On December 30, 2015, the Commonwealth
charged Appellant by criminal complaint with three counts of
aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1),
(4), and (5), for the incident involving Victim that occurred
in Appellant's home in January of 2004. Appellant filed a
Petition for Writ of Habeas Corpus
("Habeas Motion I") on January 11, 2016,
arguing for, inter alia, the dismissal of the
charges based on Former District Attorney Castor's
alleged promise not to prosecute Appellant. See
Reproduced Record ("RR") at 389a. The trial court
heard testimony and argument at a hearing held on February 2
and 3, 2016. Id. at 412a-1047a. On February 4, 2016,
the trial court denied Habeas Motion
Id. at 1048a.
a preliminary hearing held on May 24, 2016, the magistrate
held the aforementioned charges over for trial. Subsequently,
Appellant and the Commonwealth filed numerous pretrial
motions. On August 12, 2016, Appellant filed a
motion to suppress the contents of his civil deposition
testimony. Id. at 6271a-6290a. On September 6, 2016,
the Commonwealth filed a motion to introduce evidence of
Appellant's prior bad acts ("First PBA
Motion"). Both matters were addressed at hearings held
on November 1 and 2, 2016. Id. at 1049a-1191a.
Appellant's suppression motion was denied on December 5,
2016. Id. at 1197a. The trial court granted in part
and denied in part the First PBA Motion on February 24, 2017.
Id. at 1198a (granting the motion with respect to a
single prior-bad-acts witness, but denying the motion with
respect to twelve other proffered witnesses).
first jury trial began on June 5, 2017, and concluded on June
17, 2017, when the jury deadlocked on all three counts,
leading the trial court to issue an order declaring a
mistrial based upon "manifest necessity." Order,
6/17/17, at 1 (single page). On July 6, 2017, the trial court
ordered a new trial. Order, 7/6/17, at 1 (single page).
January 18, 2018, the Commonwealth filed a second motion
in limine, seeking to introduce Appellant's
prior bad acts ("Second PBA Motion"). RR at
1200a-1206a; Id. at 1208a-1308a (memorandum in
support thereof). On January 25, 2018, Appellant filed a
motion seeking to incorporate all of his previous pretrial
motions from his first trial. On March 15, 2018, the trial
court granted the Commonwealth's Second PBA Motion in
part, and denied it in part. Id. at 1672a-1673a
(permitting five of the nineteen proffered prior-bad-acts
witnesses to testify).
second trial commenced on April 2, 2018. On April 6, 2018,
Appellant filed a motion seeking to excuse Juror 11 for
cause. Id. at 2541a-2548a. The trial court denied
the motion. Id. at 2714a (N.T., 4/9/18, at 153). On
April 26, 2018, the jury returned a verdict of guilty on all
counts. Id. at 5813a (N.T., 4/26/18, at 10).
Sentencing was deferred pending an assessment by the Sexual
Offender Assessment Board.
25, 2018, Appellant filed a post-trial motion challenging the
constitutionality of the trial court's retroactively
applying to him the current version of Pennsylvania's Sex
Offender Registration and Notification Act ("SORNA
II"), 42 Pa.C.S. § 9799.10 et seq. Id. at
6291a-6297a. Appellant also filed a post-trial motion seeking
recusal of the trial court judge on September 11, 2018,
alleging newly-discovered evidence that the judge harbored a
bias toward one of Appellant's pretrial hearing
witnesses, Mr. Castor. Id. at 5874a-5886a. The trial
court denied the recusal motion on September 19, 2018.
Id. at 5887a-5894a.
trial court conducted a combined Sexually Violent Predator
(SVP) and sentencing hearing on September 24 and 25, 2018.
The trial court deemed Appellant to be an SVP under a
clear-and-convincing-evidence standard. Id. at
6213a. The trial court also denied Appellant's
constitutional challenge to SORNA II, which was later
memorialized in an order dated September 27, 2018.
Id. at 6214a. The trial court then sentenced
Appellant to 3-10 years' incarceration. Id. at
6198a (N.T., 9/25/18, at 120).
filed a timely post-sentence motion, which the trial court
denied on October 23, 2018. He then filed a timely notice of
appeal on November 19, 2018, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement on December 11, 2018. The trial
court issued its Rule 1925(a) opinion on May 14, 2019.
now presents the following questions for our review:
A. Where the lower court permitted testimony from five women
(and a de facto sixth via deposition), as well as purported
admissions from [Appellant]'s civil deposition,
concerning alleged uncharged misconduct by [Appellant] that
was: (a) more than fifteen years old; (b) lacking any
striking similarities or close factual nexus to the conduct
for which he was on trial; and (c) unduly prejudicial[;] was
the lower court's decision clearly erroneous and an abuse
of discretion, thus requiring that a new trial be granted?
B. Did the lower court abuse its discretion in failing to
disclose his acrimonious relationship with an imperative
defense witness[, ] which not only created the appearance of
impropriety[, ] but was evidenced by actual bias?
C. Did the lower court err in denying the writ of habeas
[corpus] filed on January 11, 2016[, ] and failing to
dismiss the criminal complaint where the Commonwealth, in
2005 through District Attorney Castor, promised [Appellant]
that he would not be charged for the allegations made by
D. Did the lower court err in denying the motion to suppress
where [Appellant], relying on the Commonwealth's promise
not to prosecute him for the allegations by [Victim], had no
choice but to abandon his constitutional rights under the
Fifth Amendment of the U[.]S[.] Constitution and testify at a
E. Where the excerpts of [Appellant's deposition
concerning his possession and distribution of Quaaludes to
women in the 1970s had no relevance to the issue at trial,
was the lower court's decision to allow this evidence to
be presented to the jury clearly erroneous and an abuse of
discretion, thus requiring that a new trial be granted?
F. Where the lower court's final charge to the jury
erroneously included an instruction on "consciousness of
guilt," a charge which was misleading and had no
application to [Appellant's case, was the charge legally
deficient, thus requiring a new trial [to] be granted?
G. Where the lower court allowed a juror to be impaneled,
despite evidence demonstrating that the juror had prejudged
[Appellant's guilt, did the lower court abuse its
discretion and deprive [Appellant] of his constitutional
right to a fair and impartial jury, thus, requiring that a
new trial be granted?
H. Did the lower court abuse its discretion in applying SORNA
II to the 2004 offenses for which [Appellant] had been
convicted, in violation of the ex post facto clauses
of the state and federal constitutions?
Appellant's Brief at 11-13.
Prior Bad Acts Evidence
first claim concerns the trial court's admission of prior
bad acts ("PBA") evidence. The court admitted the
testimony of five witnesses who essentially testified that
Appellant had drugged and then sexually assaulted them in
circumstances similar to that recounted by Victim. The PBA
evidence was admitted under the 'common
plan/scheme/design' and 'absence of mistake'
exceptions to the general evidentiary ban on PBA evidence.
See Pa.R.E. 404(b). Appellant asserts that this PBA
evidence was not admissible because it did not satisfy any
at-issue PBA evidence was the subject of the
Commonwealth's January 18, 2018 Second PBA Motion. RR at
1200a-1206a. Pursuant to that motion, the Commonwealth sought
to admit the testimony of 19 prior victims of Appellant's
alleged sexual misconduct. Following a hearing held on March
5 and 6, 2018, the trial court granted the Second PBA Motion
in part, and denied it in part. Id. at 1672a-1673a
(Order, 3/15/18, at 1-2). The Commonwealth was thereby
permitted to present the PBA testimony of five witnesses:
Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice
Dickinson, and Maud Lise-Lotte Lublin. The trial court did
not permit the Commonwealth to introduce the testimony of the
remaining 14 PBA witnesses proffered by the Commonwealth.
admission of evidence is committed to the sound discretion of
the trial court, and a trial court's ruling regarding the
admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous." Commonwealth v.
Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (citations
and quotation marks omitted). Pennsylvania Rule of Evidence
404(b)(1) prohibits "[e]vidence of a crime, wrong, or
other act … to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character." Pa.R.E. 404(b)(1). This
is because "[t]he Commonwealth must prove beyond a
reasonable doubt that a defendant has committed the
particular crime of which he is accused, and it may not strip
him of the presumption of innocence by proving that he has
committed other criminal acts." Commonwealth v.
Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (citations
omitted). However, PBA "evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident[, ]" if "the probative value of
the evidence outweighs its potential for unfair
prejudice." Pa.R.E. 404(b)(2).
the trial court admitted the testimony of Heidi Thomas,
Chelan Lasha, Janice Baker-Kinney, Janice Dickinson, and Maud
Lise-Lotte Lublin under two PBA exceptions: the common
plan/scheme/design exception, and the absence-of-mistake
exception. Both exceptions were invoked to serve similar
evidentiary goals for the Commonwealth. The Commonwealth
sought to demonstrate that Appellant engaged in a pattern of
non-consensual sex acts with his victims that were
"quite distinct from a typical sexual abuse pattern; so
distinct, in fact, that they are all recognizable as the
handiwork of the same perpetrator-[Appellant]."
Commonwealth's Brief at 44.
determination of admissibility under the common
must be made on a case by case basis in accordance with the
unique facts and circumstances of each case. However, we
recognize that in each case, the trial court is bound to
follow the same controlling, albeit general, principles of
law. When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine the
details and surrounding circumstances of each criminal
incident to assure that the evidence reveals criminal conduct
which is distinctive and so nearly identical as to become the
signature of the same perpetrator. Relevant to such a finding
will be the habits or patterns of action or conduct
undertaken by the perpetrator to commit crime, as well as the
time, place, and types of victims typically chosen by the
perpetrator. Given this initial determination, the court is
bound to engage in a careful balancing test to assure that
the common plan evidence is not too remote in time to be
probative. If the evidence reveals that the details of each
criminal incident are nearly identical, the fact that the
incidents are separated by a lapse of time will not likely
prevent the offer of the evidence unless the time lapse is
Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super.
the common plan/scheme/design exception aids in identifying a
perpetrator based on his or her commission of extraordinarily
similar criminal acts on other occasions. The exception is
demanding in it constraints, requiring nearly unique factual
circumstances in the commission of a crime, so as to
effectively eliminate the possibility that it could have been
committed by anyone other than the accused. See
Commonwealth v. Miller, 664 A.2d 1310, 1318 (Pa. 1995)
(holding admissible, to prove a common scheme, plan, or
design, evidence that the defendant lured other victims of
similar race and weight into his car, took them to remote
areas to force sex upon them, beat them in a similar manner,
and killed or attempted to kill them), abrogation on
other grounds recognized by Commonwealth v. Hicks, 156
A.3d 1114 (Pa. 2017); Commonwealth v. Clayton, 483
A.2d 1345, 1349-50 (Pa. 1984) (holding admissible, to prove a
common scheme, plan, or design, evidence of a subsequent
crime for which the defendant had already been acquitted,
because it was strikingly similar in geographic location,
motive and method of execution); but see Commonwealth v.
Fortune, 346 A.2d 783, 787 (Pa. 1975) (holding
inadmissible in a trial for felony murder, under the common
scheme, plan, or design exception, evidence of
defendant's commission of six prior robberies where
"too many details … [were] unexplained or
incongruous to say that one crime naturally tend[ed] to show
that the accused [was] the person who committed the
Court has also permitted PBA evidence under the common
plan/scheme/design exception "to counter [an]
anticipated defense of consent." Commonwealth v.
Tyson, 119 A.3d 353, 361 (Pa. Super. 2015). In
Tyson, the defendant was accused of rape ...