Bill Cosby's Criminal Case Primed for Pennsylvania Supreme Court

"It is impossible for two incidents of sexual assault involving different victims to be identical in all respects," finds the court in response to Cosby's argument that the stories of five women who testified to his "prior bad acts" weren't similar enough to be relevant.
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Bill Cosby

Bill Cosby doesn't believe five women who accuse him of sexual assault should have been allowed to testify in his criminal trial for the 2004 sexual assault of Andrea Constand. On Tuesday, a Pennsylvania appeals court disagreed — declining to overturn his sentence — and it didn't take long for the 82-year-old comedian to say he's going to take that, and other issues, to the state's supreme court.

"It’s obvious that these judges’ minds were made up because they didn’t take the time to dissect Mr. Cosby’s appeal," reads a statement from Cosby's spokesman. "We’re not shocked because it shows the world that this isn’t about justice, but this is a political scheme to destroy America’s Dad, however they will not stop us and we will prevail in the State Supreme Court. Mr. Cosby remains hopeful and he stands behind his innocence."

Following his second trial, which ended in a conviction, Cosby was sentenced to three to 10 years in prison. Cosby filed an appeal challenging the neutrality of Judge Steven O'Neill and arguing, among other things, that five prior bad acts witnesses shouldn't have been allowed to testify and his 2006 deposition from a civil dispute with Constand shouldn't have been considered.

On Tuesday, the three-judge panel from the Superior Court of Pennsylvania published its opinion, which affirmed the sentence.

Cosby challenged the admission of the "prior bad acts" witnesses by arguing that the stories of the five women who testified they had been assaulted were "strikingly dissimilar" from Constand's and were too far removed in time to be admissible. The panel found enough similarity to establish a sufficient pattern of conduct.

"It is impossible for two incidents of sexual assault involving different victims to be identical in all respects," writes President Judge Emeritus John T. Bender. "There are distinctive similarities between the PBA evidence and Appellant’s sexual assault of Victim. Furthermore, there were multiple prior sexual assaults, not merely one, and all of those prior assaults evidenced the same, signature pattern of misconduct. Had there only been a single prior bad act, it would be easier to write off the similarities as coincidental, especially given the passage of time."

The panel also found that Cosby waited too long to seek O'Neill's recusal and that it doesn't matter if Cosby only testified in the civil suit because Bruce Castor, the DA who opted not to prosecute Cosby in 2005, made him a non-prosecution promise. The promise itself doesn't hold up, either.

"Even assuming Mr. Castor promised not to prosecute Appellant, only a court order can convey such immunity," writes Bender. "Such promises exist only as exercises of prosecutorial discretion, and may be revoked at any time."

The panel also found the content of Cosby's deposition relevant, specifically the parts where he discusses sharing Quaaludes. "In a vacuum, Appellant’s use and distribution of a then-legal ‘party drug’ nearly half a century ago, does not appear highly prejudicial, at least not to the extent that there was a serious risk that it would overwhelm the good sense of a rational juror," writes Bender. "It only becomes significantly prejudicial, and fairly so, when, in the context of other evidence, it establishes Appellant’s knowledge of and familiarity with central nervous system depressants for purposes of demonstrating that he was at least reckless in providing a central nervous system depressant to Victim before engaging in sexual acts with her, as he should have been aware that it would substantially impair her ability to consent."

For the full scope of Cosby's challenges and the court's response, read the opinion posted below.