Commonwealth v. Cosby, Jr., W., Aplt. ( 2021 )

[J-100-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 39 MAP 2020
:
Appellee : Appeal from the Order of Superior
: Court at No. 3314 EDA 2018 dated
: December 10, 2019 Affirming the
v. : Judgment of Sentence dated
: September 25, 2018 of the
: Montgomery Court of Common
WILLIAM HENRY COSBY JR., : Pleas, Criminal Division, at No. CP-
: 46-CR-3932-2016
Appellant :
: ARGUED: December 1, 2020
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 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
1 Notes of Testimony (“N.T.”), Habeas Corpus Hearing, 2/2/2016, at 60.
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.
[J-100-2020] - 2
involved with, the university. That fall, she, along with a few other Temple administrators,
showed Cosby 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. Constand 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
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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 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
4 N.T., Trial, 4/13/2018, at 53, 55.
5 N.T., Trial, 4/13/2018, at 59-60.
[J-100-2020] - 4
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 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
[J-100-2020] - 5
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. 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
[J-100-2020] - 6
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 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
[J-100-2020] - 7
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 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
[J-100-2020] - 8
had sexual intercourse on any occasion. 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 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
[J-100-2020] - 9
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 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
[J-100-2020] - 10
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 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 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.
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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 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.
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
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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, 2005, 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
During discovery in that lawsuit, Cosby sat for four depositions. Cosby’s attorney
for the civil proceedings, John Schmitt, had learned about the non-prosecution 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.
6 See Constand v. Cosby, Docket No. 2:05-cv-01099-ER.
7 Constand’s attorneys subsequently filed a motion to compel Cosby to answer.
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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, 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
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phone calls were being recorded. Although he did not believe that Constand was making
these allegations in an attempt to get money 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 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. Then-
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.
10 D.A Ferman, now Judge Ferman, was subsequently elected to a seat on the Court
of Common Pleas of Montgomery County.
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First Assistant District Attorney Kevin R. Steele11 was present during the initial stages of
the newly-revived 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]
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
11 Mr. Steele has since been elected District Attorney of Montgomery County.
[J-100-2020] - 16
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. 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
[J-100-2020] - 17
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 Constand, 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
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
[J-100-2020] - 18
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 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 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.
upon pre-arrest delay; and (3) a motion to disqualify the Montgomery County District
Attorney’s Office.
[J-100-2020] - 19
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 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.
* * *
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
[J-100-2020] - 20
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
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 paragraph 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
[J-100-2020] - 21
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 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 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
[J-100-2020] - 22
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 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,
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
[J-100-2020] - 23
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 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 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
[J-100-2020] - 24
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 decision
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.
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.
[J-100-2020] - 25
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 depositions 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).
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
[J-100-2020] - 26
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 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,
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.
[J-100-2020] - 27
permission from 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 provided with
immunity and that she did not specifically agree to any such offer.
(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 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).
[J-100-2020] - 28
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 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.
[J-100-2020] - 29
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 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
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).
[J-100-2020] - 30
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, 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, Baker-
Kinney was twenty-four years old; Cosby was forty-five. When Baker-Kinney arrived at
the residence, she realized that there actually was no party, at least as she understood
[J-100-2020] - 31
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 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
[J-100-2020] - 32
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 twenty-seven years old, and Cosby
was forty-six. Thomas wanted to be an actress and a model. Her agent told 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 liquor. Because Lasha trusted Cosby,
[J-100-2020] - 33
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, 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,
[J-100-2020] - 34
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
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
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) 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.
(2) 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).
17 Id. at 97 (quoting Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa. Super.
2015) (en banc)).
[J-100-2020] - 35
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 then-Chief 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 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
[J-100-2020] - 36
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 “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
[J-100-2020] - 37
the assault as a consensual encounter.” Id. “Furthermore,” the court opined, “Ms.
Constand 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 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 then-
applicable version of the Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S. §§ 9799.10-9799.41. The trial court then sentenced Cosby to three to ten years
[J-100-2020] - 38
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 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
[J-100-2020] - 39
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 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
18 The en banc majority opinion in Tyson was authored by then-President 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.
[J-100-2020] - 40
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 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
[J-100-2020] - 41
agreed with the trial court’s statement that the significance of the age of a prior bad act is
“inversely proportional” to the similarity 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 ‘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
[J-100-2020] - 42
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 “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
[J-100-2020] - 43
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 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
[J-100-2020] - 44
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 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:
[J-100-2020] - 45
The decisions below, barring prosecution of the Stipetiches, embodied
concern that allowing charges to be brought after George Stipetich had
performed his part of the agreement by answering questions about sources
of the contraband discovered in his residence would be fundamentally unfair
because in answering the questions he may have disclosed information that
could be used against him. The proper response to this concern is not to
bar prosecution; rather, it is to suppress, at the appropriate juncture, any
detrimental evidence procured through the inaccurate representation that
he would not be prosecuted.
Id. at 1296. 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 court’s decision
to allow the use of Cosby’s deposition testimony against him at trial.19
19 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.
[J-100-2020] - 46
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 deposition 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
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.
[J-100-2020] - 47
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 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 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
[J-100-2020] - 48
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 self-incrimination.” Id. § 5947(c). At the habeas hearing, former District Attorney
Castor testified that he 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
[J-100-2020] - 49
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 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.
[J-100-2020] - 50
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 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.
[J-100-2020] - 51
For the reasons detailed below, we hold that, when a prosecutor makes an
unconditional promise of non-prosecution, 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 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 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
[J-100-2020] - 52
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 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
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 jurisdiction over what was otherwise a state law matter. See Santobello, 404
U.S., at 266-67 (Douglas, J. concurring).
[J-100-2020] - 53
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 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
[J-100-2020] - 54
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 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
[J-100-2020] - 55
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, 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
[J-100-2020] - 56
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
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.
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.
[J-100-2020] - 57
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 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 co-extensively). 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
[J-100-2020] - 58
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 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.
[J-100-2020] - 59
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 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).
[J-100-2020] - 60
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 the surrounding
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 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
[J-100-2020] - 61
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 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
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.
[J-100-2020] - 62
“this decision” is possible only when this sentence is read in isolation.25 The court ignored
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 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).
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 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.
[J-100-2020] - 63
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.
Then-D.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 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 through 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
[J-100-2020] - 64
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 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
26 To that end, the application of the privilege against self-incrimination 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.
[J-100-2020] - 65
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 deposition 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 self-incrimination to invoke, but
rather that Cosby simply chose not to invoke it.
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
[J-100-2020] - 66
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 constitutional 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.
[J-100-2020] - 67
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 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
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 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.
[J-100-2020] - 68
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 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 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.
[J-100-2020] - 69
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
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
[J-100-2020] - 70
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 so-called sophistication of the defendant.
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 constitutional guarantee.
In accordance with the advice of his attorneys, Cosby relied upon D.A. Castor’s
public announcement that he would not be prosecuted. His reliance was reasonable, and
it resulted in the deprivation of a fundamental constitutional right when he was compelled
to furnish self-incriminating testimony. Cosby reasonably relied upon the
Commonwealth’s decision for approximately ten years. When he announced his
declination decision on behalf of the Commonwealth, District Attorney Castor knew that
Cosby would be forced to testify based upon the Commonwealth’s assurances. Knowing
that he induced Cosby’s reliance, and that his decision not to prosecute was designed to
[J-100-2020] - 71
do just that, D.A. Castor made no attempt in 2005 or in any of the ten years that followed
to remedy any misperception or to stop Cosby from openly and detrimentally relying upon
that decision. In light of these circumstances, the subsequent decision by successor
D.A.s to prosecute Cosby violated Cosby’s due process rights. No other conclusion
comports with the principles of due process and fundamental fairness to which all aspects
of our criminal justice system must adhere.28
Having identified a due process violation here, we must ascertain the remedy to
which Cosby is entitled. We note at the outset that specific performance does not
automatically apply in these circumstances. As a general rule, specific performance is
reserved for remedying an injured party to a fully consummated agreement, such as an
agreed-upon and executed plea bargain. Commonwealth v. Spence, 627 A.2d 1176,
1184 (Pa. 1993). “‘Specific performance’ is a traditional contract remedy that is available
when monetary damages are inadequate.” Martinez, 147 A.3d at 532 (citing BLACK’S LAW
DICTIONARY 1425 (8th ed. 2004) (defining “specific performance” as, inter alia, “a court-
ordered remedy that requires precise fulfillment of a legal or contractual obligation when
monetary damages are inappropriate or inadequate”)).
This does not mean that specific performance is unavailable entirely. It only means
that the remedy does not naturally flow to someone under these circumstances as an
automatic consequence of contract law. Specific performance is awarded only when
equity and fundamental fairness command it. See Scotland, at 614 F.2d at 365 (stating
that, if “the defendant detrimentally relies on the government’s promise, the resulting harm
from this induced reliance implicates due process guarantees”); see also Commonwealth
v. Mebane, 58 A.3d 1243 (Pa. Super. 2012) (upholding trial court ruling that fundamental
28 See Khan v. State Bd. of Auctioneer Exam'rs, 842 A.2d 936, 946 (Pa. 2004)
(“Substantive due process is the esoteric concept interwoven within our judicial
framework to guarantee fundamental fairness and substantial justice . . . .”) (cleaned up).
[J-100-2020] - 72
fairness required enforcement of the prosecution’s plea offer that was later withdrawn,
where the defendant detrimentally relied upon the offer); Commonwealth v. McSorley,
485 A.2d 15, 20 (Pa. Super. 1984), aff'd, 506 A.2d 895 (Pa. 1986) (per curiam) (enforcing
an incomplete agreement based upon detrimental reliance). As noted earlier, the
principle of fundamental fairness, as embodied in our Constitutions, requires courts to
examine whether the challenged “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.” Kratsas, 764 A.2d at 27.
In our view, specific performance of D.A. Castor’s decision, in the form of barring
Cosby’s prosecution for the incident involving Constand, is the only remedy that comports
with society’s reasonable expectations of its elected prosecutors and our criminal justice
system. It bears repeating that D.A. Castor intended his charging decision to induce the
waiver of Cosby’s fundamental constitutional right, which is why the prosecutor rendered
his decision in a very public manner. Cosby reasonably relied to his detriment upon that
decade-old decision when he declined to attempt to avail himself of his privilege against
compulsory self-incrimination and when he provided Constand’s civil attorneys with
inculpatory statements. Under these circumstances, neither our principles of justice, nor
society’s expectations, nor our sense of fair play and decency, can tolerate anything short
of compelling the Montgomery County District Attorney’s Office to stand by the decision
of its former elected head.
In Stipetich, we briefly contemplated a remedy for the breach of a defective non-
prosecution agreement. In that case, Stipetich agreed with the police that, if he revealed
his source for obtaining drugs, no charges would be filed against him or his wife.
Stipetich, 652 A.2d at 1294-95. Even though Stipetich fulfilled his end of the bargain,
charges still were filed against him and his wife. Id. at 1295. The Stipetiches sought
[J-100-2020] - 73
enforcement of the non-prosecution agreement with the police. This Court found that the
non-prosecution agreement was invalid, because the police did not have the authority to
make it. Only a prosecutor holds that power. Id.
We recognized that what befell the Stipetiches may have been “fundamentally
unfair,” particularly if their discussions with the police produced additional evidence of
criminality, including possibly self-incriminating statements. Id. at 1296. In dicta, we
suggested that the remedy might be to suppress the evidence or statements that were
obtained after the police purported to bind the Commonwealth in a non-prosecution
agreement. Id.
This remedy is insufficient here, for a number of reasons. First, as noted, the
remedy statement was dicta, and is not the law in Pennsylvania. Second, the
circumstances that led to the suggestion of that remedy are markedly different than those
that occurred in the present case. In Stipetich, the agreement was formulated with
arresting officers, who lacked the authority to make the promise not to prosecute. Here,
conversely, the non-prosecution decision was made by the elected District Attorney of
Montgomery County, whose public announcement of that decision was fully within his
authority, and was objectively worthy of reasonable reliance. Finally, a one-size-fits-all
remedy does not comport with the individualized due process inquiry that must be
undertaken. As outlined above, a court must ascertain, contemplating the individual
circumstances of each case, the remedy that accords with the due process of law. In
some instances, suppression of evidence may be an adequate remedy; in others, only
specific enforcement will suffice.
Here, only full enforcement of the decision not to prosecute can satisfy the
fundamental demands of due process. See Rowe, 676 F.2d at 528 (explaining that, when
a promise induces a defendant to waive his Fifth Amendment rights by testifying or
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otherwise cooperating with the government to his detriment, due process requires that
the prosecutor’s promise be fulfilled). In light of the extent and duration of Cosby’s
reliance, induced as intended by then-District Attorney Castor, no other remedy will do.
Anything less under these circumstances would permit the Commonwealth to extract
incriminating evidence from a defendant who relies upon the elected prosecutor’s words,
actions, and intent, and then use that evidence against that defendant with impunity.
The circumstances before us here are rare, if not entirely unique. While this
controversy shares some features of earlier cases that contemplate the constitutional role
of prosecutors, that import contract principles into the criminal law, and that address the
binding nature of prosecutorial promises in plea agreements and in other situations—as
well as breaches of those promises—there are no precedents directly on point that would
make the remedy question an easy one. As the concurring and dissenting opinion
(“C.D.O.”) observes, the circumstances of this case present a “constellation
of . . . unusual conditions.”29 It is not at all surprising, then, that a reasonable
disagreement arises regarding the remedy that must be afforded for what we and the
C.D.O. agree was a violation of Cosby’s due process rights.
In our respectful judgment, the C.D.O.’s proposed remedy, a third criminal trial of
Cosby—albeit one without his deposition testimony—falls short of the relief necessary to
remedy the constitutional violation. Specific performance is rarely warranted, and should
be imposed only when fairness and equity demand it. As the C.D.O. notes, such a
remedy generally should be afforded only under “drastic circumstances where the
defendant detrimentally relies on an inducement and cannot be returned to the status quo
ante.”30 Our disagreement with the C.D.O. arises concerning its view that mere
29 See C.D.O. at 4.
30 Id. at 9.
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suppression of Cosby’s deposition testimony will remedy his constitutional harm and
“fully” restore him to where he stood before he detrimentally relied upon D.A. Castor’s
inducement.31 This perspective understates the gravity of Cosby’s harm in this case, and
suppression alone is insufficient to provide a full remedy of the consequences of the due
process violation.
The C.D.O. would limit our assessment of the harm suffered by Cosby to the
Commonwealth’s use of the deposition testimony at his two trials. But the harm is far
greater than that, and it began long before even the first trial. It must be remembered
that D.A. Castor’s decision not to prosecute Cosby, and to announce that decision orally
and in a written press release, was not designed to facilitate the use of testimony against
Cosby in a future criminal trial. Instead, D.A. Castor induced Cosby’s forfeiture of his Fifth
Amendment rights as a mechanism and a lever to aid Constand’s civil action and to
improve the chances that she would receive at least a monetary benefit for the abuse that
she suffered, given that D.A. Castor had determined that Constand would not, and could
not, get relief in a criminal trial. Through his deliberate efforts, D.A. Castor effectively
forced Cosby to participate against himself in a civil case in a way that Cosby would not
have been required to do had he retained his constitutional privilege against self-
incrimination. To say the least, this development significantly weakened Cosby’s legal
position. Cosby was compelled to give inculpatory evidence that led ultimately to a multi-
million dollar settlement. The end result was exactly what D.A. Castor intended: Cosby
gave up his rights, and Constand received significant financial relief.
Under these circumstances, where our equitable objective in remedying a due
process violation is to restore an aggrieved party to the status he held prior to that
violation, exclusion of the deposition testimony from a third criminal trial, and nothing
31 Id. at 5.
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more, falls short of what our law demands. Though this appeal emanates from Cosby’s
criminal convictions, we cannot ignore the true breadth of the due process violation. The
deprivation includes the fact that D.A. Castor’s actions handicapped Cosby in the
derivative civil suit. Nor can we ignore the fact that weakening Cosby’s position in that
civil case was precisely why D.A. Castor proceeded as he did. Suppression of evidence
in a third criminal trial can never restore Cosby to the position he held before he forfeited
his Fifth Amendment rights. The consequences of D.A. Castor’s actions include the civil
matter, and no exclusion of deposition testimony can restore Cosby’s injuries in that
regard.
It was not only the deposition testimony that harmed Cosby. As a practical matter,
the moment that Cosby was charged criminally, he was harmed: all that he had forfeited
earlier, and the consequences of that forfeiture in the civil case, were for naught. This
was, as the C.D.O. itself characterizes it, an unconstitutional “coercive bait-and-switch.”32
It is the true and full breadth of the consequences of the due process violation that
separates this case from the cases relied upon by the C.D.O., including Stipetich.33 Each
of those prosecutions involved defective or unenforceable promises that resulted in
suppression remedies. Critically, none of them featured the additional harm inflicted in
this case. In none of those cases did the effects of the constitutional violation extend to
matters beyond the criminal trial, as was the circumstance here. Accordingly, none of
those cases support, much less compel, the limited remedy that the C.D.O. proffers.
The impact of the due process violation here is vast. The remedy must match that
impact. Starting with D.A. Castor’s inducement, Cosby gave up a fundamental
32 Id. at 1.
33 See C.D.O. at 6-8 (citing Stipetich, Commonwealth v. Peters, 373 A.2d 1055 (Pa.
1977); Commonwealth v. Parker, 611 A.2d 199 (Pa. 1922); People v. Gallego, 424
N.W.2d 470 (Mich. 1988); and United States v. Blue, 384 U.S. 251 (1966)).
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constitutional right, was compelled to participate in a civil case after losing that right,
testified against his own interests, weakened his position there and ultimately settled the
case for a large sum of money, was tried twice in criminal court, was convicted, and has
served several years in prison. All of this started with D.A. Castor’s compulsion of Cosby’s
reliance upon a public proclamation that Cosby would not be prosecuted. The C.D.O.’s
remedy for all of this would include subjecting Cosby to a third criminal trial. That is no
remedy at all. Rather, it is an approach that would place Cosby nowhere near where he
was before the due process violation took root.
There is only one remedy that can completely restore Cosby to the status quo ante.
He must be discharged, and any future prosecution on these particular charges must be
barred. We do not dispute that this remedy is both severe and rare. But it is warranted
here, indeed compelled. The C.D.O. would shun this remedy because (at least in part) it
might thwart the “public interest in having the guilty brought to book.”34 It cannot be
gainsaid that society holds a strong interest in the prosecution of crimes. It is also true
that no such interest, however important, ever can eclipse society’s interest in ensuring
that the constitutional rights of the people are vindicated. Society’s interest in prosecution
does not displace the remedy due to constitutionally aggrieved persons.
IV. Conclusion
We do not question the discretion that is vested in prosecutors “over whether
charges should be brought in any given case.” Stipetich, 652 A.2d at 1295. We will not
undermine a prosecutor’s “general and widely recognized power to conduct criminal
litigation and prosecutions on behalf of the Commonwealth, and to decide whether and
when to prosecute, and whether and when to continue or discontinue a case.” Id. (quoting
34 See C.D.O. (quoting Blue, 384 U.S. at 255).
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Commonwealth v. DiPasquale, 246 A.2d 430, 432 (Pa. 1968)). The decision to charge,
or not to charge, a defendant can be conditioned, modified, or revoked at the discretion
of the prosecutor.
However, the discretion vested in our Commonwealth’s prosecutors, however
vast, does not mean that its exercise is free of the constraints of due process. When an
unconditional charging decision is made publicly and with the intent to induce action and
reliance by the defendant, and when the defendant does so to his detriment (and in some
instances upon the advice of counsel), denying the defendant the benefit of that decision
is an affront to fundamental fairness, particularly when it results in a criminal prosecution
that was foregone for more than a decade. No mere changing of the guard strips that
circumstance of its inequity. See, e.g., State v. Myers, 513 S.E.2d 676, 682 n.1 (W.Va.
1998) (explaining that “any change in the duly elected prosecutor does not affect the
standard of responsibility for the office”). A contrary result would be patently untenable.
It would violate long-cherished principles of fundamental fairness. It would be antithetical
to, and corrosive of, the integrity and functionality of the criminal justice system that we
strive to maintain.
For these reasons, Cosby’s convictions and judgment of sentence are vacated,
and he is discharged.35
Justices Todd, Donohue and Mundy join the opinion.
Justice Dougherty files a concurring and dissenting opinion in which
Chief Justice Baer joins.
Justice Saylor files a dissenting opinion.
35 Accordingly, we do not address Cosby’s other issue.
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