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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 37 of 80

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

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