IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY CRIMINAL TRIAL DIVISION COMMONWEALTH OF . . VS. WILLIAM H. COSBY, JR. A: 3' riot?t DEFENDANT WILLIAM H. COSBY. MOTION TO AMEND THE FEBRUAij-illi'j: 2016 ORDER DENYING HIS PETITION FOR WRIT OF HABEAS CORPUSTO CERTIFY THE ORDER FOR APPEAL PURSUANT To 42 PA. 08. SECTION 7020)) Defendant William H. Cosby Jr., by and through his attorneys, respectfully requests that this Court amend its February 4, 2016 Order denying his Petition for Writ of Habeas Corpus (the ?Order?) to include certi?cation language speci?ed in 42 Pa. C.S. 702(b), thereby certifying the Order for interlocutory appeal. Section 702(b) provides: When a court or other government unit, in making an interlocutory order in a matter in Which its final order would be Within the jurisdiction. of an appellate court, shall be of the Opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order. I. INTRODUCTION On December 14, 2015, the Commonwealth ?led a criminal complaint against Mr. Cosby, charging him with assault based on conduct alleged to have occurred roughly twelve years ago. On January 11, 2016, Mr. Cosby petitioned this Court for a writ of habeas corpus on the grounds that the Commonwealth, acting through then-District Attorney Bruce Castor, had promised and bound the Commonwealth that Mr. Cosby would never be charged in connection 06779-0001 li?677260. with the alleged incident, and in addition that the Commonwealth had violated Mr. Cosby?s due process rights by delaying almost twelve years to ?le the complaint. On February 4, 2016, after brie?ng and two days of testimony and argument, this Court denied Mr. Cosby?s petition in a one?sentence Order stating: AND NOW, this day of February, 2016, it is hereby ORDERED as follows: based upon review of all the pleadings and ?lings, the exhibits admitted at this hearing, and all testimony of witnesses, with a credibility determination being an inherent part of this Court?s ruling, the Court ?nds that there is-no basis to grant the relief requested in paragraph 3b of the Defendant?s Petition for a Writ Habeas Corpus and, therefore, the Habeas Corpus Petition seeking dismissal of the charges is hereby DENIED. Mr. Cosby has already appealed this Order on an interlocutory basis as a matter of right, both as a collateral order and because ?exceptional circumstances? exist such that an immediate appeal from denial of the petition for writ of habeas corpus is proper. Nonetheless, in the interest of avoiding disputes over appellate jurisdiction and reducing burden on the Courts and the parties, Mr. Cosby independently requests that this Court certify the Order for permissive appeal pursuant to Section 702(b). II. ARGUMENT A. Mr. Cosby Has Annealed as of Right, but Seeks Certi?cation to Avoid Jurisdictional Motion Practice Under law, an appeal may be taken from, among other things, a collateral order, an interlocutory habeas order in cases of exceptional circumstances, and an interlocutory order by permission. Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977); Meyer v. Gresh, 904 A.2d 958, 963 (Pa. Super. Ct. 2006). The Court?s February 4, 2016 Order quali?es as both a collateral order and as an appealable habeas order, and Mr. Cosby therefore has ?led an appeal as of right. A collateral order is ?an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until ?nal judgment in the case, the claim will be irreparany lost.? Pa. RAP. 313(b). An appeal from such an order ?may be taken as of right." Pa. R.A.P. 313(a); see Comma/tweak}? v. Wright, 78 A.3d 1070 (Pa. 2013). Mr. Castor?s agreement and promise not to prosecute Mr. Cosby and the Commonwealth?s 12-year delay in bringing charges against Mr. Cosby raise issues separate and independent from the merits of the case against Mr. Cosby. Those issues are far too important to be denied review, as they relate to Mr. Cosby?s due process rights and because they concern ?the integrity of the judicial system[, which] demands that the Commonwealth live up to its obligation.? See Commonwealth v. Gian, 587 A.2d 314, 316 (Pa. Super. 1991). These issues must be resolved now, because lack of immediate appellate review will cause Mr. Cosby?s interests to be irreparany lost, since he will be prosecuted in breach of the Commonwealth?s direct promise and agreement not to do so and in violation of his due process rights. Signi?cantly, as shown by the Commonwealth?s af?davit of probable cause, the prosecution will be based on deposition testimony given by Mr. Cosby, despite his privilege against self-incrimination, because Mr. Cosby relied on the Commonwealth?s promise that he would not (and, therefore, could not) be prosecuted for the events that he discussed at the deposition. Such loss of a privilege qualifies for collateral-order review. See Commonwealth v. Harris, 612 Pa. 576, 584-90 (Pa. 2011). In addition, ?exceptional circumstances? trigger a right to immediate appeal of an order denying a habeas petition, where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.? Bolden, 373 A.2d at 94 (quotation marks and citations omitted); see CommOHWealth v. Ricker, 120 A.3d 349 (Pa. Super. Ct. 2015) (?nding jurisdiction over appeal from interlocutory habeas order based on such exceptional circumstances). The Order declining to enforce the Commonwealth?s binding promise never to prosecute Mr. Cosby meets these requirements. The issues presented here are matters of great. public interest that relate to safeguarding of basic human rights. They raise important constitutional questions and go to the integrity of judicial processes. Although the Court?s order thus may be appealed as of right, Mr. Cosby recognizes that some of the issues implicated by the Court?s order are novel and that the question of appellate jurisdiction with reapect to them may be the subject of disputes and motions practice. In this situation, the leading treatise on appellate law recommends that ?both a petition for permission to appeal [under Section 702(b)] and a notice of appeal should be ?led.? GR. Darlington, et at, APPELLATE PRACTICE 313:1, at p. 654 (West?s Pa. Prae. Ser. 2015). The treatise explains that following this dual course will prevent uncertainty. See id. 313:3. Certi?cation of an appeal under Section 702(b) removes the need to analyze other bases for appellate jurisdiction and therefore can expedite appellate review by eliminating motion practice regarding those iSsues. For these reasons, Mr. Cosby seeks amendment of this Court?s order under Section 702(b), although he remains confident that the order also is immediately appealable as of right.l B. The Court Should Certifv the ebruarv 4 Order for Permissive Appeal This Court may certify the Order for interlocutory appeal by amending it to state that (1) the order involves controlling questions of law; (2) there is substantial ground for difference of 1 Regardless of the outcome of this motion, the ?ling of Mr. Cosby?s notice of appeal has divested this Court of subject matter jurisdiction over the merits of this case until the Superior Court decides the appeal. Pa. R.A.P. 1701(a) (?after an appeal is taken . . ., the trial court . . . may no longer proceed further in the matter?); see R.W.E. v. A.B.K., 961 A.2d 161, 170 (Pa. Super. 2003) (en banc); Jones v. Trojak, 586 A.2d 397, 399 (Pa. Super. 1990), 634 A.2d 201 (Pa. 1993). However, the Court retains jurisdiction for 30 days from the date of this filing for the limited purpose of deciding this motion. See Pa. RAP. 1701(b)(1) (jurisdiction ?to take other action permitted or required by these rules or otherwise ancillary to the appeal?); 131 1(b) (30 days to act on motion to amend under Section 702(b)). 4 Opinion on the questions of law; and (3) immediate appeal would materially advance the ultimate termination ofthis matter. Commonwealth v. Dennis, 859 A.2d 1270, 1275 (Pa. 2004). All three factors are met here. irsl, the Order involves controlling questions of law. It involves a ruling on whether the terms of the Commonwealth?s non-prosecution agreement and promise bar the prosecution of Mr. Cosby. The Commonwealth?s agreement ?is to be analyzed under contract law standards,? Commonweafrh v. Hainesworrh, 82 A.3d 444, 447 (Pa. Super. 2013), and its interpretation is a question of law. Merl/fuller? v. King, 985 A.2d 769, 773 (Pa. 2009). This question presents several related legal issues, such as: whether the District Attorney?s promise bound the Commonwealth; whether the Commonwealth is estopped from prosecuting Mr. Cosby, regardless of whether there was a valid agreement; and (again regardless of whether there was a valid agreement), whether Mr. Cosby?s due process rights have been violated by the fact that the Commonwealth honored the commitment for more than a decade and then, after such a delay, elected to breach it and ?le charges after critical evidence had been lost. Second, there is substantial ground for difference of opinion on these controlling questions of law. The differences of opinion are set forth in the parties? briefing on Mr. Cosby?s petition for a writ of habeas corpus. It also is re?ected in the different opinions expressed by the current District Attorney and his predecessor, Mr. Castor, regarding both what Mr. Castor did and its binding effect. Moreover, a substantial ground for difference of opinion exists where there is a ?lack of case law on [an] issue.? Commonwealth v. TiZley, 780 A.2d 649, 651 (Pa. 2001) (holding that trial court abused its discretion in refusing to certify an order for interlocutory appeal); Commonwealth v. Brown, 26 A.3d 485, 490 (Pa. Super. 2011). As the Court noted at the hearing, there is no directly on-point decision addressing a District Attorney?s attempt to bind the Commonwealth by promising never to prosecute a defendant and thereby removing the defendant?s ability to invoke?his privilege against self- incrimination at a civil deposition. Third, there can be no question that an immediate appeal would materially advance the ultimate termination of this case. If Mr. Cosby is successful on appeal, the case would be terminated immediately. courts frequently allow appeals under Section 702(b) when they present case-dispositive questions. See, ag, Lahav ex ref. Lahav 12. Main Line Ob/Gyn Assocs., P. C., 727 A.2d ?04 (1999) (allowing interlocutory appeal from Commonwealth Court order partially denying preliminary objections so it could decide questions of liability of Medical Professional Liability Catastrophe Loss Fund); Stone 12. York Haven Power Co, 749 A.2d 452 (Pa. 2000) (noting that the trial court had denied the appellants? immunity claim and certi?ed that order for immediate appeal under Section 702(b) because immunity claim could end case); Hospodar v. Schick, 885 A.2d 986 (Pa. Super. 2005) (allowing interlocutory appeal from denial of preliminary objections in medical malpractice case raising question whether state supreme court decision precluded defendant?s liability). 11]. CONCLUSION For the foregoing reasons, although permission to appeal the Order is not required pursuant to the exceptional circumstances and collateral order doctrines, in the interest of judicial economy, Mr. Cosby respectfully requests that the Court amend the Order to include the following language specified in 42 Pa. C.S. Section 702(b): ?The Order involves controlling questions of law as to which there is substantial ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the matter.? February 12., 2016 Respectfully Submitted, f? {a ?I?Mvw . 1 c, Brian J. McMonagle MCMONAGLE, PERRI, MCHUGH, MISCHAK P.C. 1845 Walnut Street, 19th Floor Philadelphia, PA 19103 (215) 981?0999; Fax 215-981?0977 Hm Christopher Taybaek Joseph Sarles (pro hac vice) QUINN EMANUEL URQUHART SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 (213) 443?3000; Fax (213) 443-3100 Email: christayback@quinnemanuel.eom josephsarles@quinnemanuel.corn Monique Pressley (pro hae vice) THE PRESSLEY FIRM, PLLC 1629 Street NW, Suite 300 Washington, DC 20036 (202) 97341181; Fax (240)235-3388 Email: Attameys for Defendant