IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, DIVISION COMMONWEALTH OF 2: v. a; 3. WILLIAM H. COSBY, JR. 3 MOTION TO INTRODUCE EVIDENCE (E 19 PRIOR BAD ACTS OF DEFENDANT TO THE HONORABLE STEVEN T. .: The District Attorney of Montgomery County, Kevin R. Steele, hereby moves to admit evidence of 19 prior bad acts of defendant, William H. Cosby, Jr. (?defendant?), pursuant to Rule of Evidence 404(b). In support of its motion, the Commonwealth avers as follows: 1. The Commonwealth has charged defendant with three counts of Aggravated Indecent Assault in connection with the 2004 sexual assault he committed on Andrea Constand after he drugged her and rendered her incapable of consenting to any sexual conduct. 2. During its investigation, the Commonwealth investigated more than 50 other claims of defendant?s virtually identical drug?facilitated sexual assaults on young women. 3. On September 6, 2016, it filed the Commonwealth?s Motion to Introduce Evidence of Prior Bad Acts of Defendant. In it, the Commonwealth sought to introduce evidence of 13 of the alleged prior bad acts of defendant. 4. On February 24, 2017, this Court admitted in part and denied in part the Commonwealth?s motion. Specifically, it granted the Commonwealth?s motion regarding then?designated ?Prior Victim Number Six,? who was later identi?ed as Kelley Johnson; it denied the Commonwealth?s motion regarding the remaining prior bad acts witnesses. 5. During defendant?s June 2017 trial, the Commonwealth presented evidence pertaining to Ms. Johnson, in addition to evidence pertaining to the current victim, Ms. Constand. 6. The jury heard testimony over the course of six days; it deliberated for ?ve days without being able to reach a verdict. This Court declared a mistrial and later scheduled defendant?s re-trial for April 2, 2018. 7. The Commonwealth now moves this Court to admit evidence pertaining to 19 prior bad acts of defendant?13 of which were the subject of its September 2016 prior bad acts motion, and six of which are being proffered to this Court for the ?rst time.1 8. This evidence is relevant under Pa. R.E. 404(b) to demonstrate a common scheme, plan, or design. That is, the evidence of defendant?s prior bad acts is suf?ciently ?distinctive and so nearly identical as to become the signature of the same perpetrator.? See Commonwealth Tyson, 119 A.3d 353, 359 (Pa. Super. 2015). 9. The evidence is also relevant under Pa. R.E. 404(b) to demonstrate an absence of mistake or accident. That is, the evidence is relevant to establish that an individual who, over the course of decades, intentionally 1 For the convenience of the Court, the Commonwealth has renumbered the prior bad acts witnesses for purposes of this motion to re?ect their chronological order regarding the time of the alleged assaults by defendant. 2 intoxicated young women in a signature fashion and then sexually assaulted them while they were incapacitated could not have be mistaken about whether or not Ms. Constand was conscious enough to consent to any sexual contact. See Tyson, 1 19 A.3d at 363. 10. In addition, this evidence is admissible under the theory of the ?doctrine or chances,? also known as the ?doctrine of objective improbability.? See Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (Saylor, C.J., concurring). Under this theory of logical relevance, as the number of victims reporting similar, drug?facilitated sexual assaults by defendant increases, the likelihood that his conduct was unintentional decreases. It is simply a matter of probabilities. Thus, defendant?s prior bad acts are admissible under the ?doctrine of chances? to negate the presence of any non?criminal intent and, concomitantly, to establish an absence of mistake. 1 1. Moreover, the probative value of the proffered prior bad acts evidence outweighs any danger of unfair prejudice pursuant to Pa. RE. 403. This is so because there is a high degree of similarity between the current offense and the prior bad acts, the Commonwealth has a signi?cant need for the evidence, and a cautionary instruction would alleviate any unfair prejudice. 12. Finally, to the extent that this Court deems this motion a request for reconsideration of its February 24, 2017, order?at least as it pertains to the evidence regarding the 12 prior bad act victims the Court deemed inadmissible prior to defendant?s ?rst trial?the Commonwealth seeks reconsideration of this ruling, attendant to its current Motion to Introduce a Evidence of 1 9 Prior Bad Acts of Defendant. WHEREFORE, based on the forgoing, as well as the reasons set forth in the Commonwealth?s Memorandum of Law in Support of its Motion to Introduce Evidence of 1 9 PriorBad Acts of Defendant, the Commonwealth respectfully requests that this Court grant its Motion to Introduce 19 Prior Bad Acts of Defendant.2 RESPECTFULLY SUBMITTED: KEVIN R. STEELE DISTRICT ATTORNEY 2The Commonwealth?s Memorandum of Law in Support of its Motion to Introduce Evidence of 1 9 Prior Bad Acts of Defendant is attached hereto as ?Exhibit and is incorporated by reference as if fully set forth herein. 4 VERIFICATION 1, Kevin R. Steele, District Attorney of Montgomery County, declare under penalty of perjury that the statements herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. 08. 4904, relating to unsworn falsification to authorities. gm KEVIN R. STEELE DISTRICT ATTORNEY PUBLIC ACCESS POLICY CERTIFICATION l, Kevin R. Steele, District Attorney of Montgomery County, certify that this ?ling complies with the provisions of the Public Access Policy of the Uniform Judicial Systems of Case Records of the Appellate and Trial Courts that require ?ling con?dential information and documents differently than non-con?dential information and documents. y?agegl KEVIN R. STEELE DISTRICT CERTIFICATE OF SERVICE 1, Kevin R. Steele, District Attorney of Montgomery County, being duly sworn according to law, depose and say that a true and correct copy of the Commonwealth?s Motion to Introduce Evidence of 1 9 Prior Bad Acts of Defendant was delivered to following: VIA EMAIL AND FIRST-CLASS MAIL: PERSONAL SERVICE: Samuel W. Silver, Esquire The Honorable Steven T. O?Neill 1600 Market Street, Suite 3600 Judicial Chambers Philadelphia, PA 19 103 Montgomery County Courthouse Norristown, PA 19404 Kathleen Bliss, Esquire Kathleen Bliss Law PLLC 1070 W. Horizon Ridge Parkway Suite 202 Henderson, NV 89012 Thomas Mesereau, Esquire Mesereau Law Group 10 100 Santa Monica Blvd. Suite 300 Los Angeles, CA 90067 KEVIN R. STEELE DISTRICT ATTORNEY 'Vi?i?i?id IOHIHV 9 Ammo Date: smnu?' 95531:! 3% EXHIBIT IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, COMMONWEALTH OF DIVISION 1 6 V. WILLIAM H. COSBY, JR. MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO INTRODUCE EVIDENCE OF 19 PRIOR BAD ACTS OF DEFENDANT TO THE HONORABLE STEVEN T. J.: TABLE OF CONTENTS I. INTRODUCTION 3 II. BACKGROUND 5 SEXUAL ASSAULT VICTIMS g" 53 A. THE CURRENT VICTIM B. THE PRIOR BAD ACTS VICTIMS 93min? 5' rt IV. DISCUSSION en 1?3 A. THE PRIOR BAD ACTS EVIDENCE PROFFERED BY THE COMMONWEALTI-TIS H: RELEVANT AND ADMISSIBLE 4O 1. The Law on Prior Bad Acts Evidence 41 2. Defendant?s Prior Bad Acts are Relevant to Show a Common Scheme, Plan, or Design 49 3. Defendant?s Prior Bad Acts are Relevant to Show an Absence of Mistake or Accident 6O 4. Defendant?s Prior Bad Acts are Admissible Under the Doctrine of Chances 63 5. The Probative Value of the Prior Bad Acts Evidence Outweighs any Potential for Unfair Prejudice 73 V. a. There is a High Degree of Similarity Between Current Offense and Prior Bad Acts 73 b. The Commonwealth has a Signi?cant Need for the Evidence 75 c. A Cautionary Instruction Would Alleviate any Unfair Prejudice 78 THIS COURT SHOULD RECONSIDER ITS FEBRUARY 24, 2017, ORDER PRECLUDING THE COMMONWEALTH FROM INTRODUCING EVIDENCE PERTAINING TO 12 OF THE 13 PREVIOUSLY PROFFERED PRIOR BAD ACTS VICTIMS 80 1. This Court Must Consider the Sequential Nature of the Prior Bad Acts 82 2. The Commonwealth has Discretion to Decide Which Relevant Prior Bad Acts Witnesses to Present at Trial 86 THE LAW OF THE CASE DOCTRINE DOES NOT APPLY TO THIS MOTION 88 1. The Applicable Legal Standards 9O 2. The Commonwealth is Not Asking This Court to Reopen a Ruling Made by a Court of Coordinate Jurisdiction or a Ruling Made by an Appellate Court 92 3. The Grant of a New Trial ?Wipes the Slate Clean? for Purposes of Rulings on the Admissibility of Evidence 93 4. There Exist ?Exceptional Circumstances? Warranting Departure from the Law of the Case Doctrine 95 CONCLUSION 98 I. INTRODUCTION Defendant William H. Cosby, Jr. has spent a lifetime entertaining audiences in front of the camera. Off camera, he has followed and, indeed, mastered, a more nefarious script?a victimizing sexual script. That is, throughout the course of decades, he has manifested a desire for young, unconscious women whom he has rendered totally passive due to his administration of intoxicants. To satiate his desire, he has engaged, over the course of his lifetime, in a pattern of serial sexual abuse of dozens of young women?allegedly more than 50?whom he rendered incapacitated in strikingly similar situations. The Commonwealth is prosecuting defendant for his sexual assault of one of these young women, Andrea Constand. The charges stem from a 2004 incident in his Cheltenham home, where he drugged her and, once she was incapacitated to the extent that she was incapable of consent, he sexually assaulted her. Since that time, the Commonwealth has investigated more than 50 other claims of defendant?s virtually identical drug-facilitated sexual assaults on young women. The Commonwealth is now seeking to introduce evidence of 19 of these prior bad acts of defendant?43 of which were proffered in the Commonwealth?s original prior bad acts motion and six of which are being proffered for the ?rst time here.1 1 This Court already determined, prior to defendant?s ?rst trial, that the prior bad acts evidence pertaining to one of defendant?s victims, Kelley Johnson, was admissible at trial. See Order, dated Feb. 24, 2017 (O?Neill, .). Indeed, the Commonwealth presented this evidence at defendant?s ?rst trial. The Commonwealth now asks this Court, once again, to allow it to introduce evidence pertaining to defendant?s prior bad acts involving Ms. Johnson. While (footnote continued on next page) 3 This prior bad acts evidence is both relevant and admissible. It is admissible to show that defendant engaged in a common scheme, plan, or design, and to demonstrate an absence of mistake. In other words, this evidence is relevant to establish that an individual who, over the course of decades, intentionally intoxicated women in a signature fashion and then sexually assaulted them while they were incapacitated, could not have been mistaken about whether or not Ms. Constand was conscious enough to consent to the sexual contact. In addition, this evidence is admissible under the theory of the ?doctrine of chances,? also known as the ?doctrine of objective improbability.? Under this non?character-based theory of logical relevance, as the number of Victims reporting similar drug?induced sexual assaults by defendant increases, so does the objective improbability that defendant mistakenly assessed each victim?s level of consciousness when engaging in sexual contact with her. Indeed, the additional victims now being proffered by the Commonwealth further reduces the already unlikely probability that defendant?s conduct was unintentional. the prior evidentiary ruling is not binding on the Court in light of the grant of a new trial, see Commonwealth v. Paddy, 800 A.3d 294, 31 1 (Pa. 2002), there exists no change in circumstance that would warrant a departure from the original ruling regarding Ms. Johnson. To the contrary, as discussed in more detail infra, any change in circumstances from the time of the original prior bad acts motion?to wit, the proffering of six additional prior bad acts victims which must be viewed in their sequential context and the sanctioning of the ?doctrine of chances? by the Chief Justice of the Supreme Court?serves only to reinforce the propriety of the earlier ruling regarding Ms. Johnson and the concomitant need to revisit the ruling regarding the 12 prior bad act victims that were deemed inadmissible. II. BACKGROUND The relevant history of this case is as follows. On December 30, 2015, the Commonwealth charged defendant with three counts of Aggravated Indecent Assault in connection with the drug-induced sexual assault he committed on Andrea Constand during the winter of 2004 in his Cheltenham home. During its investigation, the Commonwealth learned that more than 50 other women fell victim to defendant?s sadistic sexual script. That is, these women suffered nearly identical trauma at the hands of defendant; he systematically engaged in a pattern of providing an intoxicant to his young female victim and sexually assaulting her once she became incapacitated. The Commonwealth sought to introduce evidence of a mere sampling of this other act evidence at trial. To this end, it ?led the Commonwealth?s Motion to Introduce Evidence of Prior Bad Acts of Defendant. In it, the Commonwealth moved to admit evidence regarding 13 of these alleged incidents to demonstrate an absence of mistake and to show defendant?s common scheme, plan, or design. More speci?cally, it asserted that the evidence was relevant to establish that an individual, who over the course of decades, intentionally intoxicated women in a signature fashion and then sexually assaulted them while they were incapacitated, could not have been mistaken about whether or not Ms. Constand was conscious enough to consent to any sexual contact. Following defendant?s response, oral argument, and the submission of post-hearing briefs by both parties, this Court granted the Commonwealth?s motion with respect to the evidence pertaining to the victim designated by the 5 Commonwealth as ?Prior Victim Number Six,? who was later identi?ed as Kelley Johnson, but denied the motion with respect to the remaining prior victims.2 Order, dated Feb. 24, 2017 (O?Neill, .). The Commonwealth later ?led a motion to introduce various admissions by defendant, including, among other things, admissions he made during a 2005 civil deposition regarding Quaaludes.3 In this deposition, defendant admitted that he had access to and knowledge of prescription drugs that induce unconsciousness. He speci?cally discussed Quaaludes and having obtained multiple prescriptions for them. He further admitted that he obtained the prescriptions without intending to use the pills himself, but instead ?for young women that [he] wanted to have sex with,? including the woman identi?ed as ?Prior Victim Number Four? in the Commonwealth?s original prior bad acts motion. Commonwealth?s Motion to Introduce Admissions by Defendant (citing Civil Deposition, 9/29/05, 52?54, 58-60, 70-71, 90). Following argument, this Court granted the Commonwealth?s motion as it pertained to defendant?s deposition testimony concerning Quaaludes. Order, 2 For the convenience of the Court, the Commonwealth has renumbered the prior bad acts witnesses for purposes of the instant motion and memorandum of law to re?ect their chronological order as it relates to the time of the alleged assault by defendant. Those witnesses that were the subject of the Commonwealth?s earlier prior bad acts motion are designated in the current motion as Prior Victim Numbers 12, 14, 15, 16, 18, and 19. The newly-proffered witnesses are identi?ed in the current motion as Prior Victim Numbers 1, 8, 9, 10, 13, and 17. With the exception of Kelley Johnson, whose identity was revealed at defendant?s June 2016 trial, the Commonwealth refers to the prior bad acts witnesses by their designated number only to protect their identity at this time. 3 See Civil Docket Reports for Constand v. Cosby, 2:05-cv-01099-ER (E.D. 6 dated Apr. 28, 2017 (O?Neill, J.). On June 5, 2017, a jury trial commenced. The Commonwealth presented numerous witnesses, including Andrea Constand. Ms. Constand recalled how she developed what she thought was a friendship and mentorship with the married defendant through her employment with Temple University?s women?s basketball program. He acted as a mentor, and he discussed career aspirations with her. In January 2004, when she was 30 years old and defendant was 66 years old, defendant invited her to his Cheltenham home to discuss her career path. There, defendant sexually assaulted her after providing her with an intoxicant (N.T. Trial by Jury, 6 6 17, pp. 142, 145?146, 167 177). Speci?cally, Ms. Constand relayed that defendant provided her with three blue pills to ?help you relax? (id. at 173); he urged her to take them, telling her, ?They?re your friends. They?ll take the edge off? (id) Trusting defendant, she swallowed the pills. He then told her to take a sip of the wine he had poured for her. After initially protesting because she had not eaten anything all day, she acquiesced after defendant told her to ??]ust taste it? (id. at 174). Approximately 20 to 30 minutes later, Ms. Constand began slurring her words, was having trouble seeing, and her legs became weak and ?rubbery? (id. at 174?176). She began to panic; she thought she was having a ?bad reaction? to the intoxicants (id. at 175). Defendant then assisted her to the couch and laid her down. The next thing she remembers was semi-awakening to defendant lying on the couch behind her groping her breasts and moving his 7 hand around inside her vagina. He then took her hand and put it on his penis and moved it back and forth. Ms. Constand did not consent to any of these acts. She wanted to tell defendant to stop, but she could not speak; she wanted to use her hands and legs to thwart the assault, but they would not move. Her body was limp. Her next memory is waking up on defendant?s couch several hours later, feeling ?very confused and disoriented? (id. at 175? 177). The Commonwealth also presented testimony from Kelley Johnson, who, as noted, was designated as ?Prior Victim Number Six? in the Commonwealth?s original prior bad acts motion, and is designated as Prior Victim Number 19 in the current motion. In testimony eerily similar to that of Ms. Constand, Ms. Johnson testi?ed that defendant sexually assaulted her while she was incapacitated as a result of intoxicants he had provided her. Speci?cally, like Ms. Constand, she detailed how she became acquainted with defendant through her employment, the William Morris Agency. She met defendant in 1990; at the time, she was an assistant to defendant?s personal appearance agent. As with Ms. Constand, defendant acted as a mentor to Ms. Johnson. He taught her the mechanics of camera lighting and roll-played scripts with her. Ms. Johnson recounted how in 1996, when she was 34 years old and defendant was approximately 58 years old, she accepted defendant?s invitation to meet him at the Bel Air Hotel in California, for the purported purpose of discussing her career aspirations over lunch. Once there, defendant offered her wine, but she declined. He then opened his ?st, 8 displaying a large white pill, and urged her to take it because she ?needed to relax? (N.T. Trial by Jury, 6/5/17, pp. 109, 114, 125, 131?135). Ms. Johnson declined the pill; she later relented, however, after defendant continued to insist that she take it, telling her to ?trust? him. Shortly after taking the pill, she felt like she was ?under water? (id. at 139). When she awoke, she was lying on a bed with her dress pulled up from the bottom and pulled down from the top, exposing her breasts. Defendant was behind her groaning. He then put lotion on her hand, took her hand and put it on his penis, and then ?manipulated? her hand on his penis (id. at 139-141). She wanted to say something during the altercation, and she tried to say something, but, like Ms. Constand, she was unable to do so The Commonwealth also introduced into evidence defendant?s admissions that he had access to, and knowledge of, prescription drugs that induce unconsciousness, consistent with the Court?s April 28, 2017, order granting the Commonwealth?s Motion to Introduce Admissions by Defendant as it pertained to defendant?s prior sworn testimony concerning Quaaludes. Speci?cally, it introduced defendant?s admission that he obtained numerous prescriptions for Quaaludes, even though he did not intend to ingest the pills himself because they made him ?sleepy,? but instead intended to use the pills ?for young women [he] wanted to have sex with? (N.T. Trial by Jury, 6/ 9/ 17, at 172-175, 178- 183). The Commonwealth also introduced defendant?s admission that he gave ?Theresa?4 Quaaludes and afterward, she became ?high? and was ?walking like [she] had too much to drink? (id. at 167-169). Finally, the Commonwealth introduced defendant?s admission that he gave Quaaludes to other women, in addition to ?Theresa? (id. at 183-186). In total, the jury heard from a dozen witnesses over the course of six days. After ?ve days of deliberation, the jury informed the Court that it was unable to reach a verdict; this Court, thus, declared a mistrial. Defendant?s re? trial is scheduled for April 2, 2018. The Commonwealth now moves to introduce evidence pertaining to 19 prior bad acts of defendant?13 of these prior bad acts victims were proffered in the Commonwealth?s original prior bad acts motion and six are being proffered for the ?rst time here.5 Each of these women has come forward with harrowing accounts of sexual assault by defendant, strikingly similar to the tactics he employed with Ms. Constand. SEXUAL ASSAULT VICTIMS Defendant engaged in a decades-long pattern of preying upon young women, many years his junior, at a time when he was a married man and an icon in the entertainment industry. Because of his worldwide fame and fortune, defendant maintained a position of authority over his victims. He often used his fame and substantial earnings to donate to and promote the 4 ?Theresa? was designated as ?Prior Victim Number Four? in the Commonwealth?s original prior bad acts motion. In the current motion, she is designated ?Prior Victim Number 5 As previously noted, the six newly-proffered victims are: Prior Victim Numbers career and educational interests of younger actresses, models, and other individuals looking to enter the entertainment industry nationwide. Indeed, he had a long?standing reputation for using his contacts and experiences to mentor and advise young women?whether they were in the entertainment industry or not?in their career paths. In light of defendant?s celebrity status, defendant instilled an implicit level of trust in his victims. Moreover, many of his unwary victims established what they deemed to be a sincere friendship and mentorship relationship with him. Never during the course of his relationship with his victims?however long it was before the sexual assault took place?did he ever make any successful sexual advances toward them, thereby establishing further trust in defendant. Defendant, however, violated that trust by providing an intoxicant to each of his unsuspecting victims and then sexually assaulting her when she was incapacitated and unable to sustain and maintain consciousness. In each instance, defendant was legitimately in his victim?s presence; each victim accepted his invitation to get together. In each instance, moreover, while the situs varied, the assault occurred in a setting within defendant?s exclusive control so he could execute his plan without interruption or discovery. A. THE CURRENT VICTIM Andrea Constand met the married defendant in 2002 through her employment with Temple University?s women?s basketball program, where defendant was a member of the Board of Trustees and a long?time and signi?cant donor. When they ?rst met, defendant was 65 years old; she was 11 only 29 years old. Ms. Constand developed what she thought was a sincere friendship and mentorship with defendant. He acted as a mentor and discussed career aspirations with her. On several occasions, she saw him socially. By virtue of their supposed friendship, coupled with his status in the entertainment industry, defendant instilled trust in her. Defendant violated that perceived trust, however, in January 2004, when he was 66 years old and she was 30 years old, when he invited her to his Cheltenham home, under the guise of discussing her career path, and gave her an intoxicant and took advantage of her. Once at his home, defendant provided Ms. Constand with three blue pills to help her ?relax.? He urged her to take them, telling her, ?Your friends, I have three friends for you to make you relax.? Trusting defendant, she swallowed the pills. He then told her to take a sip of the wine he had poured for her. She initially refused, but later relented after defendant told her ?just taste it.? The intoxicants were so powerful, they disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Ms. Constand began slurring her words, she was having trouble seeing, and her legs felt ?rubbery.? Defendant assisted her to a couch to lie down. The next thing she remembers is semi-awakening to defendant lying on the couch behind her, groping her breasts with his hands and moving his ?ngers around inside her vagina. He then took her hand, put it on his penis, and moved it back and forth. Ms. 12 Constand wanted to tell defendant to stop, but she couldn?t speak. She wanted to use her hands and legs to thwart the assault, but they wouldn?t move. She did not consent to any sexual contact with defendant. B. THE PRIOR BAD Ac'rs VICTIMS 1. Prior Victim Number 1 Prior Victim Number 1 met the married defendant in 1965 through her employment as a legal secretary for a talent agency in Los Angeles, California. Defendant was older than her. He was 27 years old; she was 21 years old. Defendant invited her to a party at his home following the taping of a show. When she arrived at his home, however, there was no one else there other than defendant and the actress she had brought with her. Due to defendant?s fame, notoriety, and public status, Prior Victim Number 1 had an implicit level of trust in him. As such, during her entire interaction with him, albeit a single day, she had no reason to believe he would sexually assault her. Defendant, however, violated that perceived trust, when he invited her to his home, under the guise of a party, and gave her an intoxicant. Defendant provided a drink to Prior Victim Number 1; she drank it. He then brought a second drink for her; she took a sip of that drink and thought it was really strong. The drink contained a powerful intoxicant. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. 13 She began to feel the effects of the intoxicant immediately after that ?rst sip. She felt as if she were ??oating.? During an intermittent bout of consciousness; she remembers sitting on a chair by the pool, but then passing out again. Her next memory after that is being in bed with defendant. He was naked, and he was fondling her breasts. He also tried to force her head down towards his erect penis. She immediately ran to the bathroom and threw up three times. When she came out of the bathroom, defendant was gone. Prior Victim Number 1 did not consent to this sexual contact with defendant. 2. Prior Victim Number 2 Prior Victim Number 2 ?rst met the married defendant around 1967 or 1968 through her employment at the Trident Restaurant in Sausalito, California, where defendant was a frequent patron. Defendant was older than her. He was approximately 30 or 31 years old; she was approximately 26 or 27 years old. In the days following her initial introduction to defendant, Prior Victim Number 2 formed what she believed to be a sincere friendship with him. At the time of their initial introduction, defendant was especially friendly to her young son, who occasionally came into the restaurant and remained there while his mother worked. On one occasion, when the child was not at work with his mother, defendant came into the restaurant and requested to call him. He then proceeded to call the child and give him advice about the negative effects of drugs, the signi?cance of not giving in to peer pressure, and the importance l4 of studying hard and listening to his mother. In addition to her perceived friendship with defendant, Prior Victim Number 2 believed him to be mentoring her son. In welcoming his friendship, she accepted his invitation to one of his performances at the Circle Star Theater. During the course of the relationship, never once did defendant make any successful sexual advances toward her, and instead used his fame, notoriety, and public status to instill trust in her. Defendant violated that perceived trust, however, when he picked her up in a limousine to take her to the performance, under the guise of fun and entertainment, and gave her an intoxicant and took advantage of her. Shortly after Prior Victim Number 2 entered the limousine, defendant pulled out a bottle of wine and offered her a drink. She drank the wine. Once they arrived at the performance, she and defendant went to the dressing room, where other individuals were present. Later, she began to feel ill. She complained to defendant that she had a headache, and she asked for an aspirin. Defendant obtained a pill from a member of his entourage, and handed it to her. She took the pill. The intoxicants were so powerful, they disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. He grabbed her arms and, with the assistance of another person, placed her in the back seat of the limousine. During an intermittent bout of consciousness, Prior Victim Number 2 woke to defendant groping her?placing his hands in inappropriate places on 15 her body. She was unable to resist defendant?s unwanted sexual advances. She lost consciousness again, and she awoke the next morning, home in her bed, naked but for her underpants, knowing ?that I had been violated.? Prior Victim Number 2 did not consent to this sexual contact with defendant. 3. Prior Victim Number 3 Prior Victim Number 3, an aspiring model, ?rst met the married defendant around 1969 through her employment as an assistant to a movie producer. Defendant was older than her. He was approximately 32 years old; she was 2 1 years old. In the weeks following her initial introduction to defendant, Prior Victim Number 3 formed what she believed to be a sincere friendship with him. In addition, she believed him to be mentoring her with career guidance and advice. In welcoming his friendship, the two went to the movies and the park together. Over the course of the relationship, never once did defendant make any successful sexual advances toward her, and instead used his fame, notoriety, and public status to instill trust in her. Defendant violated that perceived trust, however, when he invited her to a movie, under the guise of fun and entertainment, and gave her an intoxicant and took advantage of her. When Prior Victim Number 3 arrived at defendant?s friend?s New York apartment prior to the movie, she was feeling ill and complained to defendant of having a headache. Defendant responded by handing her a pill he claimed was ?a miracle cure from a doctor.? After she asked about the identity of the 16 pill, defendant avoided the question, simply telling her it would really ?fix[] you up.? After repeated inquiries about the pill, defendant continued to insist that she take it, telling her, ?Just take it,? and asking her, ?Don?t you trust me?? She took the pill. She later felt like she was ??oating around.? The night became a ?blur.? The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated and unable to maintain consciousness, defendant sexually assaulted her by raping her; he penetrated her vagina with his penis. When she regained consciousness, she was naked, and defendant was seated nearby in his robe. Despite having been rendered unconscious after defendant administered the intoxicant, she ?could feel that [defendant and had sex.? Prior victim Number 3 did not consent to this sexual contact with defendant. 4. Prior Victim Number 4 Prior Victim Number 4, an aspiring model, met the married defendant in August or September 1969, when her modeling agency arranged for her to accompany him to a show in Toronto and then to dinner. Defendant was older than her. He was 32 years old; she was 21 years old. Due to defendant?s fame, notoriety, and public status, Prior Victim Number 4 had an implicit level of trust in him. As such, during her whole interaction with him, albeit a single day, she had no reason to believe he would 17 sexually assault her. Defendant, however, violated that perceived trust, when he invited her to his hotel room after dinner, under the guise of giving her a gift, and gave her an intoxicant. Prior Victim Number 4 accompanied defendant to his hotel room. No one else was present. Once inside, defendant gave her a soda. The drink contained a powerful intoxicant. After ingesting a mere two sips, Prior Victim Number 4 blacked out. Once she was incapacitated, defendant sexually assaulted her. The intoxicant disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. In her intermittent stages of consciousness, she recalls being naked on a bed with defendant, with him penetrating her vagina with his ?ngers. She also recalls being ?lifeless? while defendant ?ipped her over, yanked her hips up toward him, and raped her? penetrating her vagina with his penis?while fondling her breasts. During this sexual assault, Prior Victim Number 4 was incapacitated?unable to maintain consciousness. She wanted to move, to get out of the room, and to say, ?stop,? but she was unable to respond in any way. She felt ?paralyzed.? She did not consent to this sexual contact with defendant. 5. Prior Victim Number 5 Prior Victim Number 5 ?rst met defendant in 1971 through her employment at the Playboy Club in New York, New York. She was approximately 23 years old; he was approximately 34 years old. She was an aspiring actress; defendant was a beacon in the entertainment industry. At the 18 time of their meeting, and throughout the duration of their professional and social relationship and even thereafter, defendant maintained a position of authority. Never once during the course of their relationship did defendant make any successful sexual advances toward Prior Victim Number 5, but instead used his fame, notoriety, and public status to instill trust in her. In the months following her initial introduction to defendant, Prior Victim Number 5 formed what she believed to be a sincere friendship with defendant. In welcoming his friendship, the two went to dinner on a couple of occasions. Defendant, however, violated that perceived trust when he invited her to dinner, under the guise of fun and entertainment, and gave her an intoxicant and took advantage of her. Defendant arranged for Prior Victim Number 5 to be picked up in a limousine. No one else was present. Once inside, he offered her a variety of pills?red, blue, green, and white. She believed the white pills to be Quaaludes; defendant con?rmed that they were. She told defendant she did not want to take any of the pills because they made her fall asleep. Defendant insisted that she take the pills to ?help [her] relax. She steadfastly refused. Defendant, thus, shifted focus and offered her champagne, which he poured for her. She ingested about three or four glasses of the champagne while in the limousine before dinner. After dinner, she ingested more drinks while alone with defendant in the limousine. The drinks contained an intoxicant. After ingesting the drinks, ?[e]verything started to get fuzzy? for Prior Victim Number 5, and she became 19 incapacitated. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. When Prior Victim Number 5 regained consciousness, she awoke naked in a hotel bed, with great soreness and irritation in her vaginal area. She knew defendant had had sexual intercourse with her because of the soreness in her vaginal area and because she woke up naked in a bed in a hotel room, though she had ?no clear recollection [of] what had transpired at that time.? Defendant was nowhere to be found, but he had left her a note indicating that the limousine was downstairs waiting for her to leave. Prior Victim Number 5 did not consent to this sexual contact with defendant. 6. Prior Victim Number 6 Prior Victim Number 6 met the married defendant in 1975 through her employment at a donut shop in Santa Monica, California. Defendant was a customer. He was much older than her. He was 38 years old; she was 19 years old. Due to defendant?s fame and public status, Prior Victim Number 6 had an implicit level of trust in him. As such, during her entire interaction with him, albeit a single day, she had no reason to believe he would sexually assault her. Defendant, however, violated that perceived trust when he invited her out, 20 under the guise of taking her to a party, and gave her an intoxicant and took advantage of her. Prior Victim Number 6 visited defendant on a ?lm set, at his request. Afterward, he invited her to a gathering at his rental home; however, he later cancelled those plans and invited her to the Playboy Mansion. They never went to the Playboy Mansion, but rather went to another residence on the property, where they were alone. After playing a game of pinball, defendant suggested that whoever lost the next game had to take a pill. Prior Victim Number 6 lost the next game, and defendant produced a white pill that she believed to be a Quaalude. She took the pill and ?everything was blank.? The intoxicant was so powerful, it disabled Prior Victim Number 6?s ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. At one point during the assault, she woke up naked on a bed with defendant raping her? penetrating her vagina with his penis. During several other bouts of intermittent consciousness, she woke to defendant fondling her breasts or sexually assaulting her in another manner. She was, however, unable to retain consciousness for any extended period of time. Prior Victim Number 6 did not consent to the sexual contact with defendant. 21 7. Prior Victim Number 7 Prior Victim Number 7 ?rst met the married defendant around 1975 or 1976 while she was shopping at the gift shop in the Hilton in Las Vegas, Nevada. She was an aspiring model. Defendant was signi?cantly older than her. He was approximately 38 years old; she was 19 years old. Due to defendant?s fame and public status, Prior Victim Number 7 had an implicit level of trust in him. As such, during her interaction with him, she had no reason to believe he would give her an intoxicant and sexually assault her. Defendant, however, violated that perceived trust when he invited her to one of his shows, under the guise of fun and entertainment, and gave her an intoxicant and took advantage of her. After the show, defendant invited her to the green room at the Las Vegas Hilton. Once defendant and Prior Victim Number 7 were alone in the room, defendant offered her two Quaaludes, which she ingested. The intoxicants were so powerful, they disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once Prior Victim Number 7 was incapacitated, defendant sexually assaulted her. In her intermittent levels of consciousness, she recalls defendant raping her?penetrating her vagina with his penis?in the vanity room. She did not consent to this sexual contact with defendant.6 6Defendant, in his September 29, 2005, deposition, admitted to meeting Prior Victim Number 7 in Las Vegas, getting together with her backstage after one of his shows, giving her Quaaludes, and then engaging in sexual intercourse with 22 8. Prior Victim Number 8 Prior Victim Number 8 ?rst met the married defendant in 1976 through her employment as a ?ight attendant. She was working on a ?ight from New York to Los Angeles, and defendant was a passenger. Defendant was older than her. He was approximately 38 or 39 years old; she was 20 years old. Due to defendant?s fame, notoriety, and public status, Prior Victim Number 8 had an implicit level of trust in him. Following her initial introduction to defendant, she had no reason to believe he would sexually assault her. Defendant, however, violated her perceived trust when he invited her to dinner, gave her an intoxicant, and took advantage of her. Prior Victim Number 8 accompanied defendant to dinner. He gave her a glass of sake and insisted she drink it. She complied. The drink contained a powerful intoxicant. After ingesting it, she felt like she was in a ?trancelike state, like I was dreaming.? The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. Prior Victim umber 8 does not recall how, but she ended up in defendant?s hotel room after dinner. Defendant went to the bathroom and came out wearing only a bathrobe. She told defendant she felt sick and needed her. During that same deposition, when asked if it was in his mind when he got the Quaaludes to use them for young women with whom he wanted to have sex, he responded in the af?rmative. His attorney objected, however, prompting him to change his answer to ?no? and clarify, ?[w]oman, meaning [Prior Victim Number 7] and not women.? 23 to go back to her hotel room. She was barely able to stand up on her own. Defendant, nonetheless, forced her to kneel down and perform oral sex on him. The next thing she remembers is defendant?s driver taking her home and having to escort her to her room because she was vomiting and incapacitated. Prior Victim Number 8 did not consent to this sexual contact with defendant. 9. Prior Victim Number 9 Prior Victim Number 9 ?rst met the married defendant in either 1980 or 1981 through her employment as the opening act for defendant?s show at a variety club in Denver, Colorado. Defendant was older than her. He was approximately 43 years old; she was approximately 30 years old. Prior Victim Number 9 formed what she believed to be a friendship with defendant; he mentored her with career guidance. Over the course of the relationship, never once did defendant make any successful sexual advances toward her, and instead used his fame, notoriety, and public status to instill trust in her. Indeed, as she indicated, couldn?t think of a man that I would have assumed I would be safer with than the persona of Bill Cosby at the time.? Defendant, nonetheless, violated that perceived trust when he invited her to his hotel room in Las Vegas, under the guise of discussing her career, and gave her an intoxicant and took advantage of her. Defendant arranged for Prior Victim Number 9 to fly to Las Vegas so that he could give her career advice. He gave her tickets to a show at the Las Vegas Hilton while he performed in a different show. Afterward, they attended a jazz 24 performance, during which time she drank a glass of wine. Defendant then invited her to his hotel room to discuss her career plans and provided her with a small cordial drink, which she drank. The drink contained an intoxicant. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. Although she has no recollection of anything after drinking the cordial until she woke up in the bed with defendant the next morning, she is sure defendant had sexual intercourse with her while she was incapacitated because girl can tell? when she has had sex. Prior Victim Number 9 did not consent to this sexual contact with defendant. 10. Prior Victim Number 10 Prior Victim Number 10 ?rst met the married defendant in early 1981 through her employment as a waitress at a variety club in Denver, Colorado. Defendant was signi?cantly older than her. He was 43 years old; she was 23 years old. Defendant mentored Prior Victim Number 10 with career advice. The mentoring, coupled with defendant?s fame and public status, instilled in Prior Victim Number 10 an implicit level of trust in defendant. As such, during her interactions with him over the course of several days, she had no reason to believe he would sexually assault her. Indeed, she detailed how defendant 25 ?really seemed genuinely interested in helping me. I had no idea that he was interested in me romantically. Defendant, however, violated that perceived trust when he invited her to dinner at a private dining room at the club where she worked, under the guise of discussing her career and aspirations as an actress, and gave her an intoxicant and took advantage of her. Prior Victim Number 10 met defendant for dinner following her work shift. No one else was present at the dinner, aside from defendant?s bodyguards, who were stationed nearby. Defendant was seated at the table when she arrived, and there was a glass of red wine already poured for her. She drank about half of the glass of wine. The drink contained a powerful intoxicant. Prior Victim Number 10 blacked out after consuming the half glass of wine. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness, and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. When Prior Victim Number 10 regained consciousness, she was naked in defendant?s hotel bed. Defendant was standing over her with his robe open, naked underneath. No one else was present. She knew that defendant had had sexual intercourse with her because of the soreness and semen in her vaginal area. Prior Victim Number 10 did not consent to this sexual contact with defendant. 26 1 1. Prior Victim Number 1 1 Prior Victim Number 11 ?rst met the married defendant in 1981 at a tennis tournament where she and her partner were scheduled to play against defendant and his partner. Defendant was signi?cantly older than her. He was approximately 43 years old; she was 25 years old. Due to defendant?s fame and public status, Prior Victim Number 11 had an implicit level of trust in him. Thus, she never suspected that defendant would give her an intoxicant that incapacitated her and then sexually assault her while she was in that incapacitated state. Defendant, however, violated that perceived trust when he invited her to one of his shows at the Las Vegas Hilton, under the guise of giving her a gift for beating him in the match. He then gave her an intoxicant before sexually assaulting her. When Prior Victim Number 1 1 arrived at defendant?s show, she was escorted to defendant?s dressing room, where she encountered defendant and others. Defendant offered her a drink in a champagne glass. She initially thought it was champagne, but it had no bubbles and it tasted horrible. She drank half of the drink. The drink contained an intoxicant. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. Prior Victim Number 11 has little recollection of what transpired after drinking the beverage defendant provided her. During an intermittent bout of 27 consciousness, however, she recalls defendant laying on top of her and forcing himself on her while she just lay there, like a mannequin. Prior Victim Number 11 did not consent to this sexual contact with defendant. 12. Prior Victim Number 12 Prior Victim Number 12, a bartender at Harrah?s in Reno, Nevada, met the married defendant in 1982 at a get-together he was hosting while in town for a show at Harrah?s. Defendant was signi?cantly older than her. He was 45 years old; she was 24 years old. Due to defendant?s fame and public status, Prior Victim Number 12 had an implicit level of trust in him. Thus, she never suspected that defendant would provide her pills that would render her incapacitated, and that he would sexually assault her while she was in that incapacitated state. Defendant, however, violated that perceived trust when he gave her an intoxicant and sexually assaulted her. When Prior Victim Number 12 and her co-worker arrived to the house where defendant was supposedly hosting a party, there was no such party; only defendant was there. Defendant offered Prior Victim Number 12 some pills. After she took one, he insisted that she take another. Trusting defendant, she ingested a second pill. Almost immediately, she became disoriented, her vision became blurry, and she felt ?fuzzy? and ?woozy.? The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely 28 unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. During her intermittent bouts of consciousness, Prior Victim Number 12 recalls waking up on a couch with her blouse unbuttoned and her pants unbuttoned and unzipped?though she had no recollection of how her clothing got in that state?and defendant positioning himself behind her on the couch, propping her up against him, and groping her breasts and moving his hands down toward her vagina. Still feeling woozy and disoriented, and unable to walk without assistance, defendant brought her to an upstairs bedroom, where she fully lost consciousness. When she regained consciousness the following morning, she was completely naked in bed next to defendant, who was also naked. She could tell that she had sex the previous night because her vagina contained secreted liquids. Prior Victim Number 12 did not consent to this sexual contact with defendant. 13. Prior Victim Number 13 Prior Victim Number 13 ?rst met the married defendant in 1982 through her employment as a successful model. Defendant was older than her. He was approximately 45 years old; she was approximately 27 years old. In the weeks following her initial introduction to defendant, Prior Victim Number 13 formed what she believed to be a sincere friendship with him. In addition, she believed him to be mentoring her with career guidance and advice regarding a future singing or television career. Over the course of the 29 relationship, never once did defendant make any successful sexual advances toward her, and instead used his fame, notoriety, and public status to instill trust in her. Defendant violated that perceived trust, however, when he invited her to his hotel room, under the guise of discussing her career, and gave her an intoxicant. Defendant arranged for Prior Victim Number 13 to ?y to Lake Tahoe to meet him, and he arranged for her and a music director to attend his show that same night. The three went to dinner after the show. While there, Prior Victim Number 13 complained of stomach pain. Defendant handed her a blue pill to help alleviate the pain; she took the pill. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. After dinner, defendant invited her up to his hotel room; she accepted his offer so that they could continue discussing her career. They were alone in the room. She remembers little after arriving to defendant?s hotel room. She felt weak, like she could barely move; her arms and legs felt immobilized. She was soon unconscious, but not without ?rst feeling a sharp pain in her buttocks. Prior Victim Number 13 woke up the next morning in her own hotel room, not knowing how she got there. She knew that defendant had had sexual intercourse with her because of the semen between her legs and the pain in her anal area. 30 Prior Victim Number 13 did not consent to this sexual contact with defendant. 14. Prior Victim Number 14 Prior Victim Number 14 ?rst met the married defendant between 1982 and 1984 through her employment as a massage therapist at a Las Vegas health club defendant frequented. Defendant was signi?cantly older than her. He was between 45 and 47 years old; she was between 27 and 29 years old. In the months following their initial meeting, Prior Victim Number 14 formed what she believed to be a sincere friendship with him. She even believed him to be genuinely seeking her masseuse expertise and advice regarding his sore muscles. Defendant called her on the phone and even ingratiated himself with her family?speaking to her mother and aunt when he called the house. He also invited her to several of his shows, a few of which she attended. Over the course of the months?long relationship, not once did defendant make any successful sexual advances toward Prior Victim Number 14, but instead he used his fame and public status to instill trust in her. Defendant violated that perceived trust, however, when he invited her to his show at the Las Vegas Hilton and dinner afterward, under the guise of fun and entertainment, gave her an intoxicant and took advantage of her. After Prior Victim Number 14 attended defendant?s show at his invitation, the two went to the restaurant inside the Hilton. Upon taking their seats, Prior Victim Number 14 was served a shot of alcohol and defendant was served food. She told defendant she did not want the drink; he insisted that 31 she drink it. She took a sip, and defendant then told her to ?drink it down.? She took a few more sips of the drink, and then asked defendant if she was going to eat. Defendant told her they did not have time for her to eat, and he rushed her out of the restaurant. The drink contained an intoxicant. After ingesting just a few sips, Prior Victim Number 14 became incapacitated. By the time the pair returned to defendant?s dressing room, she had no strength and needed help walking. She was ?so high and confused? and ?disoriented?; she felt like she was in a ?distorted? or ?hypnotic dream state.? The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. Immediately upon returning to his dressing room, he pulled down her pants and raped her?penetrating her vagina with his penis, while she lay there, ?like a rag doll.? Prior Victim Number 14 did not consent to this sexual contact with defendant. 15. Prior Victim Number 15 Prior Victim Number 15 was an aspiring actress, who met the married defendant in April 1984 through her employment as a model. Defendant was signi?cantly older than her. He was 46 years old; she was 24 years old. Prior to meeting, defendant had already ingratiated himself with her parents when he called her house and spoke to them on the phone about 32 giving back to the industry that had been so good to him. Because of this, and the fact of defendant?s fame and public status as a worldwide celebrity in the entertainment industry, Prior Victim Number 15 had an implicit level of trust in him. She genuinely believed defendant sought her out to mentor her. As such, she welcomed the opportunity when her agency contacted her and informed her that defendant was interested in mentoring her because he was looking for promising young acting talent to mentor. She, thus, accepted defendant?s invitation to go to Reno, Nevada, to see his show and to receive coaching for her acting. She had no reason to believe that he would give her an intoxicant and sexually assault her. Defendant, however, violated that perceived trust when he invited her to Nevada, under the guise of mentoring and coaching within a very dif?cult industry, and gave her an intoxicant and took advantage of her. When Prior Victim Number 15 arrived in Reno, she was picked up by a driver arranged for by defendant and taken to a house outside of Reno?despite the fact that she was told by her agency that they had arranged for a room for her at the Reno Harrah?s. Defendant greeted her upon her arrival. He instructed her to perform various acting roles, including one of an intoxicated person. He gave her a glass of white wine as a prop, and he told her to ?[s]ip on it.? She did. The drink contained an intoxicant. After ingesting it, she became incapacitated. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, 33 let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. During an intermittent bout of consciousness, Prior Victim Number 15 recalls waking up in a bed with defendant, naked, forcing his penis into her mouth. Other than that, she recalls little, if anything, after drinking the intoxicant?laced wine. Prior Victim Number 15 did not consent to this sexual contact with defendant. 16. Prior Victim Number 16 Prior Victim Number 16, an aspiring model, met the married defendant in 1986 through her employment as a ?ight attendant. Defendant was signi?cantly older than her. He was 48 years old; she was 21 years old. When they ?rst met, defendant encouraged her to pursue modeling and acting. In the days and weeks following their initial introduction, Prior Victim Number 16 formed what she believed to be a sincere professional and mentoring friendship with him. In welcoming his friendship, she accepted an invitation to a taping of his television show, in which she was used as an extra, then dinner afterward. She had an implicit level of trust in him in light of his fame and public status as a worldwide celebrity in the entertainment industry. Defendant, however, violated that perceived trust when he invited her to dinner, under the guise of fun and entertainment, and gave her an intoxicant and sexually assaulted her. 34 When Prior Victim Number 16 arrived at the dinner, defendant and a few others were present. When she got up to go to the ladies? room, defendant gave her a key to a hotel room. When she returned from the ladies? room, to her surprise, defendant and the other guests had left. A restaurant employee told her that a limousine was waiting for her; it took her to the Drake Hotel in Chicago, Where defendant was staying. Once in the hotel room, defendant provided her champagne. The drink contained an intoxicant. It disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. Prior Victim Number 16 recalls defendant kissing her and her feeling ?light-headed,? like she was about to faint. Defendant then pushed her down on the bed and raped her. She lost consciousness as defendant was penetrating her vagina with his penis. Prior Victim Number 16 did not consent to this sexual contact with defendant. 17. Prior Victim Number 1 7 Prior Victim Number 17 ?rst met the married defendant in 1986 through her employment as a model and aspiring actress. Defendant was signi?cantly older than her. He was 48 years old; she was 17 years old. In the year following their initial meeting, Prior Victim Number 17 formed what she believed to be a sincere friendship with him. Due to defendant?s fame 35 and public status, she had an implicit level of trust in him. Thus, she never suspected that defendant would give her an intoxicant and then sexually assault her while she was in an incapacitated state. Defendant, however, violated that perceived trust when he invited her to visit him at the Hilton Hotel in Las Vegas, under the guise of introducing her to a representative from the Ford Modeling Agency, gave her an intoxicant and sexually assaulted her. The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. When Prior Victim Number 17 arrived at defendant?s hotel room, she told defendant she had a cold. Defendant handed her a blue pill and told her it was an antihistamine and would help with her cold. She took the pill, along with the double shot of amaretto that defendant also provided her. Defendant instructed her to change into a hotel robe and to wet her hair because a representative from the modeling agency was going to come take pictures. The representative came and took some photos; defendant then led Prior Victim Number 17 to the bedroom and instructed her to lie down on the bed to help with her cold. Defendant then laid down next to her and pinched her left nipple very hard. During an intermittent bout of consciousness, Prior Victim Number 17 recalls defendant grunting and rubbing himself by humping her leg. She was unable to move, speak, or even open her eyes. The last thing she remembers before losing consciousness completely is feeling the warmth of 36 defendant ejaculating on her leg. When she regained consciousness, she was naked in bed, and defendant was hurrying her out of his hotel room. Prior Victim Number 17 did not consent to this sexual contact with defendant. 18. Prior Victim Number 18 Prior Victim Number 18, a model and aspiring actress, ?rst met the married defendant in 1989 through employment with her modeling agency. Defendant was signi?cantly older than her. He was approximately 52 years old; she was 23 years old. Over the next couple of years, Prior Victim Number 18 formed what she believed to be a sincere friendship with defendant and believed him to be mentoring her with career guidance and advice. Defendant even attempted to ingratiate himself with her family. In welcoming this friendship, she and her mother accepted an invitation to go to the track at the University of Nevada Las Vegas for a run with defendant, and a gift of dinner and tickets to his show for her mother?s birthday. She also accepted his invitation to perform improvisation exercises for him at the Las Vegas Hilton. Over the course of the relationship, never once did defendant make any successful sexual advances toward Prior Victim Number 18, but instead he used his fame and public status as a worldwide celebrity in the entertainment industry to instill trust in her. Defendant, however, violated that perceived trust when he invited her to the Hilton, under the guise of discussing her future career goals, and gave her an intoxicant and took advantage of her. 37 When Prior Victim Number 18 arrived at the Hilton, only defendant was present. He gave her a drink and told her it would help her relax. She drank it after he repeatedly insisted that she drink it. Defendant then offered her another drink, which she refused because she was already feeling ?woozy.? After more insistence, however, she eventually consumed the second drink. The drinks contained an intoxicant. After ingesting them, Prior Victim Number 18 became incapacitated. First, her ?focus started to go,? and then ?dizziness kicked in.? The intoxicant was so powerful, it disabled her ability to sustain and maintain consciousness and rendered her completely unable to consent to, let alone resist, any unwanted sexual advances. Once she was incapacitated, it is believed that defendant sexually assaulted her. During her bouts of intermittent consciousness, she recalls defendant sitting next to her and stroking her hair, and she recalls walking down a hallway with several doors and a ?oodlight. The next thing she remembers is waking up two days later at her home. Prior Victim Number 18 did not consent to any sexual contact with defendant. 19. Prior Victim Number 19 Prior Victim Number 19, Kelley Johnson, ?rst met the married defendant in 1990 through employment as an assistant to defendant?s personal appearance agent. He was approximately 52 years old; she was approximately 29 years old. 38 Ms. Johnson formed what she believed to be a sincere friendship with defendant. He was friendly and fatherly toward her, and he even mentored her on future career plans. In welcoming this friendship, she accepted an invitation to see one of his shows and an invitation to do a script?reading at his home. Up until this time, defendant made no sexual advances toward her; instead, he used his fame and public status as a worldwide celebrity in the entertainment industry to instill trust in her. Defendant, however, violated that perceived trust when he invited her to lunch at the Bel Air Hotel in 1996, when she was 34 years old and he was approximately 58 years old, under the guise of discussing her future career goals, and gave her an intoxicant and sexually assaulted her. When Ms. Johnson arrived at defendant?s bungalow at the hotel, defendant was alone in the room and was wearing a bathrobe and slippers. He informed her that lunch would be brought to the room; they were not eating in the hotel dining room like she had thought. Defendant offered her red wine. She refused; he insisted she drink it. He then offered her a white pill and told her she needed to ?relax.? She declined, but after repeated insistence, defendant convinced her to take it, along with the wine. He assured her by saying, ?would I give you anything to hurt you?? Defendant took great efforts to ensure that she ingested the pill?even demanding that she open her mouth and lift her tongue. After ingesting the pill, Ms. Johnson became incapacitated. She felt like she was under water. The intoxicant was so powerful, it disabled her ability to 39 sustain and maintain consciousness, and rendered her completely unable to consent to, let alone resist, defendant?s unwanted sexual advances. Once she was incapacitated, defendant sexually assaulted her. During her intermittent consciousness, she recalls lying in defendant?s bed, without underwear, and her dress being in such a state that her breasts and vagina were exposed. Defendant was lying next to her, naked beneath his open robe, making grunting sounds. She also recalls having defendant use her hand to masturbate him. She wanted to speak out but she couldn?t; she was too incapacitated. Ms. Johnson did not consent to any sexual contact with defendant. IV. DISCUSSION A. THE PRIOR BAD ACTS EVIDENCE PROFFERED BY THE COMMONWEALTH IS RELEVANT AND ADMISSIBLE. The Commonwealth seeks to introduce evidence of 19 prior bad acts of defendant, 13 of which were the subject of the Commonwealth?s September 2016 prior bad acts motion and six of which are being proffered for the ?rst time in the instant motion. Each of the victims of defendant?s prior bad acts have come forward with harrowing accounts of drug-facilitated sexual assaults by defendant, strikingly similar to the tactics he employed with Andrea Constand. The Commonwealth seeks to introduce this evidence to establish a common scheme, plan, or design, as well as an absence of mistake.7 The 71mportantly, as discussed supra, this Court had previously ruled that the evidence pertaining to prior victim Kelley Johnson was relevant and admissible under both the common scheme, plan, or design exception and the absence of (footnote continued on next page) 40 Commonwealth is also seeking to admit this evidence under the ?doctrine of chances? theory.8 The probative value of the evidence far outweighs any prejudicial impact. Indeed, a cautionary instruction from this Court would guard against any unfair prejudice. 1. The Law on Prior Bad Acts Evidence. Prior bad acts evidence is generally not admissible to prove bad character or criminal propensity; it is, however, admissible when proffered for some other relevant purpose so long as the probative value outweighs the likelihood of unfair prejudice. Hicks, 156 A.3d at 1125; Pa. R.E. see Commonwealth v. O?Brien, 836 A.2d 966, 969 (Pa. Super. 2003) (noting that evidence of distinct crimes or acts ?is not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts?). Evidence is relevant if ?it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption mistake exception. See Order, dated Feb. 24, 2017 (O?Neill, .). For the reasons detailed throughout this memorandum, there is no reason for this Court to deviate from its prior ruling regarding Ms. Johnson. Indeed, the additional witnesses now being proffered, when viewed in the proper sequential context of the assaults, further reduce the probability that defendant?s conduct was an accident; as such, this additional evidence only strengthens the Commonwealth?s position regarding the admissibility of the prior bad acts evidence involving not only Ms. Johnson, but also the 12 previously-proffered witnesses that this Court ruled inadmissible. 8 This theory was recently discussed in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017) (Saylor, C.J., concurring), which was decided after this Court?s February 24, 2017, order. As discussed infra, while the theory was not expressly relied on in the majority opinion, Chief Justice Saylor explicitly invoked the doctrine in his concurring opinion. 41 regarding a material fact.? Commonwealth Tyson, 119 A.3d 353, 358 (Pa. Super. 2015). Relevant purposes of prior bad acts evidence include, among other things, intent, knowledge, absence of mistake or accident and a ?common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other.? O?Brien, 836 A.2d at 969; Pa. R.E. 404(b)(2). A determination of whether the prior bad acts evidence is admissible is to be made ?on a case by case basis in accordance with the unique facts and circumstances of each case.? Commonwealth 1). Frank, 577 A.2d 609, 614 (Pa. Super. 1990). To be admissible under the common scheme or plan exception, the other act must be ?distinctive and so nearly identical as to become the signature of the same perpetrator.? Tyson, 119 A.3d at 359; see Frank, 577 A.2d at 612 (noting that the other acts ?must embrace distinctive elements and be so nearly identical as to bear the signature or be the handiwork of the same person?) (internal citations omitted). Relevant considerations include, among other things, ?habits or patterns of action or conduct undertaken by the perpetrator to commit the types of victims typically chosen by the perpetrator (?commonality of roles?), place, and time. Tyson, 119 A.3d at 359; see Commonwealth v. Newman, 598 A.2d 257, 279 (Pa. 1991) (noting that in assessing the shared similarities, the court is to consider the commonality of the relationship between the defendant and the victims and the location of the acts). Thus, a signature is not based solely on a perpetrator?s actions, but rather on the factual similarities in their entirety. See id. at 278 (rejecting the 42 Superior Court?s ?nding that the similarities necessary to establish common scheme or plan may only be found ?in the acts which compose the crime and which are performed by the perpetrator?; ?nding that the court must examine the shared similarities in the details of the crimes and not just focus on the acts performed by the perpetrator). Moreover, the common scheme, plan, or design exception ?does not require that the two scenarios be identical in every respect.? Tyson, 119 A.3d at 360 n.3 (emphasis in original); see Hicks, 156 A.3d at 1128 n.8 (noting that ?a perfect match is not required?); Newman, 598 A.2d at 278 (requiring the court to examine the shared similarities in the details of each incident and not just focus on the acts performed by the perpetrator). Speci?cally, in the context of prior bad acts involving prior sexual assault, the fact that the sexual contact was not the same in each instance does not automatically render the evidence inadmissible under the common plan or scheme exception. See Frank, 577 A.2d at 42 5-426 (allowing evidence that defendant sexually assaulted six other boys prior to raping the instant victim, despite the fact that the sexual contact was not identical in each instance). Even in homiCide cases, moreover, the appellate courts in this Commonwealth have allowed prior bad acts evidence pertaining to prior assaults that did not lead to death. See, Hicks, 156 A.3d at 1120? 1 122, 1128 (permitting other act evidence pertaining to three women defendant strangled but did not kill in a homicide prosecution where defendant strangled and beheaded his current victim); Commonwealth v. Arn'ngton, 83 A.3d 831 (Pa. 2014) (permitting in a shooting death homicide case 43 evidence that defendant assaulted, but did not kill, three other girlfriends and a male acquaintance); Commonwealth v. Clayton, 483 A.2d 1345 (Pa. 1984) (other act evidence involving prior strangulation victim who was injured but not killed admissible to show defendant killed second strangulation victim). Instead, there need only be ?such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.? Hicks, 156 A.3d at 1125 (quoting Commonwealth v. Wable, 114 A.2d 334, 336?337 (Pa. 1955)). ?Suf?cient commonality of factors? between the prior bad acts and the underlying crime ?dispels the notion that they are merely coincidental and permits the contrary conclusion that they are so logically connected they share a perpetrator.? Hicks, 156 A.2d at 1125 (quoting Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)). Turning next to the absence of mistake exception, the logical relevance of evidence tending to establish a lack of mistake or accident ?does not depend on as great a degree of similarity, as between the charged and uncharged misconduct, as is the case under the modus operandi [or common scheme or plan] theory.? Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring). Rather, other act evidence may be admitted to show a defendant?s actions were not the result of a mistake or accident where the manner and circumstances of the prior and current acts are ?remarkably similar.? Tyson, 119 A.3d at 359 (Pa. Super. 2015) (citing Commonwealth v. Kinard, 95 A.3d 279, 294?295 Super. 2014)). Thus, to be admissible under this exception, there need not be a ?unique signature,? but rather a ?close factual nexus suf?cient to 44 demonstrate the connective relevance of the prior bad acts to the crime in question.? Commonwealth v. Sitler, 144 A.3d 156, 164 (Pa. Super. 2016) (quoting Commonwealth 1). Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012)); cf. Tyson, 119 A.3d at 359 (to be admissible under the common scheme, plan, or design exception, the evidence must be ?so distinctive and so nearly identical as to become the signature of the same perpetrator?). ?[C]ertain differences between the . . . incidents are not essential to the question of whether [defendant] mistakenly believed [the victim] consented to sexual [contact.?] Tyson 1 19 A.3d at 363. The basic premise of the absence of mistake or accident exception is that ?as the number of . . . incidents grows, the likelihood that [the defendant?s] conduct was unintentional decreases. It is merely a matter of probabilities.? Commonwealth v. Donahue, 549 A.2d 121, 127 (Pa. 1988) (opinion announcing judgment of the court); see Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring) (noting that under the ?doctrine of chances? or the ?doctrine of objective improbabilities,? the evidence is offered ?to establish the objective improbability of so many accidents befalling the defendant or the defendant becoming innocently enmeshed in suspicious circumstances so frequently?) (citation omitted). Importantly, moreover, a defendant does not have to actually forward a formal defense of accident or mistake?or even present arguments along those lines?before the Commonwealth may introduce evidence to exclude the theory of accident or mistake. See Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 45 2004) (rejecting the notion that proof of accident or mistake is only admissible for responsive purposes). Regardless of whether prior bad acts evidence is being offered to establish a common scheme, plan, or design, or to demonstrate an absence of mistake, the Commonwealth need only establish the prior bad acts by substantial evidence?not beyond a reasonable doubt. Donahue, 549 A.2d at 126.9 To be sure, by its express terms, ?Pa. R.E. 404(b) is not limited to evidence of crimes that have been proven beyond a reasonable doubt in court. It encompasses both prior crimes and prior wrongs and acts, the latter of which, by their very nature, often lack ?de?nite proof. Commonwealth v. Ardinger, 839 A.2d 1143, 1145 (Pa. Super. 2003) (citing Commonwealth v. Lockcuff, 813 A.2d 857, 861 (Pa. Super. 2002)) (emphasis added); see Pa. RE. 404 (titled ?Character Evidence; Crimes or Other Acts?) (emphasis added); Donahue, 549 A.2d at 125 (prior child abuse incident admitted in prosecution for murder of another baby even though no charges in prior incident); Commonwealth 1). Elliot, 700 A.2d 1243 (Pa. 1997) (three prior assaults on women (only one of which resulted in a conviction) admissible in prosecution for rape and murder); Ardinger, 839 A.2d at 1145?1 146 (?nding that the trial court erred in not allowing prior bad act comprising of charged, but not yet resolved, conduct). Furthermore, the remoteness of a prior bad act is but a single factor to consider in determining the probative value of the other act evidence. 9 ?Substantial evidence? means proof by ?clear and convincing evidence.? Id. 46 Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996). The importance of any, time gap, moreover, is ?inversely proportional? to the similarities between the acts. Tyson, 119 A.3d at 359. Necessarily then, the more similar the acts, the less the remoteness of time between the acts matters. See Commonwealth v. Aikens, 990 A.2d 1 181, 1186 (Pa. Super. 2010) (?nding that although defendant?s abuse of prior victim occurred remotely to that in the current case before it, because the parallels between the two cases were ?striking,? remoteness did not preclude admission). Importantly, moreover, in conducting a remoteness analysis for purposes of the admissibility of prior bad acts evidence, the court should not consider each act in isolation and compared only to the current offense in determining the probative value; rather, the court must consider the sequential nature of the prior bad acts. See Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993) (noting that the issue for remoteness under a prior bad act analysis ?is determined by analyzing the time involved between each of the criminal incidents?) (emphasis added); Commonwealth v. Odum, 584 A.2d 953, 955 (Pa. Super. 1990) (stating that refuse to consider the evidence entirely out of its sequential context, as appellant would require us to Conducting such an inquiry necessarily entails an analysis of whether the evidence ?indicated a recurring sequence of acts by this [defendant] over a continuous span of time, as opposed to random and remote acts.? Smith, 635 A.2d at 1090 (citing Frank, 577 A.2d at 617). 47 Finally, where prior bad acts evidence is relevant for a legitimate purpose under Rule 404(b), it is admissible unless its probative value is outweighed by its potential for unfair prejudice.10 Commonwealth v. Hairston, 84 A.3d 657, 664 (Pa. 2014); see Pa. R.E. 404(b)(2) a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice?). Unfair prejudice means ?a tendency to suggest decision on an improper basis or to divert the jury?s attention away from its duty to weigh the evidence impartially.? Tyson, 119 A.3d at 360. As the Supreme Court has explained, [I]t is not required to sanitize the trial to eliminate all unpleasant facts from the jury?s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged. Moreover, we have upheld the admission of other crimes evidence, when relevant, even where the details of the other crime were extremely grotesque and highly prejudicial. Dillon, 925 A.2d at 141 (internal quotations and citations omitted). In conducting its weighing inquiry, the court must balance the potential for unfair prejudice with (1) the degree of similarity between the incidents; (2) the Commonwealth?s need to present the evidence; and (3) the ability of the court to caution the jury. Tyson, 119 A.3d at 359. 1? Prior bad acts evidence is not prohibited simply because it is harmful or prejudicial. Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007). Indeed, other act evidence is designed to be prejudicial. Commonwealth 1). Gordon, 673 A.2d 866, 870 (Pa. 1996). 48 2. Defendant?s Prior Bad Acts are Relevant to Show a Common Scheme, Plan, or Design. A comparison of the facts of the present case with the circumstances surrounding the 19 prior bad acts sought to be admitted by the Commonwealth establishes that over the course of decades, defendant engaged in a predatory pattern of intentionally intoxicating young women he invited to spend time with him in a signature fashion with the intention of sexually assaulting them while they were incapacitated. In each instance, defendant carried out his plan by providing his unwitting Victim an intoxicant and then assaulting her when she was incapacitated to the point of being unable to consent to, let alone resist, defendant?s unwanted sexual advances. The similarities between the current case and the 19 prior instances?most signi?cantly, the administering of an intoxicant by a world?renowned icon in the entertainment industry to young women in whom he instilled trust and with whom he was in a position of authority to facilitate the sexual assault? tend to establish behavior that is suf?ciently ?distinctive and so nearly identical as to become the signature of the same perpetrator? and thus satisfy the common scheme, plan, or design exception to the general proscription against other act evidence. Tyson, 119 A.3d at 359. As noted, defendant sexually assaulted Andrea Constand in an area controlled by him?his home?after giving her intoxicants that rendered her incapacitated and unable to consent to the sexual contact. Ms. Constand was signi?cantly younger than defendant at the time he assaulted her. She was 30; he was 66. She met him through her employment and developed what she 49 thought was a friendship with him. He mentored her and gave her career advice; he used his fame, notoriety, and public status to instill trust in her. Defendant invited her to his home one night in 2004 and gave her three pills, saying, ?Your friends, I have three friends for you to make you relax? (N.T. Trial, 6/ 8/ 17, at 225). She took the pills. He also offered her wine. When she refused, he insisted she drink it. She relented and took a few sips. Shortly after ingesting the intoxicants, she became completely incapacitated?she was unable to maintain consciousness; she had dif?culty speaking; she felt nauseous; she became dizzy and paralyzed; and she had trouble keeping her eyes open. Once she was incapacitated, and while they were alone in the house, defendant sexually assaulted her. He positioned himself behind her on the couch and fondled her breasts; he put his hand inside her pants and penetrated her vagina with his ?nger; and he took her hand and placed it on his erect penis. Ms. Constand did not consent to the sexual contact. Defendant?s drug-facilitated sexual assault of Ms. Constand was the culmination of a decades?long pattern of behavior suf?ciently ?distinctive and so nearly identical as to become the signature of the same perpetrator.? Tyson, 119 A.3d at 359. More speci?cally, defendant engaged in a unique pattern of behavior of sexually assaulting young women after giving them an intoxicant that rendered them incapacitated and unable to consent to the sexual contact. The truly unique nature of defendant?s sadistic sexual script is manifest in the following similarities among all of the proffered prior victims: defendant sought out signi?cantly younger women; each victim was female; each victim was 50 signi?cantly younger than the married defendant; defendant was legitimately in each victim?s presence because each had accepted his invitation to get together with him socially; defendant had the means and knowledge to perpetrate each crime because he had access to sedating drugs and knew their effects on his victims; each incident occurred in a setting controlled by defendant so that he could execute his plan Without interruption or unexpected discovery; defendant had the opportunity to perpetrate each crime because he instilled trust in his victims due to his position of authority, his status in the entertainment industry, and his social and communication skills such that he had the capacity to orchestrate circumstances leading to a setting where his intended victim was alone; defendant administered an intoxicant to each victim; the intoxicant incapacitated each victim; defendant was cognizant of each victim?s compromised state because he was the one who put each victim into that compromised state; and he sexually assaulted each Victim While she was not fully conscious and, thus, unable to resist his unwelcomed contact. These abundant similarities establish not only the required logical connection between defendant?s prior drug-facilitated sexual assaults and his assault of Ms. Constand, but they also demonstrate behavior that is suf?ciently distinctive to establish that defendant engaged in a common scheme, plan, or design. Stated simply, these distinctive similarities demonstrate that defendant ?engaged in a pattern of non-consensual sexual [contact] with [young women] who were in an unconscious or diminished state.? Tyson, 119 A.3d at 357. The similarities are ?not con?ned to insigni?cant details that 51 would likely be common elements regardless of who committed the crimes.? Aikens, 990 A.2d at 1185; see Tyson, 1 19 A.3d at 460 (noting that the factual overlap between the present case and the prior acts goes beyond the commission of conduct ?of the same general class?). Rather, these distinctive similarities demonstrate that all 20 incidents?including that involving Ms. Constand?are so related that proof of one tends to establish proof of the other. More speci?cally, the matching characteristics between the present case and the prior incidents elevate the incidents into a unique pattern that distinguishes them from a typical or routine sexual abuse pattern, and instead establishes a modus operandi or pattern of behavior so distinctive?and, in fact, unprecedented?that these prior bad acts are all recognizable as the handiwork of the same perpetrator: defendant. Indeed, defendant?s modus operandi is so distinctive as to be unparalleled. To be sure, a survey of the relevant authority?not just in this jurisdiction, but throughout the country?has failed to uncover any case wherein a defendant engaged in this type of recurring pattern of drug? facilitated sexual assaults on dozens of young women over the course of decades. The unmatched nature of the calculated and sadistic sexual script followed by defendant demonstrates nothing less than a signature. A survey of the relevant authority in this Commonwealth warrants such a conclusion Tyson is particularly instructive. There, the defendant, like defendant here, engaged in a pattern of non?consensual sexual intercourse with women with whom he was acquainted who were in an unconscious or diminished 52 state, and he deliberately took advantage of each victim?s diminished state and inability to consent. The Commonwealth charged the defendant with rape and related offenses. The victim reported that she had become ill at work after donating plasma, so she called the defendant, an acquaintance, to drive her home. Once inside her apartment, she fell asleep and later awoke to the defendant having sexual intercourse with her. Id. at 356. Prior to trial, the Commonwealth ?led a motion in limine seeking to introduce evidence of the defendant?s prior rape conviction from 10 years earlier as part of, among other things, a common plan or scheme.11 In the earlier case, like the case before the court, the Victim woke up in her home to the defendant having sexual intercourse with her. Earlier that night, she had gone to bed after drinking alcohol at a party that her brother was having at their home, which defendant attended. Id. at n. 1. The trial court denied the Commonwealth?s motion, and the Commonwealth appealed. Id. at 356. The Superior Court held that the trial court abused its discretion in denying the Commonwealth?s motion in limine, ?nding that the evidence of the prior rape passed the relevance threshold as it ?tend[ed] to increase the probability that [the defendant] knowingly had non-consensual sex with [the victim] in the present case.? Id. at 360. Moreover, the court found that the evidence was admissible under, inter alia, the common scheme 11As will be discussed in more detail infra, the Commonwealth also sought to introduce the prior rape to show that defendant did not mistakenly conclude the Victim consented to sexual intercourse with him. Id 53 exception.12 Id. at 360?61. In so ?nding, the court noted the following similarities between the two cases: that each victim was a black female in her twenties; that the defendant was acquainted with each victim; that the defendant was invited into her home; that each Victim ultimately lost consciousness and the defendant was aware each victim was in a weakened or compromised state; and that each victim awoke in her bedroom in the early morning hours to find the defendant having vaginal intercourse with her. Id. at 360. Based on these similarities, the court found that the prior act evidence did not merely demonstrate that the defendant sexually assaulted two different women or that the defendant?s actions were ?generically common to many sexual assault cases.? Id. Rather, the incidents re?ected a ?clear pattern? where the defendant was legitimately in his victim?s home; he was cognizant of each victim?s compromised state; and he sexually assaulted each victim in her bedroom in the middle of the night while the victim was unconscious. Id. These factors, the court concluded, reveal conduct that is ?suf?ciently distinctive? to establish that the defendant engaged in a ?common scheme [or plan] of nonconsensual intercourse with unconscious victims.? Id. at 360?61. Aikens, supra, further demonstrates that the prior bad acts in this case are relevant as tending to prove a common scheme, plan, or design. In that case, the defendant was prosecuted for involuntary deviate sexual intercourse with his 14?year-old daughter. The Superior Court ruled that evidence that he raped another daughter 15 years earlier was properly admissible under the 1? The court also found the evidence admissible under the absence of mistake or accident exception, as will be discussed in more detail infra. 54 common scheme, plan, or design exception. Id. at 1183?1185. The court reached this conclusion based on the similar fact pattern: the victims were of like ages (14 and 15 years old); both victims were the defendant?s daughters; the defendant initiated both incidents during an overnight visit to his apartment; he showed the victims pornography; and the assaults occurred in bed at night. Id. at 1 185?1186. According to the court, these similar characteristics made the incidents ?unique? and ?distinguish[able]? from a typical or routine child-abuse factual pattern. Id. at 1186. The court further noted that the similarities at issues ?were not con?ned to insigni?cant details that would likely be common elements regardless of who committed the crimes.? Id. Elliott, too, warrants a conclusion that the prior bad acts evidence in this case is admissible under the common scheme or plan exception. In a case involving the prosecution for the rape and murder of a woman, the Supreme Court held that the defendant?s three prior assaults on women were admissible to show a common, plan, scheme, or design. Id. at 1250. Speci?cally, it found that the prior assaults were suf?ciently similar to the current attack because the victims were all white women in their twenties; the victims were all attacked in the early morning hours after ?nding themselves alone with the defendant; each assault had sexual overtones; and each Victim was choked or beaten, or both. Id. at 1249-1250. In reaching this conclusion, the court rejected the defendant?s claim that the prejudicial value outweighed probative value. In doing so, it noted that at trial, the defendant 55 suggested the victim?s injuries were the result of rough sex; thus, the Commonwealth needed to introduce prior assaults, in part, to rebut this claim. Id. at 1250. O?Brien, supra, lends further support to the admissibility of defendant?s prior bad acts. In that case, as in Tyson, the Superior Court held that the trial court abused its discretion in prohibiting the Commonwealth from introducing evidence of the defendant?s prior sexual assaults of two minor boys in a prosecution where the defendant had sexually assaulted a third minor boy approximately 10 years later. Id. at 970-71. In reaching this conclusion, the court held that the facts of each incident were suf?ciently similar such that the evidence was admissible to establish a common scheme or plan. Id. at 972. It noted the following facts in support of its conclusion: the victims in each case were of similar age and race; the defendant knew each victim because he was friends with his parents; he assaulted his victims while alone with them in his home; and he engaged in deviate sexual intercourse with each victim after showing them pornography. Id. The court, moreover, determined that the evidence was admissible to bolster the victim?s credibility. Id. at 970. Like the prior bad acts evidence in Tyson, Aikens, Elliott, and O?Brien?all of which was admitted under the common scheme, plan, or design exception to the general proscription against other act evidence?the similarities among the prior bad act evidence in this case are ?not con?ned to insigni?cant details that would likely be common elements regardless of who committed the crimes.? Aikens, 990 A.2d at 1185. Rather, these distinctive similarities demonstrate 56 that the incidents are so related that proof of one tends to establish proof of another. More speci?cally, they demonstrate that defendant engaged in a unique pattern of behavior of sexually assaulting young women after giving them an intoxicant that rendered them incapacitated and unable to consent to?let alone resist?the sexual contact. This evidence, therefore, is relevant under the common scheme, plan, or design exception. See Aikens, 990 A.2d at 1 186 (admitting evidence that defendant raped another daughter 15 years earlier under the common scheme or plan exception where there were ?matching characteristics e1evat[ing] the incidents into a unique pattern that distinguishes them from a typical or routine child?abuse factual pattern?); see also Elliot, 700 A.2d at 1250 (allowing evidence under the common scheme or plan exception of defendant?s three prior assaults with sexual overtones on three white women in their twenties in the early morning hours after each woman found herself alone with defendant); Tyson, 1 19 A.3d at 361 (?nding that the circumstances of the prior incident and the current incident were suf?ciently similar to satisfy, inter alia, the common scheme or plan exception); Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989) (evidence of prior rape properly admitted at rape?murder trial since crimes were committed in similar geographic location, at similar time, characteristics of victims matched, and defendant used same method of attack); Luktisch, 680 A.2d at 878?879 (holding common scheme exception justi?ed admission of testimony regarding defendant?s previous sexual assaults despite six-year lapse between periods of abuse, where three victims were nearly the same age, victims were either 57 daughter or stepdaughter of defendant and lived with him when acts occurred, and pattern of molestation?from improper touching to oral sex to sexual intercourse?was highly similar with respect to two victims); O?Brien, 836 A.2d at 972 (?nding that evidence of two prior sex assaults of young boys admissible in prosecution of rape of a third boy to establish common plan or scheme). Importantly, moreover, the numerous and distinctive similarities among the incidents weigh against any ?nding of remoteness. See Tyson, 119 A.3d at 359 (noting that the importance of any time gap is ?inversely proportional? to the similarities between the acts). This is so particularly when considering the prior bad acts in their sequential context?which the appellate courts in this Commonwealth have made clear is the proper context?as opposed to each act in isolation. See, Smith, 635 A.2d at 1089 (noting that the issue for remoteness under a prior bad acts analysis ?is determined by analyzing the time involved between each of the criminal incidents?); Odum, 584 A.2d at 955 refuse to consider the evidence entirely out of its sequential context, as appellant would require us to The chart below re?ects the chronology of defendant?s sustained and recurring sexual assaults on young women. Viewing this prior bad acts evidence in its sequential context, as re?ected in the chart, reveals that the prior bad acts are not too remote. Rather, defendant engaged in a recurring sequence of drug?induced sexual assaults over a continuous span of time, during an almost 40-year period. While there was a several?year gap between a few of the assaults, as the chart re?ects, the 58 majority of them occurred within a one-to-two-year period of each other; in fact, several of them occurred within the same year. Defendant?s History of Sexual Assaults13 Victim Year of Assault Prior Victim Number 1 1965 Prior Victim Number 2 1967-68 Prior Victim Number 3 1969 Prior Victim Number 4 1969 Prior Victim Number 5 1971 Prior Victim Number 6 1975 Prior Victim Number 7 1975-76 Prior Victim Number 8 1976 Prior Victim Number 9 1980-8 1 Prior Victim Number 10 1981 Prior Victim Number 11 1981 Prior Victim Number 12 1982 Prior Victim Number 13 1982 Prior Victim Number 14 1982-84 Prior Victim Number 15 1984 Prior Victim Number 16 1986 Prior Victim Number 17 1986 Prior Victim Number 18 1989 Prior Victim Number 19 1996 Andrea Constand 2004 13 This chart does not re?ect defendant?s complete history of alleged drug? induced sexual assaults; it simply re?ects the victims that are being proffered here. As previously noted, however, to date, more than 50 women have come forward detailing similar accounts of drug-facilitated sexual assaults committed by defendant. 59 3. Defendant?s Prior Bad Acts are Relevant to Show an Absence of Mistake or Accident. Evidence of the 19 prior drug?facilitated sexual assaults defendant committed upon his young female victims is also relevant as having a tendency to prove that defendant did not mistakenly believe that Ms. Constand was awake or gave consent to his sexual assault. To the contrary, evidence of the prior assaults is highly probative of the fact that defendant could not have reasonably believed that Ms. Constand was conscious enough to give her consent. Indeed, Ms. Constand, like his 19 prior victims, was incapacitated because he drugged her. He knew the debilitating effect of the intoxicants he used from his past experiences?speci?cally, his experience drugging and assaulting Ms. Johnson and the 18 other women being proffered. In fact, defendant has previously admitted that although he received prescriptions for Quaaludes, he did not take them himself because he gets ?sleepy? and ?want[s] to stay awake?; instead, he used them on women with whom he wanted to have sex. Defendant even acknowledged that at least one such woman became ?high? and was ?[w]alking like [she] had too much to drink? (N.T. Trial, 6 9/ 17, at 167-169, 173?175, 181?186). Tyson, once again, is instructive. There, as noted, the Superior Court reversed the trial court order refusing to admit the defendant?s prior rape conviction. In addition to ?nding that the evidence was relevant and admissible to establish a common scheme, plan, or design, the court found that it was necessary to prove that defendant made no mistake or accident when he evaluated the victim?s purported consent. In other words, the court 60 found that ?given the relevant similarities between the . . . incidents,? the evidence of defendant?s prior rape was relevant to show he did not ?mistakenly believe? that the current rape victim was awake or gave consent, where he knew each victim was in a compromised state. Id., 119 A.3d at 362. The court went one step further, and noted that the prior bad act evidence was ?highly probative? of the fact that the defendant could not have reasonably believed [the current victim] was conscious enough to give her consent. Rather, the evidence of the prior conviction tends to prove [defendant] intentionally exploited another opportunity to take advantage of a woman sexually, when he knew the woman was in a diminished state. Id. at 363. In reaching this conclusion, the court looked at the relevant similarities: (1) the defendant was invited into the victim?s home; (2) the defendant knew the victim was in a compromised state; and (3) the victim awoke to the defendant sexually assaulting her. The court deemed these three facts relevant similarities because the defendant?s ?prior conviction would likewise show he had been invited into the home of an acquaintance, knew the victim was in a compromised state, and had non?consensual sex with the victim while the victim was unconscious. . . . Thus, the evidence would tend to show [defendant] recognized or should have recognized that, as with [the prior victim], [the current victim?s] physical condition rendered her unable to consent.? Id. at 362?63. While the court acknowledged that there were some differences between the incidents, it ultimately concluded that the differences were inconsequential, noting that ?certain differences between the two 61 incidents . . . are not essential to the question of whether [the defendant] mistakenly believed [the Victim] consented to sexual intercourse.? Id. at 363. The Court further noted that if evidence of the defendant?s prior conviction was excluded, ?the Commonwealth must rely solely on the uncorroborated testimony of [the victim] to counter [the defendant?s] defense of consent to vaginal intercourse.? Id. at 362. It thus found that the Commonwealth had a ?signi?cant need? for the prior crime evidence to prove [the defendant] had non- consensual sex with the victim. Id. Here, as in Tyson, the other act evidence is highly probative of the issue of consent. More speci?cally, the fact that defendant, on at least 19 different occasions, gave an intoxicant to a woman that incapacitated her and then had indecent contact with her while she was in the incapacitated state, is probative of the fact that defendant could not have reasonably believed that Ms. Constand was conscious enough to give her consent. Rather, the evidence regarding the prior victims tends to establish that he ?intentionally exploited [yet] another opportunity to take advantage of a woman sexually, when he knew [she] was in a diminished state.? Id. The prior bad acts evidence, therefore, is relevant under the absence of mistake exception. See id.; see also Boczkowski, 846 A.2d at 89 (?nding in a homicide prosecution for the bathtub drowning death of defendant?s wife that evidence of the similar death of defendant?s previous wife was relevant and admissible under the absence of mistake or accident exception where the incidents were ?remarkably similar?); Donahue, 549 A.2d at 127 (?nding in a homicide prosecution stemming from 62 child abuse that the trial court properly allowed the Commonwealth to admit evidence of a prior, uncharged child abuse allegation involving another child to prove an absence of mistake or accident).14 4. Defendant?s Prior Bad Acts are Admissible Under the Doctrine of Chances. In addition to the relevance of the prior bad acts evidence to demonstrate a common scheme, plan, or design and an absence of mistake or accident, the evidence is also relevant under the ?doctrine of chances.? Otherwise known as the ?doctrine of objective improbability,? the doctrine is an alternative, non? character theory of logical relevance ?that does not depend on an impermissible inference of bad character.? Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring). Instead, it is used to determine the admissibility of prior bad acts evidence to prove intent, knowledge, or absence of mistake or accident, though it ?is most greatly suited to disproof of accident or mistake.? Id. at 1132, 1136 (Saylor, C.J., concurring). In Hicks?a case that was decided after this Court issued its order denying the Commonwealth?s earlier prior bad acts motion with regard to 12 of the 13 victims proffered?Chief Justice Saylor applied the ?doctrine of chances? in his concurring opinion to conclude that the trial court, in a homicide prosecution, properly exercised its discretion in admitting prior bad acts evidence pertaining to three women with whom defendant previously had a sexual and illegal-narcotics-using relationship and with whom he was often 1? The defendant?s conviction was ultimately reversed in Donahue because the Court found that the defendant should have been allowed to present evidence to defend himself against the prior child abuse allegation at trial. Id. at 128. 63 violent, to establish, inter alia, an absence of mistake or accident. Id. at 1 133- 1137 (Saylor, C.J., concurring); see id. at 1148 (Donohue, ., dissenting) (noting that Chief Justice Saylor would admit the evidence to show an absence of accident ?on a ?doctrine of chances? rationale to prove a defendant committed the actus reus?)15 He explained the doctrine as follows: To determine whether the [doctrine of chances] theory quali?es [as a non-character?based theory of logical relevance], the trial judge must trace the entire chain of inferences underlying the theory. The theory passes muster if the inferential path between the item of evidence and a fact of consequence in the case does not require any inferences as to the defendant?s personal, subjective character. [T]he proponent does not offer the evidence of the uncharged misconduct to establish an intermediate inference as to the defendant?s personal, subjective bad character. Rather, the proponent offers the evidence 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 1132 (Saylor, C.J., concurring) (citation omitted) (emphasis in original). In other words, the more often a defendant commits the actus reus, the less likely it is that the defendant acted innocently or accidentally. JONES ON EVIDENCE 17:62 (7th ed.) (citation omitted). Importantly, this theory of logical relevance does not depend on an impermissible inference of bad character. Hicks, 156 A.3d at 1 132 (Saylor, C.J., concurring). That is, it does not seek to 15 The Supreme Court decided Hicks on March 28, 2017; this Court issued its ruling on the Commonwealth?s earlier prior bad acts motion on February 27, 2017. 64 establish that because a person once engaged in certain criminal conduct, the person is likely to do it again. Moreover, as Chief Justice Saylor aptly noted, to ensure that the doctrine of chances theory does not swallow the general proscription against prior bad acts evidence, several safeguards should be met: (1) the other act evidence should be ?roughly similar? to the charged crime; (2) ?the number of unusual occurrences in which the defendant has been involved exceed[s] the frequency rate for the general population?; and (3) there must be a real dispute between the defense and the prosecution over whether the actus reus occurred. Id. at 1136 (Saylor, C.J., concurring) (citing People v. Everett, 250 P.3d 649, 656?657 (C010. App. 2010) (additional citations omitted) Chief Justice Saylor found that the Commonwealth satis?ed each of the aforementioned safeguards in Hicks. Applying the doctrine of chances, he concluded that the defendant?s ?history of violent attacks upon women certainly reduced the probability that, having been found to be closely associated with a badly bruised body of a woman whom the Commonwealth contended had been strangled, there is an innocent explanation for his involvement prior to his admitted dismemberment of the body.? Id. at 1137 (Saylor, C.J., concurring). Thus, he concluded that this evidence satisfied the ?logical non?character-based relevance criterion and . . . maintain[ed] the essential guard against inquisitorial?style determinations of guilt by character.? Id. 65 Moreover, the Supreme Court had previously applied the doctrine of chances in Donahue, supra. In that case, a homicide prosecution stemming from child abuse, the trial court permitted the Commonwealth to introduce evidence of a prior, uncharged child abuse allegation involving another child. In analyzing whether the evidence was properly admitted to negate the defendant?s claim that the child?s injuries were sustained in an accidental fall, then-Justice Flaherty, in an opinion announcing the judgment of the Court, relied on the doctrine of chances and determined that the evidence was relevant and admissible. Id. at 126- 127. Citing to Wigmore, the Court explained the doctrine of chances as follows: To prove intent, [and, therefore, the absence of accident], as a generic notion of criminal volition or willfulness, including the various noninnocent mental states accompanying different criminal acts, an entirely different process of thought is employed. The argument here is purely from the point of view of the doctrine of chances the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. Thus, if A while hunting with hears the bullet from B?s gun whistling past his head, he is willing to accept B?s bad aim or B?s accidental tripping as a conceivable explanation; but if shortly afterwards the same thing 66 happens again, and if on the third occasion A receives B?s bullet in his body, the immediate inference as a probability, perhaps not a certainty) is that shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small . . . . In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self?defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satis?es our logical demand. Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance . . . . So, where the intent of an erroneous addition in a bookkeeper?s accounts is in issue, the erroneous addition of a bill rendered to a former employer ten years before would have no signi?cance, because it is still within the limits of ordinary casual error that such things should occur at intervals; but several other erroneous additions in the bookkeeper?s own favor in the same year and the same book of accounts go to exclude the explanation of casual error, and leave 67 deliberate intent as the more probable explanation. In short, there must be similarity in the various instances in order to give them probative value. Id. (quoting II Wigmore, On Evidence, 302, pp. 241, 245, 246 (Chadbourn Rev. 1979) (emphasis in original). After carefully reviewing the authority on the doctrine of chances, the Court in Donahue found that the doctrine did, in fact, apply to render the prior bad acts evidence admissible. Speci?cally, it found that the previous child abuse incident was similar to the incident in question and, further, that a similar result was obtained in both cases. To this end, both the current victim and the prior victim were being toilet trained by defendant at the time the defendant was caring for them; defendant was out of work and cared for both children while his signi?cant other worked; both children were seriously injured or killed while in his care; and both children had a pattern of bruises on their bodies. Donahue, 549 A.2d at 127. The Court then noted that ?although two different children may, at different times, be seriously injured or killed while in a person?s care, and that this may happen Without his intentional conduct, as the number of such incidents grows, the likelihood that his conduct was unintentional decreases. It is merely a matter of probabilities.? Id. (emphasis added). Thus, the Court concluded that ?[b]ecause the former case tends to decrease the likelihood that the same man would be involved in 68 two such similar accidents, the former incident is admissible as probative evidence of whether the injuries in the second case were accidental.? Id.16 If the Court in Donahue deemed the evidence admissible under the doctrine of chances theory despite the fact that only a single prior bad act was proffered, then the doctrine is unquestionably applicable in this case, where the frequency requirement typically underpinning the doctrine of chances is unquestionably present. Indeed, as noted, the number of prior incidents proffered reaches well into the double digits. Due to the vast number of prior incidents in the instant case, the likelihood that defendant?s conduct was unintentional has signi?cantly decreased. It is simply a matter of probabilities. Indeed, it would defy logic to maintain that defendant mistakenly assessed Andrea Constand?s ability to consent to the sexual acts he committed on her after providing her with an intoxicant when he had engaged in strikingly similar acts with numerous other women on a regular basis?sometimes several times (that we know of) in the same year?over the course of decades. To the contrary, similar to the conclusion reached by Chief Justice Saylor in Hicks, defendant?s repeated history of providing intoxicants to women and then sexually assaulting them once they were incapacitated ?reduced the probability that . . . there is an innocent explanation? for his conduct with Ms. Constand. Id. at 1 137 (Saylor, C.J., concurring). 15 As noted, the defendant?s conviction was ultimately reversed because the Court found that the defendant should have been allowed to present evidence to defend himself against the prior child abuse allegation at trial. Id. at 128. 69 Furthermore, the Commonwealth has easily satis?ed each of the safeguards for applying the doctrine of chances. To this end, as previously discussed, the prior bad acts evidence is so distinctive and similar to the current crime involving Ms. Constand so as to be a signature. Necessarily, then, these similarities satisfy the obviously lesser ?roughly similar? standard required under a doctrine of chances analysis. Hicks, 156 A.3d at 1136 (Saylor, C.J., concurring). Moreover, certainly, the 19 ?unusual occurrences?? defendant administering intoxicants to young women who become incapacitated only to have defendant sexually assault them while they were too incapacitated to either consent or ward off his unwanted advances??exceeds the frequency rate for the general population.? Id. Indeed, the frequency and numerosity of defendant?s prior bad acts is unparalleled. Finally, there is a real dispute as to whether the actus reus occurred. The Commonwealth, of course, claims that a crime occurred; defendant on the other hand, claims that any sexual contact between him and Ms. Constand was consensual (See N.T. Trial by Jury, 6/ 12/ 17, at 68?69). Incidentally, outside of too, appellate courts have applied the doctrine of chances when faced with a prior bad acts challenge, to uphold admission of prior bad acts evidence to show, inter alia, a defendant?s intent or other mental state. See, People 1). Robbins, 755 P.2d 355, 362 (Cal. 1988) (citing the doctrine of chances in holding, in a prosecution for raping and intentionally killing a young boy where defendant acknowledged the homicide but contested the rape and intent to kill, that the trial court properly admitted, 7O as proof of intent to kill, defendant?s confession that he previously sodomized and killed another young boy); United States 1). Woods, 484 F.2d 127 (4th Cir. 1973) (?nding that the trial court properly permitted the prosecution, in a case involving the murder of defendant?s seven-month?old foster son due to cyanosis, to admit evidence of 20 prior instances of cyanosis to nine children in defendant?s care over a 25?year period, to establish, pursuant to the doctrine of chances, that the death was not accidental); Martin 1). State, 173 463, 465?68 (Tex.Crim.App. 2005) (evidence of another sexual assault was admissible under the doctrine of chances to prove victim did not consent); compare State v. Lowther, 398 P.3d 1032 (Utah 2017) (?nding evidence of other uncharged sexual assaults relevant under the doctrine of chances to show victim?s lack of consent and defendant?s intent to have sex with her while she was sleeping, but concluding that the lower court improperly ruled the evidence admissible because it applied improper standards in balancing the probative value versus prejudicial impact). Moreover, in Hicks, Chief Justice Saylor cited to People 1). Kelly, 895 230 (Mich. Ct. App. 2016) (per curiam), with approval. \There, the state appellate court found that the trial court abused its discretion in excluding testimony in a sexual assault case in which the defense claimed consent, concerning seven prior assaults occurring over the course of 25 years. The court explained, ?employing the doctrine of chances, it strikes us as extraordinarily improbable that eight unrelated women in four different states would fabricate reports of sexual assaults after engaging in consensual sex 71 with defendant.? Hicks, 156 A.3d at 1136 (Saylor, C.J., concurring) (citing People 1). Kelly, 895 at 235). Similarly, in People 12. Everett, supra, a sexual assault prosecution where the defendant claimed that the victim consented, or that there was an absence of evidence of a lack of consent, the court held that evidence that the defendant committed other sexual offenses may be admissible under the doctrine of chances because [w]hen one person claims rape, the unusual and abnormal element of lying by the complaining witness may be present. But, when two (or more) persons tell similar stories, the chances are reduced that both are lying or that one is telling the truth and the other is coincidentally telling a similar false story. Id., 250 P.3d at 656?657 (citation omitted). As in Kelly, it should strike this Court as ?extraordinarily improbable? that 20 unrelated women in states throughout the country?and, indeed, some from outside this country?would ?fabricate reports of [drug-facilitated] sexual assaults? committed by defendant. Id., 895 at 235. Moreover, as in Everett, when two or more persons?in this case, at least 2017?tell similar stories, ?the chances are reduced that [all] are lying or that one is telling the truth and the other[s are] coincidentally telling a similar false story.? Everett, 250 P.3d at 657. 17As previously noted, while the Commonwealth is only proffering 19 prior bad acts victims for purposes of this motion, to date, more than 50 women have come forward detailing similar accounts of drug?facilitated sexual assaults committed upon them by defendant. 72 For these reasons, this Court should apply the doctrine of chances to ?nd that evidence concerning the 19 proffered prior bad acts witnesses is both relevant and admissible. Under this doctrine, the repeated nature of defendant?s conduct negates the presence of any non-criminal intent. Indeed, the sheer number of instances in which defendant had sexual contact with a young woman to whom he provided an intoxicant renders implausible any claim that defendant was mistaken when he assessed his victims? ability to consent to the sexual contact. Indeed, there is an objective improbability of so many accidental, inadvertent occurrences. 5. The Probative Value of the Prior Bad Acts Evidence Outweighs any Potential for Unfair Prejudice. As previously noted, in conducting its weighing inquiry, this Court must balance the potential for unfair prejudice with (1) the degree of similarity between the incidents; (2) the Commonwealth?s need to present the evidence; and (3) the ability of the court to caution the jury. Tyson, 19 A.3d at 359. Here, each of these factors weighs in favor of admissibility. a. There is a High Degree of Similarity Between Current Offense and Prior Bad Acts. As previously discussed, there is a high degree of similarity between the prior incidents and the current incident. To be sure, in each instance, defendant sexually assaulted his victim after giving her an intoxicant that rendered her incapacitated and unable to consent to the sexual assault. Like with Ms. Constand, moreover, in each prior instance, the victim was signi?cantly younger than defendant at the time of the incident?the average 73 age gap between defendant and his prior victims was 18 years. The majority of the prior victims met defendant through their employment, and in each instance, he initiated the contact with his victim. Moreover, in each case, the defendant was legitimately in his victim?s presence; as with Ms. Constand, each victim accepted his invitation to get together for a seemingly innocuous purpose. To this end, as with the current victim, defendant used his fame, notoriety, and public status to instill trust in each victim. Further, while the situs of the incidents varied, importantly, in each instance, the assaults occurred in a setting within defendant?s exclusive control so he could execute his plan without interruption or discovery. In each instance, defendant gave his victim an intoxicant?either pills or a drink containing a substance that only he knows. As with Ms. Constand, in each of the prior instances, the intoxicants were so powerful that the victim became incapacitated or otherwise unable to maintain consciousness. Additionally, like he did with the present victim, defendant sexually assaulted each of his prior victims while they were incapacitated. Finally, none of these women consented to the sexual contact with defendant. These substantial similarities between the incidents give the prior incidents ?considerable probative value.? Tyson, 119 A.3d at 361; see Frank, 577 A.2d at 616-618 (holding that trial court admission of evidence of defendant?s prior sexual assault of children under the common plan or scheme exception was proper where the assaults possessed a high degree of similarities and the court issued cautionary instructions). 74 b. The Commonwealth has a Signi?cant Need for the Evidence. Moreover, the Commonwealth has a signi?cant need for the evidence. To this end, in order to convict defendant of Aggravated Indecent Assault, the Commonwealth is required to prove, inter alia, that defendant intentionally engaged in non-consensual penetration of the victim?s vagina. See 18 Pa. 08. 3125(a). In his deposition, defendant admitted to digitally penetrating the victim (N.T. Trial by Jury, 6 /8 17, at 229, Exhibit C-41). Thus, at trial, the issue was one of consent (see N.T. Trial by Jury, 6 12/ 17, at 69 (defense counsel arguing that Andrea Constand did not ?tell [defendant] to stop? or ?push [him] away? when he touched her under her clothing). The prior bad acts evidence is, therefore, needed to establish that Ms. Constand did not consent to the sexual contact by defendant. Without the prior bad acts evidence, the Commonwealth would have to rely on uncorroborated testimony of the victim regarding the lack of consent. In Tyson, the court made clear that this exact scenario created a heightened need for the evidence when it stated, If evidence of [a]ppellee?s prior conviction is excluded, the Commonwealth must rely solely on the uncorroborated testimony of [the victim] to counter [a]ppellee?s defense of consent to vaginal intercourse. Thus, the Commonwealth has a significant need for the prior crime evidence to prove [a]ppellee had non? consensual sex with [the victim]. Tyson, 119 A.3d at 362.18 18 Even if defendant were to testify and deny that any touching occurred? despite his admissions to the contrary?the other act evidence would still be (footnote continued on next page) 75 The Commonwealth?s need for the evidence is further heightened in light of the fact that the victim did not report the assault to the authorities until approximately one year afterward. See Commonwealth v. Smith, 635 A.2d 1086, 1090 (Pa. Super. 1993) (?nding that the Commonwealth ?demonstrate[d] a need to present testimony of [defendant?s] sexual abuse of [his other daughter] because the victim . . . failed to reveal that she had been molested.? Id. at 1090; see also Frank, supra (?nding that the Commonwealth presented a need to present evidence of defendant?s prior bad acts involving six additional sexual assault victims where the victim in the current case failed to report the sexual assault). This is so especially in light of standard suggested jury instruction that advises the jury that it may consider the victim?s failure to make a prompt complaint when assessing her credibility. Pa. SSJI (Crim) 4.13A. Indeed, at defendant?s ?rst trial, this Court gave the jury the prompt complaint instruction (N.T. Trial by Jury, 6/12/17, at 198?199). Furthermore, the prior bad acts evidence is necessary for another purpose: to counter the defense?s inevitable attacks on the victim?s credibility, which were rampant during defendant?s ?rst trial. Not only did counsel repeatedly attempt to undermine Ms. Constand?s credibility during cross? necessary to the Commonwealth?s case. See Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996) (?nding that where the Commonwealth was required to prove that a non?consensual touching occurred, the purpose of which was sexual grati?cation, and defendant denied that the touching occurred, other act evidence was necessary for the prosecution of the case since the uncorroborated testimony of the alleged victim in this case might reasonably lead a jury to determine that there was a reasonable doubt as to whether defendant committed the crime charged). 76 examination, but in his quest to convince the jury that any sexual contact was consensual, defense counsel attempted to paint Ms. Constand as a liar during his closing argument (see, N.T. Trial by Jury, 6/ 12/ 17, at 85 (referencing Ms. Constand?s purportedly inconsistent statements and noting that ?[s]he doesn?t want to tell the truth about what happened. She?s gotten caught lying to law enforcement of?cers?)). The Commonwealth, consequently, has demonstrated a signi?cant need for the prior bad acts evidence. See O?Brien 836 A.2d at 970 (evidence of prior sexual assaults needed to counter the attacks on victim?s testimony especially in light of ?ve-year span between assault and reporting of assault); see also Luktisch 680 A.2d at 879 (when the credibility of the current victim and one of the prior bad act victims became ?crippled,? the Commonwealth?s need to present another prior bad acts witness became ?in?ated?). Indeed, the Commonwealth?s need for this evidence is greater than it was when the Commonwealth ?led its original prior bad acts motion. This is so because in September 2016, when its original motion was ?led, the Commonwealth could only speculate as to the extent of the need for the evidence. Now, on the other hand, after having had the bene?t of proceeding with a full trial, the initially proffered claims of inevitable attacks on the victim?s credibility have now become a reality. To be sure, defense counsel?s entire cross?examination of the victim was geared toward an attack on her credibility?from the outset of Ms. Constand?s testimony when counsel tried to establish that her testimony was ?coached? to counsel?s repeated inquiries 77 about her purported quest to ?nd an attorney ?specializing in sexual assault lawsuits? (N.T. Trial by Jury, 6/6/ 12, 212?214, 254?260). In fact, during defense counsel?s cross-examination of the victim, she expressly informed the jury that the victim?s prior sworn testimony was inconsistent (id. at 24 1).19 c. A Cautionary Instruction Would Alleviate any Unfair Prejudice. Finally, ?when examining the potential for undue prejudice, a cautionary instruction may ameliorate the prejudicial effect of the proffered evidence.? Tyson, 1 19 A.3d at 360 (quoting Hairston, 84 A.3d at 666). This is so because the law presumes that the jury follows the court?s cautionary instructions. Commonwealth v. Jones, 668 A.2d 491, 504 (Pa. 1995). Here, during defendant?s ?rst trial, the Court instructed the jury twice of the limited purpose of the proffered evidence, including the fact that it could not treat the prior acts as proof of defendant?s bad character or criminal tendencies. Immediately prior to the prior bad act testimony involving Kelley Johnson, the Court cautioned the jury as follows: The ?rst witness that is being called is a witness in which the Commonwealth contends there will be evidence to prove that the defendant is guilty of either an offense or an improper conduct for which he is not on trial. This will be the testimony of Kelley Johnson who is going to testify as to what the Commonwealth contends is similar conduct. 19 In doing so, counsel peculiarly declared, ?I?d like to offer this as a prior inconsistent statement, Your Honor? (id. at 241). This Court, in response, respectfully advised counsel of the proper way to impeach a witness. It explained, ?Don?t offer it. Do it the way it?s done. Give her a page, let her see it ?rst? 78 Now, this evidence is before you for limited purpose; that is, for the purpose of tending to show what the Commonwealth contends it will show. This evidence that you?re hearing, this defendant is not on trial for this evidence. This evidence may not be considered by you in any way other than for the purpose I?ve just stated, to hear testimony of someone who claims a similar incident occurred to them. You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. A more speci?c version of this charge this is law will be given to you at the end of the case. (N.T. Trial by Jury, 6/5/07, at 107-108). During its closing charge to the jury, moreover, the Court instructed it as follows with regards to the prior bad act evidence involving Ms. Johnson: Now, some basic principles of the law of evidence. You have heard evidence tending to prove that the defendant was guilty of improper conduct for which he is not on trial. I am speaking of the testimony of Kelley Johnson and the prior testimony of the defendant the prior sworn testimony of the defendant regarding Quaaludes. This evidence is before you for a limited purpose; that is, for the purpose of tending to show the absence of mistake and the defendant?s alleged common plan, scheme or design. This evidence must not be considered by you in any other way than for the purpose I just stated. You must not regard this evidence as showing the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt. Again, that is only the testimony of Kelley Johnson and the prior sworn testimony of the defendant regarding Quaaludes. (N.T. Trial by Jury, 6/ 12/17, at 196?197). 79 Provided that the Court, once again, gives the jury a cautionary instruction advising it of the limited purpose Of the prior bad acts evidence,2o defendant would not be able to establish unfair prejudice in light of the presumption that attaches to jury instructions. See Hairston, 84 A.3d at 666 (?nding other act evidence admissible where the trial court?s instruction on how the other act evidence should be considered minimized the likelihood that the evidence would in?ame the jury or cause it to convict defendant on an improper basis); see also Arlington, 86 A.3d at 845 (holding that the probative value of the prior bad acts evidence outweighed its prejudicial value where the court provided the jury with a comprehensive instruction informing it of the limited and narrow purpose for which the evidence was admitted); Boczkowski, 846 A.2d at 89 (limiting instruction weighing in favor of upholding admission of prior bad act evidence); Frank, 577 A.2d at 616?618 (holding that trial court admission of evidence of defendant?s prior sexual assault Of children under the common plan or scheme exception was proper where the assaults possessed a high degree of similarities and the court issued cautionary instructions); Tyson, 119 A.3d at 362 (same). B. THIS COURT SHOULD RECONSIDER ITS FEBRUARY 24, 2017, ORDER PRECLUDING THE COMMONWEALTH FROM INTRODUCING EVIDENCE PERTAINING TO 12 OF THE 13 PREVIOUSLY PROFFERED PRIOR BAD Ac'rs VICTIMS. To the extent that this Court views the Commonwealth?s current motion?at least as it pertains to the 12 prior bad acts witnesses the Court has previously deemed inadmissible?as a motion to reconsider its February 24, 20 The Commonwealth will, once again, request such an instruction. 80 2017, order, the Commonwealth seeks reconsideration of that order concurrent with its Motion to Introduce Evidence of 1 9 Prior Bad Acts of Defendant.21 To this end, as the Court is aware, of the 13 prior bad acts victims proffered in its earlier motion, the Court only permitted the Commonwealth to introduce evidence pertaining to ?Prior Victim Number Six,? who was later identified as Kelley Johnson. Signi?cantly, the prior bad acts involving Ms. Johnson are alleged to have occurred nearest in time to defendant?s alleged sexual assault of Ms. Constand. To the extent that the Court?s decision to exclude the evidence of the remaining 12 prior bad acts victims was, at least in part, due to the fact that the prior bad acts evidence involving Ms. Johnson was the nearest in time to the alleged sexual assault of Ms. Constand, the Commonwealth asks this Court to reconsider that decision because, in situations involving more than one prior bad act, the relevant time period is not the time period between each prior bad act and the current offense, but rather the time period between each prior bad act. In other words, the sequential nature of the prior bad acts must be considered. Moreover, in granting the Commonwealth?s prior bad acts motion with regard to Ms. Johnson, this Court sanctioned the Commonwealth?s two 21 As previously noted, the grant of a new trial ?wipes the slate clean? so that a prior ruling on the admissibility of evidence does not bind the court upon retrial. See Paddy, 800 A.2d at 311. As such, the Commonwealth is not technically seeking reconsideration of the Court?s earlier order, but instead is moving to admit this prior bad acts evidence on a clean slate. In any event, even if reconsideration is indeed the proper mechanism by which to revisit the admissibility of the 12 witnesses this Court previously deemed inadmissible, reconsideration should be granted for the reasons set forth in this memorandum, particularly those set forth infra, at 81?88. 81 proffered Pa. R.E. 404(b) exceptions: absence of mistake and common scheme, plan, or design. To the extent that this Court deemed the evidence pertaining to the remaining 12 prior bad act victims relevant under either of the two proffered exceptions (but deemed the evidence inadmissible, nonetheless, for whatever reason), the Court improperly limited the Commonwealth as to the particular evidence it could present to support its proffered exceptions. 1. This Court Must Consider the Sequential Nature Of the Prior Bad Acts. As previously noted, in conducting a remoteness analysis for purposes of the admissibility of prior bad acts evidence, the court should not consider each act in isolation and compared only to the current offense in determining the probative value; rather, the Court must consider the sequential nature of the prior bad acts. See Smith, 635 A.2d at 1089 (noting that the issue for remoteness under a prior bad act analysis ?is determined by analyzing the time involved between each of the criminal incidents?) (emphasis added); Odum, 584 A.2d at 955 (stating that refuse to consider the evidence entirely out of its sequential context, as appellant would require us to Conducting such an analysis necessarily entails an analysis of whether the evidence ?indicated a recurring sequence of acts by this [defendant] over a continuous span of time, as opposed to random and remote acts.? Smith, 635 A.2d at 1090 (citation omitted). Viewing the prior bad acts evidence proffered in the Commonwealth?s earlier prior bad acts motion in its sequential context reveals that defendant engaged in a recurring sequence of drug-induced sexual assaults over a 82 continuous span of time, during an almost 40?year period. While there was a several?year gap between a few of the instances, the majority of the assaults occurred within a two?year period of another assault, and several of the incidents even occurred within the same year of each other.22 See Commonwealth?s Motion to Introduce Evidence of Prior Bad Acts of Defendant, at 7?9, 29-40 (incidents involving Prior Victim Numbers Twelve and Thirteen occurring during the same year as each other and within two years of the incidents involving Prior Victim Numbers One and Ten); id. at 14?16, 22-24 (incidents involving Prior Victim Numbers Four and Seven occurring within a year of each other); id. at 14?16, 22-24 (incidents involving Prior Victim Numbers Four and Seven occurring within a year of each other); id. at 12?14, 17- 18 (incidents involving Prior Victim Numbers Three and Five occurring within a year of each other); id. at 9? 14, 32?35 (incidents involving Prior Victim Numbers Two, Three, and Eleven occurring within a two?year span).23 Thus, viewing the 13 prior bad acts proffered in the Commonwealth?s earlier prior bad acts motion in their proper sequential context?as opposed to in isolation and 22 Incidentally, as previously noted, the Commonwealth is seeking to admit evidence pertaining to six additional prior bad act witnesses, in addition to those proffered in its original motion. These currently proffered victims, coupled with the dozens of additional women who have come forward reporting similar drug-induced sexual assaults at the hands of defendant (but who are not being proffered by the Commonwealth as part of this motion), when viewed in their sequential context, further diminish the time periods between the incidents. See Odum, 584 A.2d at 955 (noting that ?there were additional incidents which were not submitted to the jury [that] would further act to reduce the time periods between incidents?). 23 The prior victims referenced in this paragraph refer to their designation in the Commonwealth?s earlier prior bad acts motion, ?led on September 6, 2016. 83 as compared only to the time of the assault of Ms. Constand?reveals that the evidence is part of a recurring sequence of acts by defendant over a continuous span of time, as opposed to random and remote acts. Even putting aside the sequential nature of the prior bad acts, the fact that the majority of defendant?s prior bad acts occurred more than a decade before the 2004 sexual assault of Ms. Constand does not mechanically render the prior acts inadmissible. In fact, the Superior Court has expressly cautioned that ?[?ocusing solely upon th[e] time lapse . . . is improper.? Luktisch, 680 A.2d at 878. Instead, remoteness is but a single factor to consider in determining the probative value of the other act evidence. Id. at 879. Moreover, the importance of the time gap is ?inversely proportional? to the similarities between the acts. Tyson, 119 A.3d at 359. Necessarily then, the more similar the acts, the less relevant is the remoteness of time between the acts. See Aikens, 990 A.2d 1181 at 1186 (?nding that although defendant?s abuse of prior victim occurred remotely to that in the current case before it, because the parallels between the two cases were ?Striking,? remoteness did not preclude admission). Indeed, courts in this Commonwealth have, on numerous occasions, found prior acts to be admissible despite delays between the prior acts and the current act where there were substantial similarities between the incidents. See, Smith, 635 A.2d at 1089 (incidents were 10 to 20 years apart but so strikingly similar that the signi?cance of the lapse in time was ?non-existent, or minimal at best?); Aikens, supra (admission of prior 15-year?old sex assault); Odum, supra (admission of 10-year?old sex assault); 84 Luktisch, supra (admission of 14-year-old sex assault); Commonwealth v. Patskin, 93 A.2d 704 (Pa. 1953) (admission of 17?year?old prior assault) Here, as discussed more fully supra, there are substantial similarities between the prior bad acts and the current case: defendant?s victims were all young women; there was a signi?cant age gap between defendant and his victims; each victim was in defendant?s presence because he invited her; defendant controlled the environment; defendant was alone with his victim when the assault occurred; defendant administered an intoxicant to each victim; each victim ingested the intoxicant and then became incapacitated; and defendant sexually assaulted each victim while she was unconscious. These similarities diminish the signi?cance of the time gap. See Aikens, 990 A.2d at 1 186. Accordingly, analyzing the time frames of the prior incidents in their proper sequential context and taking into account the striking similarities between the events reduces the importance of any time gap between the current offense and the prior bad acts. See Frank, 577 A.2d at 617 the degree of similarity in the details of each of the six experiences of these witnesses and the testimony of the victim . . . the relevancy of this evidence indicated a recurring sequence of acts by this [defendant] over a continuous span of time, as opposed to random and remote acts?); Odum, 584 at 953 (prior bad acts evidence admitted even though exceeded 10 years; ?refus[ing] to consider the evidence entirely out of its sequential context? and noting that the fact that additional incidents were not submitted would ?further act to reduce 85 the time periods between incidents?). The Commonwealth, therefore, asks this Court to reconsider, in part, its February 24, 2017, ruling to the extent that it was based on a ?nding of remoteness. 2. The Commonwealth has Discretion to Decide Which Relevant Prior Bad Acts Witnesses to Present at Trial. In granting the Commonwealth?s earlier prior bad acts motion with regard to Kelley Johnson, this Court sanctioned the Commonwealth?s two proffered Pa. R.E. 404(b) exceptions: absence of mistake and common scheme, plan, or design.24 Assuming the Court deemed the evidence pertaining to at least some of the remaining 12 prior bad acts victims relevant under the two proffered exceptions (but deemed the evidence inadmissible, nonetheless, for whatever reason), the Court improperly limited the Commonwealth as to the particular evidence it could present to support the proffered exceptions.25 This 24 Indeed, during defendant?s trial, the Court expressly advised the jury that the prior bad act evidence pertaining to Ms. Johnson was only to be considered by them to determine whether defendant engaged in a common scheme, plan, or design, or whether there was an absence of mistake (N.T. Trial by Jury, 6/5/17, at 107?108; N.T. Trial by Jury, 6/ 12/17, at 196?197). 25 A review of this Court?s February 24, 2017, order seems to indicate that the Court did, indeed, ?nd evidence of at least some of the prior bad acts victims to be relevant. To be sure, the Court expressly indicated that it conducted a ?careful balancing of the probative value of the other acts evidence and the prejudice to [d]efendant.? Order, dated Feb. 24, 2017 (O?Neill, .). Importantly, when conducting an analysis of the admissibility of evidence, a trial court does not proceed to a weighing of the probative value of the proffered evidence against its prejudicial impact until after it ?rst ?nds the evidence relevant. See Commonwealth 1). Johnson, 107 A.3d 52, 96 (Pa. 2014) have held that the trial court must decide ?rst if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect? (citing Commonwealth v. Hawk, 709 A.2d 373, 376 (Pa. see also Commonwealth v. Lilliock, 740 A.2d 236, 246 (Pa. Super. 1999) (noting that ?[o]nce the evidence is found to be (footnote continued on next page) 86 is so because once an exception has been established, as it was here, the Commonwealth ?must be given the opportunity to demonstrate the strength? of the exception ?through all available evidence.? Commonwealth v. Flamer, 53 A.3d 8, 87-88 (Pa. Super. 2012); see Paddy, 800 A.2d at 307?308. Indeed, is a fundamental precept of our criminal jurisprudence that the Commonwealth is entitled to prove its case by relevant evidence of its choosing.? Commonwealth v. Hicks, 91 A.3d 47, 55 (Pa. 2014) (emphasis added). Thus, while a trial court can limit how many cumulative witnesses can testify, ?it cannot dictate which of those witnesses the Commonwealth may call to prove its case.? Id. Paddy is instructive. There, the defendant was on trial for murdering a witness to a prior murder defendant had committed. Id. at 301. At trial, the Commonwealth was permitted to introduce extensive evidence of the earlier murder to establish motive pursuant to Pa. R.E. 404(b). Id. at 307. On appeal, defendant claimed that it was error to allow the extensive evidence of motive in at trial. The Supreme Court rejected this argument and held that the Commonwealth was required to be given an opportunity to demonstrate the strength of its Rule 404(b) evidence of motive. Id. at 307-08. relevant, it will be inadmissible only if its prejudicial value is substantially outweighed by the danger of unfair prejudice or confusion?); Henery v. Shadle, 661 A.2d 439 (Pa. Super. 1994) the trial court decides that evidence is relevant, it must also ?balance the probative value of the evidence against any prejudicial effect of that evidence?). Accordingly, in light of the fact that the Court actually conducted a weighing analysis, it ostensibly determined that some of the prior bad acts evidence was relevant. 87 Here, too, the Commonwealth should have been given an opportunity to demonstrate the strength of its Rule 404(b) evidence; in this case, common scheme, plan, or design, and absence of mistake or accident. To the extent that the Court deemed the proffered 404(b) evidence relevant, it is the Commonwealth, not the Court, who is to decide what evidence to present to demonstrate the strength of the proffered exceptions. See Hicks, 9 1 A.3d at 55 (noting that the Commonwealth is entitled to prove its case by relevant evidence of its choosing; while the trial court has the authority to limit the number of cumulative prior bad act witnesses, ?it cannot dictate which of those witnesses the Commonwealth may call to prove its case?); see also Flamer, 53 A.3d at 87-88 (noting that the Commonwealth ?must be given the opportunity to demonstrate the strength? of the exception ?through all available evidence? once a Rule 404(b) exception has been established). C. THE LAW OF THE CASE DOCTRINE DOES NOT APPLY TO THIS MOTION. The ?law of the case? doctrine does not bar this Court from revisiting the admissibility of the 12 prior bad acts victims that the Commonwealth proffered in its original prior bad acts motion, but the Court deemed inadmissible.26 The doctrine does not apply in the current procedural posture, where the trial court is being asked to revisit one of its own rulings. Instead, it applies only where a trial court is asked to reopen a legal question decided by another judge of that 26 Nor does the doctrine prohibit the Court from re?visiting the admissibility of the evidence pertaining to Kelley Johnson, for that matter. As previously discussed, however, there is no need to revisit the admissibility of the evidence pertaining to Ms. Johnson. The newly-proffered evidence and legal theories being advanced by the Commonwealth further con?rm the propriety of the Court?s earlier ruling regarding Ms. Johnson. 88 same court or by a higher court in an earlier phase of the matter. Even if the doctrine could be applied to a situation where a trial judge is asked to revisit his own earlier ruling, it is not, in any event, applicable here because the grant of a new trial ?wipes the slate clean?; as such, a ruling on the admissibility of evidence does not bind this Court upon retrial. Finally, even if the law of the case doctrine were otherwise applicable, there exist ?exceptional circumstances? warranting a re-opening of the question of the admissibility of the 12 prior bad acts. First, there is a substantial change in the facts and evidence. That is, the Commonwealth is proffering six additional prior bad acts victims?each of which needs to be considered along with the original prior bad acts victims in order to properly analyze the sequential nature of the prior bad acts. Second, there has been has been an intervening development in the law on prior bad acts evidence. To be sure, as discussed supra at 63?73, since the time of the Court?s original ruling, the Chief Justice of the Supreme Court has explicitly sanctioned the ?doctrine of chances? as being relevant to a prior bad acts analysis. Finally, a manifest injustice would occur if the Court?s prior ruling were to stand. This is so because it appears that the Court did not take into consideration the sequential nature of the prior bad acts in rendering its ruling. In addition, it appears as though the Court found evidence pertaining to at least some of the prior bad acts victims relevant but, nonetheless, decided for the Commonwealth which of the relevant witnesses would testify at trial. 89 1. The Applicable Legal Standards. When the Commonwealth is re-prosecuting a defendant subsequent to the granting of a motion for a mistrial, the general rule is that ?the proceedings revert to a pretrial status as though the original ?trial had never occurred.?? Commonwealth v. Mulholland, 702 A.2d 1027, 1035-36 (Pa. 1997) (citing Commonwealth v. James, 486 A.2d 376, 379 (Pa. 1985)). A prior court?s ruling on the admissibility of evidence generally does not bind a new court upon retrial. Paddy, 800 A.2d at 31 1 (citing Commonwealth v. Hart, 387 A.2d 845, 847 (Pa. 1978)). This is so because ?the grant of a new trial ?wipes the slate clean.? Paddy, 800 A.2d at 31 1 (citing Mulholland, 702 A.2d at 1035-36). Indeed, as our Supreme Court has long held: When a court grants a new trial, the necessary effect is to set aside the prior judgment and leave the case as though no trial had been held. . . . By the operation of an order granting a new trial, the cause, in contemplation of law, is precisely in the same condition as if no previous trial had been held. Hart, 387 A.2d at 847. Not all of an original pre-trial trial court?s rulings are subject to relitigation, however. Instead, legal questions determinative of the ?law of the case? should not be revisited. Mulholland, 702 A.2d at 1036 (citing Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)). The core of the law of the case doctrine is that ?a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter.? Starr, 664 A.2d at 90 1331 (citation omitted) (emphasis added). The Supreme Court has delineated the ?related but distinct? rules which make up the law of the case doctrine as follows: (1) upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by the appellate court in the matter; (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court; and (3) upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court. Id.27 Importantly, ?[t]he law of the case doctrine does not require prophylactic application.? Commonwealth v. Santiago, 822 A.2d 716, 724 (Pa. Super. 2003); see Commonwealth v. McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005) (noting that under law, the law of the case doctrine does not have an absolute preclusive effect). Rather, departure from the law of the case doctrine is allowed in ?exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed.? Santiago, 822 A.2d at 724 (citing Starr, 664 A.2d at 1332); see Musumeci v. 27 Traditional application of the law of the case doctrine in was limited to those cases in which an appellate court considered and decided a question submitted to it upon appeal. In Starr, however, the law of the case doctrine was extended to decisions made by courts of coordinate jurisdiction. That rule, put simply, states that ?judges of coordinate jurisdiction should not overrule each other?s decisions.? Zane 1). Friends Hospital, 836 A.2d 25, 29 (Pa. 2003) 91 Penn?s Landing Corporation, 640 A.2d 416, 419 (Pa. Super. 1994) (noting that the coordinate jurisdiction rule applies in all cases except where newly- discovered evidence or newly?developed legal authority compel a result different than that reached by the ?rst judge). 2. The Commonwealth is Not Asking This Court to Reopen a Ruling Made by a Court of Coordinate Jurisdiction or a Ruling Made by an Appellate Court. As noted, the law of the case doctrine provides that ?a court acting at a later stage of a case should not reopen questions decided at an earlier stage by another judge of the same court or by a higher court. Starr, 664 A.2d at 1331 (citation omitted) (emphasis added); Paddy, 800 A.2d at 311. Here, we are not presented with a situation in which a different judge on the bench of the Court of Common Pleas of Montgomery County ruled on the Commonwealth?s earlier prior bad acts motions, nor are we presented with a situation in which an appellate court rendered a ruling on the Commonwealth?s earlier motion. Instead, we are faced with a situation in which the same judge who ruled on the Commonwealth?s earlier prior bad acts motion is being asked to rule on its current prior bad acts motion. The law of the case doctrine does not apply to such a situation. See Starr, 664 A.2d at 1331 (noting that the law of the case doctrine prohibits a court from ?reopen[ing] questions decided at an earlier stage by another judge of the same court or by a higher court?) (emphasis added); see also Commonwealth 1). AG, 955 A.2d 1022, 1024 (Pa. Super. 2008) (?nding that the preclusion order for the Commonwealth?s discovery Violation that resulted in the dismissal of a juvenile petition by a court of common pleas 92 judge was not binding under the law of the case doctrine because the judge who rendered the ruling the second time around was the same judge who rendered the initial ruling); c? Santiago, 822 A.2d at 727 (?nding that the trial court abused its discretion in not applying the law of the case doctrine on a suppression motion that another judge of coordinate jurisdiction already denied on identical grounds); McCandless, 880 A.2d at 1270 (?nding that the trial court erred in revisiting the merits of a defendant?s motion in limine where the issue was previously decided by the Superior Court and, thus, the law of the case doctrine precluded the trial court from revisiting the issue). 3. The Grant of a New Trial ?Wipes the Slate Clean? for Purposes of Rulings on the Admissibility of Evidence. Even if defendant was able to establish that the law of the case doctrine could apply to a situation where the judge who rendered the original ruling is being asked to revisit his own the ruling, it still would not apply here because trial courts are permitted to revisit evidentiary rulings following the grant of a new trial. See Paddy, 800 A.2d at 311 (noting that a prior court?s ruling on the admissibility of evidence generally does not bind a new court upon retrial because the grant of a new trial ?wipes the slate clean?). Paddy is illustrative. There, the trial court granted the defendant?s motion in limine to preclude statements made by a homicide victim before her death regarding threats made to her; it denied the motion regarding the victim?s statement identifying the defendant as the perpetrator of an earlier shooting. Id. at 301-02. The defendant?s trial ended in a mistrial after the jury 93 was unable to render a verdict. Id. at 302. The defendant?s case then proceeded before a new judge. Prior to the second trial, although defense counsel ?led a motion in limine regarding the victim?s statement, he did not seek to preclude the statement on the basis of the victim?s fear of the defendant; the Commonwealth presented this evidence at the defendant?s second trial. Id. A jury later convicted the defendant of ?rst-degree murder. Id. at 303. The defendant appealed his conviction. He claimed, inter alia, that counsel was ineffective for failing to move to exclude the victim?s entire statement, because the trial court?s exclusion of certain statements in the ?rst trial precluded their admission in the second trial pursuant to the law of the case doctrine. Id. at 309. The Superior Court rejected the defendant?s law of the case claim, concluding: ?Because the grant of a new trial ?wipes the slate clean,? so that a previous court?s ruling on the admissibility of evidence generally does not bind a new court upon retrial, it is not evident that the [law of the case] doctrine applies. in this present procedural posture.? Id. at 31 1. The instant case is in almost the exact same procedural posture as Paddy. In fact, the only distinction in the procedural posture is that in the instant case, the same judge is being asked to revisit his earlier evidentiary ruling, whereas in Paddy, a different judge was asked to revisit the earlier evidentiary ruling of another judge. If the law of the case was found to be inapplicable in Paddy, despite the fact that a judge overruled another judge 94 with coordinate jurisdiction, then it is even more compellingly inapplicable here, where this Court is being asked to revisit his own prior ruling. 4. There Exist ?Exceptional Circumstances? Warranting Departure from the Law of the Case Doctrine. Finally, even if the law of the case doctrine were otherwise applicable to this Court?s previous ruling regarding the Commonwealth?s original prior bad acts motion, exceptional circumstances exist warranting departure from the doctrine. As previously noted, the law of the case doctrine does not have an absolute preclusive effect. McCandless, 880 A.2d at 1268. Rather, assuming the law of the case doctrine is otherwise applicable, departure from the doctrine is, nonetheless, permitted in ?exceptional circumstances? such as where there has been a substantial change in the facts or evidence underlying the issue, an intervening change in the controlling law, or where the prior holding was ?Clearly erroneous and would create a manifest injustice if followed.? Santiago, 822 A.2d at 724 (citing Starr, 664 A.2d at 1332). Here, there is a substantial change in the facts and evidence underlying the Commonwealth?s original motion, speci?cally, the number of prior bad acts witnesses being proffered by the Commonwealth. In its earlier motion, the Commonwealth proffered 13 prior victims; in the current motion, the Commonwealth is proffering six additional victims. Thus, the originally? proffered prior bad acts victims must now be considered by this Court in conjunction with the six newly?proffered prior bad acts victims. 95 These additional six victims signi?cantly alter the landscape of the original prior bad acts motion because, as discussed supra at 82?85, this Court must view the prior bad acts in their sequential context. See Smith, 635 A.2d at 1089; see also Odum, 594 A.2d at 955. Viewing the originally?proffered prior bad acts victims in conjunction with the newly?proffered prior bad acts victims substantially changes the facts and evidence underlying the Commonwealth?s original motion because it decreases the timeframe between incidents and, in turn, decreases the signi?cance of any remoteness. Moreover, there has been an intervening development in the law on prior bad acts evidence since this Court issued its February 24, 2017, order. As discussed more fully supra at 63-73, on March 28, 2017, approximately one month after the Court?s ruling, the Supreme Court issued its decision in Hicks, in which the Chief Justice of that Court, in his concurring opinion, expressly sanctioned the ?doctrine of chances? as a basis for analyzing prior bad acts evidence, particularly with regard to a purported absence of mistake. Id. at 132?137 (Saylor, C.J., concurring). Analyzing the prior bad acts evidence under this legal theory?which was not expressly endorsed by the Chief Justice of the Supreme Court until after this Court?s original ruling?would likely change the outcome of the Court?s original prior bad acts motion. This is so because it demonstrates ?the objective improbability of so many accidents befalling . . . defendant or . . . defendant becoming innocently enmeshed in suspicious circumstances so frequently.? Hicks, 156 A.3d at 1132 (Saylor, C.J., concurring). 96 Finally, the prior ruling would potentially result in a ?manifest injustice if followed? in the event that the Court, in its earlier ruling, failed to take into consideration the sequential nature of the prior bad acts evidence. This is so because the law requires it to do so. See, e. 9., Smith, 635 A.2d at 1089 (noting that a prior bad acts analysis regarding remoteness ?is determined by analyzing the time involved between each of the criminal incidents?) (emphasis added). The prior ruling would also potentially result in a ?manifest injustice if followed? in the event that the Court, in its earlier ruling, found more than one prior bad acts witness relevant but, nonetheless, chose for the Commonwealth which of these relevant witnesses could testify. This is so because once a prior bad acts exception has been established, the Commonwealth ?must be given the opportunity to demonstrate the strength? of the exception ?through all available evidence.? See Flamer, 53 A.3d at 87?88; see also Hicks, 91 A.3d at 55 (noting that the Commonwealth is entitled to prove its case by relevant evidence of its choosing; while the trial court has the authority to limit the number of cumulative prior bad act witnesses, ?it cannot dictate which of those witnesses the Commonwealth may call to prove its case?). Accordingly, even if the law of the case doctrine were otherwise applicable to this Court?s earlier prior bad acts ruling (it is not), there exist exceptional circumstances warranting deviation from the doctrine. 97 V. CONCLUSION WHEREFORE, the Commonwealth respectfully requests that this Court grant the Commonwealth?s Motion to Introduce Evidence of 19 Prior Bad Acts of Defendant. RESPECTFULLY SUBMITTED 2 KEVIN R. STEELE DISTRICT ATTORNEY 98 VERIFICATION 1, Kevin R. Steele, District Attorney of Montgomery County, declare under penalty of perjury that the statements herein are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. 08. 4904, relating to unsworn falsification to authorities. Cm KEVIN R. STEELE DISTRICT ATTORNEY PUBLIC ACCESS POLICY CERTIFICATION I, Kevin R. Steele, District Attorney of Montgomery County, certify that this ?ling complies with the provisions of the Public Access Policy of the Uniform Judicial Systems of Case Records of the Appellate and Trial Courts that require ?ling con?dential information and documents differently than non-con?dential information and documents. KEVIN R. STEELE DISTRICT ATTORNEY CERTIFICATE OF SERVICE 1, Kevin R. Steele, District Attorney of Montgomery County, being duly sworn according to law, depose and say that a true and correct copy of the Commonwealth?s Memorandum of Law in Support of its Motion to Introduce Evidence of 1 9 Prior Bad Acts of Defendant was delivered to following: VIA EMAIL AND MAIL: PERSONAL SERVICE: Samuel W. Silver, Esquire The Honorable Steven T. O?Neill 1600 Market Street, Suite 3600 Judicial Chambers Philadelphia, PA 19103 Montgomery County Courthouse Norristown, PA 19404 Kathleen Bliss, Esquire Kathleen Bliss Law 1070 W. Horizon Ridge Parkway Suite 202 Henderson, NV 89012 Thomas Mesereau, Esquire Mesereau Law Group 10100 Santa Monica Blvd. Suite 300 Los Angeles, CA 90067 KEVIN R. STEELE DISTRICT ATTORNEY Date: l? lq?Z/Olc? lazuuv 81 .. . -. -: 30 N003 Ali