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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 40 of 80 in prison. Cosby was denied bail pending an appeal. He filed post-sentence motions seeking a new trial and a modification of his sentence, which were denied. Cosby timely filed a notice of appeal, prompting the trial court to order him to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Cosby complied. On May 14, 2019, the trial court responded to Cosby’s concise statement with its opinion, issued pursuant to Pa.R.A.P. 1925(a). A unanimous panel of the Superior Court affirmed the judgment of sentence in all respects. Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019). The Superior Court began by assessing Cosby’s challenge to the admissibility of the prior bad acts evidence under Rule 404(b). The panel observed that a reviewing court must evaluate the admission of evidence pursuant to the abuse-of-discretion standard. /d. at 397. Addressing the trial court’s rationale regarding the admissibility of prior bad acts evidence demonstrating a common plan, scheme, or design, the panel noted that the exception aims to establish a perpetrator’s identity based upon “his or her commission of extraordinarily similar criminal acts on other occasions. The exception is demanding in it{s] constraints, requiring nearly unique factual circumstances in the commission of a crime, so as to effectively eliminate the possibility that it could have been committed by anyone other than the accused.” /d. at 398 (citing Commonwealth v. Miller, 664 A.2d 1310, 1318 (Pa. 1995)). Although the common plan, scheme, or design rationale typically is used to establish the identity of a perpetrator of a particular crime, the Superior Court pointed out that courts previously have also used the exception “to counter [an] anticipated defense of consent.” /d. (quoting Tyson, 119 A.3d at 361). In Tyson, Jermeel Omar Tyson brought food to his victim, who was feeling ill. Tyson, 119 A.3d at 356. While Tyson remained in the residence, the victim fell asleep. When she awoke some time later, Tyson was having vaginal intercourse with her. She [J-100-2020] - 39 DOJ-OGR-00004852