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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 42 of 80 five prior bad acts witnesses established a “predictable pattern” that reflected Cosby's “unique sexual assault playbook.” Cosby, 224 A.3d at 402. Accordingly, the panel concluded that the witnesses’ testimony was admissible to show Cosby’s common plan, scheme, or design. The Superior Court further agreed with the trial court that the prior bad acts evidence was admissible to demonstrate the absence of mistake on Cosby’s part as to Constand’s consent. The court concluded that Tyson’s rationale was applicable to the instant case. The court rejected Cosby’s efforts to distinguish Constand’s allegations from those dating to the 1980s. Cosby emphasized the fact that the relationship between Cosby and Constand lasted longer than his relationship with any of the prior bad acts witnesses, that Constand was a guest at Cosby’s home on multiple occasions, that Cosby and Constand had exchanged gifts, that Cosby had made prior sexual advances toward Constand, that the nature of the sexual contact differed among the alleged victims, and that the alleged prior assaults occurred in hotel rooms or at the home of a third party, while the incident with Constand occurred in Cosby’s home. /d. at 401-02. The Superior Court dismissed these apparent dissimilarities as unimportant, opining that “ijt is impossible for two incidents of sexual assault involving different victims to be identical in allrespects.” /d. at 402. The court added that it would be “simply unreasonable” to require two incidents to be absolutely identical in order to be admissible under Rule 404(b), and concluded that “[i]t is the pattern itself, and not the mere presence of some inconsistencies between the various assaults, that determines admissibility under these exceptions.” /d. As to the temporal gap between the prior bad acts and the incident involving Constand, the Superior Court acknowledged that, even if the evidence were otherwise admissible under Rule 404(b), it “will be rendered inadmissible if it is too remote.” /d. at 405 (quoting Commonwealth v. Shively, 424 A.2d 1257, 1259 (Pa. 1981)). The panel [J-100-2020] - 41 DOJ-OGR-00004854