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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 41 of 80 told Tyson to stop, and he complied. But, when she fell asleep a second time, he resumed the uninvited sexual contact. Tyson was arrested and charged with sex-related offenses. Id. Before trial, the Commonwealth sought to introduce evidence of a rape for which Tyson had been convicted in Delaware twelve years earlier. /d. The Delaware offense involved a victim of the same race and of a similar age as the victim in Tyson. Id. The Delaware victim similarly was casually acquainted with Tyson, invited Tyson into her home, was in a compromised state, and awoke to find Tyson engaged in vaginal intercourse with her. /d. at 357. The trial court declined to admit the Rule 404(b) evidence against Tyson. /d. at 356. On interlocutory appeal, the Superior Court reversed the trial court’s decision, finding that the proffered evidence was admissible. /d. at 363. The court reasoned that the “relevant details and surrounding circumstances of each incident further reveal criminal conduct that is sufficiently distinctive to establish [that Tyson] engaged in acommon plan or scheme.” /d. at 360.'° Notably, the Tyson Court found the twelve-year gap between Tyson’s Delaware conviction and the offense at issue to be “less important” when compared to the strength of the similarities between the crimes. /d. at 361. With Tyson in mind, the Superior Court turned its attention to the case sub judice. Based upon the similarities between Constand’s allegations and those of Cosby’s other accusers identified by the trial court, the Superior Court agreed that the accounts of the be The en banc majority opinion in Tyson was authored by then-President Judge Gantman and joined by then-Judge Mundy, President Judge Emeritus Ford Elliott, and Judges Panella, Shogan, and Olson. Then-Judge Donohue dissented, joined by President Judge Emeritus Bender and Judge Ott, opining that the majority “overemphasize[d] the few similarities that exist between Tyson’s prior rape conviction and the present matter while completely dismissing the several important differences between the two incidents.” Tyson, 119 A.3d at 363 (Donohue, J., dissenting). The dissent further disputed the en banc majority’s reliance upon the need for the prior bad acts evidence “to bolster the credibility of the Commonwealth’s only witness where there is no indication that the witness is otherwise impeachable.” /d. at 364. [J-100-2020] - 40 DOJ-OGR-00004853