DOJ-OGR-00004855.jpg

Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 43 of 80 agreed with the trial court’s statement that the significance of the age of a prior bad act is “inversely proportional” to the similarity between the prior bad act and the facts underlying the charged offense. /d. (quoting Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010)). Although the panel recognized the significant lag in time between the events in question, it relied upon the similarities as found by the trial court to conclude that “the at-issue time gap is relatively inconsequential.” /od. “Moreover,” the panel opined, “because [Cosby’s] identity in this case was not in dispute (as he claimed he only engaged in consensual sexual contact with [Constand]), there was no risk of misidentification” through the admission of the prior bad acts evidence, “despite the gap in time.” /d. Additionally, the Superior Court rejected Cosby’s contention that the trial court had failed to weigh adequately the prejudicial impact of the prior bad acts evidence. The panel highlighted the fact that the trial court provided the jury with cautionary instructions on the use of the evidence, as well as that court’s decision to limit the number of prior bad acts witnesses to five. These steps, in the Superior Court’s view, were sufficient to mitigate the prejudicial impact of the evidence. /d. The Superior Court dealt separately with Cosby’s Rule 404(b) challenge to the use of his deposition testimony regarding his provision of Quaaludes to women in the past. The court rejected Cosby’s “attempts to draw a hard distinction between Quaaludes and Benadryl,” and noted that “the jury was free to disbelieve [Cosby’s] assertion that he only provided [Constand] with Benadryl.” /d. at 420. The court credited the Commonwealth’s argument that Cosby’s familiarity with Quaaludes was suggestive of his mens rea, inasmuch as it was “highly probative of ‘the circumstances known to him for purposes of determining whether he acted with the requisite mens rea for the offense of aggravated indecent assault—recklessness.” /d. (quoting Pa.R.E. 404(b)(2)). Moreover, Cosby’s “knowledge of the use of central nervous system depressants, coupled with his likely past [J-100-2020] - 42 DOJ-OGR-00004855