Montgomery County Clerk of Courts Received 4/7/2018 6:23 PM

Montgomery County Clerk of Courts Filed 4/7/2018 6:23 PM

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,

PENNSYLVANIA – CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :
:
v. : NO. CP-46-CR-0003932-2016
:
WILLIAM H. COSBY, JR. :

DEFENDANT’S MOTION IN LIMINE TO INTRODUCE PRIOR CRIMINAL

CONVICTION OF PRIOR BAD ACT WITNESS #17

Mr. Cosby respectfully moves in limine to admit a prior conviction of Prior Bad Acts

Witness #17 (“PBA Witness”) pursuant to Pennsylvania Rule of Evidence 609 to impeach her

credibility should she testify at trial.

RELEVANT BACKGROUND

On March 15, 2018, this Court ruled that five of nineteen prior bad act accusers proffered

by the Commonwealth for admission pursuant to Pennsylvania Rule of Evidence 404(b) would

be allowed to testify, subject to a determination of cumulativeness to be made by the Court

during trial. On March 19, 2018, the Commonwealth identified which prior bad act accusers it

would call at trial. One of those individuals is PBA Witness #17.

Throughout the course of these proceedings, the Commonwealth has turned over

discovery relating to PBA Witness #17, including criminal history reports reflecting that PBA

Witness #17 has the following criminal conviction:

• August 22, 2007: PBA Witness #17 pled guilty to making a false report to law
enforcement, a misdemeanor, in violation of Arizona Revised Statute § 13-
2907.01(A). (Bates No. 004175.)

On March 30, 2018, the Commonwealth listed PBA Witness #17 as a witness it may call

at trial on the witness list disclosed to this Court and the defense.
 On April 5, 2018, the defense provided notice in writing to the Commonwealth stating its

intention to introduce PBA Witness #17’s prior criminal conviction should she be called to

testify at trial.

Given the Commonwealth’s demonstrated intention of calling PBA Witness #17 as a

witness in Mr. Cosby’s retrial, the defense intends to introduce PBA Witness 17’s prior criminal

conviction for making a false statement to law enforcement pursuant to Pennsylvania Rule of

Evidence 609. 1

DISCUSSION

Pennsylvania Rule of Evidence 609(a) provides that crimes involving dishonesty or false

statement must be admitted at trial to attack a witness’s credibility: “[f]or the purpose of

attacking the credibility of any witness, evidence that the witness has been convicted of a crime,

whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved

dishonesty or false statement.” Pa. R. Evid. 609(a). As the Pennsylvania Supreme Court has

explained, the purpose of the rule is to “accommodate the competing interests of full disclosure

and fairness[.]” Commonwealth v. Randall, 528 A.2d 1326, 1328 (Pa. 1987). The only limit that

the Pennsylvania Rules of Evidence place on the admission of prior criminal convictions is that

if “more than 10 years have passed since the witness’s conviction or release from confinement

for it, whichever is later,” evidence of a criminal conviction is only admissible if: “(1) its

probative value substantially outweighs its prejudicial effect; and (2) the proponent gives the

1
PBA Witness #17 appears to have a criminal conviction for theft, but the defense does
not presently anticipate seeking to introduce that conviction. PBA Witness #17 also has a
previous conviction for prostitution. The defense reserves the right to introduce other
convictions pursuant to Pennsylvania Rule of Evidence 609 if it discovered that PBA Witness
#17 used false statement or dishonesty to facilitate commission of those other offenses. See
Commonwealth v. Davis, 17 A.3d 390, 396 (Pa. Super. 2011) (“if the crime is not inherently
crimen falsi, this Court then inspects the underlying facts that led to the conviction to determine
if dishonesty or false statement facilitated the commission of the crime”).
2
opposing party reasonable written notice of its intent to use such evidence so that the opposing

party may contest its use.” Pa. R. Evid. 609(b).

Here, PBA Witness #17 has a criminal conviction for making a false report to law

enforcement which qualifies as crimen falsi, or a crime involving dishonesty and/or false

statement. Though this crime is barely more than 10 years old, its probative value substantially

outweighs its prejudicial effect, and therefore should be admitted pursuant to Rule 609 to

impeach PBA Witness #17’s credibility should she testify at trial.

I. PBA Witness #17’s Prior Criminal Conviction for Making a False Report Qualifies
as a Crime Involving Dishonesty and/or False Statement

As the Pennsylvania Supreme Court has explained, crimes involving dishonesty or false

statement, otherwise known as crimen falsi, “involve[] the element of falsehood, and include[]

everything which has a tendency to injuriously affect the administration of justice by the

introduction of falsehood and fraud.” Commonwealth v. Casardo, 981 A.2d 245, 253 (Pa. Super.

2009) (citing Commonwealth v. Jones, 5 A.2d 804, 805 (1939)). In Casardo, for example, the

Pennsylvania Superior Court found that the defendant’s prior criminal convictions for witness

tampering and collection of credit extensions by extortionate means were both crimen falsi, and

therefore that the lower court properly granted the Commonwealth’s motion in limine allowing

such evidence at trial. Id. Though the defendant argued that his prior criminal conviction for

witness tampering did not qualify as a crime involving dishonesty or false statement, the

Superior Court found that the offense “by definition, involves dishonesty directly affecting the

administration of justice. As such, tampering with a witness … is a crimen falsi.” Id. at 255.

Here, on August 22, 2007, PBA Witness #17 pled guilty to making a “false, fraudulent or

unfounded report or statement or knowingly misrepresenting a fact for the purposes of

interfering with the orderly operation of a law enforcement agency or misleading a police

3
officer” in violation of Arizona Revised Statute § 13-2907.01, which is a class 1 misdemeanor.

(See Exhibit 1.) Arizona Revised Statute § 13-2907.01(A) provides that “[i]t is unlawful for a

person to knowingly make to a law enforcement agency of either this state or a political

subdivision of this state a false, fraudulent or unfounded report or statement or to knowingly

misrepresent a fact for the purpose of interfering with the orderly operation of a law enforcement

agency or misleading a peace officer.” Like the witness tampering offense in Casardo, the

nature of the PBA Witness #17’s offense involved a false statement for the purposes of

interfering with the orderly operation of law enforcement or the administration of justice. See

Commonwealth v. Fisher, 809 A.2d 348, 420 (Pa. 2002) (“At common law, crimen falsi referred

to any crime ... affecting the administration of justice.”). Accordingly, the Court should find that

this offense constitutes a crimen falsi, admissible pursuant to Pennsylvania Rule of Evidence

609.

II. The Probative Value of PBA Witness #17’s Criminal Conviction Exceeding 10 Years
of Age Substantially Outweighs its Prejudicial Effect

In assessing the probative value on balance with the prejudicial effect of introduction of

PBA Witness #17’s prior criminal conviction, the Pennsylvania Supreme Court has laid out the

following factors for determining the admissibility of a conviction more than 10 years old for

impeachment purposes:

(1) the degree to which the commission of the prior offense reflects upon the
veracity of the defendant-witness; (2) the likelihood, in view of the nature and
extent of the prior record, that it would have a greater tendency to smear the
character of the defendant and suggest a propensity to commit the crime for which
he stands charged, rather than provide a legitimate reason for discrediting him as
an untruthful person; (3) the age and circumstances of the defendant in
committing the prior offense; (4) the strength of the prosecution’s case and the
prosecution’s need to resort to this evidence as compared with the availability to
the defense of other witnesses through which its version of the events surrounding

4
 the incident can be presented; and (5) the existence of alternative means of
attacking the defendant’s credibility. 2

See Randall, 528 A.2d at 1328; Palo, 24 A.3d at 1056 (applying the same factors in considering

probative value versus prejudicial effect of prior conviction for a witness, and finding that

witness’s criminal conviction from 18 years before was properly admitted into evidence by the

trial court); Commonwealth v. Harris, 884 A.2d 920, 925 (Pa. Super. 2005) (admitting evidence

of defendants’ prior convictions for burglary and robbery even though trial commenced 20 years

after the conviction and 10 years after the date of the defendant’s release from confinement for

the offenses); Casardo, 981 A.2d at 255 (finding introduction of defendant’s prior offenses to be

admissible should he testify even though trial on crime charged started 16 years after offenses

were committed and 14 years from the defendant’s release from confinement). Here, though

PBA Witness #17’s conviction for making a false report to law enforcement is more than 10

years old, its probative value as to PBA Witness #17’s veracity in accusing Mr. Cosby of sexual

assault substantially outweighs its prejudicial effect, and therefore should be found admissible

pursuant to Rule 609(b).

A. The Probative Value Substantially Outweighs Any Prejudicial Effect

On one side of the balance, PBA Witness #17’s criminal conviction is highly probative of

her veracity as well as her motive to falsely accuse Mr. Cosby of sexual assault. In Casardo, for

example, the Pennsylvania Superior Court found that Factors #1, 2, 3, and 5 all favored

admission of the offenses even though they were more than 10 years old because they bore on

the veracity of the defendant’s potential testimony, they were committed while the defendant was

an adult, and because there was not an adequate alternative to impeach the defendant’s

2
Because PBA Witness #17 is not a defendant in this action, these factors do not neatly
fit the circumstances of this case.
5
credibility. 981 A.2d at 255-56. Factor #4 was the most important to the Superior Court’s

analysis because the defendant’s conviction of the crime charged would turn on credibility – his

versus the credibility of a witness. Id. at 256.

Palo is similar. There, the defendant was charged and tried for burglary based on

incriminating statements he made to his former girlfriend, who testified for the prosecution. 24

A.3d at 1052-53. To rebut the charges, the defendant called his mother as an alibi witness. Id.

To impeach the mother’s testimony, the Commonwealth sought to introduce the mother’s own

conviction from 18 years before for criminal conspiracy to commit robbery and other crimes. Id.

at 1054. Because the Superior Court found that the defendant’s conviction would turn upon the

credibility of witnesses for the prosecution and the defense, the court admitted the mother’s prior

criminal conviction even though it was 18 years old. Id. at 1057.

Here, the factors weigh in favor of admissibility. As to Factor #1, PBA Witness #17’s

criminal conviction for making a false statement to law enforcement bears on her veracity in

claiming that Mr. Cosby sexually assaulted her. As a threshold matter, PBA Witness #17 has a

financial motive to falsely accuse Mr. Cosby of sexual assault. She, notably, is represented by an

attorney who has publicly called for Mr. Cosby to set $100 million aside to compensate his

alleged victims. PBA Witness #17 would be a beneficiary of any such payout. Knowing that

PBA Witness #17 has previously made a false report to law enforcement may bear on a jury’s

assessment of the veracity of her claims of sexual assault.

As to Factor #2, while not directly applicable because PBA Witness #17 is not the

defendant, the prior conviction does not “smear” her or lead to an impermissible inference of

propensity. The prior conviction does not bear on the substance of PBA Witness #17’s

testimony, as it does not relate to sexual conduct. Finally, PBA #17 is no stranger to the law, as

6
she has at least one prior conviction for prostitution. The conviction at issue here – making a

false statement – is, however, highly probative of PBA Witness #17’s credibility, as it involves

making a false police report.

As to Factor #3, PBA Witness #17 was a 39 year old adult when she was convicted of

making a false report to law enforcement. Because PBA Witness #17 was an adult when the

offense was committed, they should be admissible to impeach her credibility.

Regarding Factor #4, similar to Casardo and Palo, any conviction of Mr. Cosby for the

alleged sexual assault of Ms. Constand will turn on credibility since there are no eyewitnesses or

other direct evidence bearing on Mr. Cosby’s guilt or innocence for the crime charged. Where,

as here, a conviction turns on credibility, the need to introduce evidence pertaining to a witness’s

credibility is high. See Palo, 24 A.3d at 1057. Thus, just as in Palo, Mr. Cosby must be allowed

to challenge PBA Witness #17’s credibility since it will affect the believability of Rule 404(b)

evidence showing that Mr. Cosby operated pursuant to a common scheme or plan and/or was not

mistaken as to Ms. Constand’s consent on the night in question.

As to Factor #5, Mr. Cosby does have alternative ways of attacking Ms. Constand’s

credibility, but he lacks any other way of attacking the credibility of Rule 404(b) witnesses apart

from cross-examination given the vagueness and remoteness of their claims. As the

Pennsylvania Supreme Court recognized in Commonwealth v. Fortune, establishing a defense to

criminal charges includes rebutting Rule 404(b) evidence. 346 A.2d 783, 787 (Pa. 1975).

Indeed, as the defense has previously raised, Mr. Cosby lacks an adequate means of defending

himself against the uncharged and uncorroborated allegations of sexual assault made by these

prior bad acts witnesses given the age and vagueness of their claims. To deny Mr. Cosby the

ability to cross examine PBA Witness #17 deprives Mr. Cosby of his Sixth Amendment rights to

7
meaningfully cross-examine witnesses brought against him, and of his right to establish a

defense. Accordingly Factor #5 weighs in favor of admissibility.

B. The Prejudicial Effect of PBA Witness #17’s Prior Offense Is Minimal

On the other side of the balance, the prejudicial effect, if any, is minimal. To the extent

that the Commonwealth argues that the age of the offense in some way prejudices the

Commonwealth, as a threshold matter, it should be noted that the 2007 conviction is only slightly

outside of the 10-year period. Courts have routinely admitted crimes that are far older to

impeach a witness’s credibility. See, e.g., Harris, 884 A.2d at 925 (admitting offenses that were

20 years old from the commission of the offense to the date of trial and 10 years old from the

defendant’s release from confinement); Palo, 24 A.3d at 1057 (introduction of crime committed

18 years prior to trial to impeach witness’s credibility was not error); Casardo, 981 A.2d at 255

(introduction of crimes that were committed 16 years prior to trial and 14 years prior to release

from confinement was not error).

Moreover, it would be ironic for the Commonwealth to assert that PBA Witness #17’s

criminal conviction is too remote to be probative when her allegations of uncharged and

uncorroborated conduct against Mr. Cosby long predate her conviction, as does the conduct with

which Mr. Cosby is charged in this case. Accordingly, the prejudicial effect, if any, of PBA

Witness 17’s prior offense is substantially outweighed by its probative value.

C. The Defense Has Provided Advance Notice of Its Intent to Use PBA Witness
17’s Prior Criminal Conviction

Pennsylvania Rule of Evidence 609 requires that the proponent provide notice of intent to

use a witness’s prior conviction to impeach their credibility. Pa. R. Evid. 609(b). The defense

provided notice to the Commonwealth of its intent to use PBA Witness #17’s prior conviction on

April 5, 2018, and therefore has fulfilled this requirement.

8
 CONCLUSION

For the foregoing reasons, Mr. Cosby respectfully moves this Court pursuant to

Pennsylvania Rule of Evidence 609 to allow the admission of PBA Witness #17’s prior criminal

conviction for making a false statement to police should she be called as a witness to testify at

trial.

Dated: April 7, 2018 Respectfully submitted,

By: /s/ Lane L. Vines

Lane L. Vines (Pa. Bar No. 80854)
BERGER & MONTAGUE, P.C.
1622 Locust St.
Philadelphia, PA 19103
Tel.: 215-875-4658

Thomas Mesereau, Jr. (pro hac vice)

MESEREAU LAW GROUP
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Tel.: 310-651-9960

Kathleen Bliss (pro hac vice)

Jason Hicks (pro hac vice)
KATHLEEN BLISS LAW PLLC
1070 W. Horizon Ridge Pkwy., Suite 202
Henderson, NV 89012
Tel.: 702-463-9074

Becky S. James (pro hac vice)

Jaya C. Gupta (pro hac vice)
Rachael A. Robinson (pro hac vice)
GREENBERG GROSS LLP
601 S. Figueroa St., 30th Floor
Los Angeles, CA 90017
Tel.: 213-334-7060

Attorneys for Defendant William H. Cosby, Jr.

9
 PUBLIC ACCESS POLICY CERTIFICATION

I, Lane L. Vines, certify that this filing complies with the provisions of the Public Access

Policy of the Uniform Judicial Systems of Pennsylvania: Case Records of the Appellate and Trial

Courts that require filing confidential information and documents differently than non-confidential

information and documents.

Dated: April 7, 2018 /s/ Lane L. Vines

Lane L. Vines

10
EXHIBIT 1