Commonwealth v. Cosby

224 A.3d 372

COMMONWEALTH of Pennsylvania, Appellee

v.William Henry COSBY, Jr. Appellant

No. 3314 EDA 2018

Superior Court of Pennsylvania.

Argued August 12, 2019

Filed December 10, 2019

Jennifer Bonjean, Brooklyn, NY, Kristen L. Weisenberger, Harrisburg, Sarah Kelly-Kilgore, Los Angeles, CA, and Brian W. Perry, Harrisburg, for appellant.

Kevin R. Steele, District Attorney, and Robert Martin Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Attorney General, Amicus Curiae.

Virginia A. Gibson, Philadelphia, RAINN, Amicus Curiae.

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and NICHOLS, J.

OPINION BY BENDER, P.J.E.:

Appellant, William Henry Cosby, Jr., appeals from the judgment of sentence of 3-10 years' incarceration, imposed following his conviction for three counts of aggravated indecent assault, pursuant to 18 Pa.C.S. § 3125(a)(1), (4), and (5). After careful review, we affirm.

The trial court summarized the facts adduced at trial as follows:

In January 2004[,]¹[ ] [Appellant] sexually assaulted [the] then thirty[-]year[-]old [Victim] at his home in Elkins Park, Cheltenham, Montgomery County. On the evening of the assault, [Victim] was invited to the then sixty-six[-]year[-]old [Appellant]'s home to discuss her upcoming career change. She had decided to leave her position as the Director of Basketball Operations for the Temple women's basketball team, and to return to her native Canada to pursue a career in massage therapy. When she arrived at the home, she entered through the kitchen door, as she had on prior visits. She and [Appellant] sat at the kitchen table and began talking. There was a glass of water and a glass of wine on the table when she arrived. Initially, she drank only the water because she had not eaten a lot and did not want to drink on an empty stomach. Eventually, [Appellant] convinced her to taste the wine. They discussed the stress she was feeling at the prospect of telling [the basketball coach] that she was leaving Temple. [Victim] left the table to use the restroom. When she returned, [Appellant] was standing by the table, having gone upstairs himself while she was in the bathroom. He reached out his hand and offered her three blue pills. He told her, "These are your friends. They'll help take the edge off." She asked him if she should put the pills under her tongue. He told her to put them down with water, and she did.

¹ In each of her statements to police, and in prior testimony, [Victim] indicated that the assault took place in 2004. She indicated to police that the assault happened prior to her cousin['s] visiting from Canada; border crossing records indicate that he entered the United States on January 22, 2004. There was no evidence to indicate that the assault happened prior to December 30, 2003.

After she took the pills, [Victim] and [Appellant] sat back down at the kitchen table and continued their conversation. She began to have double vision and told [Appellant] that she could see two of him. Her mouth became cottony and she began to slur her words. [Appellant] told her that he thought she needed to relax. [Victim] did not know what was happening to her, but felt that something was wrong. They stood up from the table and [Appellant] took her arm to help steady her. Her legs felt rubbery as he walked her through the dining room to a sofa in another room. He placed her on the sofa on her left side and told her to relax there. She began to panic and did not know what was happening to her body. She felt weak and was unable to speak. She was unable to maintain consciousness. She was jolted awake by [Appellant] forcefully penetrating her vagina with his fingers. [Appellant] had positioned himself behind her on the couch, penetrated her vagina with his fingers, and fondled her breasts. He took her hand[,] placed it on his penis[,] and masturbated himself with her hand. [Victim] was unable to tell him to stop or to physically stop the assault.

She awoke sometime between four and five a.m. to find her pants unzipped and her bra up around her neck. She fixed her clothing and began to head towards the front door. As she walked towards the door, she saw [Appellant] standing in the doorway between the kitchen and the dining room. He was wearing a robe and slippers and told her there was a muffin and tea for her on the table. She sipped the tea[,] took a piece of the muffin with her[,] and drove herself home.

At the time of assault, [Victim] had known [Appellant] since the fall of 2002 when she met him in her capacity as the Director of Basketball Operations. She was introduced to [Appellant] by Joan Ballast at a basketball game at the Liacouras Center. [Victim] accompanied Ms. Ballast and several others [who were] giving [Appellant] a tour of the newly renovated facilities. Several days after the initial introduction, [Appellant] called Temple with some questions about the renovations and spoke to [Victim] on the phone. Several weeks later, she again spoke to him on the phone at her office. They discussed having met at the game at Temple. They began having more regular conversations, mostly pertaining to Temple sports. The conversations also included personal information about [Victim]'s history as a professional basketball player, her educational background and her career goals.

After several phone conversations, [Appellant] invited [Victim] to his home for dinner. When she arrived at the home, [Appellant] greeted her and took her to the room where she ate her dinner. The chef served her meal and a glass of wine and she ate alone. As she was finishing her meal, [Appellant] came into the room and sat next to her on the couch. At this point, he placed his hand on her thigh. She was aware that this was the first time [Appellant] touched her, but thought nothing of it and left shortly after as she had been preparing to do.

Subsequently, [Appellant] invited her to attend a blues concert in New York City with other young women who shared similar interests, particularly related to health and homeopathic remedies. She did not see [Appellant] in person on that trip.

Sometime later, she was again invited to dine at [Appellant]'s home alone. The chef called her about the meal and again she ate in the same room as she had on the first occasion. For a second time, when she was finished [with] her meal, [Appellant] sat beside her on the couch. The conversation again revolved around things [Victim] could do to ... break into sports broadcasting. On this occasion, [Appellant] reached over and attempted to unbutton and to unzip her pants. She leaned forward to prevent him from undoing her pants. He stopped. She believed that she had made it clear she was not interested in any of that. She did not feel threatened by him and did not expect him to make a romantic or sexual advance towards her again.

[Victim] continued to have contact with [Appellant], primarily by phone and related to Temple sports. [Appellant] also had contact with [Victim]'s family. [Victim]'s mother ... and ... sister ... attended one of [Appellant]'s performances in Ontario, and afterward, met him backstage.

In late 2003, [Appellant] invited [Victim] to meet him at the Foxwoods Casino in Connecticut. He put her in touch with Tom Cantone, who worked at the casino. When she arrived at the casino, she had dinner with [Appellant] and Mr. Cantone. After dinner, Mr. Cantone escorted [Victim] to her room. She thanked him and told him that she would have to leave early in the morning and would not have time to tour the Indian reservation that was on the property. [Appellant] called her and asked her to come back upstairs to his room for some baked goods. When she arrived at the room, he invited her in and continued to unpack his luggage cart. She believed that the baked goods were on the cart. During this time, they discussed their usual topics of conversation, Temple and sports broadcasting. [Victim] was seated on the edge of the bed.

[Appellant] laid down on the bed. He fell asleep. [Victim] remained in the room for several minutes, and then she went back to her own room.

[Victim] testified that during this time, she came to view [Appellant] as a mentor and a friend.² He was well respected at Temple as a trustee and alumni, and [Victim] was grateful for the help that he tried to give her in her career. She continued her friendship with him, despite what she felt were two sexual advances; she was a young, fit woman who did not feel physically threatened by [Appellant].

² In his statement to police, [Appellant] agreed and indicated that [Victim] saw him as a mentor and that he encouraged that relationship as a mentor.

Following the assault, between January[ ] 2004 and March[ ] 2004, [Victim] and [Appellant] continued to have telephone contact, solely regarding Temple sports. In March 2004[, Appellant] invited [Victim] to a dinner at a restaurant in Philadelphia. [Victim] attended the dinner, hoping to speak to [Appellant] about the assault. After the dinner, [Appellant] invited her to his home to talk. Once at the home, she attempted to confront him to find out what he gave her and why he assaulted her. She testified that he was evasive and told her that he thought she had an orgasm. Unable to get an answer, she lost her courage and left the home.

At the end of March 2004, [Victim] moved back to Canada. [Victim]'s mother ... testified that when her daughter returned home, she seemed to be depressed and was not herself. She would hear her daughter screaming in her sleep, but [Victim] denied that anything was wrong.

After returning to Canada, [Victim] had some phone contact with [Appellant] related to his performance in the Toronto area. [Appellant] invited [Victim] and her family to attend that show. Her parents were excited to attend the show, and her mother had previously spoken with [Appellant] on the phone and attended two of his shows prior to the assault. [Victim's] moth

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