PA Appeals: The Bill Cosby appeal (explained in plain English)

The Bill Cosby appeal (explained in plain English)

Above are the members of the Supreme Court of Pennsylvania
Above are the members of the Supreme Court of Pennsylvania

Unless you have been living under a rock for several years, you probably know that “America’s Dad” Bill Cosby was charged with, tried, convicted, sentenced and was incarcerated (and still is in prison) for a drug facilitated sexual assault. His case is currently working its way through the appeal system.


Just a few days ago, abc27 News,​ reported this story:



What we would like to do is to explain in a little deeper detail what the appeal means and doesn’t mean from a legal point of view.

What the Supreme Court granting the appeal means

First, some perspective is needed. To get the Supreme Court of Pennsylvania (SCOPA) to hear a case is very difficult. It is a court of discretion which means that it doesn’t have to make a ruling on any cases. Unlike the Superior Court or the Commonwealth Court that is required to consider every single case properly appealed to it and render an opinion in writing, SCOPA can pick and choose what cases it wants to examine. The overall rate of getting an appeal in SCOPA is less than 5% meaning that for every case SCOPA takes up, it rejects at least 19 or more submitted.

seal of the Supreme Court of Pennsylvania

SCOPA can’t act on its own to review cases. Litigants have to invite the SCOPA into the dispute. The requesting party files a “petition for allocatur” (POA). We can think of a POA like an advertisement as to why the SCOPA should care.

What SCOPA does

As a general rule, SCOPA and all like courts don’t care about the particular outcome of a case. It isn’t a “justice-seeking” court. A trial court is supposed to be that. SCOPA isn’t even an “error correcting court” (looking at a particular case and its particular facts and agree or disagree there was error by the trial court and “correct” that error to that one case). The Superior and Commonwealth courts are those primary “error correcting courts.”

SCOPA is best thought of as a “policy deciding court.” Their mission is to look for cases not where there was a particular injustice that happened, but to look for a breakdown in something system-wide meaning that the issues involve a lot of people either past, present or future. It then clarifies the law in a decision with reasoning. This way everyone can look at the rules it sets out (called a “holding”) and apply it generally to all cases in the future.

Unlike what many folks may think happens, SCOPA doesn’t look at the entire case. It only looks at narrow and very specific parts of a case. In law, we call this the “certified question presented.” So, when SCOPA grants its rarely used power to review a case, it only does so as to broad issues and very narrowly crafted broad issues at that. It doesn’t go looking for anything and everything that was wrong or unfair.

With all of that in mind, the SCOPA granted appeal on these certified questions:

This is the docket entry and order so you can verify it yourself.

In SCOPA language:

  • Question 1: Where allegations of uncharged misconduct involving sexual contact with five women (and a de facto sixth) and the use of Quaaludes were admitted at trial through the women’s live testimony and Petitioner’s civil deposition testimony despite: (a) being unduly remote in time in that the allegations were more than fifteen years old and, in some instances, dated back to the 1970s; (b) lacking any striking similarities or close factual nexus to the conduct for which Petitioner was on trial; (c) being unduly prejudicial; (d) being not actually probative of the crimes for which Petitioner was on trial; and (e) constituting nothing but improper propensity evidence, did the Panel err in affirming the admission of this evidence?
  • Question 2: Where: (a) the Montgomery County District Attorney (“MCDA”) agreed that Petitioner would not be prosecuted in order to force Petitioner’s testimony at a deposition in Complainant’s civil action; (b) the MCDA’s Office issued a formal public statement reflecting that agreement; and (c) Petitioner reasonably relied upon those oral and written statements by providing deposition testimony in the civil action, thus forfeiting his constitutional right against self-incrimination, did the Panel err in affirming the trial court’s decision to allow not only the prosecution of Petitioner but the admission of Petitioner’s civil deposition testimony?

Yup those are very narrow questions to answer, but you can see how the result of the analysis can possibly impact a lot of cases in the future.

What the heck does that mean! Let me try to make it more easily understood.

This appeal in plain English:

  • Question 1: The Cosby trial was about Bill Cosby drugging a particular person (Andrea Constand) and sexually abusing her. But 5 or 6 other women also said Cosby did similar things to them. We call these other persons’ allegations “other acts evidence” in the law. Can the jury hear details these unproven (because there was no jury verdict and no filed charges) “other acts” allegations?
  • Question 2 (in my mind it has two subparts):
    • (2.1) Bruce Castor was the DA in Montgomery County at the time Constand came forward. Castor did not file any sort of formal grant of immunity (as provided by law) with the Court. Instead, Castor held a press conference that merely said he was granting immunity. Is saying in a press conference that he was granting the immunity the same as actually filing one formally with the Court?
    • (2.2) If it’s not the same, is it legal to use Cosby’s testimony at his deposition against him at this Constand trial because he was reasonable in relying on Castor’s press conference that he would never be charged (otherwise he would have not answered any questions at the depositions merely invoking his 5th Amendment rights)?

Scope of Review and Standard of Review on Appeal

So, with that answered, the next part of the case we have to look at what we lawyers call the “standard of review” and the “scope of review”. These two are critical. It is basically the rules of the fight in court. These combined standards basically fall under 4 categories:

  • Questions of law (The reviewing court [SCOPA] gets to look at the trial judge’s decision with fresh eyes and doesn’t have to start at the presumption that the trial court was right in its ruling. We call this “de novo” review.)
  • Questions of fact (The reviewing court [SCOPA] has to presume that the trial court was correct in its credibility issues and therefore gets the benefit of the doubt—if there is any.)
  • Matters of discretion (This is the hardest of all to overcome and win if you are the side appealing, not only does the trial court get the benefit of the doubt and is presumed to be correct, but even if it is kinda incorrect, the ruling doesn’t get overturned. It only gets overruled if it is just so clearly and painfully wrong that it is basically beyond shocking. And that without this shockingly bad ruling, the result of the case could have been different. We call this “abuse of discretion and harmless error”)
  • A mix of any two of the three above (in which case the one that dominates controls)

Like I said, the standard of review and scope of review has a large amount to do with who wins or doesn’t.

What happens if he “wins” a part of his appeal

The first question of the Cosby case basically claims that the trial court made a mistake in admitting the “other acts” evidence. The scope and standard of review for whether or not the jury gets to hear “other acts” evidence is a matter of discretion. It is the hardest of all to win. The admission of this “other acts” evidence in front of the jury has to be so bad a call by the judge, that legal scholars and other judges would say “that judge is off his rocker”. Is that here in this case? Was the trial judge in Cosby so out in left field that the judge was off her rocker in allowing the jury to hear “other acts” evidence? That’s what SCOPA will decide.

If Cosby ”wins” on this first issue, the court won’t dismiss the case. The court won’t find him innocent. He just gets a new trial. This time without the “other acts” evidence.


The second question of the Cosby appeal is really two questions.

The first part of the second question basically claims that the trial court blew it in allowing the prosecution to even happen at all because a public statement is the equivalent of a court filing. This part is a question of law (there are no disputed facts just a dispute over what the law means). As such, the SCOPA justices look at it with fresh eyes and doesn’t presume the trial court is right and doesn’t give the trial court that benefit of the doubt. It sits in the same spot as the trial court judge and makes the decision just like the trial court judge would. A sort of Monday morning quarterback, they are.

If Cosby wins on this, he is 100% free without the possibility of a new trial. Forget about question 1 and question 2.2. They are academic.

If Cosby wins this issue, he is totally free
If Cosby wins this issue, he is totally free

The second part of the second question asks, ok…. if the trial court was right and the trial can go forward, was the trial court right in allowing the jury to hear testimony from Cosby’s depositions when he thought that he could not assert his 5th Amendment at the civil depositions because he believed that he was granted immunity, but then later allow that same evidence into court in front of the jury. To me, this a simple admissibility of the evidence question. For certain it is interesting because of the context. But the question is basically, should the trial court have allowed in this particular evidence. The rest of why it should have or shouldn’t have doesn’t control the issue, in my opinion. So, we go back to the scope and standard of review on question 1. It’s the hardest road for the appealing person to win on.

If Cosby “wins” his appeal on this part (meaning what I call question 2.1), the Cos doesn’t walk free. It is just a new trial without the statements he made under oath at the civil depositions.


So, there’s a lot to unpack with this appeal. This is a good start for what the Cosby case means and doesn’t mean in the Pennsylvania Supreme Court. Without even getting into “the meat” of the case itself and the law that surrounds it, just looking at the Standard of Review and the Scope of Review, we can see how hard it will be for Cosby to “win” his case and go free. It is impossible to predict the outcome of any given case, but one thing you can predict is that we here at The McShane Firm at 717-657-3900 know appeals.

If you want to know more about appeals in Pennsylvania, please visit this page: The McShane Firm on Pennsylvania Appeals

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PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.