NORRISTOWN >> The Pennsylvania Supreme Court has refused to hear an appeal from comedian Bill Cosby on a pretrial hearing that determined there was no agreement with former District Attorney Bruce L. Castor Jr. to never prosecute the case.
Cosby’s attorneys appealed to the Supreme Court after the Superior Court threw out an appeal of the decisions made by Montgomery County Judge Steven T. O’Neill at a Feb. 3 pretrial hearing.
At that hearing, O’Neill rejected Cosby’s request to dismiss aggravated indecent assault charges on grounds he had a promise from Castor in 2005 that he would never be prosecuted for alleged sexual assault. O’Neill also rejected Cosby’s request to disqualify District Attorney Kevin R. Steele from prosecuting the case.
The Supreme Court issued the one-sentence order denying review of the decisions Monday.
“Curiously, though not surprisingly, defendant clings to his alternate reality that former District Attorney Bruce Castor entered into a non-prosecution agreement with him in 2005. Mr. Castor did not,” Steele wrote in a footnote of another filing submitted Monday.
The filing was a response to Cosby’s objection to the decision to proceed with the preliminary hearing May 24, despite the absence of testimony from the victim. During that hearing Magisterial District Judge Elizabeth McHugh ordered that Cosby stand trial on all charges.
Specifically, the defense team requested that the charges be dismissed against Cosby or in the alternative that he be granted a new preliminary hearing at which prosecutors should be “required to call the accuser, Andrea Constand, as a witness so that Mr. Cosby may properly cross-examine her.”
Brian J. McMonagle, Cosby’s lead defense lawyer, argued that prosecutors relied entirely on hearsay evidence during the preliminary hearing, denying Cosby the right to confront his accuser.
“He believes he’s entitled to more,” Steele writes in his response. “He insists that the Commonwealth should have been forced to call her at the preliminary hearing. The law says otherwise.”
During Cosby’s preliminary hearing, Steele presented county and Cheltenham detectives as witnesses who testified and read into the record statements that Constand allegedly gave to detectives on Jan. 22, 2005, claiming Cosby had sexual contact with her at his Cheltenham mansion in 2004.
Steele cited the decision in Commonwealth v. Ricker, in which a three-member panel of the state Superior Court stated that “hearsay” evidence, such as a victim’s statement to police, is admissible at preliminary hearings, which are evidentiary proceedings to determine if prosecutors present sufficient evidence to move a case to trial.
The same decision was used at Cosby’s hearing, when District Judge McHugh said she would follow the Superior Court ruling and did not compel Constand to testify.
Steele also referred to Rule 542 of the Pennsylvania Rules of Criminal Procedure referring to establishing that a case should move forward to trial, which states in part, “Hearsay evidence shall be sufficient to establish any element of a defense.”
“Defendant’s current attempts to invent new rights that would have compelled the Commonwealth to present the victim at the preliminary hearing – precisely so that he could have prematurely attacked her credibility – are as transparent as they are contrary to law,” Steele wrote.
William Henry Cosby Jr., as his name appears on charging documents, faces three felony counts of aggravated indecent assault in connection with the alleged sexual assault of Constand, a former Temple University athletic department employee, at his home in the 8200 block of New Second Street in Cheltenham between mid-January and mid-February 2004. The charges were lodged against Cosby, 78, on Dec. 30, before the 12-year statute of limitations to file charges expired.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.
Cosby currently remains free on 10 percent of $1 million bail. If convicted of the charges at trial, the former sitcom protagonist faces a possible maximum sentence of 15 to 30 years in prison.
