The Superior Court ruling was being closely watched because Cosby was the first celebrity tried and convicted in the #MeToo era. The same issue was hard-fought in pretrial hearings before movie mogul Harvey Weinstein’s sexual assault trial.
In his appeal, Cosby’s lawyers said the suburban Philadelphia judge had improperly allowed the five women to testify at last year’s retrial although he’d let just one woman testify at the first trial in 2017.
But the Superior Court said Pennsylvania law allows the testimony if it shows Cosby had a “signature” pattern of drugging and molesting women.
“Here, the (prior bad act) evidence established appellant’s unique sexual assault playbook,” the court said, noting that “no two events will ever be identical.”
The court went on to say that the similarities were no accident.
“Not only did the (prior bad act) evidence tend to establish a predictable pattern of criminal sexual behavior unique to appellant, it simultaneously tended to undermine any claim that appellant was unaware of or mistaken about victim’s failure to consent to the sexual contact that formed the basis of the aggravated indecent assault charges," the panel said in its ruling.
Lawyers for Cosby had argued eight issues on appeal, including the judge's decision to let prosecutors use portions of a deposition he gave in the accuser's related civil suit. His lawyers also argued that he had a binding promise from a former prosecutor that he would never be charged in the case and could testify freely at a deposition in accuser Andrea Constand’s related lawsuit.
The appeals court rejected those arguments and upheld the judge's classification of Cosby as a sexually violent predator.
Cosby, 82, can now ask the state Supreme Court to consider his appeal.
He has been serving a three- to 10-year prison term for the 2004 encounter at his suburban Philadelphia home, which he deemed consensual.
He was arrested a decade later, after a federal judge unsealed portions of the deposition at the request of The Associated Press and new prosecutors reopened the criminal case.
The Superior Court panel, in arguments in Harrisburg in August, asked why Cosby’s lawyers didn’t get a written immunity agreement and have it approved by a judge, instead of relying on an oral promise.
“This is not a low-budget operation we were operating here. They had an unlimited budget,” said Superior Court Judge John T. Bender, who questioned whether any court would have approved the deal.
Judge Steven O’Neill’s decision to let the other accusers testify came after more than 60 women accused Cosby of sexual misconduct. Prosecutors asked to call 19 of them. Superior Court Judge John Bender appeared to agree with O’Neill’s logic in letting some take the stand.
“The reality of it is, he gives them drugs and then he sexually assaults them. And in four out of the five, those were in mentor situations,” Bender said.
Kristen L. Weisenberger, representing Cosby, said one of the women wasn’t even sure she was sexually assaulted. However, prosecutors said, that’s how Cosby planned it.
O’Neill had allowed just one other accuser at Cosby’s first trial in 2017, when the jury deadlocked. Cosby’s lawyers called his later decision to let more women testify arbitrary and prejudicial.
The long-married Cosby, once beloved as “America’s Dad” for his TV role as Dr. Cliff Huxtable on the hugely popular sitcom “The Cosby Show,” has acknowledged having sexual contact with a string of younger women, many of whom came to him for career advice and took alcohol or pills he offered them.
He and his lawyers and agents have suggested that many of the accusers were gold diggers seeking money or fame. He told a news outlet in November that he expects to serve the maximum 10-year sentence if he loses the appeal, because he would never express remorse to the parole board.
Cosby agreed to pay Constand, a former Temple University basketball team manager, about $3.4 million to settle her lawsuit. His insurance company, following his conviction, settled at least nine other defamation lawsuits filed by accusers for undisclosed sums.
The Associated Press contributed to this report.