Judge: Recorded Cosby phone call is ad­mis­si­ble at trial

Daily Local News (West Chester, PA) - - LOCAL NEWS - By Carl Hessler Jr. chessler@21st-cen­tu­ry­media.com @Mont­coCourtNews on Twit­ter

NOR­RIS­TOWN >> En­ter­tainer Bill Cosby has lost his pre­trial bid to pre­vent a jury from hear­ing a recorded phone con­ver­sa­tion dur­ing which he al­legedly made in­crim­i­nat­ing re­marks to the mother of the woman who ac­cused him of sex as­sault.

In a six-page or­der is­sued Fri­day, Mont­gomery County Judge Steven T. O’Neill ruled in fa­vor of pros­e­cu­tors, de­ter­min­ing a Jan­uary 2005 phone con­ver­sa­tion Cosby had with the mother of al­leged vic­tim An­drea Con­stand can be used as ev­i­dence against Cosby at his trial next June.

Dur­ing the al­leged Jan. 17, 2005, call, “Cosby not only of­fered to pay for the vic­tim’s ther­apy, but also her grad­u­ate school tu­ition and ex­penses for travel to Florida,” de­tec­tives al­leged in court doc­u­ments. Pros­e­cu­tors con­tend the recorded con­ver­sa­tion is im­por­tant ev­i­dence “in­dica­tive of Cosby’s con­scious­ness of guilt.”

De­fense lawyer Brian J. McMona­gle could not be reached Fri­day for com­ment about O’Neill’s rul­ing.

“The judge’s rul­ing ap­ply­ing the rel­e­vant law will al­low us to put im­por­tant ev­i­dence be­fore a jury. We re­main ready to present our case in court,” Dis­trict At­tor­ney Kevin R. Steele re­acted to the judge’s de­ci­sion.

Cosby, 79, faces a June 5, 2017, trial on charges he al­legedly had in­ap­pro­pri­ate sex­ual con­tact with An­drea Con­stand, a for­mer Tem­ple Univer­sity ath­letic depart­ment em­ployee, at his Chel­tenham home be­tween mid-Jan­uary and mid-Fe­bru­ary 2004.

Dur­ing the le­gal bat­tle over the phone call, McMona­gle ar­gued Con­stand’s mother, who was in Canada at the time, recorded the tele­phone call “with­out (Cosby’s) con­sent” in vi­o­la­tion of both Penn­syl­va­nia and Cal­i­for­nia wire­tap laws, which re­quire two-party con­sent for a record­ing, and that the record­ing should be sup­pressed as trial ev­i­dence. Cosby al­legedly was in Cal­i­for­nia at the time of the call.

McMona­gle ar­gued Cosby and An­drea Con­stand were res-

idents of Penn­syl­va­nia at the time of the al­leged as­sault and that the acts that form the ba­sis for the crim­i­nal charges al­legedly took place in Penn­syl­va­nia and there­fore ques­tions in­volv­ing the ad­mis­si­bil­ity of ev­i­dence must be an­a­lyzed un­der Penn­syl­va­nia law.

But Steele said if a judge found that the record­ing does fall within the purview of wire­tap laws, then Cana­dian law, which re­quires only one-party con­sent for a record­ing, should be ap­plied.

O’Neill, after re­view­ing case law, found that Cana­dian law is ap­pli­ca­ble in the case.

“There­fore, be­cause Canada has a greater in­ter­est in the abil­ity of their ci­ti­zens

to legally record phone calls with one-party con­sent, this court finds that Cana­dian law is ap­pli­ca­ble to this is­sue and the phone call was legally recorded,” O’Neill wrote in the court or­der, deny­ing Cosby’s mo­tion to sup­press the call.

Steele also main­tained the record­ing made by Con­stand’s mother did not vi­o­late Penn­syl­va­nia’s Wire­tap and Sur­veil­lance Act, which pro­hibits in­ter­cep­tion of oral com­mu­ni­ca­tions be­lieved to be pri­vate. Penn­syl­va­nia’s wire­tap laws do not ap­ply to the record­ing at is­sue be­cause Cosby had no rea­son­able ex­pec­ta­tion of non-in­ter­cep­tion or pri­vacy, Steele main­tained.

Dur­ing the al­leged Jan. 17, 2005, phone con­ver­sa­tion, Cosby “ap­par­ently sus­pected” Con­stand’s mother was record­ing the call and ques­tioned her about “a per­sis­tent beep­ing” he heard

on the phone, ac­cord­ing to Steele. Cosby be­lieved he was be­ing recorded and he still talked to Con­stand’s mother and made ad­mis­sions that should be heard by a jury, ar­gued Steele, who is be­ing as­sisted by co­pros­e­cu­tors Kris­ten Fe­den and M. Ste­wart Ryan.

Judge O’Neill found the record­ing at is­sue does con­sti­tute a “wire com­mu­ni­ca­tion,” un­der the law.

“There­fore … the de­fen­dant’s ex­pec­ta­tion of pri­vacy in the non-in­ter­cep­tion of the call is ir­rel­e­vant and the ad­mis­si­bil­ity of the record­ing hinges on a con­flicts of law anal­y­sis,” O’Neill wrote in the or­der, re­fer­ring to the con­flict of law ex­ist­ing be­tween the laws of Canada and Penn­syl­va­nia.

Wil­liam Henry Cosby Jr. as his name ap­pears on charg­ing doc­u­ments, faces charges of ag­gra­vated in­de­cent as­sault in con­nec­tion with al­legedly drug­ging and sex­u­ally as­sault­ing Con­stand. The crim­i­nal charges were lodged against Cosby on Dec. 30, be­fore the 12year statute of lim­i­ta­tions to file charges ex­pired. Cosby has con­tended the sex­ual con­tact was con­sen­sual.

In charg­ing doc­u­ments, pros­e­cu­tors al­leged Con­stand re­turned to her na­tive Canada in March 2004 and later in Jan­uary 2005 con­fided in her mother that “Cosby had sex­u­ally as­saulted her.”

“Shocked and dev­as­tated upon hear­ing de­tails of the

sex­ual as­sault of her daugh­ter, Mrs. Con­stand called Cosby on the tele­phone to con­front him … and in­stead left a voice­mail mes­sage,” pros­e­cu­tors al­leged in the crim­i­nal com­plaint.

Pros­e­cu­tors con­tend Cosby re­turned the call on Jan. 16, 2005, and that dur­ing a 2 ½ hour con­ver­sa­tion Mrs. Con­stand ques­tioned Cosby about what he had al­legedly done to her daugh­ter and what med­i­ca­tion he had given to her. Dur­ing the con­ver­sa­tion, Cosby al­legedly ad­mit­ted fondling Con­stand and “apol­o­gized and of­fered to cover any ex­penses as­so­ci­ated with ther­apy,” ac­cord­ing to the crim­i­nal com­plaint.

But pros­e­cu­tors con­tend Cosby called Mrs. Con­stand again on Jan. 17 and she recorded that call. Dur­ing that call, Cosby al­legedly of­fered to pay for the vic­tim’s ther­apy, her grad­u­ate school tu­ition and ex­penses for travel to Florida, de­tec­tives al­leged.

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, an en­ter­tain­ment icon who re­mains free on 10 per­cent of $1 mil­lion bail, faces a pos­si­ble max­i­mum sen­tence of 15 to 30 years in prison if con­victed of the charges.

AS­SO­CI­ATED PRESS FILE PHOTO

Bill Cosby de­parts after a pre­trial hear­ing in his sex­ual as­sault case at the Mont­gomery County Court­house in Nor­ris­town.

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