Com. v. O'Neil, E.

J-A21004-14
2015 Pa. Super. 12
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EILEEN O’NEIL,
Appellant No. 2506 EDA 2013
Appeal from the Judgment of Sentence July 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001668-2011
BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED JANUARY 20, 2015
Eileen O’Neil appeals from the judgment of sentence of six to twenty-
three months incarceration to be followed by two years of probation after a
jury found her guilty of two counts each of conspiracy to commit corrupt
organizations and theft by deception. We reverse and remand for a new
trial.
The charges in this case arose after the Commonwealth uncovered the
ghastly acts of Dr. Kermit Gosnell at his abortion clinic. The Federal Bureau
of Investigations (“FBI”), the Drug Enforcement Agency (“DEA”), and
Philadelphia District Attorney’s Office detectives conducted a raid at Gosnell’s
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*
Retired Senior Judge assigned to the Superior Court.
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abortion clinic, the Women’s Medical Society Clinic, on February 18, 2010.
The investigation was largely focused on Gosnell’s alleged illegal issuance of
prescription medication and performance of illegal abortions. As a result of
the investigation, law enforcement uncovered the deaths of born-alive
infants and one mother during a botched abortion. The Commonwealth
charged Gosnell with seven counts of first-degree murder based on the
deaths of seven newborn infants, and third degree murder in the death of
Karnamaya Mongar.1 In addition, the Commonwealth charged Gosnell with
conspiracy to commit murder, Abortion Act violations, corrupt organizations
and other crimes. In total, Gosnell faced over 280 criminal counts.
Appellant worked at Gosnell’s clinic and held herself out to be a
licensed physician. However, while Appellant had completed medical school
and a residency program, she was not licensed to practice medicine.
Appellant was not alleged to have been involved in the killing of the newborn
babies or Ms. Mongar. Rather, after a grand jury investigation, the
Commonwealth charged Appellant with corrupt organizations, conspiracy to
commit corrupt organizations, theft by deception, perjury, and false
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1
Gosnell was convicted of multiple counts of first-degree murder and one
count of third degree murder as well as a host of other charges. The court
dismissed three of the homicide charges prior to the jury deciding the case.
Following the verdict, Gosnell waived his right to appeal in exchange for the
agreement of the Commonwealth not to continue to pursue the death
penalty. Accordingly, he was sentenced to consecutive terms of life
imprisonment without parole.
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swearing.2 The corrupt organization and theft charges were based on her
practice of medicine without a license and billing of patients as though she
were a licensed doctor. The Commonwealth tried Gosnell’s case as a capital
murder matter and joined Appellant’s case with his for trial. Initially,
numerous other employees of the clinic, including Lynda Williams, Sherry
West, Adrienne Moton, and Steve Massof were charged with murder.3 These
individuals pled guilty to various charges prior to the trial of Appellant and
Gosnell.
Appellant filed a motion to sever her case from Gosnell’s on September
28, 2011. The court denied that motion and the case proceeded to trial. At
trial, the aforementioned employees of the abortion clinic testified against
Gosnell and Appellant. The overwhelming majority of the testimony in the
trial that spanned from March 18, 2013 until May 13, 2013, was directed at
Gosnell’s criminal violations.4 The testimony against Appellant would have
consisted of no more than two or three days of the trial.
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2
The Commonwealth amended its criminal information to include nine
counts of theft by deception and nine additional counts of conspiracy. It also
amended a conspiracy count to reflect that it was conspiracy to commit
corrupt organization under 18 Pa.C.S. § 911(b).
3
Gosnell’s wife also was charged with various crimes and entered a guilty
plea based on her involvement.
4
Closing arguments were given on April 29, 2013 and jury deliberations
began the following day. The jury deliberated until May 13, 2013.
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Moton, who had pled guilty to third-degree murder and conspiracy and
entered a plea agreement in federal court on drug charges, testified as
follows. According to Moton, Gosnell instructed her and other unlicensed
staff to administer anesthesia to abortion patients when he was not present.
Moton also testified that Gosnell frequently manipulated pre-abortion
ultrasounds to perform abortions beyond the 24 week legal limit.
In multiple instances, late term abortion patients were provided with
large doses of Cytotect,5 resulting in live births. Moton provided that Gosnell
trained her and other staff members to snip the necks of these live born
babies with surgical scissors, causing their deaths. She estimated that
Gosnell and Steve Massof performed this task over twenty times, and that
she herself had done the same on ten occasions. On one occasion, Moton
took a picture of a baby after Gosnell killed the child by snipping its neck
because she was disturbed at how large the child was when it was born.
The baby was over 29 weeks old.
Moton, however, set forth that Appellant was not involved in the
abortion procedures at the clinic. She maintained that Appellant did have a
pre-signed prescription pad from Gosnell and would enter the abortion
portion of the clinic, which was on the first floor, to consult with Gosnell.
Appellant then would write what he told her on the pad. Moton claimed that
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5
Dr. Karen Feisullin testified that Cytotect is a brand name of Misoprostol, a
drug used to help soften a women’s cervix.
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Appellant only saw patients on the second floor of the clinic, where abortions
were not performed.
Steve Massof testified similarly. Like Moton, Massof had entered state
and federal guilty pleas before this trial. Massof pled guilty to two counts of
third-degree murder, criminal conspiracy, corrupt organizations, and
conspiracy to commit corrupt organizations at the state level. He also
entered a federal plea on drug charges. He confirmed Moton’s testimony
that Gosnell regularly manipulated ultrasounds so Gosnell could perform
abortions after the fetus was twenty-four weeks old. Massof also provided
that Gosnell performed abortions on women past twenty-four weeks of their
pregnancy.
Massof admitted that approximately 80% of the babies that were born
precipitously had visible chest movement and that Gosnell intentionally
increased the dosage of Cytotec to cause precipitous births. 6 According to
Massof, Gosnell taught him to use a pair of surgical scissors to snip the back
of a baby’s neck at the top of the spinal cord, separating the brain from the
body, in essence beheading the baby, if it was born precipitously.
Massof did not implicate Appellant in these actions. Instead, he
testified that she treated family practice patients and her only involvement
with abortion patients was to set up ultrasounds for second trimester women
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6
A precipitous birth was defined at trial as the fetus coming out of the body
faster than expected.
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and prepare them on “dilation night.” N.T., 4/4/13, at 82. However, he did
acknowledge that Appellant consulted with Gosnell about her patients, and
she would write reports, and issue diagnoses. Massof also testified that he
provided diagnoses, wrote prescriptions from a pre-signed pad signed by
Gosnell, and treated patients, although he was not a licensed doctor. 7
Sherry West, another employee at the abortion clinic, pled guilty to
third-degree murder and federal drug charges. West confirmed that babies
were routinely killed after being born alive and that she and Lynda Williams
administered anesthesia despite having no training. She specifically recalled
observing babies moving in a toilet and saw one baby moving and heard it
make a squeaking noise.8 Additionally, West witnessed the incident
involving the death of Ms. Mongar. According to West, Ms. Mongar stopped
breathing during an abortion after Williams had administered anesthesia.
Consistent with the other witnesses, West maintained that Appellant did not
take part in the abortion procedures.
Williams confirmed West’s testimony that Williams provided the drugs
to Mongar before her death. Specifically, Williams testified that she
administered Demerol. Mongar died from an overdose of that drug.
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7
Massof, like Appellant, did graduate from medical school.
8
A maintenance worker, James Johnson, testified that in taking care of the
restrooms he discovered that the toilets were sometimes clogged with parts
of an aborted human’s arm or leg.
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Williams also admitted that she observed babies precipitating before
abortion procedures were complete and would place them in a jar for
Gosnell.
The Commonwealth elicited additional testimony from Elizabeth
Hampton, Ashley Baldwin, Tina Baldwin, Kareema Cross, Della Mann, Mary
Kingkade, Lisa Dungee, Lorraine Matijkiw, and Latosha Lewis. Hampton,
who had previously pled guilty to perjury as a result of her grand jury
testimony, testified that she was present when Ms. Mongar went into cardiac
arrest and had provided her with Cytotec. She set forth that Appellant was
not in the office at that time.9 However, she did testify that Appellant held
herself out as a licensed physician. She also referred to Massof as a doctor,
and noted that Massof and Appellant had offices on the second floor of the
clinic.
Ashley Baldwin began to work at the clinic in 2006, when she was a
teenager. Ashley testified that on five occasions she witnessed a baby born
precipitously breathing, crying, or moving. She testified that Gosnell,
Massof and Williams would snip the necks of the babies. Ashley was present
at work when Moton photographed one baby, and set forth that she saw the
child move on the day the picture was taken. In chilling testimony, she
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9
Multiple witnesses did testify that Appellant performed CPR on Ms. Mongar
and Appellant did provide law enforcement with a statement indicating the
same.
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offered that, after she witnessed another infant move its arms, Gosnell
remarked that the child could “walk me home.” N.T., 4/11/13, at 30.
Ashley also provided that Appellant was not involved with performing
abortions, though Ashley did believe Appellant was a doctor.
Ashley’s mother, Tina, worked at the front desk of the clinic between
March 2002 and January 8, 2010. She pled guilty in both state and federal
court before testifying in this matter. Tina stated that Appellant regularly
treated patients but was not involved in the abortion practice of the clinic.
According to Tina, Appellant treated patients on Wednesdays in the absence
of Gosnell and wrote prescriptions when he was not around.
Kareema Cross, who had pled to a probationary sentence in federal
court for conspiracy to distribute controlled substances, was a medical
assistant at the clinic. She proffered that Gosnell regularly performed
second trimester abortions after 24 and one-half weeks. Cross estimated
that she saw Massof snip the backs of necks twenty-five to thirty times.
Similarly, she observed over ten instances where the infant was breathing
after being born. In addition, she set forth that she saw Gosnell snip necks
over ten times. Further, she stated that she saw Moton snip a baby’s neck
after the baby was born precipitously while the mother was on the toilet, and
Williams snipped a child whose chest was moving.
Cross was also present when Moton took the photograph of one of the
children that Gosnell killed. She provided that the baby was very large, still
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breathing, and its arms and legs were moving. Despite this fact, Gosnell
snipped the baby’s neck. As to Appellant, Cross offered limited testimony.
Cross stated that Appellant treated patients on Mondays, Wednesdays, and
Fridays on the second floor of the clinic. Cross believed Appellant was a
doctor, referred patients to her, observed Appellant seeing patients when
Gosnell was absent, and saw her issue prescriptions.
Della Mann testified that Appellant saw her as a patient six or seven
times. Similarly, Appellant saw Mary Kingkade for an annual exam for five
or six years. Lisa Dungee stated that Appellant provided her a pill during a
non-surgical abortion in 2009. These witnesses each provided that they
believed Appellant was a licensed doctor.
Lorraine Matijkiw was a quality assurance nurse in the Philadelphia
Department of Health. She testified that she visited the clinic as part of a
program that provides vaccines to children who were on Medicaid or
uninsured. Matijkiw indicated that when she observed the clinic in 2008 that
it was filthy and that the clinic had expired vaccines. She encountered
Appellant as part of her visit and asked whether Appellant was a licensed
physician. Appellant told her that she had been licensed in Delaware, which
was not true, and that she had allowed her license to lapse. According to
Matijkiw, Appellant stated that she helped Gosnell with medication and labs
and was a patient care manager.
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Latosha Lewis worked for Gosnell as a medical assistant and entered a
federal guilty plea for her involvement in the clinic. Lewis’ initial job was to
answer the phones, take patients to the exam rooms, draw blood and check
for vital signs. Eventually, she began to do ultrasounds, IVs and administer
anesthesia. She stated that the clinic was not kept clean, but, after Ms.
Mongar died, Gosnell instructed the staff to clean the facility to prepare for a
review by the National Abortion Federation. Lewis further testified regarding
patient files, which reflected that abortions were performed on women
whose pregnancies were twenty-four weeks or beyond on multiple
occasions.
Following the close of the Commonwealth’s evidence, the court
dismissed three counts of theft by deception against Appellant. The jury,
after two weeks of deliberations, found Appellant guilty of two counts each
of conspiracy to commit corrupt organizations and theft by deception. The
jury acquitted Appellant on the charge of corrupt organizations, and four
counts of theft by deception.10 The court initially sentenced Appellant on
July 15, 2013, to six to twenty-three months on house arrest to be followed
by two years probation. Appellant filed a post-sentence motion on July 24,
2013. Thereafter, the court vacated the house arrest aspect of Appellant’s
sentence and re-sentenced Appellant to six to twenty-three months
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10
The remaining charges were nolle prossed.
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incarceration, granted immediate parole, and re-imposed the two year
probationary sentence.
Appellant timely appealed. The court directed Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal on
September 24, 2013. In addition, the court filed an order on October 1,
2013, which directed Appellant to file an amended concise statement with
citations to the record. Appellant sought and received an extension to file
the amended concise statement. Subsequently, Appellant filed an amended
concise statement on October 23, 2013. Appellant now raises the following
issues for our consideration.
I. Did the lower court err in denying defendant’s request for
severance from the co-defendant’s capital murder trial when
the bulk of the evidence pertaining to the co-defendant’s
murder charges would not have been admissible at a separate
trial for the defendant and was not capable of separation by
the jury?
II. Did the lower court err in denying defendant’s request for a
mistrial when the prosecutor engaged in prosecutorial
misconduct during closing argument by stating that,
“defendant’s nonaction [made] her as guilty as everybody
else in th[e] case. As guilty as the doctor”?
III. Did the lower court err in precluding testimony indicating that
Dr. Godfried Arthur had committed conduct identical to the
defendant but had not been charged by the Commonwealth?
IV. Did the lower court err in permitting Commonwealth
witnesses Mary Kingcade and Lisa Dungee to testify to the
contents of their medical records when they were not
qualified as custodians of said records?
Appellant’s brief at 3 (brackets in original).
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Appellant’s initial issue challenges the court’s pre-trial ruling declining
to sever her trial from that of the capital case of Gosnell. We consider the
decision of whether to deny a motion to sever under an abuse of discretion
standard. Commonwealth v. Brookins, 10 A.3d 1251 (Pa.Super. 2010).
Appellant relies on Brookins in support of her position.
In Brookins, the Commonwealth charged the defendant with
possession with intent to deliver (“PWID”), corrupt organizations, and
conspiracy. The Commonwealth elected to try Brookins jointly with multiple
co-defendants. These co-defendants were also charged with kidnapping and
robbery of another drug dealer. There was no evidence that Brookins was
involved in these crimes. This Court ruled that the court’s failure to sever
the cases resulted in prejudice. The Brookins panel noted that the
evidence against Brookins’ co-defendants would not have been admissible
against Brookins in a separate trial. It added that the jury would not have
been able to separate the evidence of the robbery and kidnapping charges
from the charges against Brookins. Appellant contends that the evidence
against Gosnell in this matter was far more disturbing and prejudicial than
that at issue in Brookins. She highlights that most of the evidence against
Gosnell had no bearing on the charges against her, and the murder and
related abortion act evidence would not have been admissible against her in
a separate trial.
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The Commonwealth replies that, although “Gosnell was charged with
additional and far more serious offense including murder, those distinct
crimes made the evidence against him easily separable from the evidence
against [Appellant.]” Commonwealth’s brief at 8. It continues that because
the jury was instructed that it could not consider the evidence against
Gosnell in deliberating on the charges against Appellant, Appellant suffered
no prejudice.
The Commonwealth notes the general proposition that joint trials are
favored where co-defendants are charged with conspiracy. However, it does
not provide any case law where a defendant was jointly tried with a capital
defendant where that co-defendant was not implicated in the murder aspect
of the case. In the Commonwealth’s view, the fact that the jury acquitted
Appellant of corrupt organizations and several theft charges establishes that
she was not prejudiced.
Pa.R.Crim.P. 582 provides the framework for deciding severance
issues. Rule 582 reads in pertinent part:
(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the
jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
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(2) Defendants charged in separate indictments or informations
may be tried together if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.
Pa.R.Crim.P. 582. Thus, Rule 582 governs two separate and distinct but
frequently conflated scenarios. The first is the situation where the
Commonwealth charges a single defendant in multiple criminal informations
(or indictments in earlier cases), and seeks to join for trial the separate
cases of that defendant. See Pa.R.Crim.P. 582(A)(1)(a)(b). The second
scenario is where multiple defendants are to be jointly tried. Pa.R.Crim.P.
582(A)(2). Appellant’s case falls within the latter category. The conjoining
of the analyses for the separate situations, however, is the direct result of a
long line of case law. Moreover, in both situations, pursuant to Pa.R.Crim.P.
583, “[t]he court may order separate trials of offenses or defendants, or
provide other appropriate relief, if it appears that any party may be
prejudiced by offenses or defendants being tried together.”
The history behind Rule 582’s genesis and this Court’s standard of
review in severance cases is both enlightening and beneficial to
understanding why it was a manifest abuse of discretion not to grant
severance in this case. Almost two centuries ago, in Withers v.
Commonwealth, 5 Serg. & Rawle 59 (Pa. 1819), the Pennsylvania
Supreme Court first articulated its abuse of discretion standard in a
severance case. That matter, unlike this case, involved a single defendant,
Augustus Withers. Withers was charged with conspiring to cheat Benjamin
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Hickman in the first indictment. In a second indictment, he was charged
with conspiring to cheat William Thomas. Withers’ attorney argued that,
because the two offenses were distinct and did not involve the same
transaction, he should not have been tried for both indictments at the same
time. In contrast, the attorney for the Commonwealth argued that trying
two separate offenses in separate indictments was analogous to combining
multiple charges in a single indictment.
The High Court opined, “there is a strong analogy between [this case]
and those in which several counts for separate and distinct offenses are
included in the same indictment[.]” Id. at 60. It set forth, “in no case has
such joinder been considered a cause of demurrer, or ground for a motion in
arrest of judgment, but merely as a subject for the discretion of the court,
and therefore not a matter in which error could be assigned in a superior
court.” Id. at 61.
Relying on Withers, this Court in Commonwealth v. Hartman, 31
Pa.Super. 364 (1906), addressed the situation of severance where multiple
defendants were charged with the same conspiracy to violate the election
laws. There, eight men were charged with “having participated in one and
the same act of conspiracy to accomplish one and the same object, or, in
other words, with the commission of a single crime.” Id. at 366. The
Hartman Court opined,
Where two or more defendants have been jointly indicted in one
bill, the right to sever them in their defense and permit separate
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trials, upon proper showing, has been often and freely exercised
by trial courts, and is beyond question. But the offense of
conspiracy is so peculiar in character and so strongly does the
law incline to the natural conclusion that co-conspirators should
be tried together[.]
Id. at 367. Importantly, this statement must be read in the context of
where the conspirators are not charged with separate crimes involving
different criminal episodes. The Hartman Court added, “[w]e are not to be
understood, however, as holding that in no case of conspiracy may a
severance properly be allowed.” Id. at 368. Since the conspiracy crimes
charged were identical, the court ruled there was no error in not severing
the case. This case, unlike Hartman, involves far more serious charges
against one defendant.
This Court reached a similar result in Commonwealth v. Portner, 92
Pa.Super. 48 (1927). In Portner, the defendant and another individual,
Harry Cohen, were charged in three indictments with possessing morphine
and cocaine and in a fourth indictment with conspiracy to sell, deliver, and
distribute those drugs. Thus, there were no separate and distinguishable
charges as in the present case. The Portner Court ruled,
The offenses were misdemeanors of the same character
committed in succession by the same defendants in the same
circumstances, in the presence of the same parties. All of the
transactions could have been introduced in the first indictment
tried to show knowledge and intent and no advantage should
have resulted to the defendant by trials before separate juries.
Id. at 52. Again, the joint trial involving a conspiracy did not implicate
offenses for which one of the defendants was not charged with or implicated.
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See also Commonwealth v. Weiner and Zvon, 25 A.2d 844, 848
(Pa.Super. 1942). In accord with both Hartman and Portner is
Commonwealth v. McCord, 176 A. 834 (Pa.Super. 1935). McCord and
J.H. Waggy were both charged with identical crimes, specifically, assault and
battery, aggravated assault and battery, operating a motor vehicle on the
public highways while under the influence of intoxicating liquor, failing to
stop at the scene of an accident, and involuntary manslaughter. The
McCord Court collected cases on the issue of severance and reasoned,
“There, as here, the offenses were charged to have been committed by all of
the defendants at the same time and place.” Id. at 835. The Court
continued,
The true rule would now appear to be that just as in cases where
a defendant is charged in one indictment by separate counts
with different offenses, or where one defendant is charged in
separate indictments with different offenses, so likewise where
two defendants are indicted for the same misdemeanor growing
out of the same matters and circumstances so related that the
proofs received in one would be competent in the other, even
though the defendants demand separate trials, whether either
will be prejudiced by a joint trial and they are therefore entitled
to a severance is a matter for the trial court to determine in the
exercise of a sound discretion[.]
Id. at 836. The crux of the rationale in McCord focused on the fact that
each defendant was charged for conduct arising out of the same
circumstance. This is not the case herein.
Indeed, the Superior Court in McCord distinguished its earlier case,
Commonwealth v. Schmidheiser, 169 A. 572 (Pa.Super. 1933). In
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Schmidheiser, the Court ruled that it was error not to sever the
defendant’s case from several co-defendants. The defendant, George Nahm,
was charged with nine counts of embezzlement and fraudulent conversion.
An indictment also charged Fred Schmidheiser, Chrisitian A. Fisher, Harry A.
Rau, August Nahm, Charles B. Moore with the same crimes. These men all
worked for the same building association.
The Commonwealth also joined for trial Alexander Robinson. Robinson
had been charged in three separate indictments. Robinson did not work for
the building association, but instead was the vice president and treasurer of
the Northwestern Trust Company. Robinson was alleged to have aided and
abetted the other defendants in one indictment.
The Schmidheiser Court ruled that the joinder of Robinson with
George Nahm was improper. In doing so the Court reasoned,
We agree with the statement of the trial judge, in his opinion
refusing a new trial, that evidence of many of these transactions
would have been admissible against appellant if the jury had
been sworn only as to the issues arising under the indictment at
No. 1642, but it is also frankly conceded that "evidence was
received in connection with the indictment charging Robinson
with mis-application of the funds of Northwestern Trust Company
which had no bearing upon the guilt or innocence of defendant
Nahm." It is contended, however, that appellant was not
prejudiced by this evidence because the trial judge summarized
it separately for the jurors and instructed them to disregard it
when considering the charges against appellant and his co-
defendants. Whether they did so can only be conjectured.
Id. at 574. Since the evidence against Robinson was not connected with
Nahm, it was improper not to sever the case. Similarly, the grisly and
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inflammatory evidence of Gosnell’s murder and abortion crimes was not
related to the charges against Appellant.
In Commonwealth v. Quinn, 19 A.2d 526 (Pa.Super. 1941), denial
of severance was upheld in a case involving three individuals: a magistrate,
Quinn, and Dominick Litz. The charges against Quinn and Litz were larceny,
fraudulent conversion, blackmail, extortion, and conspiracy. This Court held
that the “testimony showed a general course of conduct pursued by Quinn in
conjunction with Litz, and all tending to the same general end. No matters
were presented to the jury in which the appellant Quinn was not directly
charged[.]” Id. at 529. Thus, contrary to this case, the evidence against
both defendants was admissible against each.
We reached a similar result in Commonwealth v. Mulroy, 36 A.2d
337 (Pa.Super. 1944). There, the defendant was charged with pandering
and acceptance of bawd money in relation to the running of a house of
prostitution. The madam, Beatrice Mello, and a prostitute, Helen Welker,
were tried with Mulroy. In rejecting Mulroy’s challenge to the court’s denial
of severance, this Court concluded,
All of the evidence against the Mello woman and the Welker girl
was relevant and material in the trial of this defendant, and most
of the evidence in his case was relevant and material against
them, especially, the Mello woman. He has no ground of
complaint that some of the evidence against him may not have
been relevant and material in their cases. They, only, could
complain of that, and they have not done so.
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Id. at 340. As in the prior cases, severance was not warranted for Mulroy
because the evidence against the other defendants was admissible against
him. Interestingly, however, the court noted that the other defendants
could have complained of evidence against Mulroy that was not material to
their case.
Our Supreme Court again spoke on issues of severance in
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). There, the
Commonwealth elected to jointly try Stephen and William Kloiber for their
involvement in a robbery. “The first count against Stephen was one of
armed robbery; the first count against William was one of robbery with
accomplice; the other four counts, charging robbery, assault with intent to
rob, larceny and receiving stolen goods, were identical.” Id. at 822. Citing
both Mulroy, supra, and Quinn, supra, the High Court ruled, “Especially is
a joint trial permissible, if not advisable, when the crimes charged grew out
of the same acts and much of the same evidence is necessary or applicable
to both defendants[.]” Id. at 823. Accordingly, the Court affirmed the
denial of severance.
In contrast, in Commonwealth v. Belgrave, 285 A.2d 448 (Pa.
1971), the Pennsylvania Supreme Court ruled that it was error not to sever
the defendants’ cases. The Belgrave case involved a scrum at a high school
football game after some fans did not stand during the National Anthem.
Three fans were assaulted at half-time and a high school band member was
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attacked after the game. Sixteen individuals were arrested. They were
indicted for riot, inciting a riot, public nuisance, common law nuisance,
obstructing a public highway, conspiracy and other charges. Only five of the
spectators were charged with assaulting the band member and one person
was indicted for the attack on the other three fans. Ultimately, eight of the
individuals entered guilty pleas during the trial.
In reversing, the Belgrave Court opined, “Besides the very nature of
these two assaults, the amount of evidence introduced by the
Commonwealth certainly accentuated these incidents in the jury's mind.”
Id. at 450. It noted that police identification testimony linked all of the
individuals together despite the distinct episodes. The Court suggested that
“proper instructions might have clarified the jury’s thinking” but found that
the jury instructions therein were improper in one respect. Id. Quoting
from a dissenting judge from this Court’s earlier decision in the matter, the
Supreme Court stated, "the complexity of the evidence and the extreme
variation in the amount and type of evidence against the various defendants
required marshalling the evidence against and for each defendant
separately." Id.
Subsequently, this Court and the Pennsylvania Supreme Court
addressed severance of multiple defendants in Commonwealth v. Tolassi,
392 A.2d 750 (Pa.Super. 1978), affirmed, 413 A.2d 1003 (Pa. 1980). The
defendants in Tolassi were union members charged with destroying a
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construction site. The Commonwealth charged twenty-three individuals.
Fourteen were tried jointly in the underlying Tolassi case, and eleven
convicted. All of the Tolassi defendants were charged with identical crimes.
This Court identified three factors to consider in determining whether to
grant or deny severance.
Whether the number of defendants or the complexity of the
evidence as to the several defendants is such that the trier of
fact probably will be unable to distinguish the evidence and apply
the law intelligently as to the charges against each defendant;
(2) Whether evidence not admissible against all the defendants
probably will be considered against a defendant notwithstanding
admonitory instructions; and (3) Whether there are antagonistic
defenses.
Tolassi, 392 A.2d at 753. The Superior Court reasoned that all of the
evidence was admissible against each defendant and no antagonistic
defenses were presented. It added that, “proof of the corpus delicti of the
various crimes charged in this case was identical for all the defendants.” Id.
On appeal, the Pennsylvania Supreme Court concluded similarly and
distinguished its earlier Belgrave decision. It relied principally on the fact
that each defendant was charged with identical crimes and all of the offenses
“arose from the same criminal activity[.]” Tolassi, 413 A.2d at 1007. In
addition, the Supreme Court noted that three defendants were acquitted of
all charges and another three were only convicted of two of the crimes
charged. Here, the charges against Appellant did not arise from the same
criminal activity as the overwhelming majority of criminal charges against
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Gosnell, nor was proof of Gosnell’s murder and abortion crimes identical to
the proof for Appellant’s lesser offenses.
In Commonwealth v. Patterson, 546 A.2d 596 (Pa. 1988), the
Pennsylvania Supreme Court addressed whether severance was warranted
where the “co-defendants were faced with identical rape, robbery, burglary,
aggravated assault, and conspiracy charges based on the same incident and
involving the same evidence, but where one co-defendant was also charged
with witness intimidation.” Id. at 597. This court had earlier reversed the
defendant’s conviction on the grounds that the witness intimidation evidence
against his co-defendant was not admissible against him and that the court’s
cautionary instruction was inadequate.
The Patterson Court began by noting that the case was “not a typical
joinder/severance case.” Id. at 599. The Court continued, “There are
generally two types of cases dealing with the issue of consolidation. One
type concerns the consolidation of different offenses involving the same
defendant. The other type concerns the consolidation of different
defendants involved in the same offense.” Id. at 600.
The Commonwealth averred therein that “the evidence against both
defendants was almost identical, and the only piece of evidence applying
solely to the co-defendant was clearly capable of separation by the jury and
easily compartmentalized[.]” The Patterson Court first recognized that a
plurality decision had earlier held that in determining whether severance is
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appropriate, the courts look to whether "‘the evidence of each of the
particular crimes would not have been admissible in a separate trial for the
other,’ or ‘whether the evidence is capable of separation by the jury so that
the danger of confusion is not present[.]’" Id. at 600 (quoting
Commonwealth v. Peterson, 307 A.2d 264 (Pa. 1973) (plurality)
(footnotes omitted).
The Supreme Court found that the defendant suffered no prejudice,
and highlighted that the cautionary instructions in the case sufficed to
remove any prejudice to the defendant, who was not charged with the
witness intimidation count. Unlike this case, we note that in Patterson,
supra, the Commonwealth charged the defendants with the identical serious
rape offenses and the witness intimidation count against one defendant
arose directly out of the rape charges. Appellant was not charged with the
identical most serious offenses as Gosnell, nor did the counts against her
arise from Gosnell’s murder and abortion crimes.
The Pennsylvania Supreme Court has also declined to rule that
severance was required in capital cases where the co-defendants were all
charged with murder. In Commonwealth v. Chester, 587 A.2d 1367 (Pa.
1991), the defendant and his co-defendant, Richard Laird, were both jointly
tried for capital murder. The Chester Court rejected Chester’s severance
challenge. The Court reasoned that both men were charged with conspiracy
in relation to the death of Anthony Milano and that the mere claim of
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antagonistic defenses did not warrant a separate trial. See also
Commonwealth v. Lambert, 603 A.2d 568 (Pa. 1992) (Lambert and co-
defendant Bruce Reese both charged with murder, robbery, criminal
conspiracy, and weapons violations); Commonwealth v. Marinelli, 690
A.2d 203 (Pa. 1997); Commonwealth v. Uderra, 706 A.2d 334 (Pa.
1998); Commonwealth v. Williams, 720 A.2d 679 (Pa. 1998);
Commonwealth v. King, 721 A.2d 763, 771 (Pa. 1998) (in case where
both co-defendants were charged with murder the Court reasoned, “the
following factors militated in favor of a joint trial: Appellants were charged
with conspiracy; the majority of the crimes charged were the same; the
circumstances giving rise to the crimes were identical with respect to both
defendants; and the witnesses necessary to prove the crimes were the
same.”); Commonwealth v. Lopez, 739 A.2d 485 (Pa. 1999);
Commonwealth v. Rivera, 773 A.2d 131 (Pa. 2001);11 Commonwealth
v. Housman, 986 A.2d 822 (Pa. 2009); Commonwealth v. Birdsong, 24
A.3d 319 (Pa. 2011); Commonwealth v. Presbury, 665 A.2d 825
(Pa.Super. 1995); Commonwealth v. Cull, 688 A.2d 1191 (Pa.Super.
1997).
____________________________________________
11
The trial court in its Pa.R.A.P. 1925(a) opinion relied on Rivera, King,
Chester, Lopez, Lambert, and Williams. In doing so it did not mention
the critical distinction that the co-defendants charged in those matters were
all also charged with murder. Hence, we find reliance on those cases
unpersuasive.
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This case, of course, does not involve two defendants both charged
with murder. None of the cases relied upon by the Commonwealth or the
trial court in discussing that joint trials for co-conspirators are favored
involves a proceeding where one defendant was charged with unrelated
murders, indeed capital murder, and the other individual was not also
charged with either murder or conspiracy to commit murder. Pointedly, the
Commonwealth has failed to supply a single case where a person charged
capitally was tried jointly with another person who had no involvement in
the res gestae of the murder. See e.g. Commonwealth v. Scarborough,
460 A.2d 310 (Pa.Super. 1983); Chester, supra; Lambert, supra;
Marinelli, supra; Williams, supra; King, supra; Rivera, supra;
Housman, supra.
Further, we have been unable to uncover a remotely analogous case
where one defendant was jointly tried with a co-defendant, whom the
Commonwealth charged with a host of far more serious offenses, and the
offenses that were the same or similar were entirely unrelated to the more
serious crimes. Importantly, unlike the cases referenced above, the
overwhelming majority of the crimes charged against Gosnell and Appellant
were not identical, nor were the circumstances giving rise to Gosnell’s crimes
identical to Appellant’s criminal behavior. The overlap between Gosnell’s
corrupt organizations charge and the counts against Appellant, while
undeniable, is paltry in comparison to the sheer amount of evidence against
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Gosnell that had no bearing on the charges against Appellant. This case
took place over the course of a month, and the vast majority of evidence
focused on Gosnell’s horrendous actions.12 We find the evidence in this case
far more prejudicial than that at issue in Brookins, supra.
Here, the prosecutor himself could not separate in his own mind the
evidence against Gosnell and Appellant. In his closing summation, the
prosecutor set forth,
I want to talk generally about Eileen O’Neil because one of
the things that should strike all of us is, what kind of person
that’s got medical training, can work in a facility for eight or ten
years, and not say a word to anybody about it?
She knew what was going on in that place. She saw the
conditions, but instead she hid upstairs in her office with her
head in the sand. She’s not fit to be a doctor. How can your
standards—what kind of doctor I would suggest to you would get
degree in the ‘90s and have no license? Makes you wonder
what’s up with her.
I would suggest to you that her nonaction makes her as
guilty as everybody else in this case—as guilty as the doctor, I’m
sorry.
N.T., 4/29/13, at 336. Although the jury was instructed to disregard this
argument, it illustrates the difficulty in separating the evidence of Gosnell’s
actions when considering the evidence against his employee, Appellant.
____________________________________________
12
We note that in addition to the prejudicial nature of the evidence,
Appellant was put to the added expense of defending this case for an
extended period of time that would have been unnecessary if tried
separately. Thus, counsel and the defendant sat through a two month trial,
much of which did not relate to the charges against her.
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Frankly, if the evidence against Gosnell was not the type of emotionally
charged evidence that was so prejudicial and inflammatory as to warrant a
separate trial where his co-defendant was not implicated in the murder
charges, it is difficult to conceive a scenario where a person could show such
prejudice.
Furthermore, the fact that the court instructed the jury to not consider
the evidence against Gosnell in deliberating on Appellant’s charges does not
preclude a finding of prejudice. Indeed, if jury instructions could cure any
resulting prejudice in a case such as this, there would be little grounds for
ever severing co-defendants for trial. In virtually every jointly-tried case,
the court can and does instruct the jury that it cannot consider exclusive
evidence against one defendant as evidence that a co-defendant is guilty.
The Commonwealth’s position would largely eviscerate Rule 583 since no
prejudice could be maintained as long as a jury was so instructed.
We find that this case was one of the exceptionally rare instances
where the evidence against one co-defendant was so inflammatory and
inherently prejudicial that jury instructions were insufficient. That Appellant
was acquitted of several offenses does not alter our conclusion. It is mere
conjecture whether the jury carefully separated the evidence or merely
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issued a compromise verdict after two weeks of deliberating. Cf.
Schmidheiser, supra.13
The evidence against Gosnell was shocking and highly disturbing. It is
difficult to even read the cold record without having a visceral reaction to
what transpired in Gosnell’s abortion clinic. This overwhelming and appalling
evidence of the killing of live born babies certainly would not have been
admissible in a trial solely against Appellant. The prosecutor himself, a
trained legal professional, could not separate the evidence against Gosnell
and Appellant. Permeating throughout this trial was the idea that Appellant
could not have been so blind and naïve not to have noticed what was
occurring one floor below. The trial court during sentencing even remarked,
“The one aspect of Ms. O’Neill’s case that does stun me is that someone with
so much education could stay at a place like this, could participate in any
way and not be shocked to the extent that they would either leave or call
the authorities.” N.T. 7/15/13, at 58. The court continued, stating, that in
going “to trial in a case that carries the horrors of the Gosnell trial, a lot of
that emotion is going to come your way, a lot of that anger.” Id. at 59.
None of the cases supplied by the trial court or the Commonwealth
supports the conclusion that a joint trial is appropriate for a defendant
charged with multiple homicides and a person charged with crimes wholly
____________________________________________
13
The jury did indicate prior to reaching its verdict that it was hung on two
counts.
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unrelated to those homicides. Accordingly, we find that the trial court
abused its discretion in failing to sever Appellant’s case from the capital
murder trial of Kermit Gosnell. As we have found that Appellant is entitled
to relief on her first issue, we need not reach her remaining contentions.
Judgment of sentence reversed. Case remanded for a new trial.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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