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

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A21004-14


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
____________________________________________


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.




                                           -2-
J-A21004-14


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.


____________________________________________


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.



                                           -3-
J-A21004-14


       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
____________________________________________


5
 Dr. Karen Feisullin testified that Cytotect is a brand name of Misoprostol, a
drug used to help soften a women’s cervix.



                                           -4-
J-A21004-14


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
____________________________________________


6
  A precipitous birth was defined at trial as the fetus coming out of the body
faster than expected.



                                           -5-
J-A21004-14


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.

____________________________________________


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.



                                           -6-
J-A21004-14


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

____________________________________________


9
  Multiple witnesses did testify that Appellant performed CPR on Ms. Mongar
and Appellant did provide law enforcement with a statement indicating the
same.



                                           -7-
J-A21004-14


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


                                    -8-
J-A21004-14


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.




                                    -9-
J-A21004-14


        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

____________________________________________


10
     The remaining charges were nolle prossed.



                                          - 10 -
J-A21004-14


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).


                                      - 11 -
J-A21004-14


      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.




                                     - 12 -
J-A21004-14


     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.


                                   - 13 -
J-A21004-14


      (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

                                       - 14 -
J-A21004-14


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

                                      - 15 -
J-A21004-14


     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.

                                    - 16 -
J-A21004-14


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


                                      - 17 -
J-A21004-14


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


                                   - 18 -
J-A21004-14


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.




                                      - 19 -
J-A21004-14


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


                                     - 20 -
J-A21004-14


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


                                       - 21 -
J-A21004-14


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




                                    - 22 -
J-A21004-14


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


                                     - 23 -
J-A21004-14


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


                                      - 24 -
J-A21004-14


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.



                                              - 25 -
J-A21004-14


      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


                                    - 26 -
J-A21004-14


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.



                                          - 27 -
J-A21004-14



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




                                    - 28 -
J-A21004-14



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.



                                          - 29 -
J-A21004-14



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




                                    - 30 -
