In Commonwealth v. O’Neil, 2015 Pa. Super. Lexis 18, a Pennsylvania Superior Court panel held that it was a manifest abuse of discretion for the trial court to deny a defendant’s request for severance from the capital murder trial of her co-defendant, the infamous Dr. Kermit Gosnell, where the bulk of the evidence pertaining to the murder charges would not have been admissible at a separate trial for the defendant.
As many will recall, Dr. Kermit Gosnell was alleged to have run an illegal abortion clinic in West Philadelphia, and was eventually convicted of three counts of first degree murder for the deaths of three babies that were delivered alive and subsequently killed. Gosnell was also convicted of a host of other charges relating to the operation of his clinic, including involuntary manslaughter in the death of a 41-year-old woman who died in an anesthesia overdose during a 2009 abortion.
Eileen O’Neil worked at Dr. Kermit Gosnell’s abortion clinic, and while working there falsely held herself out to be licensed to practice medicine—she had only completed medical school. The FBI and the Philadelphia District Attorneys Office uncovered her false pretensions during their investigation of Dr. Gosnell’s operation. Importantly, O’Neil was not alleged to have been involved in the deaths charged against Dr. Gosnell; nevertheless she was charged with corrupt organizations, theft by deception, and false swearing, based solely on her disingenuous practice of medicine without a license. Prosecutors joined O’Neil’s case with Gosnell’s for trial. Despite the corrupt organization charge being the only related offense charged against both O’Neil and Gosnell, the trial judge denied O’Neil’s motion to sever the cases.
Rule 582 of the Pennsylvania Rules of Criminal Procedure provides two scenarios in which it may be appropriate to try separate indictments jointly. The first scenario where joinder may be appropriate is where multiple offenses against a single defendant are alleged through separate indictments or informations, yet stem from the same series of events or, if from different events, would not cause undue confusion for the jury. The second scenario applies to joining indictments or informations against multiple defendants where they are alleged to have participated in the same act or transaction. Similarly, Rule 583 of the Pennsylvania Rules of Criminal Procedure permits the trial court to order separate trials “if it appears that any party may be prejudiced by offenses or defendants being tried together.”
In O’Neil, the Court stated that it was unable to uncover even a remotely analogous case where one defendant was jointly tried with a co-defendant charged with much more serious crimes, and where the offenses that were the same or similar were entirely unrelated to the more serious crimes—in this case, murder. Although both O’Neil and Gosnell were charged with the crime of corrupt organizations, the evidence pertaining to Gosnell’s operation of the abortion clinic was so inflammatory and inherently prejudicial that it was one of the rare circumstances where no amount of instruction could overcome the inescapable conclusion that the evidence surrounding O’Neil’s case would be inseparable in the minds of the jury from that presented against Gosnell.
The difficulty in separating O’Neil from Gosnell was made especially apparent in the closing argument, where the prosecutor flatly suggested that O’Neil was “as guilty as everybody else in this case—as guilty as the doctor.” In coming to its decision, the court believed that if the “emotionally charged” evidence against Gosnell was not so prejudicial and inflammatory as to warrant a separate trial, that it would be difficult to conceive a scenario presenting sufficient prejudice to warrant the framework established by Rules 582 and 583. Finally, in a footnote, the court noted that O’Neil had unfairly been required to undergo the expense of sitting through a multiple-month trial that would have been unnecessary if tried separately, perhaps adding another consideration for future defendants to argue that their cases should be tried separately.
The court vacated O’Neil’s convictions and remanded the case for a new trial.