A blog of the Philadelphia Bar Association’s Criminal Justice Section

seal_colorBy Burt Rose

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A panel of the Superior Court of Pennsylvania has granted a new trial on the case of COMMONWEALTH OF PENNSYLVANIA v. Eileen O’NEIL, Appellant, 2015 WL 233922, 2015 PA Super 12, #2506 EDA 2013 (Jan. 20, 2015), an appeal from a Judgment of Sentence of Judge Minehart of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0001668–2011. James F. Berardinelli, Esq., represented the Appellant. The judges were BOWES, OTT, and STRASSBURGER. Judge Bowes wrote the Opinion. There was no dissent.


Eileen O’Neil appealed 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. Appellant worked at Dr. Kermit Gosnell’s abortion 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. Importantly, the Appellant was not alleged to have been involved in the killing of the newborn babies. Rather, the Commonwealth charged Appellant with corrupt organizations, conspiracy to commit corrupt organizations, theft by deception, perjury, and false swearing 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. Appellant filed a motion to sever her case from Gosnell’s. The court denied that motion. At trial, the employees of the abortion clinic testified against Gosnell and Appellant. The overwhelming majority of the testimony in the 2 month trial was directed at Gosnell’s criminal violations; the testimony against Appellant consisted of no more than two or three days of that trial.


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.


The primary issue on appeal was: 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? The Panel’s answer was yes.


Judge Bowes wrote that 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 cases cited by the trial court or the Commonwealth did not support a conclusion that a joint trial was appropriate for a defendant charged with multiple homicides and a person charged with crimes wholly unrelated to those homicides. Accordingly, the Panel ruled that the trial court had abused its discretion in failing to sever the Appellant’s case from the capital murder trial of Kermit Gosnell and granted a new trial.


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