Submitted July 29, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0001668-2011. Before MINEHART, J.
James F. Berardinelli, Philadelphia, for appellant.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: BOWES, OTT, and STRASSBURGER,[*] JJ.
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 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. 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 swearing. 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. 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. The testimony against Appellant would have consisted of no more than two or three days of the trial.
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, 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 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. 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 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.
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. 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. 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. 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 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 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.
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 ...