Decision Date28 October 1999
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kelly O'DONNELL, Appellant.
CourtPennsylvania Supreme Court

Robert Brett Dunham, Philadelphia, for K. O'Donnell.

Catherine Marshall, Karen A. Brancheau, Philadelphia, for the Com.

Robert A. Graci, Harrisburg, for Atty. General's Office.



NIGRO, Justice.

Following a four day bench trial, Appellant Kelly O'Donnell and her co-defendant, William Gribble, were found guilty of first degree murder for the death of Eleftherios Eleftheriou. Appellant was also convicted of criminal conspiracy, robbery, and related offenses. On July 1, 1993, following a bench penalty-phase hearing, the trial court found one aggravating factor and three mitigating circumstances, and sentenced Appellant to death.1 The trial court denied Appellant's post-verdict motions and formally imposed the sentence of death on August 11, 1994. This direct appeal followed. For the reasons discussed below, we affirm Appellant's convictions but reverse the judgment of sentence imposed by the trial court and remand for a new penalty phase hearing.

Although Appellant does not challenge the sufficiency of the evidence, this Court is required in capital cases to review the record to determine whether the Commonwealth has established the elements necessary to sustain a conviction for first-degree murder. Commonwealth v. Washington, 547 Pa. 550, 553, 692 A.2d 1018, 1019 (1997), cert. denied, 523 U.S. 1123, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998). In conducting such a review, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner and determine whether the fact-finder could find every element of the crime beyond a reasonable doubt. Id.

Viewed under this standard, the evidence presented at trial establishes that in early November of 1992, Appellant and her boyfriend, William Gribble, were staying in an apartment at 3123 Richmond Street in Philadelphia. The apartment belonged to Agnes McClinchey, Gribble's mother, who had given Appellant and Gribble permission to stay there while she went to visit a Mr. Ed Paduski. James Mathews, an elderly friend of McClinchey's, also resided in the apartment.

On November 11, 1992, at approximately 10:30 p.m., Appellant went to a pizza shop managed by Mr. Eleftheriou, carrying a leather jacket which she offered as collateral for a loan she sought from Mr. Eleftheriou. An employee of the pizza shop observed Mr. Eleftheriou remove a large roll of money from his pocket and give Appellant some money. Appellant and Mr. Eleftheriou then made arrangements to meet later that evening. After closing the pizza shop at approximately 1:00 a.m. on November 12, 1992, Mr. Eleftheriou left in his car to meet Appellant.

In a confession later given to police, and admitted at trial, Appellant stated that at approximately 1:30 a.m. on November 12, 1992, she met with Mr. Eleftheriou and brought him back to the apartment at 3123 Richmond Street. When Mr. Eleftheriou was looking out a window, Appellant admitted that she struck him in the head with a hammer. After Mr. Eleftheriou fell to the floor, Appellant stated that she continued to beat him with the hammer. Appellant claimed that she was motivated to kill Mr. Eleftheriou because he was a "pervert" and had previously sexually assaulted her. Shortly after beating him, Appellant stated that she took Mr. Eleftheriou's body to the basement, dismembered the body with a hacksaw, and put the body parts in trash bags. She also admitted that she cut off Mr. Eleftheriou's penis and placed it in a pencil case with the intention of sending it to her father. In her statement, Appellant alleged that she beat and dismembered Mr. Eleftheriou without Gribble's help or knowledge. However, Appellant maintained that Gribble did help her with disposing the trash bags containing the body parts and stated that she and Gribble dumped the trash bags along Delaware Avenue at some point on November 12, 1992. Later that same evening, Appellant admitted that she and Gribble used Mr. Eleftheriou's car and credit card to go shopping.2

On the morning of November 13, 1992, Philadelphia police received a report that someone had found body parts in a trash dump on North Delaware Avenue. The responding officers found the severed arms of a white male, a human torso with its head missing and a head with the left eye removed. These body parts were later identified as belonging to Mr. Eleftheriou. Among papers strewn around the site, police found a letter addressed to Agnes McClinchey, 3123 Richmond Street.

Later on November 13, 1992, Agnes McClinchey returned to her apartment, finding blood on her front door and on the carpet. Appellant told Ms. McClinchey that she and Gribble had "been involved in a murder" and that she had heard a report that the victim's head had been found on Delaware Avenue. Ms. McClinchey also overheard Appellant tell Gribble to burn Mr. Eleftheriou's car. When Gribble returned from doing so, Appellant said to him "thank God you didn't get caught." At approximately 7:30 p.m. on November 13, 1992, police responded to a report of a car on fire on D Street. After the fire was extinguished, police found body parts in the inside of the car, later identified as belonging to Mr. Eleftheriou.

Ms. McClinchey subsequently called the police. After interviewing Ms. McClinchey at a near-by gas station, police went to her apartment and arrested Appellant and Gribble at approximately 1:30 a.m. on the morning of November 14, 1992. A search of the basement revealed a kitchen knife, a chisel, and a claw hammer, each containing traces of human tissue and blood. Stuffed inside a pipe, police also found a pencil case containing a human eyeball and penis. During questioning at the police station, Appellant and Gribble each gave their separate statements accepting personal responsibility for the murder while attempting to exculpate the other. Appellant and Gribble were each charged with murder, robbery, arson, and a variety of related offenses in connection with the killing of Mr. Eleftheriou.

Appellant and Gribble were tried jointly. Both waived their right to a jury trial and agreed to be tried before the trial judge. At the bench trial, an assistant medical examiner testified that there were numerous abrasions on Mr. Eleftheriou's head that were consistent with blows from a hammer. He further testified that one person could not have killed and dismembered the victim in a manner consistent with the physical evidence. According to the medical examiner, red abrasions in the areas where the victim's head and right arm had been severed indicated that his heart was still beating when these body parts were removed. In contrast, yellow abrasions in the areas where the remaining body parts had been severed indicated that the victim's heart had stopped beating by the time those parts were severed. The medical examiner testified that one person working alone would not have been able to remove both the head and the right arm in the estimated fifteen minutes it took before the victim bled to death. After hearing the evidence presented at trial, the trial judge convicted Appellant on all counts, including murder in the first degree, 18 Pa.C.S. § 2502(a).3

To obtain a conviction for first-degree murder, the Commonwealth must prove that a human being was unlawfully killed, that the defendant did the killing, that the killing was done with deliberation, and that the defendant acted with a specific intent to kill. See 18 Pa.C.S. § 2502(a), (d) (1983); Commonwealth v. Rios, 546 Pa. 271, 281, 684 A.2d 1025, 1036 (1996), cert. denied, 520 U.S. 1231, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997). This specific intent to kill may be proven by circumstantial evidence, which may consist of the defendant's use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).

We agree with the trial court that the evidence presented at trial was sufficient to support a conviction of first degree murder. Using a hammer to repeatedly smash a human being's skull undoubtedly supports a finding that a deadly weapon was used on a vital part of the victim's body and permits an inference of a specific intent to kill. See Commonwealth v. Marshall, 534 Pa. 488, 500, 633 A.2d 1100, 1106 (1993)

(use of hammer on head of victim was sufficient to demonstrate specific intent to kill). Further, based upon our independent review of the record, we are satisfied that sufficient evidence was produced at trial from which the fact finder could have found each element of an intentional killing beyond a reasonable doubt. See 18 Pa.C.S. § 2502(a), (d) (1983).4

Following the verdict, the court accepted defense counsel's assertion that Appellant wished to waive her right to a jury trial for the penalty phase. Following the sentencing hearing, the trial judge concluded that the one aggravating circumstance it found outweighed the three mitigating factors also found, and sentenced Appellant to death. After the court advised Appellant of her post-trial rights, defense counsel requested the appointment of replacement counsel. New appellate counsel was retained, who represented Appellant on post-verdict motions, which were denied by the trial court on August 11, 1994. Appellate counsel then filed a brief and conducted oral argument on Appellant's direct appeal to this Court. Finding the brief and argument to be inadequate to allow for proper review, this Court issued an order on July 31, 1996, giving Appellant the choice of retaining new counsel, requesting the appointment of new counsel, or proceeding with her current appellate counsel, despite the inadequacies. Following the issuance of this order, the Center for Legal Education,...

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