Commonwealth v. O'Donnell

8 Pa. D. & C.5th 40
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedApril 28, 2009
Docketno. 9639-2007
StatusPublished

This text of 8 Pa. D. & C.5th 40 (Commonwealth v. O'Donnell) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. O'Donnell, 8 Pa. D. & C.5th 40 (Pa. Super. Ct. 2009).

Opinion

FURBER, J.,

On June 5,2008, at the conclusion of a non-jury trial that began on May 27, 2008, we found the defendant, Mark Patrick O’Donnell, guilty of first-degree murder, two counts of involuntary deviate sexual intercourse, indecent assault, tampering with evidence, abuse of a corpse, and possession of drugs and drug paraphernalia. We found him not guilty of possession with intent to deliver. Following a penalty hearing we decided on a term of life imprisonment for the first-degree murder conviction. On January 8, 2009 we formally imposed the life sentence, followed by consecutive terms of 10 to 20 years and one to two years imprisonment. Mr. O’Donnell filed his appeal to the Superior Court on January 16, 2009.

We directed him to file a statement of errors complained of on appeal, and, upon review and a determination that the statement filed was too general to define the issues presented, ordered defendant to file a supplemental statement. He filed that document within the time allowed.

Defendant asserts on appeal that the evidence was insufficient to sustain convictions of first-degree murder and involuntary deviate sexual intercourse, or, in the alternative that those verdicts were against the weight of the evidence. With regard to first-degree murder he states:

“The appellant asserts the evidence was insufficient given the testimony of the psychiatrists, the undisputed [42]*42intoxication of the appellant, the circumstances of the offense, the lack of premeditation, the lack of specific intent to kill, and the utter void of any prior problems between the deceased and the appellant.”

With regard to the weight of the evidence:

“The appellant asserts that the credible testimony presented in the trial should have led the fact-finder to conclude that the appellant was clearly intoxicated, and, such intoxication prevented him from forming the mens rea necessary for first-degree murder.”

As to involuntary deviate sexual intercourse, the same reason is given for both sufficiency and weight:

“The appellant asserts that evidence was insufficient given the complete lack of any forensic evidence linking the appellant to a sexual assault, the lack of any implement which was used or could have been used by the appellant for the sexual assault, the presence of Caucasian hairs on the deceased lips when the appellant is African American, and the clear expert testimony that the sexual activity could have occurred prior to the appellant’s arrival at the apartment.”

In Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170 (2009), the Supreme Court held that when reviewing a claim the evidence is insufficient, the court must consider the evidence in the light most favorable to the Commonwealth to determine if the evidence and all reasonable inferences are sufficient to establish the elements of the offense beyond a reasonable doubt. 599 Pa. at 627, 962 A.2d at 1176. A claim the verdict is against the weight of the evidence will be upheld only when the [43]*43conviction is so contrary to the evidence as to shock one’s sense of justice. 599 Pa. at 630, 962 A.2d at 1177-78; Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006), allocatur denied, 590 Pa. 655, 911 A.2d 933 (2006). Whether a defendant’s faculties and sensibilities were so overwhelmed with drugs that he could not form the specific intent to kill is a question of fact solely within the province of the trier of fact, who is free to believe any, all or none of the testimony regarding intoxication. Commonwealth v. Vandivner, 599 Pa. 617, 628-29, 962 A.2d 1170, 1177 (2009). The evidence need not preclude every possibility of innocence, Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006), allocatur denied, 592 Pa. 778, 926 A.2d 972 (2007), nor exclude all possibility that a third party may have committed the crime. Commonwealth v. Akers, 392 Pa. Super. 170, 181, 572 A.2d 746, 751 (1990).

The evidence led us to conclude, beyond a reasonable doubt, that the defendant committed involuntary deviate sexual intercourse on 14-year-old Ebony Dorsey by inserting a cylindrical object into her vagina and into her anus. We also decided that Mr. O’Donnell did not lack the capacity to form the specific intent to kill Ebony due to cocaine intoxication.

The evidence showed that Ebony Dorsey died in the very early morning hours of December 7, 2007. Her mother, Daniele Cattie, and the defendant had a relationship based on sex and drugs. They regularly engaged in intercourse, including anal sex, and used cocaine together. Mr. O’Donnell enjoyed pornography and liked to view scenes of anal intercourse over and over.

[44]*44On December 6,2007 the defendant asked that Ebony babysit his daughter, Kyra, in the apartment of his estranged wife, Tameika O’Donnell. When Ms. Cattie returned to her home in Ambler around midnight from her bartending job, defendant was there with six $20 bags of cocaine. She asked why Ebony and Kyra were not at her house, and Mr. O ’Donnell explained he wanted Kyra to be in her own bed.

He and she split the cocaine. Ms. Cattie snorted hers, and defendant cooked and then smoked his. During the night they played backgammon and watched some pornography, but did not engage in any form of sexual intercourse. Several hours after they used up the cocaine, around 5:30 a.m., Ms. Cattie asked Mr. O’Donnell to pick up Ebony so she could go to school.

Ms. O’Donnell, who traveled frequently on business and was due to return home on December 7, 2007, explained she kept a computer in her apartment. It had a guest account she let relatives and visitors use. A forensic examination of that computer showed that it was used on and off from about 10 p.m. on the night of December 6 until 1:50 a.m. on December 7. During that time it was used for MySpace activity, chat and looking at celebrity photographs, activity typical of a teenager. No pornography was viewed during that time. Beginning at 5:39 a.m. on December 7, 2007 it was used to view pornography, including pictures of anal intercourse.

Defendant confessed that he killed Ebony Dorsey that morning in his wife’s apartment, asserting a fit of rage after he supposedly discovered Ebony engaging in inappropriate behavior with Kyra. He claimed not to remem[45]*45ber the killing, but said that he “went off”, wrapped Ebony’s pajamas around her neck, and found himself with his knees on her shoulders facing her. In his statement he told the police Kyra complained that her vagina hurt after the killing. By the time he spoke to the psychiatrist retained on his behalf he changed the story to have Kyra complaining of this before the killing.

Defendant put Kyra in the bath tub, dumped his clothing from a blue plastic container, stuffed Ebony’s body inside, and took it outside near the dumpster.

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Related

Commonwealth v. Charlton
902 A.2d 554 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Pruitt
951 A.2d 307 (Supreme Court of Pennsylvania, 2008)
Com. v. Adames
926 A.2d 972 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Akers
572 A.2d 746 (Supreme Court of Pennsylvania, 1990)
Commonwealth v. Vandivner
962 A.2d 1170 (Supreme Court of Pennsylvania, 2009)
Commonwealth v. Brown
711 A.2d 444 (Supreme Court of Pennsylvania, 1998)
Com. v. Garland
911 A.2d 933 (Supreme Court of Pennsylvania, 2006)
Commonwealth v. Andrulewicz
911 A.2d 162 (Superior Court of Pennsylvania, 2006)

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Bluebook (online)
8 Pa. D. & C.5th 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-odonnell-pactcomplmontgo-2009.