Alleged Butler rapist tells judge his trial is unfair

A former Vernon resident who is representing himself against a charge of raping a woman in a car outside a Butler bagel shop heatedly told a judge Monday that he is being blocked from presenting all his evidence and his trial is becoming "a complete miscarriage of justice."

"The scales of justice continue to be tipped in favor of the state," defendant Andrew Pena, 48, said outside the presence of the Morris County jury to Superior Court Judge Stephen Taylor.

Pena's trial in Morristown started with opening statements on Oct. 27, during which he exclaimed to the jury that he has been misidentified as the person who yanked a woman out of a car around 3:30 a.m. on Jan. 28, 2007, and sexually molested her outside G&A Bagel Shop on Route 23 in Butler.

Morris County Assistant Prosecutor Christopher Schellhorn, who rested his case Monday before the defense side started, elicited trial testimony from the alleged victim, who was 19 at the time, that Pena was the attacker. She had picked his photograph out of a six-picture photo array in 2007.  Schellhorn also had called witnesses who found Pena's fingerprint on the victim's driver's side door and his boot prints near her vehicle.

Pena became riled when he wanted to introduce evidence in the defense stage that a county Sheriff's Office K-9 found heroin at the scene and that the assailant was first described as a black male.  Pena, whose ethnicity has not specifically been identified, has a dark complexion and the victim also had told a detective he might be Hispanic.

The judge had a testy exchange with Pena over his desire to offer information at trial that he says he obtained from now-deceased Butler Sgt. Andrew Soules.  In an apparent attempt to disparage the victim, Pena claims that Soules told him heroin was found at the scene, among other information.

The judge told him he could not introduce evidence he supposedly was told by a now-deceased person. Pena also insisted that a female assistant prosecutor who was involved in his first trial on the same charges is a former neighbor who attended the same church as he did.  That assistant prosecutor has stated she didn't know Pena and never had contact with him before his arrest in 2007.

Jurors have not been told but Pena was convicted of sexually assaulting the woman at his first trial and sentenced in 2009 to nearly 28 years in prison.  The appellate division of Superior Court reversed the conviction and ordered a new trial after finding that the first jury was permitted to hear too many details of a prior lewdness conviction against Pena.

"Your allegations about (the female assistant prosecutor) I found them to be absolutely baseless," the judge said. "You make allegations that are completely unsupported by the evidence in this case."

"Everybody wants to sweep this under the rug," Pena said. "My life is on the line."

Pena also claimed that certain state witnesses were not asked particular questions and the judge reminded him that he had insisted on representing himself and had the opportunity to ask the questions.  Then, Pena criticized "the body language" he believes the judge and his standby defense counsel Elizabeth Martin are exhibiting that reflects negatively on him.

The judge denied showing any bias through his "body language" and told Pena he has admonished him during the trial only because he sometimes seems to deliberately ignore the court's instructions.  Martin, meanwhile, questioned just one witness -- the alleged rape victim -- and asked questions that were dictated by Pena.

"This was a witch hunt from the start," Pena said.  "How was it a witch hunt, with a fingerprint?" the judge replied, noting that authorities had an evidentiary basis to view Pena as a suspect.

When the defense side started Monday, Pena called Joyce Opperlee who was the Butler police dispatcher on Jan. 28, 2007. Opperlee said she received information about the rape suspect's vehicle from an officer at the bagel shop and put out a broadcast.

The broadcast was for a Ford F150 pickup truck with a particular license plate.  Pena let jurors know that he was driving a Dodge pickup truck, not a Ford.  His actual license plate was similar but not exactly the same as the plate that was glimpsed as the truck pulled out of the bagel shop parking lot shortly after the alleged sex assault.

Pena also called Butler Police Sgt. Colleen Pascale as a witness but her testimony supported the state's evidence.  She said that boots were found at Pena's home that matched a particular tread pattern found at the scene.  She said that Pena, during an interview with police, also claimed he only went to Dunkin Donuts and Home Depot in Butler and didn't mention the bagel shop as a stop.

In his opening, Pena said he touched the victim's car door during a stop at the store but denied assaulting her.   The trial is expected to resume Wednesday; court is not in session Tuesday because of Election Day.

   Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.