Trial starts for Butler rape suspect

A carpenter who is representing himself at his second trial on charges of sexually assaulting a woman in a car outside a Butler bagel shop in 2007 told a Morris County jury Tuesday that he is "not a rapist'" but a victim of mistaken identity.

While Andrew Pena, 48, gave an emotional opening statement and at times started to cry, Morris County Assistant Prosecutor Christopher Schellhorn calmly outlined the evidence against Pena but dramatically emphasized the brutality of the attack on the then-19-year-old woman who was sexually assaulted in a car in darkness behind G&A Bagel on Route 23 in Butler on Jan. 28, 2007.

"The man who sexually assaulted her was Andrew Pena," Schellhorn said. "You'll have no honest, reasonable doubt" by the end of the trial, he said.

Pena is representing himself in the trial before state Superior Court Judge Stephen Taylor in Morristown, though Morris County Assistant Deputy Public Defender Elizabeth Martin is standby counsel. Pena was admonished several times by the judge during his opening when Pena equated himself to unspecified defendants "waiting to be executed because of a wrongful identification" and asked jurors to think of how they would feel if their fathers, brothers or sons were accused of crimes they didn't commit.

"It's improper of you to address other cases," Taylor warned Pena.  New Jersey also does not have the death penalty.

"I'm tired of the label on my head as a rapist," Pena said to jurors.  The jury is composed of 14 women and two men -- four of whom will be selected as alternates before deliberations -- and Pena said he wanted a lot of women on the jury.

"There is no one better than a woman to assess another woman's allegations that she was sexually assaulted," he said.

He conceded that his fingerprints were found on the victim's car but said he simply shut her car door when he passed by it during a late-night stop at the deli. He said the prosecutor also would try to show that the sexual assailant exposed to the victim a "12-inch member" but that he will display photographs to show his genitals are much smaller.

"Closing the door to a vehicle at an establishment doesn't equate to a rape or burglary.  There's nothing that links me here.  If this case is not a case of reasonable doubt, then reasonable doubt doesn't exist as I know it," he said.

Pena exclaimed that he knows he is mocked and scorned by some for choosing to represent himself but then waxed biblical, asking "Did they mock Moses?" or Noah, who predicted the flood.

"Mr. Pena's not a rapist.  What I'm going to do is restore the name of my family," he said. He again declared that he is a voice for wrongly accused people on death row.

"I'm here for those individuals," he said.

Schellhorn, meanwhile, said the victim will testify that she drove with two friends to the bagel shop around 3 a.m. on Jan. 28, 2007, for a late snack and waited in the friend's unfamiliar car while the other two went into the shop.  A man sweeping snow from around the entrance to the shop directed her to move the car because it supposedly was impeding parking lot traffic  and then directed her a second time to pull to the rear of the shop, Schellhorn said.

"She would be alone in the dark," Schellhorn said.

The victim realized the dark area in back of the shop was a dead-end and panicked when she saw the man who had told her to move the car approach, with a grin on his face.  He yanked open the door, grabbed her by the back of her hair, pulled her pants and underwear down and forced her out of the car onto the cold ground and demanded she touch his genitals as he sexually molested her, Schellhorn said.

The assailant fled at the sound of voices, and the victim screamed she had been assaulted. The victim later identified Pena as her assailant from a photograph array, his fingerprints were on the car and boot prints that matched his were found at the scene.

Pena previously was  tried in 2009 in Morris County and convicted of aggravated sexual assault, burglary for entering the car, criminal sexual contact and sexual assault.  He was sentenced in December 2009 to 27 years in prison, but a state appeals court last year reversed the conviction and ordered a new trial, because of errors made by the original trial court judge.

Jurors are not aware of Pena's prior conviction that was overturned, and the judge cautioned him to be careful not to refer to the first trial, as he cross-examined state's witness Morris County Sheriff's Officer Brian Ahern.

The trial is scheduled to continue Wednesday in Morristown.

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