Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Child Sex Abuse Retrial Set for Today for Ex-Ice Cream Store Owner

Newspaper article Pittsburgh Post-Gazette (Pittsburgh, PA)

Child Sex Abuse Retrial Set for Today for Ex-Ice Cream Store Owner

Article excerpt

A former North Hills ice cream store owner whose conviction for sexually abusing two young sisters was thrown out by the state Superior Court last year is scheduled to be retried Monday morning.

David Higginbotham of Baden, who had owned a Handel's ice cream shop in McCandless, was found guilty in August 2014 of 12 counts of sexual abuse and related charges following an Allegheny County Common Pleas Court jury trial before Judge Donna Jo McDaniel.

Mr. Higginbotham, 65, was accused of abusing his victims, who were family friends, over a period of years.

Judge McDaniel sentenced him to 20 to 40 years in prison.

While presenting its case to the jury, the prosecution relied almost exclusively on the testimony of the alleged victims. The Superior Court called the case a "classic he-said/she-said case, with one notable variant: there were two, closely related victims whose testimonies, generally speaking, corroborated one another."

After Mr. Higginbotham testified on his own behalf, denying the allegations, and the defense rested, the prosecution called a rebuttal witness - Jennifer Wolford, a physician at the Child Advocacy Center at Children's Hospital of Pittsburgh of UPMC, who examined the two girls. That testimony ultimately led to the Superior Court's decision last year to remand the case for a new trial.

That rebuttal, the Superior Court said, was meant to counter statements made by Mr. Higginbotham's attorney at the time to the media, not to jurors in the courtroom.

"The trial court does not identify which evidence Dr. Wolford's testimony was admitted to rebut, and it is obvious to this Court that a defense attorney's statement to the media does not constitute evidence. Furthermore, there is no evidence of record that the jury was even aware of counsel's media statement," the decision said. "This clear legal error was an abuse of the trial court's discretion."

Dr. Wolford testified that neither of the girls showed physical symptoms of abuse, but that was typical.

"We know that in the field of child abuse, which really in the realm [sic] of sexual abuse, that actually more than 95 percent of the exams on children are normal. …

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