‘Scotty’ trial is delayed

Competency is at issue for defendant Gary Lee Fellenbaum in case

WEST CHESTER >> The death penalty trial for the man accused of the brutal torture and murder of 3-year-old Scott “Scotty” McMillan was pushed back until September after a convoluted hearing Thursday on whether the accused is competent to help his attorney defend the case.

After a hour-long proceeding that dealt with a motion to have Gary Lee Fellenbaum undergo a psychological evaluation — first made and then withdrawn by his defense attorney — Common Pleas Judge William Mahon ordered that the new trial date be set for Sept. 18, more than five months after its pre- viously scheduled start date of April 1.

In the meantime, Mahon gave Fellenbaum’s attorney, George Yacoubian of Philadelphia, 45 days to have his client evaluated by a mental health expert to determine whether he would be competent to stand trial. The judge also set a date in mid-April for hearings on a number of pre-trial motions, including whether to combine Fellenbaum’s trial with that of the victim’s mother, Jillian Tait, and whether to move the trial out of Chester County.

Those motions were initially set to be heard by Mahon starting Thursday, but were set aside after Yacoubian raised the issue of whether he believed Fellenbaum would be intellectually able to assist

him during the capital murder trial, or whether some mental infirmity would prevent him from doing so.

McMillan’s lifeless body was found in November 2014 in the trailer in West Caln that he lived in his mother, his older brother, Fellenbaum, and Fellenbaum’s estranged wife. Fellenbaum and Tait had begun dating several weeks earlier and had been living together in the home, during which Fellenbaum allegedly beat McMillan severely and, allegedly with Tait’s help, tortured the 3-yearold and his brother.

District Attorney Tom Hogan, in announcing the arrests or Fellenbaum and Tait, called McMillan’s death, “an American horror story.”

Earlier this month, said Yacoubian during a drawn out explanation before Mahon of his changing views on the matter, he had developed concerns about Fellenbaum’s competency. Although he did not lay out specifics of what led him to have concerns, they stemmed from a letter Fellenbaum wrote Mahon on Jan. 10 in which he said he wanted to represent himself.

Yacoubian, said however, that after discussing the matter with Fellenbaum’s father — who appeared in the courtroom Thursday — and again with Fellenbaum himself in the Justice Center lockup that morning, he had decided that Fellenbaum’s competency was not an issue.

“It is clear to me that he is competent to proceed with whatever the next step (in the trial) might be,” Yacoubian told Mahon. “I believe firmly that he does understand what these proceedings are, what his role is, and what the role of the prosecution and the court are. I believe that he can adequately assist me in his defense.”

He said he believed that the questions he had with Fellenbaum arose from bad legal advice that Fellenbaum was getting from other inmates at Chester County Prison, where he is being held without bail.

The “unusual conversation” he had with Fellenbaum earlier this month at the prison about his wish to represent himself was in fact swayed by others who “are leading him down the path of bad advice,” Yacoubian said. “I believe it is an issue of undue influence and not any underlying mental health issue.”

Questions about Fellenbaum’s competency, “are not what I believe now,” the attorney said.

Yacoubian asked to formally withdraw motion he had filed earlier Thursday morning asking to be allowed to have Fellenbaum’s competency evaluated. But both Mahon and First Assistant Michael Noone, who is leading the prosecution, said they were not comfortable with having the competency issue done away with so easily.

Noone said that should Yacoubian abandon a formal evaluation of his client, the matter could be raised on appeal should Fellenbaum be convicted

of first-degree murder and sentenced to death. He said the “integrity” of any conviction could be challenged in the future should the competency issue be raised and then dismissed without a true finding.

“Once competency is raised, the proverbial genie is out of the bottle and needs to be addressed,” Noone said.

Mahon, seemingly frustrated by Yacoubian’s changing stance, said that the attorney had first raised the issue of competency with him in a Jan. 11 letter, and then more formally in the pre-trial motion filed Thursday. Noting that Yacoubian had not training or expertise in judging whether a person was psychologically incompetent or not, he said.

Out of an “abundance of concern,” Mahon said he would dismiss Yacoubian’s request to withdrawn his motion on competency, and asked him what course he would take. After consulting with Fellenbaum’s father, Yacoubian said he would be willing to hire an independent psychologist to evaluate him.

Mahon said he would give the defense until March to prepare a report, which would then give the prosecution an opportunity to prepare its own report. Those matters would then be litigated at the next hearing in April — at which time Mahon said he also intends to question Fellenbaum about his request to represent himself.

Fellenbaum, dressed in a black t-shirt and black pants, did not speak during the hearing. He was

brought in and out of the courtroom in handcuffs and shackles, and returned to the prison.

The hearing on Tait’s pretrial motions was also continued because she intends to oppose Fellenbaum’s request for a joint trial, and will have to wait until the issue of his competency is settled.

Fellenbaum, 25, Tait, 33, and Amber Fellenbaum, 25, all worked at the Walmart in western Chester County in the summer and early fall of 2014. Tait moved in with the Fellenbaums at a trailer home on Hope Lane sometime in September, 2014.

Beginning in October 2014, according to the allegations set forth in the case against the Fellenbaums and Tait, Gary Fellenbaum began physically

abusing both of Tait’s sons. The abuse included punches and beatings, but also whipping with a crudely fashioned “cat o’nine tails,” and tying the boys to chairs or hanging them upside down by their feet.

Allegedly Fellenbaum’s beating of Scott McMillan escalated to the point where the boy could not hold down his food. Angered, Fellenbaum allegedly punched him in the face so hard he fell out of his chair, and later punched him in the stomach. The boy began vomiting and later passed out. Although Fellenbaum and Tait tried to revive him, they left him alone in a bedroom for several hours before finding him completely unresponsive in the evening of Nov. 4, 2014.

Both allegedly gave incriminating

statements to police investigators after their arrests. Yacoubian and Harmelin have asked Mahon, in their motions, to suppress those statements, saying they were given under duress.

Amber Fellenbaum, who did not participate in the alleged abuse, called 911. She is not charged with murder, but rather with endangering the welfare of children and recklessly endangering another person.

The trial is expected to last three weeks. Mahon said he would summon as many as 250 potential jurors to the courthouse to insure a fair panel could be seated.

To contact staff writer Michael P. Rellahan call 610-696-1544.

Gary Lee Fellenbaum