Woman in criminal custody case refuses judge’s questions

WEST CHESTER >> It is common practice in Chester County and across the Commonwealth for Common Pleas Court judges to instruct jurors hearing a criminal case before them that the defendant on trial is under no obligation to testify on their own behalf.

They do not have to take the stand and that decision cannot be held against them.

Further, the defense does not have to produce any evidence of innocence at all, nor offer witnesses to rebut the prosecution, nor address the jury with opening or closing arguments. The burden in the case rests squarely with the government, the judges inform the panel members, to remove the legal cloak of innocence from around the defendant, who can choose, if he or she wishes, to remain mute.

But that almost never happens. Through their attorneys, or on their own if they choose to represent themselves, defendants let the jurors know what they think of the case, what their take on the evidence might be, and why they should be found not guilty of the charges against them.

Ladies and gentlemen of the jury, as they say, meet Rebecca Ellen Kirschenbaum.

The 39-year-old Phoenixville woman appears to have chosen the path of silence in the face of the charges against her — including felony kidnapping of a minor — as she proceeds towards trial later this year before Judge Jeffrey Sommer. Whether because of a principled stand or out of simple mulishness, the decision places Kirschenbaum in some serious jeopardy — if convicted of the first-degree felony charge of kidnapping, she faces a possible maximum sentence of 10-to-20 years in state prison.

On Thursday, during a normally routine court proceeding dealing with the status of the two cases she is charged in, Kirschenbaum informed Sommer that she would not answer any of his questions, even as innocuous as, “How are you?” She said she was appearing under duress, and suggested

she did not accept the legitimacy of the court.

“I have nothing to say,” Kirschenbaum said. “Other than what the paperwork I filed says itself.”

“Tell me that paperwork that is?” Sommer asked, attempting to move the conversation forward. “What do you want me to look at?” There was no response. Four more times, when Sommer asked Kirschenbaum whether she wanted to hire an attorney to represent her, have a stand-by counsel appointed to assist her as she represented herself, or whether she needed time to prepare for trial, the small, blonde-haired, slim woman, wearing jeans and a plaid jacket, clasped in handcuffs and shackles, refused to say anything. She just looked around the courtroom as though she was waiting for a bus with a group of strangers.

“Can you at least nod your head if you can hear me?” Sommer asked, some frustration in his voice. When she again gave no response, he noted dryly, “I will see if we can get an interpreter for someone hard of hearing for the trial. Do you understand? Thank you.”

Kirschenbaum was first arrested and charged with interference of the custody of children and concealment of the whereabouts of a child, both felonies, in June after Phoenixville police began investigating allegations that she was not properly taking care of her two sons, ages 7 and 5.

According to a criminal complaint filed by Phoenixville Detective Nick Natale, a caller to the ChildLine service for suspected child abuse reported in May that the children were being neglected and that the house they were living in was the site of some drug activity.

Over the next few weeks, Denton said, he attempted to locate Kirschenbaum and her boyfriend, but could not contact them, or the children, despite leaving messages for them. Eventually, he spoke with the father of the older boy and learned that he had had no contact with his son since March 2020, even though he had joint custody of the child. Neither had a caseworker from the Chester County Department of Children, Youth and Families, Denton said.

Kirschenbaum was eventually arrested outside the Phoenixville magisterial District Court and released on bail. She was ordered to stay with her father at his home.

Then in February, after she had missed several court dates on the initial charges and stopped living with her father, Kirschenbaum

appeared in Common Pleas Court to address a bench warrant against her. She was allowed to make a phone call but did not return to the bail office. She was taken into custody in the lobby of the county Justice Center, with her then-6year-old son.

When a judge ordered later that day that she not be permitted unsupervised contact with her son, she initially refused to identify any adult who could supervise the child, then said the boy would Iive with a friend in West Chester. The judge allowed her to leave the court to deliver the child to the woman, but she did not do so, and disappeared, according to an affidavit by

Chester County Detective Ben Martin.

A warrant was issued for her on the kidnapping charge on Feb. 18, and she was picked up the next day. She has been held in Chester County Prison on bail since.

Deputy District Attorney Erin O’Brien, of the D.A.’s Child Abuse Unit, told Sommer at the status hearing Thursday that she would be ready to try the two cases against Kirschenbaum in July. That trial would presumably proceed with or without Kirschenbaum’s active voice.