Plea deal reached Former ice cream store owner gets 2 years’ house arrest
Under a plea deal Monday, a former ice cream store owner whose conviction of molesting two sisters was thrown out by an appeals court pleaded guilty to several charges, avoiding a retrial and receiving a drastically reduced sentence.
Allegheny County Common Pleas Judge Alexander Bicket sentenced David Higginbotham Sr. to two years of house arrest and 10 years of probation, and he must register as a sex offender for life. After his initial conviction in 2014, he received a 20- to 40-year prison sentence.
Higginbotham, 65, of Baden pleaded guilty to two counts each of felony unlawful contact with a minor, indecent assault of a minor and corruption of a minor. The latter two charges are misdemeanors.
Prior to sentencing, the defense and the prosecution both called witnesses.
Higginbotham, who once owned a Handel’s ice cream shop in McCandless, rocked in his chair throughout the testimony, including that of the two sisters he was accused of abusing from 2008 to 2013. The girls are now teenagers.
One of the girls said it was
difficult to do certain activities — such as swimming in a pool or playing computer games — because she associated them with Higginbotham’s abuse. The other said Higginbotham had taken advantage of their young age and robbed them of an innocent childhood.
“He earned every day of that jail sentence,” she said of the original punishment.
Higginbotham received the original sentence in 2014 after a jury trial. He was found guilty of 12 charges that included aggravated indecent assault, unlawful contact with a minor, indecent assault, corruption of minors and indecent exposure.
Higginbotham’s attorney argued in an appeal that, after the defense rested in the original trial, Judge Donna Jo McDaniel incorrectly allowed the prosecution to present rebuttal testimony from a doctor who had examined the girls and testified that the lack of physical signs of abuse was common in sexual abuse cases.
The rebuttal, the appellate court said, was in response to a remark by a previous defense attorney to the media, not in regard to evidence that was presented in court to the jury, meaning there was nothingin court to rebut.
The Superior Court said it was “a classic he-said/shesaid case, with one notable variant: there were two, closely related victims whose testimonies, generally speaking, corroborated one another.”
That meant, the court said, that the doctor’s statement “unfairly bolstered the victims’ testimony, in circumstances where [the doctor’s] testimony was naturally spotlighted as the last testimony heard by the jury, and in order to contradict a theory never presented to the jury by the defense.”
The appeals court also said it had ruled unconstitutional the mandatory minimum sentencing provision under which Higginbotham was sentenced in 2014. That change in the law “would have compelled resentencing had we not decided to grant a new trial in this case.”
For those reasons, Timothy Lyon, Higginbotham’s attorney, asked Judge Bicket for a sentence of house arrest or no further penalty, as opposedto prison time.
“He has witnessed our legal system at perhaps its worst,” Mr. Lyon said.
Higginbotham’s wife, his two children and two friends read statements on his behalf, describing him as an attentive father and grandfather who was involved in his church.
His wife, Kathy Higginbotham, said she and her children and grandchildren needed him at home.
“Taking him away from all of us would not serve any purpose at all,” she said.
The mother of the abused girls also read a statement, describing how that soon after her divorce, she had hired Higginbotham’s daughter-in-law as a nanny. She said Higginbotham, whose house the girls often visited, exploited the family’s trust. Even though the girls now do well in school and volunteer, healing is difficult, she said.
“We’re still dealing with the pain,” she said.
She asked rhetorically whether the little more than two years Higginbotham had spent in prison was enough punishment for her daughters’ five years of abuse. “[They] do not deserve what happened to them, but they do deserve justice,” she said.
Judge Bicket gave Higginbotham consecutive sentences of 12 months of house arrest for the two counts of unlawful contact with a minor and 2½ years of probation for the four other charges to which Higginbotham pleaded guilty.
He must also pay court costs and register as a sex offender.
Judge Bicket said he hoped the sentence afforded the girls and their family the opportunity to move on.
“I admire your strength and courage and perseverance to come here today,” he said.
Higginbotham also has a civil suit pending against him bythe family of the sisters.