The McShane Firm, LLC - Law Offices

Judge Refuses To Dismiss Rape Charges

District Attorney's office questioned over circumstances of meeting with valley tow-truck driver

The Daily Local

Friday March 02, 2007

By R. Johnathan Tuleya

Mark Ethan McFall described on Friday a meeting he had months ago with authorities during which he said he offered to be a snitch against “politicians and high-ranking officials” in the county.

McFall, the 42-year-old Valley tow-truck driver accused of drugging and sexually assaulting four former employees, declined to name names from the witness stand, however “I work with those people every day. We had the police impound for 15 years. I know most of the politicians through my work,” said the defendant as an offer of proof that he actually had incriminating information.

McFall is charged with multiple counts of rape, involuntary deviate sexual intercourse, sexual assault, unauthorized administration of an intoxicant and related charges.

His testimony was part of a hearing about a defense motion seeking to dismiss the charges against him, or remove the Chester County District Attorney’s Office as the prosecuting agency and replace it with the Pennsylvania Attorney General’s Office.

Defense attorney Justin J. McShane filed the request to dismiss the charges on Monday based on a meeting McFall had with prosecutors and state police in July at the district attorney’s office. It took place without his attorney at the time, John Lachall, present, and McShane argued that constituted prosecutorial misconduct.

Friday afternoon, after nearly two days of testimony, Common Pleas Court Judge Phyllis Streitel refused to dismiss the charges or reassign the case to the state, but not before questioning the practices of the district attorney’s office.

While Chief Deputy District Attorney Robert L. Miller argued McFall had been brought to his office because he had indicated he wanted to cooperate with investigators in hopes of getting a better deal in his own cases against him, Streitel said the fact that McFall sat in the meeting wearing handcuffs and leg irons may have suggested a different purpose.

“That’s what it really is all about,” the judge said. “The fact that you are holding him on four cases and you remind him these are the charges (against him).

“Why were there comments made to him about having to get another attorney?” Streitel said. “It seems to me it was all quite a bit about the four cases.”

Miller said alleged evidence against the defendant was not discussed at the time.

Deputy District Attorney Steve Kelly testified on Thursday that he had suggested to McFall that if he wanted to cooperate he had to hire a new attorney from outside Chester County because of a conflict with his former attorney, Lachall.

Kelly said the defendant had reached out to him to set up the July meeting, but the prosecutor did not name who McFall apparently had been willing to cooperate against. “The targets he was suggesting, some were connected to his former attorney,” Kelly said. “He had my interest.”

Miller said on Friday, “In a case as serious as this, it is going to have to be serious information.”

When Streitel ruled against McFall in the motion, her comments were brief, and she referred to a memo Miller had submitted 15 minutes earlier citing case law about attorney rules of conduct.

Present at the July meeting with McFall were Assistant District Attorney Andrew Rongaus, who is prosecuting the defendant’s cases; Deputy District Attorney Steve Kelly; and two members of the Pennsylvania State Police.

McFall spent more than an hour on the witness stand, but he and McShane were careful not to elicit any testimony that would open the defendant to questioning about the alleged evidence in the case.

The closest he came was at one point when McFall asserted the charges against him in one case were bogus because the sexual encounter with the alleged victim was “consensual.”

A week ago, Streitel revoked McFall’s bail after she learned the defendant had violated the terms of his release when he tried to meet with a man subpoenaed to be a grand jury witness on Nov. 16.

McFall, who owns McFall’s Towing on the 1100 block of West Lincoln Highway, had been free on $400,000 cash bail, and though he wore an ankle bracelet to keep tabs in his whereabouts, he was allowed to continue towing cars between 8 a.m. and 8 p.m.

There are four open cases against the defendant, and similar allegations from a fifth alleged victim in Brigantine, N.J.

Pennsylvania State Police first arrested the defendant on Nov. 22, 2005, in connection with the assault of a former 19-year-old male employee that reportedly took place two weeks earlier.

That alleged victim told police McFall had given him a pill when he complained to his boss about feeling ill. After taking the drug, the victim lost consciousness and awoke to find McFall performing a sexual act on him, according to police reports.

Investigators later executed search warrants at McFall’s towing company and reportedly seized more than 100 bottles of pills, digital nude photographs of the 19-year-old victim, and floppy disks that contained two videos of the defendant allegedly assaulting another man, police said.

McFall is a former South Coatesville police officer.

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