WEST CHESTER — A Phoenixville woman who took the legal right of criminal defendants to remain mute during their trials — asking no questions, presenting no evidence, and declining to testify — to an extreme has put herself in serious jeopardy of a lengthy sentence.
On Wednesday, a Chester County Common Pleas Court jury found Rebecca Ellen Kirschenbaum guilty of three felonies involving a criminal custody matter concerning her 6-year-old son. The crimes she was convicted of carry maximum sentences of 17 to 34 years in state prison; sentencing guidelines that judges must take into account call for a minimum of at least 25 months behind bars.
Kirschenbaum — who did not answer questions from the judge in the case about whether she wanted to be represented by an attorney, whether she understood the consequences facing her, or even the most pedestrian of queries about her case — had reportedly been offered a plea agreement sentence that would have seen her immediate release from Chester County Prison, the prosecutor handling the matter told Judge Jeffery Sommer before Kirschenbaum’s trial began.
“Do you understand that?” Sommer asked Kirschenbaum on Tuesday as he prepared to pick a jury in her case in Courtroom One of the county Justice Center. “You could be let out of prison and go home this morning. Do you understand that?”
All that came from the defense table, at which Kirschenbaum sat looking out the courtroom windows, her hair in a ponytail and a pair of glasses in her back pocket, was the sound of silence. Crickets. Nada. She spoke no more words than the tattoos on her forearms did.
Kirschenbaum, who was initially arrested by Phoenixville police in 2020 for a matter involving her child and whether she interfered with a custody order, is a rather steadfast follower of the so-called “sovereign citizens” movement, a loose group of people who do not accept the authority of local courts, judges or juries.
To be certain, Kirschenbaum has not remained entirely silent during the proceedings against her. But the only statements she has made in her various court appearances have been repetitive phrases that proclaim that she is appearing, “under duress,” subject to the Uniform Commercial Code and that she maintains governance over herself. Recited over and over again, at times interrupting Sommer as he tried to explain her rights, the words appear as an incantation that would make the charges against her somehow disappear.
“Is this a legal procedure?” she asked, a stack of papers sitting before her as Sommer prepared to call the jury in Wednesday to hear closing arguments. “The blood flows and the flesh lives. I am a living woman. I want this whole matter cleared up and cleaned out.”
Deputy District Attorney Erin O’Brien, of the D.A.’s Child Abuse Unit, who led the case with Chester County Detective Ben Martin, told Sommer that she believed Kirschenbaum has been receiving advice from a man apparently part of the “sovereign citizen” movement. The man had told her in a recorded call from the prison that should she remain silent throughout the trial proceedings, she would have to see the charges against her dismissed.
That, as O’Brien pointed out, is not the case.
“I just want you to understand that if you believe that by not saying anything, somehow this situation is going to go away” is not true, Sommer informed Kirschenbaum. “That advice would be incorrect.
“You can’t go back,” Sommer said. “Have they promised you that this is going to go away? It seems to me that the advice you may be getting is really bad advice.”
To some degree, what Kirschenbaum did in remaining silent during the proceeding is part of a defendant’s right to force the prosecution to prove a case against them by their evidence alone. A person in the dock is under no obligation to do anything in a criminal case. The burden rests on the state.
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.
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.
Kirschenbaum, 50, was first arrested and charged with interference of the custody of children and concealment of the whereabouts of a child, both felonies, in June 2020, after Phoenixville police began investigating allegations that she was not properly taking care of her two sons, ages 7 and 5 at the time.
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-6-year-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 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.
The jury in her case deliberated less than three hours Wednesday before returning with guilty verdicts on all three charges against her — the kidnapping of a minor, concealing the whereabouts of a child, and endangering the welfare of a child. She will be sentenced by Sommer later.
To contact staff writer Michael P. Rellahan call 610-696-1544.
