WEST CHESTER >> The case against Gary Lee Fellenbaum III for the torture and murder of 3-year-old Scott “Scotty” McMillan was built on four main pillars of evidence, a Chester County prosecutor said as the 28-year-old suspect pleaded guilty to first-degree murder and assault charges.
The first was the statement Fellenbaum gave to county investigators who interviewed him the morning after McMillan’s bruised and severely battered body was found at the West Caln mobile home he shared with Fellenbaum, his mother, his older brother, Fellenbaum’s estranged wife, and Fellenbaum’s toddler son. In the statement, Fellenbaum gave incriminating information about his abuse of the child and his role in the death.
The second would have been the testimony of McMillan’s mother, Jillian Tait, and Fellenbaum’s wife, Amber Fellenbaum, as to what they witnessed Fellenbaum do to the boy. Tait, who pleaded guilty to third-degree murder and conspiracy in April, had also participated in the abuse, authorities say, and would tell the jury empaneled to hear the case what her boyfriend had done.
The third piece of the puzzle would have been the forensic evidence found at the scene, and the testimony of a pathologist who would put together how the abuse and beatings contributed to the injuries that proved fatal for the child.
First Assistant District Attorney Michael Noone, who led the prosecution and explained the case to the judge who accepted Fellenbaum’s plea and sentenced him to life in prison without parole, said the “extensive, pervasive” nature of the boy’s bruising and the pain he suffered would have been detailed in extensive fashion.
The last was the testimony of McMillan’s older brother, who was 6 at the time of the beatings and who was himself abused by Fellenbaum in much the same way that the younger boy was. The prosecution had sought from Chester County Common Pleas Judge William P. Mahon permission to present that testimony with the boy outside of the courtroom and away from Fellenbaum’s presence, which Mahon provided.
But it was that final part of the equation that ultimately led the prosecution team to agree to withdraw its demand for the death penalty against Fellenbaum in exchange for his guilty plea and a negotiated sentence of life plus 10 to 20 years behind bars.
“By resolving this case with a life plus 10-year sentence, we have insured that (the brother) will not have to come in and answer brutal questions about a nightmare we would not want him to relive,” Noone said during a press conference held in the D.A.’s offices following Fellenbaum’s plea Friday. “Every decision (in the case) was made to try to protect (the boy) as much as possible.”
The now 8-year-old boy is in school, doing well, does not suffer any long-term affects from the physical injuries he suffered at Fellenbaum’s hands, and has been adopted by a paternal aunt and uncle from Lancaster County, where his mother grew up, authorities say. But he is in psychological therapy, has nightmares, and sometimes believes that someone is coming to kill him, his adoptive parents said in court during the plea proceedings.
District Attorney Tom Hogan said at the press conference that he was confident that Fellenbaum would have been found guilty at trial of first degree murder and that the jury would have then sentenced him to death. But he defended taking into account the impact making the older brother testify would have had as proper, and accepting Fellenbaum’s offer to plead to a “life-plus” sentence as “the right decision.”
Any criticism that came his way because of it, Hogan said he “would take.”
“As long as (the boy) is all right with this, I am all right with this,” Hogan declared.
Prosecutors across the country have used the threat of the death penalty to resolve criminal cases without a trial. In July, prosecutors in Buck County agreed to take the death penalty off the table in the case of a local man accused of killing four men at a secluded rural farm. In exchange, the defendant confessed to the crimes and led police to the location of one of the bodies.
In 2012, Hogan agreed to withdraw the death penalty from consideration in the case of an Upper Uwchlan man charged with the stabbing death of his 37-year-old wife in exchange for a guilty plea to first-degree murder. James Hvizda was ultimately sentenced to life in prison.
At the press conference, Noone was asked whether the death penalty case against Fellenbaum could have gone ahead without the brother’s testimony.
“It is always a risk,” the veteran prosecutor stated. “When you are pursuing the death penalty, you want to have as strong a case as possible.” Not calling the boy to the witness stand would have left the jury without a crucial part of the evidence against Fellenbaum. “We always want to present all the evidence to a jury. To do that — not calling the boy as a witness — would not have been to put on the strongest case.”
In addition, Noone said that by removing the element of the death penalty from the case the boy would be spared a years-long wait for appeals to conclude and the always looming possibility that Fellenbaum would be granted a new trial and the boy would have to come back and testify.
“Today results in closure,” for the boy, Noone said.
McMillan died on Nov. 4, 2014, of multiple blunt force trauma brought on by weeks of beating and torture he allegedly suffered at the hands of Fellenbaum and his mother. The murder shocked members of the community for its savage nature, and drew heartbreaking headlines around the world with its accompanying photograph of the red-headed tyke known as “Scotty” sitting on the lap of an Easter Bunny model. At the time, Hogan called the case “an American horror story.”
Beginning in October 2014, according to the allegations set forth in the case, Fellenbaum began physically abusing both of Tait’s sons for disrespecting him by not eating and misbehaving. The abuse included punches and beatings, but also whipping with a crudely fashioned “cat o’nine tails,” and tying the boys to chairs with electrical tape or hanging them upside down by their feet.
Allegedly Fellenbaum’s beating of 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 and threw him, against a wall, all while Tait allegedly looked on. The boy began vomiting and later passed out.
Although Fellenbaum and Tait tried to revive him on the day of his death, they left him alone in a bedroom for several hours — going shopping and ordering pizza, then coming home to have sex — went before finding him completely unresponsive. Amber Fellenbaum then called police, who discovered his body in a back bedroom.
Tait, 33, pleaded guilty to third-degree murder and related charges in April, agreeing to testify against Fellenbaum. She has yet to be sentenced, as has Amber Fellenbaum, who pleaded guilty to lesser charges.