Child sex offender’s sentence upheld
A Bedford man serving a minimum of 56 years in prison for the rape of a child and related offenses has failed to convince the Pennsylvania Superior Court that he is entitled to a new trial because of the close relationship between the county’s former district attorney and the sentencing judge.
Larry Edward Showalter II, now 53, was convicted by a jury in 2014 for the sexual abuse of a child.
The jury found him guilty of the rape of a child, involuntary deviate sexual intercourse, aggravated indecent assault, endangering the welfare of a child, corruption of minors and indecent exposure.
Showalter was found not guilty of an additional 14 charges, according to the Pennsylvania Superior Court.
Bedford County Common Pleas Court Judge Travis W. Livengood initially sentenced Showalter to a term of 60 to 120 years in prison.
The Superior Court returned the case to Bedford County for resentencing after the U.S. Supreme Court ruled that Pennsylvania’s mandatory sentencing scheme was unconstitutional.
On return, the sentencing judge lowered Showalter’s minimum sentence to 56 years but still maintained the maximum of 120 years,
Showalter is serving his time in the State Correctional Institution at Greene.
Showalter, through Johnstown attorney Jerome J. Kaharick, last year filed a post-conviction petition seeking a new trial.
Showalter complained that his trial attorney was ineffective because he did not request a change of venue to move the case to another county and did not seek the recusal of the trial judge (Livengood).
Showalter claims that the Bedford district attorney at the time of his prosecution, William Higgins, had a relationship with his wife, who was working for the Bedford County Domestic Relations office.
His wife denied the relationship.
Showalter also contended that his trial attorney should have requested the trial judge recuse himself because he had worked as a part-time assistant district attorney under Higgins.
The defendant stated that he informed his attorney about the relationships but did not know why she never pursued a change of venue.
In a Superior Court opinion issued Friday, Judge Alice B. Dubow explained that the appeals court “presumes” that a trial attorney properly represented a client and that it is up to Showalter to prove otherwise.
In deciding to reject Shiowalter’s petition, Dubow and a second Superior Court Judge, Mary P. Murray, referred to the opinion written by Bedford County Judge Brandi J. Hershey, who presided over the post-conviction hearing at the county level.
Hershey stated in her opinion, “A serious flaw in Showalter’s argument is that he has made no factual allegations demonstrating that the trial judge (Livengood) was biased.”
“The fact that Judge Livengood in the early part of his career once worked as an assistant district attorney does not lead to the conclusion he was biased,” she stated.
She wrote that there were no facts to indicate the judge had any knowledge of this case during his tenure in the DA’s office.
Livengood took the bench in 2012. The charges against Showalter were filed 15 months later.
Hershey also addressed the contention that Showalter’s wife had a relationship with Higgins, based on testimony that the two were seen socializing at a local restaurant.
Showalter admitted that when he asked his wife about that incident, she denied meeting with Higgins.
Hershey pointed out Showalter and his wife remained married for another five years after the alleged meeting, before separating in 2007, the Bedford judge said.
Hershey also pointed out that Showalter failed to demonstrate how he was prejudiced by his counsel’s failure to seek a change of venue or recusals of the district attorney and judge.
She pointed to the evidence in the case that included a consensual telephone call between Showalter and the victim in which he told her he was “ashamed” as to what he had done.
Considering that evidence, Hershey stated that she did not find that trial counsel’s alleged ineffectiveness would have changed the outcome of the trial.
The Superior Court opinion stated it agreed with the Bedford judge’s analysis.
It found that the Bedford Court’s findings “are supported by the record and it’s conclusions are free from legal error.”
A third member of the Superior Court panel appointed to review the Showalter petition was Judge Gene Strassburger, who died in May.