Prosecutors pursuing the case against a man accused of raping a woman on a SEPTA Market-Frankford elevated train last week don’t anticipate charging fellow passengers for not intervening, a spokesperson for the Delaware County district attorney's office said Wednesday.
“It’s still an open investigation, but there is no expectation at this time that we will charge passengers,” said Margie McAboy, a spokeswoman for the DA in suburban Philadelphia where police made the arrest.
The suspect, Fiston Ngoy, was caught at 69th Street Transportation Center in Upper Darby, where the Market-Frankford train line's westbound route ends.
In an emailed statement, District Attorney Jack Stollsteimer said prosecutors want witnesses to come forward, rather than fearing prosecution, and said, “Pennsylvania law does not allow for the prosecution of a passenger who may have witnessed a crime."
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Authorities continue to investigate the Oct. 13 attack, where a woman was repeatedly touched and groped over the course of a 40-minute ride despite trying to push Ngoy away, according to an arrest affidavit that detailed the surveillance footage from the train.
Investigators say Ngoy, 35, ripped the woman's pants off and proceeded to rape her for somewhere between six and eight minutes before officers boarded the train and detained him.
Requests by The Associated Press for surveillance video from the Oct. 13 attack on the Market-Frankford line have been denied, citing the ongoing criminal investigation. It remains unclear exactly how many other passengers were in the vicinity and whether they actually witnessed or recorded what happened on the Southeastern Pennsylvania Transportation Authority train.
Police declined to say how many passengers may have witnessed the assault, but have said it appeared that some held their phones up in the direction of the assault seemingly to film the attack. Police have also declined to say whether investigators have found any photos or videos of the attack posted online.
In an interview Tuesday with radio station WPHT, SEPTA Police Chief Thomas J. Nestel III, said “as many as 10 people” may have seen some part of the attack.
Legal experts said unrelated passengers don’t have a legal duty to intervene under Pennsylvania law.
“Unless they have a legal duty to intervene, like a parent for their child, a person cannot be prosecuted for sitting back and doing nothing,” said Jules Epstein, a law professor and director of advocacy programs at Temple University Beasley School of Law.
“Doing nothing may be morally wrong, but in Pennsylvania, without that special duty relationship, it is not legally wrong," Epstein said.
Nestel has said Philadelphia 911 did not receive any calls about the attack. He said Monday operators at Delaware County 911 were still researching whether it received calls. A message to a SEPTA spokesman seeking updated information was not immediately returned Wednesday.
Ngoy is charged with rape and related sexual assault offenses. He was being held on $180,000 bail, awaiting an initial appearance scheduled for Oct. 25. Attorney Mary Elizabeth Welch confirmed the Delaware County Public Defender’s office is representing Ngoy, but said she could not comment on the case Wednesday.
Court records show Ngoy has a history of arrests and convictions under at least three names in Washington D.C., Philadelphia and suburban Southeastern Pennsylvania counties including public intoxication, defecating or urinating in public, public disturbance and other charges.
In D.C., Ngoy pleaded guilty to misdemeanor sexual abuse in November 2017 under the name Jack Falcon, after police said he groped two women on the street near a homeless shelter where he was staying.
Court records also show immigration officials ordered Ngoy to be deported back to his home country of Congo due to 2017 guilty plea and also because he overstayed his student VISA. The deportation order was later reversed however.
"That was reversed by the Board of Immigration Appeals that concluded it was not a particularly serious crime and thus he was eligible for the relief that he was seeking based on his fear of persecution in his country," Ricky Palladino, an immigration attorney, told NBC10.
Palladino does not represent Ngoy but was asked by NBC10 to review his court document.