Com. v. Market, A.

J. S57015/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1581 WDA 2015
:
AMY MARKET :
Appeal from the Order Entered September 10, 2015,
in the Court of Common Pleas of Lawrence County
Criminal Division at No. CP-37-CR-0000651-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 10, 2016
The Commonwealth appeals from the order of September 10, 2015,
granting the defendant/appellee, Amy Market’s petition for writ of habeas
corpus and dismissing the charges. After careful review, we reverse.
The victim, “E.M.,” was a six-month-old male infant at the time of the
alleged incident. He lived with his parents, Edward and Tana, and
defendant/appellee, his paternal aunt. Appellee was a primary caregiver of
E.M. On October 13, 2013, E.M. became lethargic and his face was
twitching, similar to a seizure. Tana took E.M. to Ellwood City Hospital, and
he was transported by helicopter from there to Children’s Hospital in
Pittsburgh. E.M. was evaluated on October 14, 2013, by Jennifer E. Wolford,
D.O., a pediatrician. An MRI revealed multiple chronic subdural hematomas
on both sides of the head. Dr. Wolford’s assessment was that E.M. was the
* Retired Senior Judge assigned to the Superior Court.
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victim of child physical abuse. As a result of a police investigation, during
which appellee admitted to having become frustrated and shaking E.M.
approximately one week prior to his admission to the hospital, appellee was
arrested and charged with one count each of aggravated assault,
endangering the welfare of children (“EWOC”), simple assault, and recklessly
endangering another person (“REAP”).1
A preliminary hearing was held on March 13, 2014, before Magisterial
District Judge Jennifer L. Nicholson. Dr. Wolford testified via telephone.
Lieutenant David Kingston of the Ellwood City Police Department also
testified. Following the hearing, Judge Nicholson ruled that there was
insufficient evidence to connect E.M.’s injuries to appellee’s actions, and
dismissed the charges.
The Commonwealth re-filed the charges, and the matter was waived to
court; however, appellee subsequently filed a petition for a writ of habeas
corpus. A hearing was held on the petition on April 28, 2015, before the
Honorable J. Craig Cox. The March 13, 2014 preliminary hearing transcript
was admitted into evidence, as well as recordings of appellee’s interviews
with police and Dr. Wolford’s medical report. The criminal complaint and
affidavit of probable cause were of record. (Notes of testimony, 4/28/15 at
5-6.)
1
18 Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), and 2705,
respectively.
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On September 10, 2015, the trial court granted appellee’s habeas
petition and dismissed the charges. The trial court determined that the
Commonwealth failed to establish what caused E.M.’s injuries. A timely
notice of appeal was filed on September 24, 2015.2 On October 1, 2015, the
Commonwealth was ordered to file a concise statement of errors complained
of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A.; the Commonwealth timely complied on October 14, 2015, and
on January 4, 2016, the trial court filed a Rule 1925(a) opinion.
The Commonwealth has raised the following issues for this court’s
review:
I. Whether the trial court erred in disregarding
the entirety of the medical testimony and
medical reports in determining that the
testifying medical doctor failed to establish the
cause of injury to the infant child as
non-accidental?
II. Whether the trial court applied an incorrect
standard in reviewing the medical testimony of
the treating child abuse physician where the
Commonwealth’s burden was only to establish
a prima facie case?
III. Whether the stipulated exhibits presented as
evidence at the hearing on habeas corpus,
consisting of an affidavit of probable cause,
recorded interviews with the defendant,
medical reports, and preliminary hearing
testimony, establish prima facie evidence of
the charges filed against defendant?
2
The trial court’s order is appealable because it terminates the prosecution.
Pa.R.A.P. 311(d); Commonwealth v. Karetny, 880 A.2d 505, 512-513 (Pa.
2005).
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Commonwealth’s brief at 7 (emphasis supplied; capitalization omitted).
We review a decision to grant a pre-trial petition for
a writ of habeas corpus by examining the evidence
and reasonable inferences derived therefrom in a
light most favorable to the Commonwealth.
Commonwealth v. James, 863 A.2d 1179, 1182
(Pa.Super. 2004) (en banc). In Commonwealth v.
Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our
Supreme Court found that this Court erred in
applying an abuse of discretion standard in
considering a pre-trial habeas matter to determine
whether the Commonwealth had provided
prima facie evidence. The Karetny Court opined,
“the Commonwealth’s prima facie case for a
charged crime is a question of law as to which an
appellate court’s review is plenary.” Id. at 513, 880
A.2d 505; see also Commonwealth v. Huggins,
575 Pa. 395, 836 A.2d 862, 865 (2003) (“The
question of the evidentiary sufficiency of the
Commonwealth’s prima facie case is one of
law[.]”). The High Court in Karetny continued,
“[i]ndeed, the trial court is afforded no discretion in
ascertaining whether, as a matter of law and in light
of the facts presented to it, the Commonwealth has
carried its pre-trial, prima facie burden to make out
the elements of a charged crime.” Karetny, supra
at 513, 880 A.2d 505. Hence, we are not bound by
the legal determinations of the trial court. To the
extent prior cases from this Court have set forth that
we evaluate the decision to grant a pre-trial habeas
corpus motion under an abuse of discretion
standard, our Supreme Court has rejected that view.
See id.Commonwealth v. Dantzler, 135 A.3d 1109, 1111-1112 (Pa.Super. 2016)
(en banc) (footnote omitted).
At the preliminary hearing stage of a criminal
prosecution, the Commonwealth need not prove the
defendant’s guilt beyond a reasonable doubt, but
rather, must merely put forth sufficient evidence to
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establish a prima facie case of guilt. A prima facie
case exists when the Commonwealth produces
evidence of each of the material elements of the
crime charged and establishes probable cause to
warrant the belief that the accused committed the
offense. Furthermore, the evidence need only be
such that, if presented at trial and accepted as true,
the judge would be warranted in permitting the case
to be decided by the jury.
Karetny, 880 A.2d at 513-514 (citations omitted).
It is unnecessary in this case to set forth all of the elements of each
crime charged. The trial court based its decision on the conclusion that the
Commonwealth failed to show that appellee’s allegedly reckless behavior
was the cause of E.M.’s injuries. (Trial court opinion, 1/4/16 at 13.)
According to the trial court, the Commonwealth failed to tie any of appellee’s
alleged actions to the harm suffered by E.M. (Id. at 13-14.) We disagree.
Dr. Wolford testified that she evaluated E.M. on October 14, 2013.
(Notes of testimony, 3/13/14 at 8.) E.M. presented with a history of
seizures and labored breathing. (Id. at 10.) A CT scan of E.M.’s head
revealed a large subdural hematoma on the left side and extra fluid on the
right side. (Id. at 9.) A subdural hematoma is associated with abusive
head trauma, commonly known as “shaken baby syndrome.” (Id. at
11-12.) Dr. Wolford testified that E.M.’s injuries were consistent with
non-accidental trauma. (Id. at 11.) Dr. Wolford testified that E.M.’s injuries
were 3-10 days old. (Id. at 13-14.)
Dr. Wolford described the etiology of abusive head trauma as follows:
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Abusive head trauma typically is a shaking and a
shearing effect, so the child is shaken out of
frustration; the head rotates back and forth quickly
in a forward/backward movement. This is what
causes the bleeding because the small vessels that
are sensitive underneath the dura on top of the brain
tear and bleed and so it may or may not include an
impact. Sometimes there’s a slam down on a table
or on a bed or on a wall with frustration but not
always, so it’s a shaking effect, plus or minus an
impact.
Id. at 14.
Dr. Wolford testified that abusive head trauma can be life-threatening
and can result in permanent injuries. (Id. at 20.) E.M. also had Type I
von Willebrand’s disease which is a coagulation defect. (Id. at 17.) An
individual with von Willebrand’s disease does not clot blood as easily and is
prone to re-bleeding following an injury. (Id.) However, on
cross-examination, Dr. Wolford disagreed that E.M.’s blood disorder was
related to his injuries:
So when we know that children have spontaneous
bleeds due to a bleeding disorder or such as glutaric
acidemia, which is a metabolic disorder, when they
have blood found on the top of their head, they don’t
have symptoms. That’s the big issue is they don’t
have symptoms. [E.M.] had symptoms, so that
blood was irritating his head. When there’s just a
spontaneous bleed, you don’t have symptoms
because there’s been no trauma to it. There’s been
no probably diffuse axonal injury. So the truth is my
evaluation of a subdural hematoma with the
presentation of seizures informed my medical
assessment to a reasonable degree of medical
certainty that the far most likely explanation of this
is abusive head trauma.
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Id. at 30.
Dr. Wolford disagreed that less violent shaking could cause abusive
head trauma in a baby with von Willebrand’s disease:
Normal care -- von Willebrand’s disease is the most
common blood disorder in the world. Two to three
percent of people have von Willebrand’s disorder and
don’t even know it because they don’t have issues.
So if you think of all the babies out there in
Lawrence County, Beaver County and Allegheny
County alone, all the counties between us, normal
care by reasonable adult caretakers does not cause
brain injury in children.
Id. at 31-32. Dr. Wolford reiterated that the most likely diagnosis was
abusive head trauma: “Glutaric acidemia, and then there’s [sic] other types
of bleeding disorders, not von Willebrand’s, that can cause spontaneous
blood disorder or bleeding, but the most likely diagnosis, especially given
[E.M.]’s presentation of a seizure, is abusive head trauma.” (Id. at 29.)
Lieutenant Kingston testified that the primary caretakers of E.M. were
appellee and the child’s mother. (Id. at 50.) The child’s father worked long
hours and was not considered a primary caregiver. (Id.) Appellee lived
with E.M. and his parents. (Id. at 52.) When E.M.’s mother had to leave
the house, appellee would look after E.M. (Id.) At first, no one admitted to
any type of abusive behavior towards E.M. (Id. at 51.) During subsequent
interviews, however, appellee admitted to becoming frustrated and shaking
E.M. from side to side:
She confirmed that at one point in time, she
had become frustrated with the child, had
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grabbed her (sic) aggressively from the crib
and shook the infant.
Q[.] Okay. What date was that when she
mentioned it?
A[.] She felt it was one week prior to when the
child went into the hospital. The previous
Sunday, I believe it was.
Q[.] Okay.
A[.] And that she knew that it had done something
because it caused fright in the infant.
Q[.] Okay.
A[.] And that the eyes got big and the baby quit
crying.
Id. at 52-53. “[Appellee] again admitted that she shook the baby out of
frustration and the baby’s head went side to side for several seconds.
[Appellee] stated that she knows her actions at least caused fright in the
infant because his eyes got very big and he stopped crying.” (Id. at 55.)
In the affidavit of probable cause, it stated that on November 11,
2013, appellee admitted that she was frustrated by the baby’s crying and
that she took anxiety pills. Appellee also admitted that she called her
mother after the incident because she was afraid she had hurt the baby:
[Appellee] stated there was one occasion she had
aggressively grabbed the infant from the crib and
shook the infant. [Appellee] stated she had done
this one-week prior to the baby being taken to the
hospital and the discovery of the brain/head injury.
[Appellee] demonstrated how she shook the baby for
police and made the statement that she didn’t think
she hurt him. During the interview [appellee] gave
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the statement that she had to take two anxiety pills
before she handled the baby. The baby was crying
and was gassy when she aggressively picked up the
baby and moved him from side to side. The baby’s
eyes became very big at this time. *** After the
baby was asleep she called her mother and asked
her if she though [sic] she hurt the baby and told the
mother what she had did [sic]. After talking to the
mother she felt she did not hurt the baby at this
time.
Affidavit of probable cause, 6/17/14 at 2; RR at 13. Appellee acknowledged
a history of mental health problems and that she had to take anxiety pills
that day to deal with the baby. (Id.) In addition, officers conducting the
interviews felt that appellee was minimizing her aggressive actions towards
E.M.:
However, it is apparent during her interview with this
officer, that [appellee] attempted to minimize the
force she used when she shook the child. [Appellee]
also indicated that the incident may have occurred a
couple weeks prior to the child having seizures.
[Appellee] also confirmed that she called her mother
after the shaking incident, to ask her mother if that
(shaking from side to side) could harm the child, and
[appellee] indicated her mother told her she didn’t
know. [Appellee] confirmed that she called her
mother, because the child abruptly stopped crying
after she shook him. [Appellee] also indicated that
she had taken an additional anxiety pill that morning
to deal with her frustration with the child crying.
Id.
The trial court determined that the Commonwealth failed to establish
that appellee’s conduct caused the injuries to E.M. (Trial court opinion,
1/4/16 at 16.) In addition, the trial court found that there was no medical
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testimony to link E.M.’s injuries to any dangers presented by appellee’s
conduct. (Id. at 14.) The trial court found that Dr. Wolford’s testimony was
vague and general in nature, and failed to establish to a reasonable degree
of medical certainty that the alleged actions of appellee caused the injuries
in question to E.M. (Id. at 18.) The trial court stated that, “At no point did
Dr. Wolford establish that if Defendant [] performed the actions she
admitted to, a subdural hematoma would result.” (Id. at 17.)
We reiterate that, “At the preliminary hearing stage of a criminal
prosecution, the Commonwealth need not prove the defendant’s guilt
beyond a reasonable doubt, but rather, must merely put forth sufficient
evidence to establish a prima facie case of guilt.” Karetny, 880 A.2d at
513-514 (citations omitted). “[A] prima facie case is a low threshold of
proof. . . .” Dantzler, 135 A.3d at 1114. Here, appellee’s inculpatory
statements to police, together with Dr. Wolford’s expert testimony, were
enough to make out a prima facie case. Dr. Wolford testified that E.M.’s
injuries were most likely the result of abusive head trauma, which is caused
by violent shaking. This was based on the presence of the large subdural
hematoma, as well as the history of seizures. Furthermore, Dr. Wolford was
able to rule out von Willenbrand’s disease as a causative factor. Dr. Wolford
testified that the age of the injuries was 3-10 days, which dovetailed with
appellee’s admission to police that approximately one week prior to E.M.’s
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admission to the hospital, she had shaken him from side to side in an
aggressive manner.
Appellee admitted that she was so perturbed by the baby’s crying that
she had to take anti-anxiety medication. She did not shake E.M. in a playful
manner, but admitted that she was frustrated and upset. Appellee was
concerned enough by E.M.’s reaction that she telephoned her mother. At
trial, a jury would be free to disbelieve appellee’s self-serving explanations
that she simply “moved him from side to side” and that she did not think she
hurt the baby. See Commonwealth v. Smith, 956 A.2d 1029, 1037
(Pa.Super. 2008) (en banc) (“nothing more than common sense is needed
to know that the violent shaking of an infant child provides for a substantial
and unjustifiable risk of serious bodily injury”). Indeed, the investigating
officers felt that she was purposefully minimizing the degree of force she
used when she demonstrated her actions for the officers. Taken altogether,
this evidence established probable cause to warrant the belief that the
accused, appellee, committed the offenses charged.
The trial court opined that investigating officers pressured appellee to
admit that she hurt E.M. (Trial court opinion, 1/4/16 at 14.) However, that
is a suppression issue. At the preliminary hearing stage, all the evidence
presented, together with all reasonable inferences, must be examined in a
light most favorable to the Commonwealth to determine whether it met its
burden of proving a prima facie case. Dantzler, 135 A.3d at 1112.
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For the reasons discussed above, we find that, as a matter of law, the
Commonwealth satisfied its burden. There was enough evidence for a jury
to reasonably infer that appellee’s conduct caused E.M.’s injuries. Therefore,
the trial court erred in granting appellee’s petition for writ of habeas corpus
and dismissing the charges.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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