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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S57015/16


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.


                                          -2-
J. S57015/16


      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).


                                      -3-
J. S57015/16



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


                                    -4-
J. S57015/16


               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:



                                       -5-
J. S57015/16


               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.



                                         -6-
J. S57015/16


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


                                    -7-
J. S57015/16


                   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


                                     -8-
J. S57015/16


             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



                                     -9-
J. S57015/16


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




                                    - 10 -
J. S57015/16


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.



                                    - 11 -
J. S57015/16

      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




                                    - 12 -
