Commonwealth of PA vs. Wendi Jo Potteiger No. CP-38-CR-0000491-2017

Criminal Action-Law-Aggravated Assault-Endangering the Welfare of Children-Childcare Provider-Infant Injuries-Omnibus Pretrial Motion-Petition for Writ of Habeas Corpus-Prima Facie Case-Inferences

Defendant, who was charged with one (1) count each of Aggravated Assault, Simple Assault and Endangering the Welfare of Children as a result of injuries including a subdural hematoma hemorrhage, bilateral retina hemorrhage and wrist fractures sustained by a four (4) month old infant for whom she provided child care while the infant’s mother worked, filed an Omnibus Pretrial Motion for Relief including a Petition for Writ of Habeas Corpus asserting that the Commonwealth failed to establish a prima facie case against her with regard to the charges because there is no evidence that she caused harm to the infant.

1. A petition for writ of habeas corpus is the proper vehicle for a defendant who has been bound over for court to attack the Commonwealth’s establishment of a prima facie case.
2. At a preliminary hearing, the Commonwealth must establish at least a prima facie case that a crime has been committed and the accused is the one who committed it.
3. To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense and the defendant’s complicity therein.
4. To meet this burden, the Commonwealth may utilize evidence produced at the preliminary hearing and may submit additional proof.
5. The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established.
6. Evidence that a child suffers an injury while in the sole custody of a babysitter supports the inference of the babysitter’s guilt. This inference may be applicable under the facts of the case even if there are other individuals present in the home during the time when the injuries have been inflicted.
7. Where the record establishes that the infant was in Defendant’s care on the date of the injuries, the infant exhibited no signs of injury when his mother left him in Defendant’s care, the infant acted in an unusual manner and exhibited signs of distress after his mother retrieved him from Defendant’s care, the infant was found to have suffered injuries after immediate medical examination and the treatment providers could provide no medical or accidental reason for the injuries and indicated that the types of injuries were consistent with physical abuse, the Commonwealth set forth a prima facie case in support of the charges.
8. The fact that other adults had access to the infant while he was in Defendant’s care does not negate the establishment of a prima facie case against Defendant when one individual also present testified to facts suggesting that the infant already had been injured when she retrieved him from Defendant’s bedroom and self incriminatory remarks of another individual also present when the infant was in Defendant’s care were noncommittal and the individual admitted that he had been under the influence of drugs and could not recall the events of the evening.
L.C.C.C.P. No. CP-38-CR-0000491-2017, Opinion by John C. Tylwalk, President Judge, October 6, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-491-2017

COMMONWEALTH OF PENNSYLVANIA
v.
WENDI JO POTTEIGER

ORDER OF COURT
AND NOW, this 6th day of October, 2017, upon consideration of Defendant’s Omnibus Pretrial Motion for Relief, the evidence adduced at the hearing conducted on July 11, 2017, the materials provided for our consideration, and the Briefs submitted by the parties, it is hereby Ordered as follows:
1. Defendant’s Motion for Writ of Habeas Corpus is DENIED;
2. Defendant’s Motion to Dismiss for Violation of Due Process is DENIED; and
3. Defendant’s Motion for Discovery is GRANTED.
4. Defendant is directed to appear for the Call of the List scheduled for November 21, 2017 at 8:30 a.m. in the designated Courtroom and the Term of Criminal Jury Trials to commence December 4, 2017.
5. The Commonwealth shall provide Defendant with copies of the transcripts of the Grand Jury proceedings conducted in this matter ten (10) days prior to the commencement of trial.
BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:
MEGAN RYLAND-TANNER, ESQUIRE FOR THE COMMONWEALTH
SENIOR DEPUTY DISTRICT ATTORNEY

MICHAEL DAUTRICH, ESQUIRE FOR WENDI JO POTTEIGER
DAUTRICH & DAUTRICH LAW OFFICES, P.C.

OPINION, TYLWALK, P.J., OCTOBER 6, 2017.
Defendant is charged with one count of Aggravated Assault, one count of Simple Assault, and one count of Endangering the Welfare of Children (1) with regard to injuries sustained by a four-month-old infant who was in her care. The matter was bound over for Court after a Preliminary Hearing was conducted on March 2, 2017. Defendant has filed an Omnibus Pretrial Motion for Relief, including a Motion for Writ of Habeas Corpus, a Motion to Dismiss for Violation of Due Process, and a Motion for Discovery. We conducted a hearing on the Motion on June 21, 2017. At that time, the Commonwealth submitted the transcript of the Preliminary Hearing (Exhibit “1”) and two exhibits titled “Child Protection Team Report: 6/15/13” (Exhibit “2”) and “Child Protection Team Report: 7/3/13” (Exhibit “3”) for our consideration in disposing of the Motion. The Defendant presented the testimony of Corporal Wesley LeVan of the Pennsylvania State Police. At the conclusion of the testimony, we took the matter under advisement. The parties have filed Briefs and the matter is now before us for disposition.
At the Preliminary Hearing, the baby’s mother, Jessica Schlaybach, testified that when her son, Mason, was four months old, Defendant would babysit him during Schlaybach’s 3 p.m. to 11 p.m. work shift. By June 14, 2013, Defendant had been babysitting Mason for about four weeks. Schlaybach dropped Mason off at Defendant’s home a short time prior to her shift that day. When she picked Mason up after her shift that evening, Mason was sleeping and did not stir or wake up when she placed him in his car seat. Schlaybach explained that this was unusual as he would usually wake up slightly and move around when she put him in his car seat. After Schlaybach left Defendant’s home, she drove to her grandmother’s home in Newmanstown to pick up her two daughters. Schlaybach left Mason in his car seat in the driveway of the home where she picked up her daughters. She then drove to her home in Lebanon. Mason woke up crying during the ride from Newmanstown to Lebanon. Schlaybach described his cry as “unusual” as if he was in pain. When they arrived home, Mason refused his bottle and was having trouble holding his head up. Schlaybach took Mason to Good Samaritan Hospital after he would not stop crying, continued to have trouble holding his head up, and she noticed some bruising between his thumb and his index fingers.
After Mason was seen at Good Samaritan Hospital, he was transferred to Hershey Medical Center (“Hershey”). He remained at Hershey for two weeks. Schlaybach related that Mason was healthy and had been on target developmentally prior to that evening. She explained that since June 14, 2013, he has struggled with brain bleeds and seizure disorder and there is no expectation that he will recover from these health issues.
Frank Linn, a retired Pennsylvania State Trooper, was called next by the Commonwealth at the Preliminary Hearing. Linn testified that he responded to a call from Hershey on June 15, 2013 for a suspected child abuse case. During his investigation he received information from the Hershey physicians and medical records which revealed that Mason suffered the following injuries: a subdural hematoma hemorrhage (basically a bleeding between the brain and the lining of the skull), ischemic brain injury (which occurs when there is insufficient oxygen or blood flow to the brain), ligamentous (a c-spine injury which occurred as a result of the muscles attached to the spine being stretched or strained), bilateral retina hemorrhage (bleeding in back of the eyes), and fractures to both wrists. (Exhibits “1” and “2”) The medical team was unable to provide any explanation for Mason’s injuries except child abuse.
As part of his investigation, Linn spoke with Defendant, who confirmed that she was Mason’s babysitter and that he was in her direct care the entire time he was with her on June 14, 2013. Defendant maintained that she knew nothing of anyone hurting Mason. On cross-examination, Linn explained that he also spoke to two other persons who were present at Defendant’s home that evening during the time that Mason was there. Linn explained that, although the other individuals had contact with Mason, he had interviewed both of them and had ruled them out as the potential perpetrators.
Leanna Patches, one of the other individuals present at Defendant’s home that evening, also testified at the Preliminary Hearing. Patches explained that she had been living with Defendant and her husband and was present part of the time that Mason was at Defendant’s home on the evening of June 14, 2013. At one point, she was in her bedroom which was next to Defendant’s bedroom. She heard Mason crying and she went in to check on him after he had been crying for awhile. The bedroom was completely dark and Mason was alone in the room, sitting in a bouncer. When she felt the baby, he was very warm. Patches picked him up and took him into her own bedroom and laid him on her bed so that she could remove his onesie. Before she could do that, however, Defendant appeared in her bedroom and took the baby. Defendant was upset because the light was on and she had been trying to get Mason to go to sleep. Defendant told Patches that she had been in the bedroom with Mason, but had left him alone while she had gone to find his pacifier. Tyler Schaffer, Patches’ overnight guest, was also present in Patches’ bedroom when Patches brought Mason in to remove his onesie. Patches was still in the home when Schlaybach picked Mason up, but she did not see them leave.
In her Pretrial Motion, Defendant argues that the Commonwealth failed to establish a prima facie case against her as to any of the charges because there is no evidence that she caused any harm to Mason. She also argues that various other individuals had access to the baby on that date, that the medical evidence failed to determine a time of Mason’s injuries to point to her as the perpetrator, and the medical records indicate the presence of an older injury. She further argues that her right to due process was violated because the Magisterial District Judge permitted the Commonwealth to establish a prima facie case based on mere inferences. She claims that Schaffer had already confessed that he and Patches are responsible for Mason’s injuries. Defendant also seeks an Order directing the Commonwealth to turn over evidence presented to an investigating grand jury, including materials related to Schaffer’s confession.
A petition for Writ of Habeas Corpus is the proper vehicle for a defendant who has been bound over for court to attack the Commonwealth’s establishment of a prima facie case. Commonwealth v. Morman, 541 A.2d 356 (Pa. Super. 1988). The Pennsylvania Superior Court has discussed the purpose of a preliminary hearing and the concept of a “prima facie case”:
A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.
Case law provides a mechanical standard of review:
Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such … offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] the [the defendant] is entitled to be discharged.
Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 662 A.2d 1127, 1129 (Pa. Super. 1995), citing Commonwealth v. Lacey, 496 A.2d 1256 (Pa. Super. 1985).
To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense as well as the defendant’s complicity therein. Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016). To meet this burden, the Commonwealth may utilize the evidence produced at the preliminary hearing and may also submit additional proof. Id.
At the hearing we conducted on the Pretrial Motion, Defendant presented the testimony of Corporal Wesley LeVan of the Pennsylvania State Police, Jonestown Barracks. Corporal LeVan testified that he had interviewed Tyler Schaffer during his investigation of Mason’s injuries on January 27, 2016 due to Schaffer being present at Defendant’s home on this night of this incident. Corporal LeVan stated that Schaffer made what he termed “minor admissions, or noncommittal admissions, … things like, well, if you’re saying I did it, then I guess I did – I must have been stressed out, I don’t know. I must have shaken the baby, I guess, but I don’t recall anything like that.” (N.T. 6/21/17 at 10) Corporal Levan explained that Schaffer’s statement “wasn’t what I would call a confession, per se, but he definitely made statements to the tune that left me leaving the interview thinking there’s a possibility he was involved in it.” (N.T. 6/21/17 at 10) Corporal LeVan noted that Schaffer had also implicated Patches, saying that Mason’s wrists were likely broken when she removed his onesie. Schaffer also told Corporal LeVan that he “must have shaken the baby – I must’ve lost control, I couldn’t deal with the baby crying and, you know, I think Leanna tried to give him to me and I put him on the bed.” (N.T. 6/21/17 at 11) Schaffer also stated that he and Patches were both doing drugs that evening. Schaffer terminated the interview before LeVan was able to ask all of his intended questions.
Exhibits “2” and “3,” the Child Protection Team Reports, indicate that Mason presented with decreased head control, fussiness, and an unusual cry, and was found to have suffered the “multiple traumatic injuries” noted in Linn’s testimony. The Reports noted that there was no history of trauma provided and no medical causes identified for Mason’s injuries and concluded that the injuries were consistent with physical abuse.
A person is guilty of Aggravated Assault if he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. §2702(a)(1). The offense of Simple Assault is defined as follows: “[e]xcept as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa.C.S.A. §2701(a)(1). As to the crime of Endangering the Welfare of Children, “[a] parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support. 18 Pa.C.S.A. §4304(a)(1).
The Commonwealth’s evidence indicates that Mason was in the sole care of Defendant on June 14, 2013. Prior to his mother leaving him in Defendant’s care, Mason was eating, had no problem with head control, was not irritable, and exhibited no signs of being in pain. Mason became fussy and was crying after being alone in a bedroom with Defendant. When his mother picked him up, Mason stayed asleep and did not wake up as usual when he was placed in his car seat. A short time after being picked up from Defendant’s home, Mason exhibited signs of being in distress – unusual crying, irritability, refusal to eat, and poor head control. After immediate medical examination, Mason was found to have suffered severe injuries to his brain and spine, including bleeding in his brain, bleeding behind his eyes, and two broken wrists. There was no accidental or medical explanation for these injuries. The types of injuries were consistent with infliction by physical abuse and Defendant, being the sole caretaker of the child, was indicated as the person who inflicted these serious injuries.
The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts which have been established. Commonwealth v. Wojdak, 466 A.2d 991, 996 (Pa. 1983). Evidence that a child suffers an injury while in the sole custody of a babysitter supports the inference of the babysitter’s guilt. See, Commonwealth v. Earnest, 563 A.2d 158 (Pa. Super. 1989). This inference may be applicable under the facts of the case even if there are other individuals present in the home during the time the injuries are inflicted. See, Commonwealth v. Nissly, 549 A.2d 918 (Pa. Super. 1988), appeal denied 562 A.2d 319 (Pa. 1989).
Defendant claims that the medical evidence fails to establish a time that Mason sustained his injuries. However, the evidence supports the inference that the injuries occurred while Mason was in Defendant’s care between the time his mother dropped him off before beginning her work shift and 11:20 p.m. when she picked him up. Mason had no physical problems before entering Defendant’s home; however, the change in his physical condition was obvious to his mother shortly after leaving Defendant’s care and was diagnosed medically within a short period of time afterward. The records of the medical staff eliminate any indication of accidental or physical explanations for Mason’s injuries, point to child abuse as the cause. Thus, the evidence creates an inference that Mason’s injuries were inflicted by Defendant during the time her was in her care on June 14, 2013. We believe this is a permissible inference under the facts and circumstances present in this case.
The fact that other adults had access to Mason does not negate the Commonwealth’s establishment of a prima facie case against Defendant. Linn interviewed both Patches and Schaffer and eliminated both of them from consideration as the person responsible for Mason’s injuries. From Patches’ testimony, it appeared that Mason had already been injured and was in distress when she retrieved him from Defendant’s bedroom. Although Schaffer made several self-incriminatory remarks, Linn evaluated these as “non-committal,” noting that Schaffer admitted that he had been on drugs and did not actually recall the events of that evening. Although Schaffer opined that Patches may have injured Mason when she was removing his onesie, Patches indicated that Defendant appeared and took Mason from her before she could remove the onesie. Moreover, Schaffer indicated that he merely had a “vision” about what happened and felt that he had been “brainwashed” by Defendant and her husband. Despite Defendant’s complaint of the Commonwealth withholding evidence, Defendant knew that Schaffer and Patches had access to Mason that evening and there is no indication that any other adults had access to him without his mother’s knowledge and presence. Mason was taken to the hospital shortly after his mother arrived home with him. Moreover, the possible existence of prior injuries to Mason does not eliminate Defendant’s culpability in the infliction of the injuries sustained on June 14, 2013.
We further find no merit to Defendant’s contention that her due process rights were violated by the Commonwealth’s failure to introduce evidence of prior injuries or of the other individuals possibly having had access to Mason at or around the time his injuries were inflicted. It provided ample evidence regarding the injuries sustained by Mason on the date in question, June 14, 2013. The Commonwealth was only required to present evidence of the elements of the allegations against Defendant and was not required to provide any additional information at this juncture. For these reasons, we find the Commonwealth has established a prima facie case as to these charges and we will deny Defendant’s Motion writ of habeas corpus or dismissal.
With regard to Defendant’s request for transcripts of the testimony before the Grand Jury, the Commonwealth has indicated that it will provide these materials to Defendant ten (10) days prior to the commencement of the jury trial in this matter. We believe that this is adequate for Defendant to examine this information under Pa.R.Crim.P. 230 and we will include such a directive to the Commonwealth in our Order disposing of this matter.

(1) Counts 1 through 3, 18 Pa.C.S.A. §2702(1)(1), 18 Pa.C.S.A. §2701(a)(1), and 18 Pa.C.S.A. §4304(a)(1), respectively.