Convicted Day Care Worker Faces Retrial

HARRISBURG, Pa. (CN) — The Pennsylvania Superior Court ruled that a woman who was convicted of shaking a 5-month-old baby at her day care will get a new trial because her first one was unfair.

When the mother of a child identified as P.B. came to the day care run by Jalene R. McClure out of her home on Aug. 18, 2010, to pick up the child, McClure told her that P.B. had vomited, according to court records.

On the drive home, though, P.B. was losing consciousness. At the hospital, it was determined that P.B. had a fractured skull and retinal hemorrhaging.

When first interviewed by Detective Dale Moore and a Child and Youth Services employee, McClure said nothing had happened to P.B. On a subsequent interview, however, she said she had tripped while carrying P.B. and the child hit her head on a car seat.

P.B. calmed down after that, and became fussy—which McClure believed was due to teething—and then vomited a few hours later.

Prosecutors at her September 2014 trial, however, offered up a theory that McClure lost her temper and assaulted P.B, and an expert testified that P.B. had symptoms consistent with an infant who had been shaken.

McClure was found guilty of aggravated assault, simple assault, two counts of endangering the welfare of a child and recklessly endangering another person. She was sentenced to 10 to 20 years in prison.

She raised several issues on appeal, and Judge Victor Stabile, in delivering the Superior Court's decision, wrote Monday that the trial prejudiced McClure in numerous ways.

First, the court admitted evidence of McClure's 2012 divorce and prosecutors performed a direct examination of her ex-husband. This evidence, Stabile said, either implicated the spousal privilege or was irrelevant to the events in August 2010.

"While the Commonwealth may have been seeking to prove that stress resulted in actions by appellant on Aug. 18, 2010, the questions posed to appellant's former husband were not even remotely restricted to that time and several specifically referenced August of 2012. Because there is a 'reasonable possibility' that the error in permitting the testimony 'might have contributed to the conviction' ... we do not find the error harmless," Stabile wrote.

This alone would have been enough to entitle McClure to a new trial, but she was also unfairly prejudiced in other ways, the court find.

On Aug. 23, 2010, five days after P.B.'s injuries, McClure provided a written statement in which she described how the fall happened. In her original statement, she explained that she did not believe P.B. was hurt and would have acted immediately had she thought otherwise.

This ending statement was redacted and the redacted statement that was presented at trial, McClure argued, sounded like a confession.

"We agree with appellant that she should have been able to correct any misleading impression by presenting her entire statement to the jury," Stabile wrote.

Finally, the court ruled that McClure was prejudiced when Moore was allowed to say on the witness stand that neither he nor the case worker found McClure credible.

It was prejudicial, Stabile found, to present "a police officer... [as] an 'unwarranted appearance of authority in the subject of credibility,' something ordinary jurors are able to assess."

The Superior Court rejected McClure's other arguments, which included her claim that Moore's demonstration of the fall was improper and that she was prejudiced by testimony about P.B.'s ongoing injuries.

But because of the other errors, the court vacated McClure's sentence and remanded the case for a new trial.

Bernard Flynn Cantorna of Bryant & Cantorna, P.C., from State College, Pa., represented McClure. He declined to comment on the ruling.

The commonwealth was represented by Centre County District Attorney Stacy Parks Miller and Bruce Lee Castor Jr. from Rogers Castor in Ardmore, Pa., serving as a Centre County Special Assistant District Attorney.

Parks Miller said in an email that prosecutors are "very disappointed the Superior Court ordered a new trial based upon the jury not hearing a few sentences from the defendant's written statement."

"It is impossible to see how that could have made any difference in the outcome of a multi-day trial with two renowned prosecution experts who testified that the injuries were a result of deliberate child abuse and her defense was 'accidental' trip and fall," she said.

Parks Miller also said that the commonwealth is considering whether to take the case to the Pennsylvania Supreme Court or retry McClure.

"We are committed to ensuring that justice is served for this child no matter what path we choose," she said.

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