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Girl, 7, cleared in 10-month-old baby's death at day care

| Friday, Aug. 15, 2008, 12:00 p.m.

A 7-year-old girl could not have inflicted the head injuries that killed a 10-month-old girl at a Garfield day care home, an Allegheny County judge ruled Thursday.

"I specifically found that she could not have killed this child based on the severity and nature of the injuries. She could not physically do it," said Common Pleas Judge Kim Clark, head of the court's family division and a former prosecutor.

Police and prosecutors said they would re-evaluate the June 6 death of Marcia Poston of Bloomfield at Bray's Family Day Care based on a "new theory" that emerged during a closed hearing this week before Clark. The 7-year-old child will remain in foster care, the judge said.

"This is a big shocker," said Marcia's father, DeJuan Poston, 28. "This takes us back to square one. The good thing is that we're getting to the bottom of this, and that's what we want to do."

Police said the 7-year-old threw Marcia to the floor at least twice, fracturing her skull, while Ashley Swann, 20, the daughter of the home's operator, attended to another child upstairs.

"It's not like we just believed her story and went with it," said city police Lt. Daniel Herrmann. "We investigated, and there was other evidence."

He said Swann passed a polygraph test.

Swann could not be reached. Day care operator Loretta Bray, the grandmother of the 7-year-old girl, declined to comment after the hearing.

Bray's attorney, Olga Salvatori, disagreed with Clark's ruling.

"I respectfully disagree with the judge's finding. I'm convinced that Loretta Bray should have custody of this child who -- thanks to Loretta -- is a healthy, well-educated, safe and happy child who has never known any other stable environment other than her home with Loretta."

India Thomas, 29, the mother of the 7-year-old girl, said her daughter is innocent.

"She did not do it. We don't know who did," Thomas said.

Marcia Poston's mother, Rhonda Moore, 33, said prosecutors should have charged Swann or Bray.

"I just feel like they did not investigate this from the beginning," she said. "I want to think it's an accident so bad, but there aren't enough questions asked. They're just taking people's words."

District Attorney Stephen A. Zappala Jr. said this week that he believed the 7-year-old committed the crime. He said he chose not to charge her with homicide and instead sought the dependency order to allow the girl to receive treatment and remain under supervision.

"We previously indicated that we would continue to look at this case if new information was brought forward," Zappala spokesman Mike Manko said yesterday. "During the dependency hearing, there was a new theory advocated regarding the death of this infant. We are going to explore that."

He declined to elaborate.

Herrmann said police would follow the district attorney's recommendation.

"We concluded the investigation, but now we'll have to re-evaluate the case," he said. "There is only one adult we can talk to that was there."

Police have said Swann was watching five children ages 10 months to 7 years in the basement playroom. She told police she took a 1-year-old to the first floor to change a diaper and a few minutes later heard a noise and returned to the basement.

She said she found Marcia, who had been in a baby seat when she went upstairs, not breathing and lying on a love seat. Swann called 911, police said.

Clark ruled on the case after hearing three days of testimony. On Monday, Marcia's mother picketed outside the county courthouse demanding charges against Bray.

"There was expert testimony that said in rare cases a child could do this killing, but you would have seen a history of problems," Clark said. "Somebody killed the baby, but based on the evidence I received there was not proof she did it."

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