- Associated Press - Wednesday, April 27, 2016

EASTON, Pa. (AP) - An eastern Pennsylvania man who told police a toddler in his care choked on a hot dog has been ordered to stand trial on charges that he killed her by fracturing her skull.

Northampton County District Judge Robert Hawke on Wednesday sent the homicide charge against 32-year-old Gary Foley Jr. to county court in the February 2015 death of 17-month-old Kannah Dew.

Foley and the girl’s mother, 27-year-old Heather Surget, were also ordered to stand trial on child endangerment charges.

Prosecutors have argued the only explanation for the girl’s fatal injuries is they were caused by Foley as he was watching her and three other children in the mobile home where he lived with Surget.

First Deputy District Attorney Terence Houck cited medical records that he said made it clear the girl’s injuries were acute and therefore recently inflicted. Houck said they contradict Foley’s account of events, and he took issue with the characterization of the case as circumstantial.

“If you say that nobody saw him crush this kid’s skull, then yes, you can say that,” Houck said. “There is no doubt - no doubt - about what happened here. There never has been.”

Foley’s attorney, Robert Eyer, said prosecutors hadn’t tied the child’s injuries to his client or showed that they couldn’t have happened unintentionally. He complained that no medical experts who could have faced cross-examination had been called.

“We haven’t heard a scintilla of evidence of anyone causing any harm on this child,” Eyer told the judge.

Authorities called conditions in the home deplorable, saying it was bug-infested and cluttered with trash, had holes in the floor and no running water or a permanent heating source.

Surget’s attorney, Tyree Blair, acknowledged photographs of the home are “not favorable” to his client, but said they don’t amount to child endangerment. He also said she had left the children with Foley before without incident.

“Substitute poverty for criminal intent,” Blair said. “She’s a single mother working at Arby’s at minimum wage and trying to take care of six people.”

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