PA Superior Court: Concussion May Be Serious Bodily Injury Under Aggravated Assault Statute

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Santiago, holding that a concussion alone may meet the definition of serious bodily injury as required for an aggravated assault conviction. The defendant had been convicted of aggravated assault and appealed the conviction. He argued that a concussion alone did not amount to serious bodily injury. The Superior Court, however, disagreed. Medical testimony introduced at trial established that a concussion impairs the brain for a protracted period and could be indefinite in extreme circumstances. Therefore, the court affirmed the conviction.

The Facts of Commonwealth v. Santiago

In July 2019, police responded to a noise complaint. When officers arrived on the scene, they discovered an impromptu block party. Various partygoers insulted and threatened the officers, and the officers eventually decided to arrest one of them. That person fled, and the officers chased him to his apartment building.

Other people at the apartment building tried to help the defendant. Someone knocked an officer to the ground. When the officer stood back up and called for help, the defendant punched the officer in the face. The officer fell backwards down four steps and hit his head on the metal leg of a picnic table. He became disoriented and nearly lost consciousness. There was also some bleeding.

The officer was diagnosed with a concussion at the hospital and missed two weeks of work. He continued to suffer from migraines, visual impairment, and confusion for about a month. The Commonwealth charged the defendant with aggravated assault and related charges. A jury convicted him, and the trial court sentenced the defendant to an aggregate of seven to fourteen years’ incarceration. The defendant filed a timely appeal, raising the issue that one punch resulting in a minor concussion is insufficient to support a conviction for aggravated assault.

The Superior Court Appeal

The defendant appealed, arguing that punching an officer one time and causing only a minor concussion from which the officer recovered was not an aggravated assault as a felony of the first degree. First degree felony aggravated assault requires that a defendant either specifically attempt to cause serious bodily injury and fail to do so or that a defendant intentionally, knowingly, or recklessly under circumstances manifesting an extreme disregard to the value of human life actually cause serious bodily injury. Therefore, the issue in this case was whether the defendant actually caused serious bodily injury.

The defendant argued that the concussion in this case was not a serious bodily injury. Serious bodily injury is either, 1) harm creating a substantial risk of death, 2) harm creating serious, permanent disfigurement, or (3) harm causing protracted loss or impairment of a bodily member or organ. Here, the court found that the concussion fell within the third category. The officer’s treating physician testified that the concussion altered brain function and caused an impairment to brain function that could be protracted. In extreme cases, the potential effects of a concussion can be indefinite. Therefore, concussing someone during an assault may be sufficient to be deemed serious bodily injury and rise to the level of aggravated assault.

This case makes it easier for the Commonwealth to obtain a conviction for aggravated assault. Concussions obviously occur with some regularity, and most people recover without any major issues. Therefore, a concussion probably should not equate to serious bodily injury. But here, likely because the case involved a police officer as the victim, the court upheld the conviction and found that a concussion may be serious bodily injury even where the victim recovers quickly.

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Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 5/27/23 Zak Goldstein 5/27/23

Attorney Goldstein Selected to 2023 PA Super Lawyers Rising Stars List

Zak T. Goldstein

Rated by Super Lawyers

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Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, has been selected to the 2023 Pennsylvania Super Lawyers Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com. This is the sixth year in a row that Attorney Goldstein has been selected to the list.

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Zak Goldstein 5/25/23 Zak Goldstein 5/25/23

Attorney Goldstein Wins Re-Sentencing on Appeal for Client Who Received 35 Years for Drugs

Criminal Appeals Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won a new sentencing hearing for a client who received 17.5 - 35 years’ incarceration followed a conviction for possession with the intent to deliver in Blair County, PA. The client was originally charged with drug delivery resulting in death, possession with the intent to deliver, criminal use of a communications facility, and recklessly endangering another person. The jury convicted him only of the PWID, CUCF, and REAP. It did not convict him of the homicide. Nonetheless, the trial judge imposed a sentence of 17.5 - 35 years’ incarceration for PWID even though the Commonwealth’s pre-trial offer had been for a jail term of less than half of that on the homicide charge. The client retained Attorney Goldstein for appeal, and the Superior Court vacated the sentence. It is rare for an appellate court to determine that a sentence should be vacated purely because it was excessive, but in this case, Attorney Goldstein was able to convince the Superior Court that the sentence was far too much. The Court found that the sentence was clearly excessive and remanded for a new sentencing hearing. Learn more here.

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Zak Goldstein 5/23/23 Zak Goldstein 5/23/23

PA Superior Court: No Reasonable Expectation of Privacy in IP Address or Google Search History

The Superior Court has decided the case of Commonwealth v. Kurtz, allowing police to use a very general warrant to obtain a defendant’s IP address and Google search history in order to solve an alleged rape. The Court also approved of the use of cell tower data dumps in order to connect suspects to potential locations. In this case, the Court found both that the defendant did not have a reasonable expectation of privacy in this information which he shared with Google as well as his cell carrier, and it also found that the search warrants obtained by the police were acceptable even though they had very little reason to believe the defendant would have used Google as part of committing the crime.

The Facts of Commonwealth v. Kurtz

In July 2016, a woman went to sleep and awoke to her dogs barking. When she went to investigate, a man jumped out, tied her up, and dragged her to his van. The man raped her and then released her into a field by her house. She eventually found help and called 911, and emergency personnel took her to the hospital. The medical staff at the hospital collected DNA samples. The police conducted a very thorough investigation; they executed a search warrant on Google demanding all of the IP addresses of anyone who had searched the victim’s name or address during the week leading up to the attack. Google disclosed that someone with a particular IP address had conducted two searches for the victims’ address hours before the incident.

Police identified the IP address as belonging to the defendant, who was actually the woman’s husband’s co-worker at the prison, and conducted surveillance. During the surveillance, police recovered the defendant’s used cigarette butts and obtained DNA from them. The officers compared the DNA collected from the victim and the defendant and found a match. The police arrested him, and he admitted to the rape as well as numerous other incidents involving other victims. All four of the other incidents had similar characteristics. In two cases, the defendant had also raped the victims, and the DNA collected in those cases matched the defendant.

The Defendant’s Pre-Trial Motions

The defendant filed a motion to suppress the evidence of the Google searches of the victim’s residence. He also filed a motion in limine to preclude the Google searches, alleging that the Commonwealth’s mishandling of the evidence prevented him from verifying its authenticity. He filed a second motion in limine to suppress the “tower dump” evidence obtained from AT&T. The motion alleged that the Commonwealth illegally obtained the records because the court order used the “Wiretap Act” instead of a warrant supported by probable cause and individualized suspicion that the defendant was engaged in criminal activity. The trial court denied all three motions. At trial, the jury found the defendant guilty on all charges. The trial court sentenced the defendant to an aggregate sentence of 59 to 280 years’ imprisonment.

The defendant raised various issues for appeal including the issues regarding the Google searches and cell phone tower dumps. First, he challenged whether the trial court erred in allowing the admission of unauthenticated, illegally obtained evidence because the investigatory search warrant lacked probable cause, and second, he challenged whether the trial court erred by allowing the admission of cell tower evidence that was the product of an invalid search warrant.

The Google Searches

The Superior Court rejected a number of challenges to the Google Search evidence. First, the court approved of the search warrant even though there was no direct evidence showing that the attacker had conducted a Google search prior to the execution of the warrant. The Court reasoned that the details of the attack made it likely that someone had searched for the victim’s address online in order to plan the attack and that most people use Google for internet searches. Police do not need an absolute certainty that they will find evidence for a search warrant to be valid; they just need probable cause, and here, the Court found probable cause to believe the attacher could have conducted a Google search.

Second, the Court also found that the defendant did not have a reasonable expectation of privacy in his Google search history or IP address because both of those things are shared with third parties. An IP address is an address assigned by the internet provider that identifies which internet account accessed another network. Therefore, it is always shared with a thirty party. Similarly, a Google search by definition has been shared with Google. Things that are shared with third parties often have less protection under the 4th Amendment than things that someone has kept private. In this case, the defendant chose to share his searches and IP address with Google, so they were not kept private. Therefore, police did not need a warrant to get that information. Courts have held that police need a search warrant to track someone’s real-time location through GPS data, but that is because such a search is so intrusive that even though data has been shared with a third party, society would generally recognize that it should be private.

Finally, the defendant argued that the data should be suppressed because the police had accidentally destroyed some of the metadata that accompanied the Google search results. Metadata might have shown that the data was tampered with or fabricated, but in this case, the defendant had no reason to believe that it was. Google certified that the data was correct, and so without some evidence of bad faith, the defendant was not entitled to the suppression of the evidence.

The Cell Tower DATA

In this case, police had also conducted cell tower dumps. A cell tower dump is where the police determine every device that connected to a cell tower during a particular period and then see if there are any devices of interest. In this case, they had done that for the towers closest to some of the crime scenes and found that the defendant’s phone had been nearby. The defendant challenged this procedure because the police had not obtained search warrants for the cell site data. Instead, they had issued court orders which did not contain explicit findings of probable cause. The Superior Court rejected the argument, however, finding that the orders asked for information only from a single tower and for a limited period of time. They did not ask for ongoing, real-time monitoring of a defendant’s individual cell phone, so the privacy concerns involved were not as strong. Therefore, the Court affirmed the constitutionality of the searches. The defendant’s conviction will stand.

Some of these issues deserve further review and consideration. For example, allowing the police to obtain a defendant’s Google search history without a warrant raises major privacy concerns. Pennsylvania courts have often rejected warrantless searches even of things shared with third parties like bank records and cell phone records. But bad cases often make bad law - in this case, the defendant was charged with horrific rapes, and the evidence against him was overwhelming, so it becomes very difficult for a court to seriously entertain suppressing the evidence or granting him a new trial. Nonetheless, it has become almost impossible to function in society without conducting a Google search, using Google Maps, storing data on Google drive, or communicating with a Google email account, so a rule that allows the police to obtain Google data without a warrant seems unreasonable. Hopefully, the defendant will seek further review, or a case with less horrible facts will warrant the courts to reconsider.