Com. v. Kurtz, J.
294 A.3d 509
| Pa. Super. Ct. | 2023Background
- Between 2012 and 2017, five women were invaded in their homes; the intruder used a consistent modus operandi (night/early-morning entries, mask, zip-ties, blindfolds, gagging, intent to transport and rape); two victims were raped, others were abducted or nearly so.
- Investigators obtained Google records showing two searches for Victim K.M.’s address from an IP address shortly before her July 2016 assault; ISP/ARIN queries linked that IP to Kurtz.
- Surveillance yielded a discarded cigarette butt whose DNA matched sperm recovered from K.M.; Kurtz was arrested and confessed to K.M.’s assault and implicated himself in four other incidents.
- Kurtz was tried on consolidated dockets (three informations covering five victims), convicted on multiple counts, and sentenced to an aggregate 59 to 280 years’ imprisonment.
- On appeal Kurtz raised four main challenges: (A) suppression/admissibility of Google search evidence (and related due-process/authenticity/hash-value claims); (B) suppression of AT&T “tower dump” data; (C) trial court’s consolidation/denial of severance; and (D) excessiveness of sentence and failure to consider mitigators.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kurtz) | Held |
|---|---|---|---|
| 1. Admissibility of Google search/IP evidence | Warrant was supported by probable cause; Kurtz had no reasonable expectation of privacy in IP/searches (third-party doctrine); authentication adequate | Warrant affidavit speculative; searches and IP protected (Carpenter); PSP mishandled Google file (hash deleted) so evidence integrity compromised; confrontation rights violated | Affirmed. Court: no reasonable privacy interest in IP/searches (user turned data over to Google); warrant showed fair probability; hash value loss was only "potentially useful," no bad faith; Confrontation Clause claim waived; authentication sufficient. |
| 2. Tower-dump (AT&T) records | Order under 18 Pa.C.S. §5743 was lawful for limited tower-dump; data is not historical CSLI and does not reveal a detailed movement profile | Tower-dump implicates same privacy concerns as CSLI (Carpenter); §5743 process insufficient (no probable cause/specificity) | Affirmed. Court: Carpenter and Pacheco concern CSLI and do not control tower-dumps; tower-dump here showed users in an area at one time (not a comprehensive location history); no reasonable expectation of privacy; Confrontation/authentication claim waived. |
| 3. Consolidation / Severance of three dockets | Evidence of each offense would be admissible in separate trials under common plan/scheme; offenses sufficiently similar; jury can separate evidence | Crimes occurred across years/counties and some lacked completed sexual assault; joinder unfairly prejudicial and created propensity inference | Affirmed. Court: common-signature facts (mask, zip-ties, gag, timing, intent to transport/rape) showed a common scheme; jury could separate incidents; consolidation not unduly prejudicial. |
| 4. Excessive sentence / failure to consider mitigators | Sentence within statutory limits, court considered PSI and relevant factors; consecutive terms discretionary | Aggregate 59–280 years is essentially life, disproportionate and cruel and unusual; court failed to give weight to lack of priors, military service, and paraphilic disorder | Affirmed. Court: no gross disproportionality under Eighth Amendment; sentencing court considered PSI and mitigators; discretionary aspects not abused. |
Key Cases Cited
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (SCOTUS limited third-party doctrine for historical CSLI; court distinguished tower-dumps and active search queries)
- Commonwealth v. Pacheco, 263 A.3d 626 (Pa. 2021) (extended Carpenter analysis to real-time CSLI; discussed expectations of privacy)
- Commonwealth v. Dunkins (Dunkins II), 263 A.3d 247 (Pa. 2021) (user assent to computing policy can vitiate privacy expectation; affirmed treatment of Wi‑Fi log evidence)
- Commonwealth v. Dunkins (Dunkins I), 229 A.3d 622 (Pa. Super. 2020) (Wi‑Fi log akin to a tower-dump; no Carpenter protection for location-limited, single-site access lists)
- United States v. Christie, 624 F.3d 558 (3d Cir. 2010) (IP addresses not afforded a reasonable expectation of privacy)
- United States v. Adkinson, 916 F.3d 605 (7th Cir. 2019) (tower-dump collection not invalidated by Carpenter; tower-dumps identify phones near one location at one time)
- Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009) (due-process analysis for lost/destroyed evidence: materially exculpatory vs. potentially useful; bad-faith requirement)
- Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011) (clarifies standard for inaccessible evidence: materially exculpatory v. potentially useful and bad-faith showing)
- Miller v. United States, 425 U.S. 435 (1976) (third-party doctrine for bank records; background for limits on privacy claims)
- Commonwealth v. Ferguson, 107 A.3d 206 (Pa. Super. 2015) (test for joinder/severance under common plan/scheme)