Strangulation in PA (Maximums and Defenses)

Strangulation charges in Pennsylvania are serious. Here’s why. At judicial conferences all over the state, the judges are taught that the most common factor or indicator of future domestic violence and/or the “next step” beyond strangulation is murder. No elected judge in PA wants to be the one on the front page who gave a “slap on the wrist” to someone accused of domestic violence and especially strangulation. Don’t be a scapegoat. Call it what it is: fear-mongering.

We won’t let the DA and the courts run you over. 

When people ask: “Who is the best strangulation charge defense attorney near me?” The answer always comes back to us: The McShane Firm. When you deserve the very best assault charges attorney, do what your neighbors and friends have been doing for nearly 20 years, call us.

The Law:

You can read the exact statute here:18 PS § 2718.  Strangulation.

 

Why do the courts and DA’s Office take these cases so seriously?

At judicial conferences, Victim/Witness advocates teach judges the following: “Women who experience any kind of strangulation, they’re more likely to be murdered at a future time.”

They are fond of pointing out that one study that found the chances of being murdered in the future increased dramatically if you have been strangled. It claims that many victims who are killed reported in the past their abuser had strangled them. There are plenty of flaws in this study. But it has shaped the court’s response to these charges. In their minds and in the minds of DAs, strangulation means future murderer.

No marks=still charges

You would like to think that in America, you can only be charged with a crime if there is proof, not merely someone’s say so. Despite common sense and the laws of physics and application of force, “experts” teach DAs and officers that “many times” victims will not have any visible injuries but could have brain damage due to the lack of oxygen after an attack. So, these victim/witness advocates have “juiced” the system against you in the myth that that during a fight and during an unwanted strangulation event there will be no evidence. Doesn’t that defy just about everything you have ever heard of?

In the clinical world, the signs of strangulation are well recorded.

While it is true that this list is not exhaustive and all signs here will not show up every single time, to say that none will show up during a fight defies logic and the volumes of clinical literature that has been published for hundreds of years. Here are the recognized signs of strangulation:

• Face- red or flushed, pinpoint red spots (petichiae), scratch marks
• Eyes and eyelidspetichiae to the left or right eyeball, blood shot eyes
• Nose – bloody nose, broken nose, petichiae
• Finger tips- bruises are circular and oval and often faint
• Ear- petichiae (external and/or ear canal), bleeding from ear canal
• Mouth- bruising, swollen tongue, swollen lips, cuts/ abrasions
• Under the chin- redness, scratch marks, bruise(s), abrasions
• Chest- redness, scratch marks, bruise(s), abrasions
• Shoulders- redness, scratch marks, bruise(s), abrasions
• Neck- redness, scratch marks, finger nail impressions, bruise(s), swelling, ligature mark
• Head- petichiae (on the scalp) Other- hair pulled, bump(s), skull fracture, concussion

But just because there is a mark doesn’t mean guilty

There are lots of non-criminal and non-strangulation events that can very much mimic signs of strangulation. Consider this one from a case we recently had. Here is the police photo:

In this case study, a well-intentioned school teacher reported seeing these marks on her student. The police investigated. For over an hour, the police detective grrilled the teenager without a parent present. Despite the fact that the teenager said there was no strangulation, the police had a fixed mindset and charged her dad anyway. A jury found him not guilty. It wasn’t strangulation. It was just a kid playing her violin… a lot.

What the government must prove:

Presumption of Innocence

First it’s about a mindset. Even experienced criminal defense attorneys adopt the wrong mindset. When the government charges you with any crime, it is just a naked allegation. While it is true that the government does not have to prove the complete and total impossibility of guilt, a reasonable doubt is a doubt based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act.

Second, the power of the oath makes it so jurors must follow the law. The law includes the command that the accused at all times has the presumption of innocence. A criminal trial is not where the jury is being asked to decide who told the better story or if the government told a story that is possible or even very very likely. It is about the government’s case.

The jury is no referee

The jury is not there to be a referee. That’s the judge’s role. The jury is not standing in between the prosecutor and the accused. The jury is on the side of the accused. The court isn’t asking the jury to choose which side is better.

So in the jury deliberation room, the jury needs to act consistent with that presumption of innocence. To do that, jurors ought to start with the verdict slip marking the verdict as not guilty before a word is uttered, before the foreperson is selected and before anyone even sits. This is done with ink because of how hard it is to erase is like how hard it is to remove that presumption of innocence.

Beyond a reasonable doubt

The only way the jury can lawfully and with a good conscious give a verdict of guilty, and leave our side, is if the prosecutor presents such quantity and quality of evidence that the only reasonable interpretation of the facts is that of guilt.

A brick wall called reasonable doubt now stands before us all. Unless the government knocks down every brick, doubt still exists, and you go home. Reasonable doubt can come out of the evidence (what someone said, what someone said they saw, what someone said they did) or FROM A LACK OF EVIDENCE (somethings that the government didn’t explain, what doesn’t make sense, questions unanswered, or anything).

 

The elements (requirements) for Strangulation:

The government must prove beyond a reasonable doubt ALL of the following parts:

1. the accused
2. knowingly or intentionally
3. impedes the breathing or circulation of the blood of another person by:
   1. applying pressure to the throat or neck; or
   2. blocking the nose and mouth of the person.

The law further reads: “Infliction of a physical injury to a victim shall not be an element of the offense. The lack of physical injury to a victim shall not be a defense in a prosecution under this section.”

Statutory defense

Theres is one statutory defense to this. A statutory defense is one in which the judge must allow you to argue and advance in court. Consent (by someone over the age of 18) is a defense.

 

Maximum Penalties

Technically, the law reads as follows:

(d)  Grading.–

(1)  Except as provided in paragraph (2) or (3), a violation of this section shall constitute a misdemeanor of the second degree.

(2)  A violation of this section shall constitute a felony of the second degree if committed:

(i)  against a family or household member as defined in 23 Pa.C.S. § 6102 (relating to definitions);

(ii)  by a caretaker against a care-dependent person; or

(iii)  in conjunction with sexual violence as defined in 42 Pa.C.S. § 62A03 (relating to definitions) or conduct constituting a crime under section 2709.1 (relating to stalking) or Subchapter B of Chapter 30 (relating to prosecution of human trafficking).

(3)  A violation of this section shall constitute a felony of the first degree if:

(i)  at the time of commission of the offense, the defendant is subject to an active protection from abuse order under 23 Pa.C.S. Ch. 61 (relating to protection from abuse) or a sexual violence or intimidation protection order under 42 Pa.C.S. Ch. 62A (relating to protection of victims of sexual violence or intimidation) that covers the victim;

(ii)  the defendant uses an instrument of crime as defined in section 907 (relating to possessing instruments of crime) in commission of the offense under this section; or

(iii)  the defendant has previously been convicted of an offense under paragraph (2) or a substantially similar offense in another jurisdiction.

Choosing the right attorney makes all the difference in the max penalties

Despite how the law reads, in the law of strangulation where we have the elements of the crime, none of the enhancing factors based upon relationships to people and circumstances exist. As such, these enhancing factors are a fact that changes the maximum sentence. The fact that changes the maximum is never put before the jury. As such, it is presumptively unconstitutional to enhance this crime above a M2.

The only exception to this inability to enhance the maximum is in this case “(iii)  the defendant has previously been convicted of an offense under paragraph (2) or a substantially similar offense in another jurisdiction.”

I can almost for certain guarantee you that the local police, state police or the DA may not know this. We do. We use it to your advantage.

Our position on the maximum penalty for all strangulation cases:

It is a misdemeanor of the second degree unless you have a prior conviction for strangulation in which case it then is felony of the third degree.

• A misdemeanor of the second degree (M2s) has a maximum penalty of jail not more than two years and a maximum fine of $5000.00.
• But with a misdemeanor conviction there is just so much more to worry about. In truth, jail is temporary. The conviction and its consequences are permanent. You must consider Misdemeanor Conviction Consequences in Pennsylvania.
• If you plead guilty to this crime and have a prior strangulation on your record or are found guilty with a prior strangulation on your record, it is a Felony of the Third Degree. All felonies of the the third degree have a maximum penalty of 7 years and a max fine of $15,000.00.
• But with a felony conviction there is just so much more to worry about. In truth, jail is temporary. The conviction and its consequences are permanent. You must consider Felony Conviction Consequences in Pennsylvania.

What to do to save yourself

Again, this is if the worst thing happens. We make sure the worst doesn’t happen. Let’s see how we can fight and beat the government, ok?

All you have to do is contact us. We will come running.

Ecce ego sum. Mitte me.