Com. v. Smith, V.

2023 Pa. Super. 117

Opinion

J-E01002-23

2023 PA Super 117

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VINCENT SMITH : : Appellant : No. 1256 WDA 2021

Appeal from the Judgment of Sentence Entered June 30, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008964-2018

BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., NICHOLS, J., McLAUGHLIN, J., and McCAFFERY, J.

DISSENTING OPINION BY LAZARUS, J.: FILED: JUNE 30, 2023

I respectfully dissent. I disagree with the Majority’s conclusion that a

defendant may be convicted of and sentenced on separat0e counts of

subsection 3301(a)(1)(i) when there is one arson, but multiple victims. In my

view, the statutory language of subsection 3301(a)(1)(i) of the Crimes Code,

arson endangering persons, is ambiguous. Accordingly, under the rule of

lenity, we are required to strictly construe the statute in favor of the appellant.

See Commonwealth v. Cousins, 212 A.3d 34, 39 (Pa. 2019). (rule of lenity

requires ambiguous statutes be construed in favor of defendant).

The question before this Court is based purely upon statutory

interpretation of the statute governing the offense of arson endangering

persons. The statute provides, in relevant part:

(a) Arson endangering persons.-- J-E01002-23

(1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays[,] or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:

(i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire[.]

18 Pa.C.S.A. § 3301(a)(1)(i) (emphasis added).

When faced with the statutory interpretation of a penal statute, we are

guided by the principles set forth in the Statutory Construction Act,1 the

paramount tenet of which is that “[t]he object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the

General Assembly.” 1 Pa.C.S.A. § 1921(a). “The General Assembly’s intent

is best expressed through the plain language of the statute.”

Commonwealth v. Brown, 981 A.2d 893, 897 (Pa. 2009). Thus, where the

terms of a statute are clear and unambiguous, they will be given effect

consistent with their plain meaning. See 1 Pa.C.S.A. § 1921(b).

Courts of this Commonwealth ascertain the plain meaning of a statute

by ascribing to the particular words and phrases the meaning that they have

acquired through their common and approved usage, and in context. Id. at

§ 1903. Additionally, in interpreting statutes, we are mindful that “the

singular shall include the plural, and the plural, the singular. . . .” Id. at 1902.

Further, the “title and preamble of a statute may be considered in the ____________________________________________

1 1 Pa.C.S.A. §§ 1501-1991.

-2- J-E01002-23

construction thereof . . . . [Additionally, t]he headings prefixed to titles, parts,

articles, chapters, sections[,] and other divisions of a statute shall not be

considered to control but may be used to aid in the construction thereof.”

Id. at § 1924 (emphasis added).

However, where the words of the statute are not explicit, the intention

of the General Assembly may be ascertained by considering,

among other matters: [t]he occasion and necessity for the statute[, t]he circumstances under which it was enacted[, t]he mischief to be remedied[, t]he object to be attained[, t]he former law, if any, including other statutes upon the same or similar objects[, t]he consequences of a particular interpretation[, t]he contemporaneous legislative history[, and t]he legislative and administrative interpretations of such statute.

Id. at § 1921(c). Finally, we must presume that the legislature does not

intend a result that is unreasonable, absurd, or impossible of execution. Id.

at § 1922(2).

Because section 3301 is a penal statute, it must be strictly construed.

See Commonwealth v. Gamby, 283 A.3d 298, 306 (Pa. 2022). In addition,

the rule of lenity does not require that we give the words of a statute their

“narrowest possible meaning,” nor does it “override the general principle that

the words of a statute must be construed according to their common and

approved usage.” Gamby, supra at 306 (citations and quotations omitted).

But, where “doubt exists concerning the proper scope of a penal statute, it is

the accused who should receive the benefit of such doubt.” Id. The Crimes

Code further instructs that: “The provisions of this title shall be construed

according to the fair import of their terms[,] but when the language is

-3- J-E01002-23

susceptible of differing constructions it shall be interpreted to further the

general purposes stated in this title and the special purposes of the particular

provision involved.” 18 Pa.C.S.A. § 105.

The statutory language of subsection 3301(a)(1) can be interpreted two

ways. The Majority, in its reading, concludes that the “unit of prosecution” is

the endangerment of another person.2 In reaching this conclusion, the

Majority also determines that the statute is not ambiguous. Because I believe

this determination to be in error, I dissent.

In my view, subsection 3301(a)(1) is capable of being read another way,

that being that the unit of prosecution, i.e., the actus reus that the General

Assembly intended to punish, is the intentional starting of a fire, or put

another way, an arson. See 18 Pa.C.S.A. § 3301(a)(1). Our Supreme Court

recently explained:

The unit of prosecution is the actus reus that the General Assembly intended to punish. Put otherwise, the unit of prosecution is the minimum conduct that must be proven to obtain a conviction for the statute in question. Only a single conviction and resulting punishment may be imposed for a single unit of prosecution. . . . To determine the correct unit of prosecution, the inquiry should focus on whether separate and distinct acts have been committed.

____________________________________________

2 I note that in many cases where arson endangering persons is charged, there is also a separate count of recklessly endangering another person (REAP). 18 Pa.C.S.A. § 2705.

-4- J-E01002-23

Commonwealth v. Satterfield, 255 A.3d 438, 445-46 (Pa. 2021) (emphasis

added).3

The key inquiry is whether the “unit of prosecution” is each arson or

each endangered person. In my view, the answer is each arson. The

Majority, the trial court, and the Commonwealth have each conflated the

issue; the determining factor is not whether “endangered person” is a

required element to convict a defendant, but whether it is the key element

of the prosecution.

Subsection 3301(a)(1)(i)’s stated actus reus is the intentional starting

of a fire or explosion. There is no requirement in the statute that the actor

know or intend to harm another with the fire. Instead, it is simply enough

that the setting of the fire has the effect of placing another person in danger

of death or bodily injury, intended or otherwise. The statute criminalizes the

intentional act of starting a fire or explosion. Thus, I conclude that the unit of

prosecution, as used in this statute, is the arson, not the endangerment.4 ____________________________________________

3 I note that Satterfield provides the controlling analysis and guidance for the instant issue, but ultimately, like Commonwealth v. Frisbie, 485 A.2d 1098 (Pa. 1984), its holding does not pertain to subsection 3301(a)(1) and, consequently, does not dictate our decision as strictly as the Majority appears to claim.

4 The Majority takes issue with Appellant’s purported failure to explain “arsons as ersatz crimes against persons” in his brief. See Majority, at 6. I note that the word “ersatz” is commonly defined as an adjective meaning a “usually artificial and inferior substitute or imitation.” See www.merriam- webster.com/dictionary/ersatz. Throughout his brief, Appellant argues the unit of prosecution is unclear, and that there are two possible interpretations. (Footnote Continued Next Page)

-5- J-E01002-23

Despite the Majority’s holding to the contrary, the language “recklessly

places another person in danger . . .” is not the actus reus but the result of

the actus reus. Rather, reading its plain language, the statute does not require

an actor to intentionally light a fire to put another in danger, but requires the

intentional starting of a fire that has the effect of recklessly placing another

in danger. Put another way, the language “thereby recklessly places another

person” denotes the result of the prescribed actus reus, the arson. While that

language is, no doubt, an element of the crime for purposes of conviction, it

is not the unit of prosecution. As highlighted in Satterfield, there is no

separate or distinct action where an individual lights a single fire that

endangers multiple people. It is evident that a single fire could rage and

endanger dozens or hundreds of people, but that does not mean an actor

committed more than one act—for each person endangered—under this

statute.

Moreover, the General Assembly saw fit to include the “intentional”

mens rea requirement on the starting of a fire. See 18 Pa.C.S.A. §

See Brief for Appellant, at 15-23. Appellant’s brief quite clearly outlines these two readings as understanding arson as either a crime against property or a crime against persons. Id. Appellant focuses on the ambiguity that exists in section 3301, rather than spelling out both readings, and I note that his phrasing of “arsons as ersatz crimes against persons” is a rather succinct way to state that one of the two interpretations of arson as a crime against persons is a substitute for the actual portion of the Crimes Code detailing crimes against people, Article B. See Title 18, Article B, Offenses Involving Danger to the Person; id. at Article C, Chapter 33, Section 3301 (pertaining to “Offenses Against Property”). Indeed, the interpretation of “arsons as ersatz crimes against persons” is the exact conclusion that the Majority has reached.

-6- J-E01002-23

3301(a)(1). Similarly, in Satterfield, our Supreme Court addressed whether

the unit of prosecution for our “hit-and-run” statute, 75 Pa.C.S.A. § 3742, was

the accident or the flight from the accident. The Court concluded that, based

upon the language in section 3742, it was the intentional flight from an

accident, prior to the fulfillment of duties prescribed therein, that was the unit

of prosecution. See Satterfield, supra, at 449-50.

Additionally, I note that while chapter and subdivision headings do not

control our reading in questions of statutory interpretation, they are

nevertheless enlightening. See 1 Pa.C.S.A. § 1924. Here, section 3301 is

titled “Arson and related offenses,” and paragraph (a) is titled “Arson

endangering persons.” 18 Pa.C.S.A. §§ 3301, 3301(a) (emphasis added).

These two sections are under Chapter 33, titled “Arson, Criminal Mischief and

Other Property Destruction,” which is further designated, under Article C, as

“Offenses Against Property.” Id. at Chapter 33; Id. at Article C (emphasis

added). The Majority dismisses these titles, and instead relies upon Frisbie,

supra, for the notion that “another person” always means that the General

Assembly intended that a defendant be convicted and sentenced for each

victim of his or her criminal conduct. See Frisbie, 485 A.2d at 1100; Majority

Opinion, 5/15/23, at 15-16. Before discussing Frisbie and its holding, I briefly

note that the Court in Frisbie addressed the language in the statute

describing the offense of recklessly endangering another person, 18

Pa.C.S.A. § 2705, which is codified under a different chapter, Chapter 27,

titled “Assault,” and Article B “Offenses Involving Danger to the Person.” 18

-7- J-E01002-23

Pa.C.S.A. at Chapter 27; id. at Article B (emphasis added). This difference in

titles, chapters, and articles between the REAP and arson endangering persons

statutes lends further ambiguity to subsection 3301(a)(1).

Section 3301 goes on to define the offense of arson in other contexts

including, but not limited to: starting a fire to a historic resource; starting a

fire endangering property; starting a fire that kills a person; and reckless

burning. See 18 Pa.C.S.A. § 3301. In virtually each of these subsections, the

General Assembly specifically criminalizes the intentional starting of a fire.

See id. at § (a)(1) (“a person commits a felony of the first degree if he

intentionally starts a fire. . . .”) (emphasis added); id. at § (a)(1.1) (“a

person commits a felony of the first degree if he intentionally starts a fire.

. . .”) (emphasis added); id. at § (a.2)(1) (“A person commits a felony of the

second degree if the person . . . (1) [i]ntentionally starts a fire. . . .”)

(emphasis added); id. at § (c) (“A person commits a felony of the second

degree if he intentionally starts a fire. . . .”) (emphasis added); id. at § (d)

(“A person commits a felony of the third degree if he intentionally starts a

fire. . . .”) (emphasis added); id. at § (d.1) (“A person commits a summary

offense if he intentionally or recklessly starts a fire. . . .”) (emphasis

added).

The General Assembly’s consistent use of this phrase throughout section

3301 indicates its intent to criminalize the action of starting a fire and is

comparable to the statutory language, “involved in an accident,” emphasized

in and relied upon by our Supreme Court in Satterfield. See Satterfield, at

-8- J-E01002-23

448-49 (discussing similarities between “hit-and-run” statutes and use of

phrase “involved in an accident”). However, the Court in Satterfield also

stated that:

[I]t is solely involvement in an accident that triggers the obligation to stop and remain at the scene . . . [t]his obligation applies to every driver involved in the accident, and in no respect does the obligation depend upon whether the driver caused the accident (directly or indirectly). The relevant statutory language in [s]ection 3742(a) includes no indication that the General Assembly intended for a violation to be based upon consideration of who caused an accident or its results. To the contrary, the phrase “involved in an accident” is repeatedly used without exception in the “hit-and-run” statutes.”

Id. (emphasis added). The Court makes clear that the language “involved in

an accident” renders it irrelevant who caused the accident in order to trigger

the “hit-and-run” statute’s duty to stay at the scene. Id.

In contrast to the statutes at issue in Satterfield, I find it quite

compelling that the General Assembly, in drafting section 3301, intended to

criminalize the intentional starting of a fire. See 18 Pa.C.S.A. § 3301. Unlike

the language in the hit-and-run statutes, the language in section 3301

indicates that the General Assembly intended for a violation to be based upon

consideration of the intentional starting of a fire. See id.

I also find the analysis in Frisbie distinguishable and, therefore, not

controlling to our present predicament. There, our Supreme Court addressed

whether, under the REAP statute, a single act could result in multiple

convictions and sentences, one for each victim. See Frisbie, 485 A.2d at

1100. Briefly, a person commits REAP “if he recklessly engages in conduct

-9- J-E01002-23

which places or may place another person in danger of death or serious bodily

injury.” 18 Pa.C.S.A. § 2705. The Majority relies upon, and focuses on, the

“another person” language as dispositive of our interpretation of subsection

3301(a)(1).

The Majority ignores the fact that REAP criminalizes unspecific

“conduct.” Id. (emphasis added). By contrast, subsection 3301(a)(1)

specifically applies to an actor who “intentionally starts a fire.” 18

Pa.C.S.A. § 3301(a)(1) (emphasis added),5 but see 18 Pa.C.S.A. § 2705.

Therefore, I disagree with the Majority’s contention that Frisbie has

foreclosed our ability to interpret subsection 3301.6

In conclusion, there exist, in my view, at least two interpretations of this

statute, and accordingly, significant doubt exists concerning the proper scope

of subsection 3301(a)(1). In such a circumstance, we are compelled to apply

the rule of lenity, which requires us to find in favor of the accused. See

Gamby, supra. Accordingly, I would vacate Smith’s judgment of sentence

and remand for resentencing on two counts of voluntary manslaughter and

one count of arson endangering persons.

5 As noted supra, subsection 3301(a)(1) also criminalizes other specific, intentional, acts including but not limited to causing an explosion and hiring someone to start a fire on the actor’s behalf. See id.

6 Nevertheless, I agree that the phrase “another person,” standing alone, is singular and denotes a single person. Consequently, I take no issue with the holding in Frisbie that, under REAP, one action can result in multiple convictions and sentences. See Frisbie, supra.

- 10 -