Com. v. Smith, V.

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2023 PA Super 117COMMONWEALTH 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.--
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(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
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1 1 Pa.C.S.A. §§ 1501-1991.
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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
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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.
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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.
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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
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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)
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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. §
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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.
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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
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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
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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
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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.
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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.
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