Is the unit of prosecution for the offense of arson endangering persons, 18 Pa. C.S. § 3301(a)(1)(i), each arson or each endangered person?
Commonwealth v. Smith, 298 A.3d 1140 (Pa. Super. 2023) (en banc), allocatur granted June 5, 2024, appeal docket 15 WAP 2024
The Pennsylvania Supreme Court will consider an issue of first impression: whether the unit of prosecution for the offense of arson endangering persons under subsection 3301(a)(1)(i) of the Crimes Code provides for a single sentence regardless of the number of victims.
Vincent Smith entered open guilty pleas to four counts of arson endangering persons pursuant to Subsection 3301(a)(1)(i) of the Crimes Code, which provides:
§ 3301. Arson and related offenses.
(a) Arson endangering persons.
(1) A person commits a felony of the first degree if he intentionally starts a fire … 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. § 3301(a)(1)(i). The trial court sentenced Smith to four terms of four to eight years for the four separate counts, which related to a single fire that Smith started in the presence of four police officers, based on the court’s conclusion that the proper interpretation of Section 3301(a)(1)(i) permits separate sentences for each victim endangered by a defendant’s conduct. Superior Court summarized the trial court’s reasoning as follows:
The trial court concluded this statute “is specifically focused on the individual risk of death or serious bodily injury caused to” another person. Trial Ct. Op. at 6. It found the unit of prosecution is not merely an arson, but instead “the commission of an arson that specifically recklessly places another person in danger of death or bodily injury.” Id. (emphasis added). It reasoned “the statute specifically requires proof of both an arson and that an enumerated person be placed in danger of death or bodily injury from the arson.” Id. at 7 (some emphasis omitted & emphasis added).
Slip op. at 13-14. Smith appealed to Superior Court, which summarized the parties’ arguments as follows:
Appellant argues the trial court erred in imposing multiple sentences for his arson endangering persons convictions, as the unit of prosecution is one arson, and not the endangerment to others. In support, he first contends the arson endangering persons statute is ambiguous. Appellant’s Brief at 16-17. He proposes two possible interpretations of the statute: (1) first, that the statute primarily prosecutes arson, not endangerment of persons; and (2) on the other hand, that it prosecutes “arsons as ersatz crimes against persons.” Id.
In support of his contention that the former interpretation should control, Appellant presents the following arguments. First, where there are “two reasonable interpretations of a statute’s unit of prosecution[, the courts] should adopt the more lenient one.” Appellant’s Brief at 19, citing Commonwealth v. Davidson, 595 Pa. 1, 938 A.2d 198, 221 (2007) (“[The United States] Supreme Court has explained that ‘[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.’ ”) (citation omitted). Second, the titles of both Section 3301 (“Arson and related offenses”) and Subsection 3301(a) (“Arson endangering persons”) suggest their primary focus, or key element, is arson — and not endangerment. Appellant’s Brief at 17. Meanwhile, “[c]rimes primarily focused on injury or danger to persons are defined elsewhere” in the Crimes Code. Id. at 18, citing “18 Pa.C.S. §§ 2501 et seq.” Finally, although the arson endangering persons statute contains an element of endangerment to “another” person, in the singular, “our legislature has provided that singular words … subsume their plural coordinate terms[.]” Appellant’s Brief at 16-17, citing 1 Pa.C.S. § 1902 (“The singular shall include the plural, and the plural, the singular.”).
Furthermore, Appellant asserts the trial court failed to conduct any “textual or other statutory analysis[,] but instead rejected [his] claim … on the ground” that the arson endangering persons statute is unlike the statute addressed in Satterfield — leaving the scene of an accident involving death or personal injury. Appellant’s Brief at 19. While Appellant agrees the Satterfield statute is distinguishable, he maintains that “it does not follow that Section 3301’s unit of prosecution is [an] endangerment.” Id. at 20. Appellant contends that in Satterfield, the Pennsylvania Supreme Court concluded that a vehicle “accident was [the] key element, and [it was] immaterial that additional elements gave rise to [higher] penalties.” Id.
Finally, Appellant challenges the trial court’s reasoning, that it would be absurd for a person to be charged with only one arson causing murder, under 18 Pa.C.S. § 3301(a)(2), if more than one person died from an act of arson. Appellant’s Brief at 21, citing Trial Ct. Op. at 7. Appellant reasons that in that scenario, a defendant could be charged with one count of arson endangering persons and multiple counts of murder. Appellant’s Brief at 22. Appellant concludes this Court should vacate three of his arson endangering persons sentences.
The Commonwealth responds that the present sentencing issue is governed by Frisbie, 485 A.2d 1098, which Appellant does not address on appeal. In Frisbie, the defendant drove his car through a crowd injuring nine pedestrians. Commonwealth’s Brief at 10. On appeal, the Pennsylvania Supreme Court upheld the imposition of separate sentences for nine counts of REAP, reasoning that the REAP statute’s inclusion of the phrase, “another person,” indicated “a separate offense is committed for each individual person placed in danger.” Id. at 11, citing Frisbie, 485 A.2d at 1100.
The Commonwealth further contends that Appellant’s reliance on the title of Section 3301 is misplaced, as our Supreme Court has held the “headings prefixed to titles, … sections and other divisions of a statute shall not be considered to control.” Commonwealth’s Brief at 14, citing Commonwealth v. Magwood, 503 Pa. 169, 469 A.2d 115, 119 (1983).
Slip op. at 6-9.
Superior Court affirmed the trial court and held that the unit of prosecution for arson endangering persons “is not merely the starting of a fire, but the intentional starting of a fire that recklessly places another in danger of death or bodily injury.” Slip op. at 1 (emphasis in original). Concluding that Section 3301(a)(1)(i) is ambiguous, the court reasoned:
First, applying our statutory interpretation principles and the discussion in Satterfield, we likewise conclude the General Assembly intended the unit of prosecution to be the defendant’s commission of an arson coupled with their “recklessly plac[ing] another person in danger of death or bodily injury[.]” See 18 Pa.C.S. § 3301(a)(1)(i); Satterfield, 255 A.3d at 447. The plain meaning of the word, “and,” at the end of Subsection (1) requires the Commonwealth to prove not only that a defendant “intentionally start[ed] a fire,” but also that they “recklessly place[d] another person in danger of death or bodily injury[.]” See 18 Pa.C.S. § 3301(a)(1)(i); Commonwealth v. Coleman, ––– Pa. ––––, 285 A.3d 599, 605 (2022) (“[W]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage[.]”) (citation omitted).
As to whether the statute contemplates placing a single person in danger, or more than one person, we find Frisbie instructive. The REAP statute at issue in that case and the pertinent arson endangering persons subsection bear similarities. A person commits REAP when they “recklessly engage[ ] in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705 (emphasis added). The Frisbie Court emphasized the phrase, “another person” and, as discussed above, construed this language to mean “that § 2705 was written with regard to an individual person being placed in danger of death of serious bodily injury, and that a separate offense is committed for reach individual person placed in such danger.” Frisbie, 485 A.2d at 1100. Similarly, the definition of arson endangering persons is the intentional starting of a fire “and” the “recklessly plac[ing] another person in danger of death or bodily injury[.]” See 18 Pa.C.S. § 3301(a)(1)(i) (emphasis added). Applying the rationale of Frisbie, we conclude the phrase, “another person,” “was written with regard to an individual person being placed in danger of death of serious bodily injury,” and thus separate offenses are committed for each person placed in such danger. Thus, separate sentences may be imposed. See 18 Pa.C.S. § 3301(a)(1)(i); Frisbie, 485 A.2d at 1100.
To this end, we also disagree with Appellant’s reliance on 1 Pa.C.S. § 1902, which states:
§ 1902. Number; gender; tense.
The singular shall include the plural, and the plural, the singular. Words used in the masculine gender shall include the feminine and neuter. Words used in the past or present tense shall include the future.
1 Pa.C.S. § 1902. Appellant does not address the discussion in Frisbie, that “[w]here the legislature has intended to preclude multiple punishments for multiple injuries resulting from a single act, it has expressly done so.” See Frisbie, 485 A.2d at 1100, citing 18 Pa.C.S.A. §§ 2707 (it is a crime to throw a rock or any deadly or dangerous missile into a vehicle “that is occupied by one or more persons”), 2710 (a person commits ethnic intimidation if they commit an offense “with malicious intention toward the race, color, religion or national origin of another individual or group of individuals”).
Slip op. at 14-16 (emphasis in original).
Dissenting, Judge Lazarus would find the language of subsection 3301(a)(1)(i) ambiguous, and as such, would apply the rule of lenity to strictly construe the statute in favor of the appellant. The dissent reasoned:
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.
Commonwealth v. Satterfield, ––– Pa. ––––, 255 A.3d 438, 445-46 (2021) (emphasis added).
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.
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.
Dissent slip op at 4-6. Finding Frisbie distinguishable and disagreeing with the “Majority’s contention that Frisbie has foreclosed our ability to interpret subsection 3301(a)(1),” the dissent concluded:
[In Frisbie], 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 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), but see 18 Pa.C.S.A. § 2705.
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.
Dissent slip op. at 9-10.
The Pennsylvania Supreme Court granted allocatur to consider:
Did the en banc panel erroneously hold that the unit of prosecution for the offense of arson endangering persons, 18 Pa. C.S. § 3301(a)(1)(i), is not each arson, but, rather, each endangered person, a question of first impression and substantial public importance that will impact myriad arson prosecutions throughout the Commonwealth going forward?