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Figuring Out Arson Sentencing – What’s the Difference?

January 18, 2018

By van der Veen, Hartshorn, Levin & Lindheim

Merriam-Webster’s Dictionary defines arson as: “[t]he willful or malicious burning of property (such as a building) especially with criminal or fraudulent intent.” Each year Pennsylvania police agencies receive around 1,500 reports of arson. Seventy percent of these arson crimes go unsolved or explained in some other fashion outside of criminal charges. Obviously, these statistics do not account for unreported instances of arson. Due to the ease and nature of fire creation and spreading, it can be incredibly difficult to track, trace, and solve arson-related offenses when they occur.

Pennsylvania’s arson statute, § 3301, attempts to divide the crime into four parts. First, § 3301(a) punishes arson crimes that are intentionally set and thereby recklessly endanger persons, or are set with the purpose to destroying or damaging an inhabited building. Sections 3301(a.1) and (a.2) provide additional penalties, if, while in the course of violating § 3301(a), that person intended to injure persons, actually caused the death of a person, or damaged a “historic resource.” Punishment under § 3301(a) is a first degree felony or higher, depending on the amount of damage or if there is a loss of life.

Second, § 3301(c) punishes arson crimes that are committed with the intent of “destroying or damaging a building or unoccupied structure;” or crimes that “recklessly place” a building in danger of damage or destruction. A crime committed under this section is a second degree felony.

The last two portions of the statute are where it gets confusing and the crimes start to overlap, leading to sentencing and charging confusion. Section 3301(d), Reckless Burning or Exploding, punishes perpetrators with a third degree felony where he “intentionally starts a fire” and “thereby recklessly places an uninhabited building . . . in danger of damage or destruction” or “places . . . personal property . . . that exceeds $5,000.00 . . . in danger of damage or destruction.” Section 3301(d.1) punishes arsonists with a summary offense if they “intentionally or recklessly starts a fire to endanger any person or property of another . . . .”

Admittedly, Pennsylvania’s arson statute lacks clarity. If you are confused, you should be. There is little in the way of language difference between section § 3301(a) and § 3301(d); little difference between § 3301(c) and § 3301(d); and each of these statutes carry vastly different penalties.

As a hypothetical example, say a man starts a fire that somehow “recklessly” places another person in danger of bodily injury. Per the statute, that man could be found guilty of § 3301(a), Arson Endangering Persons (a first degree felony punishable by up to 10 to 20 years in prison and a $25,000 fine) BUT that man could merely be found guilty § 3301(d), Dangerous Burning (a summary offense that entails no jail time). If that person in danger was in a building, the arsonist could be charged with § 3301(a), (c), or (d).

Worst of all, the statutes in this example read the same, despite the grossly different penalties. Arson Endangering Persons reads: “A person commits a felony of the first degree if he intentionally starts a fire . . . [and] he thereby recklessly places another person in danger of . . . bodily injury.” Whereas Dangerous Burning reads: “A person commits a summary offense if he intentionally or recklessly starts a fire to endanger any person . . . .” (emphasis added).

So what is the difference between the statutes? Where do Courts draw the line as to what exactly a Defendant is guilty of? Why is there such an egregious discrepancy between the offenses when the language in these offenses is almost identical?

First and foremost, Pennsylvania’s statute, like most arson statutes, is archaic and outdated. Arson used to be one of the more egregious offenses a person could commit. Fires used to have the potential to wipe whole towns off the map, kill thousands of people, ruin national economies, and destroy countries. While the danger of fire cannot be understated, the old world magnified the potential for fire’s devastation, mostly due to building materials and a lack of uniform systems (such as fire departments, sprinkler systems, and other technologies) to combat any potential devastation. Under Common Law, an old system of judge made law, arson was a crime punishable by death. As recently as the middle half of the 20th century, arson was a crime punishable by death in some states, regardless of whether it actually injured anyone.

Secondly, the prosecution is responsible for the charging document and seeking charges against a particular Defendant. Therefore, it is usually in their interest to prosecute to the fullest extent of the law, meaning charging the maximum penalty (in this case, Arson Endangering Persons) and letting the poor defense attorney figure it out. The gravity and nature of the system, in conjunction with the defense attorney’s duty to fight for you, is the reason why a person facing arson charges should take the matter seriously and pick the best lawyer possible. Failure to pick a lawyer who understands the difference between the charges could cost you years of your life.

While few Appellate courts have addressed the issue in detail, Courts in the Common Pleas, Pennsylvania’s trial level system, have attempted to solve the problem by likening the statute to similarly-worded Recklessly Endangering Another Person (“REAP”) statutes. In 1987, the Court of Common Pleas in Armstrong County drew a difference between the presence of actual danger as opposed to theoretical danger in order to reduce arson charges that a Defendant was facing. Commonwealth v. Stefaniak, 44 Pa. D. & C.3d 523, 529 (Pa. Com. Pl. 1987). The charges in Stefaniak were reduced because the Defendant’s crimes only amounted to a theoretical danger and not an actual danger, and therefore, the highest level of arson charges were inapplicable. See also Commonwealth v. Trowbridge, 395 A.2d 1337 (Pa. Super. 1978).

Recently, We accomplished the same feat in the Philadelphia Court of Common Pleas. Our client was facing first degree felony charges. He was facing a potential 10-year sentence for his alleged crimes. In an argument to the Judge, We stressed that the alleged crime committed by our client did not amount to an actual danger, did not endanger any persons, and the danger possible was merely theoretical: an issue addressed in other Courts across the Commonwealth.

In the end, the Trial Judge reduced the charges for our client. Mastery and knowledge of the arson statute saved our client years of his life. To summarize – don’t sleep on your rights when it comes to arson charges. You are potentially facing severe jail time, depending on the level of your offense. Get a lawyer who knows what she or he is doing!


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