Philadelphia Criminal Defense Blog

Zak Goldstein 4/1/26 Zak Goldstein 4/1/26

PA Superior Court: One Fire Means One Sentence for Arson, No Matter How Many Buildings Are Damaged

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Swift, 2026 PA Super 66 (Pa. Super. March 31, 2026), holding that the unit of prosecution for the crime of arson endangering property under 18 Pa.C.S.A. § 3301(c)(2) is each act of arson, and not each property endangered by that act. The court reached this conclusion by applying the Pennsylvania Supreme Court’s recent analysis in Commonwealth v. Smith, 346 A.3d 1251 (Pa. 2025), which addressed the same question in the context of the closely related arson endangering persons statute. As a result, the Superior Court vacated the defendant’s judgment of sentence and remanded for resentencing, finding that the trial court had improperly imposed two consecutive sentences for two counts of arson endangering property when the defendant had set only one fire. This decision is significant for anyone facing arson charges in Pennsylvania because it limits the number of sentences a court may impose following a single act of setting a fire, regardless of how many properties are damaged.

The Facts of Commonwealth v. Swift

In July 2019, the defendant set fire to the home of his ex-girlfriend in Allegheny County. The fire caused substantial damage to that residence and also spread to the two adjoining residences on either side of the targeted home. Following a jury trial, the jury convicted the defendant of arson endangering persons under 18 Pa.C.S.A. § 3301(a)(1)(i), arson of an inhabited building under 18 Pa.C.S.A. § 3301(a)(1)(ii), and two counts of arson endangering property under 18 Pa.C.S.A. § 3301(c)(2). The two counts of arson endangering property arose from the fire spreading to and damaging the two neighboring residences, not from the fire set to the ex-girlfriend’s home itself.

On June 28, 2023, the trial court sentenced the defendant to five to ten years’ imprisonment for arson endangering persons and two consecutive terms of fifteen to thirty months’ imprisonment for each of the two counts of arson endangering property. The defendant filed a timely appeal challenging, among other things, the imposition of separate sentences for the two arson endangering property convictions as an illegal sentence.

The Procedural History

The defendant’s sentencing challenge raised a question that was already working its way through the appellate courts. In his initial appeal, the defendant relied on the analysis set forth in the dissent in the Superior Court’s en banc decision in Commonwealth v. Smith, 298 A.3d 1140 (Pa. Super. 2023). At that time, the Pennsylvania Supreme Court had granted allowance of appeal in Smith but had not yet issued a decision. The Superior Court panel in the defendant’s case denied relief and affirmed the judgment of sentence.

The defendant then sought allowance of appeal with the Pennsylvania Supreme Court. While that petition was pending, the Supreme Court issued its decision in Smith, reversing the Superior Court and holding that the unit of prosecution for arson endangering persons under Section 3301(a)(1)(i) is each act of arson, not each person endangered. On January 15, 2026, the Supreme Court granted partial relief to the defendant, vacated the Superior Court’s order affirming his judgment of sentence, and remanded the case for reconsideration in light of the new Smith decision. The Supreme Court’s remand order limited the issue to whether the trial court had imposed an illegal sentence by imposing separate, consecutive sentences for the two counts of arson endangering property.

The Superior Court’s Decision on Remand

On remand, the Superior Court applied the Supreme Court’s reasoning in Smith to the arson endangering property statute and reached the same conclusion: the unit of prosecution is each act of arson, not each property endangered.

The court’s analysis began with the text of the two statutes. The arson endangering persons statute, Section 3301(a)(1)(i), criminalizes intentionally starting a fire and thereby recklessly placing another person in danger of death or bodily injury. The arson endangering property statute, Section 3301(c)(2), uses identical language for the initial element, “intentionally start[ing] a fire or caus[ing] an explosion,” and then provides that the defendant must “recklessly place[] an inhabited building or occupied structure of another in danger of damage or destruction.” The Superior Court observed that the two statutes share the same structure: an intentional act of setting a fire, followed by a recklessness element involving harm to either persons or property.

The Supreme Court in Smith had determined that the arson endangering persons statute was ambiguous because the statutory language was capable of two reasonable interpretations: that the unit of prosecution was each act of arson, or that it was each endangered person. The Superior Court in Swift found that the arson endangering property statute, given its identical structure, was similarly ambiguous. The language could reasonably be read to mean that the unit of prosecution was either one act of arson or one damaged building.

Having found ambiguity, the court turned to the factors set forth in the Statutory Construction Act, 1 Pa.C.S.A. § 1921(c), which the Supreme Court had relied on in Smith. These factors include the occasion and necessity for the statute, the circumstances of its enactment, the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation. The Superior Court incorporated the relevant discussion from Smith, in which the Supreme Court had reviewed the legislative history of Pennsylvania’s arson statutes. That history showed that the original penal statutes, written when the state was primarily rural, imposed severe penalties for burning structures important to an agricultural economy while providing inadequate penalties for fires that endangered life in urban settings. The modern Crimes Code replaced that scheme with a system that distinguishes only between arson endangering persons (a first-degree felony) and arson endangering property (a second-degree felony). Critically, the Supreme Court found nothing in the legislative history to suggest that the legislature intended to allow separate convictions and sentences for each individual endangered by a single act of arson.

Finally, and most critically, the Superior Court applied the rule of lenity. Because Section 3301 is a penal statute, any ambiguity must be resolved in the defendant’s favor. The Supreme Court in Smith had emphasized that the rule of lenity is not merely a convenient tool of statutory construction but is rooted in fundamental principles of due process, which require that no individual be forced to speculate about whether his conduct is prohibited.

Applying these principles, the Superior Court held that the unit of prosecution under the arson endangering property statute is each act of arson, not each damaged building or occupied structure. Because the record established that the defendant committed only one act of setting a fire, to his ex-girlfriend’s home, the trial court had erred in imposing separate sentences for the two counts of arson endangering property. The court vacated the defendant’s judgment of sentence and remanded to the trial court for resentencing.

The Takeaway

Commonwealth v. Swift is a significant sentencing decision for defendants facing arson charges in Pennsylvania. By extending the Supreme Court’s holding in Smith from the arson endangering persons statute to the arson endangering property statute, the Superior Court has now established that neither subsection of Section 3301 permits the imposition of multiple sentences based on the number of people endangered or properties damaged by a single fire. Instead, the unit of prosecution for both offenses is the act of setting the fire itself. A defendant who sets one fire can receive only one sentence for arson endangering persons and one sentence for arson endangering property, regardless of how many people were placed at risk or how many buildings were damaged.

This is an important development because arson cases frequently involve damage to multiple structures as fires spread. A defendant who sets fire to one building may cause damage to several neighboring properties. Under the prior approach, prosecutors could charge a separate count of arson endangering property for each building that sustained damage, and the trial court could impose a separate sentence for each count. Swift puts an end to that practice. While the defendant may still be convicted of multiple counts, the trial court may only impose a single sentence for the arson endangering property offense when the charges all arise from one act of setting a fire.

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Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Superior Court: If you lie about having a gun while visibly carrying a gun, the police can search you.

Zak Goldstein Criminal Defense Lawyer — Zak T. Goldstein, Esquire - Criminal Defense Lawyer

The Pennsylvania Superior Court has just issued a significant published opinion in Commonwealth v. Toliver, 2026 PA Super 63 (Pa. Super. March 27, 2026), in which it reversed a Philadelphia trial court’s order granting a motion to suppress a firearm and the defendant’s statements. The Superior Court held that when a passenger in a vehicle lies to a police officer about the presence of a firearm during a lawful traffic stop, and the officer subsequently sees the firearm in plain view, the combination of the lie and the plain-view observation provides reasonable suspicion to conduct an investigative detention and frisk. This decision has significant implications for gun cases in Philadelphia and throughout Pennsylvania, and it continues to chip away at the protections that the defense bar had hoped to rely on under Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), and Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021).

The Facts of Commonwealth v. Toliver

On June 19, 2023, a Philadelphia Police Officer and his partner conducted a vehicle stop on the 700 block of West Erie Avenue for an expired registration. The defendant was the front seat passenger in the vehicle, and the defendant’s father was the driver.

When the officer initially approached the vehicle, he spoke to the father and asked for his license and registration. He also asked whether anyone in the vehicle had a license to carry a firearm. The father denied having a license to carry while the defendant stared straight ahead and did not respond. The officer then asked whether there was a firearm in the vehicle, and both the defendant and his father shook their heads no.

The officer testified that he returned to his police vehicle to run the identification cards, and from where he was sitting inside the police vehicle, he could see movement on the passenger side of the car. He described the movement as “bending in an abnormal position,” reaching down between the seats, and quicker than normal reaching movements on both sides of the seats.

The officer then exited his police vehicle and approached the defendant on the passenger side. He testified that as he approached, he saw the defendant reach down to the right side between the arm and the door, clenching something against his body, which made the officer suspicious. The officer asked the driver to turn off the vehicle, took possession of the keys, and then ordered both the defendant and his father to exit. Once the defendant was out of the vehicle, the officer placed his hands on the roof of the car. At that point, the officer noticed the butt end of a pistol sticking out of the rear pocket of the defendant’s athletic shorts and immediately put him in handcuffs. While handcuffing the defendant, the officer asked whether he had a license to carry a firearm, and the defendant responded that he did not. The defendant was then arrested and charged with Carrying a Firearm Without a License (18 Pa.C.S. § 6106(a)(1)) and Carrying a Firearm on Public Streets in Philadelphia (18 Pa.C.S. § 6108).

The Suppression Court’s Ruling

The defendant moved to suppress the firearm, and the suppression court granted his motion to suppress. The court based its ruling primarily on the Pennsylvania Supreme Court’s decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), and the Superior Court’s prior decision in Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021). The suppression court found that the police did not have independent reasonable suspicion to investigate whether the defendant had a valid firearms license. The court did not credit the officer’s testimony about furtive movements, finding his description of what he claimed to observe was “extremely vague and equivocal.” The court also found that there was no evidence that the defendant displayed any nervousness during the traffic stop. Although the suppression court acknowledged that the defendant had been untruthful about whether there was a gun in the car, it dismissed this factor, reasoning that lying to the police while not under oath is not a crime.

The suppression court also concluded that the officer should have checked the police databases for the defendant’s licensure status before questioning him about whether he had a license to carry, and it therefore suppressed both the gun and the defendant’s statement admitting he did not have a license to carry. The Commonwealth appealed.

The Superior Court’s Decision

The Superior Court reversed the suppression order in a published opinion.

First, the Superior Court accepted the suppression court’s factual findings, including its finding that the movements described by the officer were not furtive and its assessment of the officer’s credibility on that point. However, the Superior Court found that the suppression court committed a legal error by completely disregarding the defendant’s lie about the presence of a firearm in its reasonable suspicion analysis.

The court’s analysis turned on the distinction between this case and Hicks. In Hicks, the Pennsylvania Supreme Court held that the mere possession of a firearm is not alone suggestive of criminal activity and cannot independently support a finding of reasonable suspicion. The Superior Court in Toliver agreed that Hicks controlled the question of whether mere possession alone is sufficient, but it found that the case presented more than mere possession. Specifically, when asked by the officer whether there was a firearm in the car, the defendant affirmatively denied having a gun. The officer later determined that this denial was a lie when he saw the butt of the gun protruding from the defendant’s pocket.

The Superior Court also distinguished Commonwealth v. Malloy, 257 A.3d 142 (Pa. Super. 2021), which the defendant and the suppression court had relied upon. In Malloy, the court suppressed evidence because the investigative detention was initiated based solely on the defendant’s mere possession of a firearm, which under Hicks could not support reasonable suspicion. Critically, in Malloy, the lie about the firearm license came after the detention had already begun, and the court found that information developed after the start of the detention could not be used retroactively to justify it. In Toliver, by contrast, the lie about the gun occurred before the officer saw the gun and initiated the investigative detention. Therefore, by the time the officer ordered the defendant out of the car and saw the gun protruding from his pocket, the officer had already detected the lie, and the combination of the lie and the plain-view observation of the gun provided reasonable suspicion.

The Superior Court held that lying to the police about the presence of a firearm, combined with the officer’s subsequent plain-view observation of that firearm, constitutes reasonable suspicion permitting an investigative detention. The court reasoned that the combination of possessing a concealed firearm and lying about that possession leads to natural inferences that the person lied either because they wish to hide the fact that they pose a lethal threat to the officer or to hide that their possession of the firearm is illegal. The court cited Commonwealth v. Metz, 332 A.3d 92, 100 (Pa. Super. 2025), Commonwealth v. Williams, 73 A.3d 609, 616 (Pa. Super. 2013), and Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super. 1997), in support of the well-established principle that providing false information to the police is a factor supporting reasonable suspicion.

The court also held that the frisk was justified because once reasonable suspicion existed for the investigative detention, the officer could reasonably suspect that a passenger who lied about having a gun and was in fact armed was dangerous. It further ruled that the officer’s question about licensure status during the lawful investigative detention was permissible and did not require suppression of the defendant’s admission that he lacked a license.

Finally, the Superior Court rejected the suppression court’s reasoning that the officers should have checked their databases for the defendant’s licensure status before asking about it. The court noted that accepting this reasoning would effectively mandate that all police officers in the Commonwealth run firearms licensing checks as a routine part of every traffic stop, which would inevitably prolong all stops. The court also pointed out that this reasoning directly contradicts the holding of Malloy, which forbids the delay of a car stop to research a passenger’s firearm licensing status in the absence of reasonable suspicion.

The Takeaway

This is a significant and difficult decision for the defense. Since the Pennsylvania Supreme Court decided Hicks in 2019, defendants have been able to argue that the mere possession of a concealed firearm does not give the police reasonable suspicion to detain and investigate. Toliver narrows that protection considerably by establishing that when a person also lies about having a gun, the lie transforms the encounter into one that supports reasonable suspicion.

The practical impact is considerable. During most traffic stops, officers routinely ask occupants whether there are any weapons in the car. Under Toliver, if an occupant denies having a gun and the police subsequently discover one, the denial itself now provides the additional factor beyond mere possession that the Commonwealth needs to establish reasonable suspicion. This creates a difficult situation for defendants: remaining silent in response to the officer’s question may itself raise suspicion, yet answering untruthfully will now be used against them. Meanwhile, truthfully admitting to having a firearm obviously leads to further investigation as well.

The decision also effectively limits the reach of Malloy by making clear that a detected lie that precedes the investigative detention is distinguishable from information learned during an already-unlawful detention. Defense attorneys handling gun cases will need to pay close attention to the precise timeline of events: when the lie occurred, when the officer observed the gun, and when the detention actually began.

Facing Criminal Charges or a Wrongful Conviction?

Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Supreme Court: Prosecutorial Misconduct to Call a Witness the Prosecution Knows Will Refuse to Testify

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Belgrave, No. 31 WAP 2024 (Pa. March 26, 2026), holding that it is prosecutorial misconduct to call a witness to testify before a jury when the prosecution knows in advance that the witness intends to refuse to answer questions. The Court reversed the Superior Court’s decision, vacated the defendant’s judgment of sentence, and remanded for a new trial. The opinion was authored by Justice Wecht and joined by every member of the Court.

The Facts of Commonwealth v. Belgrave

The Court summarized the facts as follows: the charges in this case arose from a drug sale at a Marriott Hotel in Erie, Pennsylvania, on February 7, 2019, that ended in a gunfight. Four men, including the defendant, drove from Chicago to Erie and rented a hotel room. Hotel surveillance video showed that Belgrave and his associate, Charles Baizar, were parked in a Chevrolet Impala when a dark-colored SUV arrived in the parking lot. Baizar and another man walked toward the SUV, and when Baizar attempted to enter it, the SUV’s driver exited the vehicle and began shooting. Baizar ran, dropping a package. Belgrave exited the Impala and fired two shots in the direction of the SUV. Belgrave was shot and seriously injured.

Police stopped the Impala as it was leaving a nearby parking garage. The package that Baizar dropped during the gunfight contained 239 grams of heroin. Baizar was separately charged with conspiracy to commit PWID and pleaded guilty to conspiracy in December 2019. Belgrave was charged with conspiracy to commit PWID (amended on the eve of trial to PWID), aggravated assault, and other offenses. A jury convicted Belgrave of PWID, reckless endangerment, and carrying a firearm without a license.

The Prosecutorial Misconduct Issue

The central issue in this appeal was the prosecution’s decision to call Baizar to the witness stand at Belgrave’s trial despite knowing in advance that Baizar would refuse to answer any questions. Belgrave’s defense counsel identified this problem early, filing a motion in limine on the eve of trial. The concern was well-founded: Baizar had filed his own Motion to Quash Subpoena the day before Belgrave’s trial began, stating clearly that he had no intention of testifying and intended to invoke his Fifth Amendment right against self-incrimination.

The Commonwealth sought to compel Baizar’s testimony by offering him immunity. But even with immunity, which eliminated any valid Fifth Amendment basis for refusing to testify, Baizar still refused to testify and was subject to contempt sanctions. Despite all of this, the prosecutor went ahead and called Baizar to the stand in front of the jury.

What followed was remarkable. In his opening statement, the prosecutor told the jury to look forward to Baizar’s testimony while simultaneously revealing that Baizar did not want to cooperate. When Baizar took the stand, he refused to answer every substantive question. But the prosecutor pressed on, asking eighteen predominantly leading questions that were loaded with accusations. The prosecutor asserted that Baizar was Belgrave’s cousin, that they came to Erie to sell heroin together, that Baizar had made prior statements to police about the incident, and that Baizar was refusing to testify because he wanted to protect Belgrave. Baizar answered none of the questions. The prosecutor essentially became the de facto testifying witness, putting allegations before the jury in the form of unanswered questions.

The trial court gave a limiting instruction telling the jury that questions are not evidence and that only answers may be considered. But the Supreme Court found this wholly insufficient to cure the prejudice. In closing arguments, the prosecutor doubled down, telling the jury that Baizar knew what happened, knew who was involved, and refused to say anything. He implored the jury to infer facts from an interaction that consisted entirely of unanswered questions.

The Supreme Court’s Analysis

The Supreme Court engaged in a thorough review of its prior case law governing this issue, beginning with the 1973 cases of Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973), and Commonwealth v. DuVal, 307 A.2d 229 (Pa. 1973). In Terenda, the Court found it was prejudicial error for the prosecution to call co-indictees to the stand knowing they would invoke the Fifth Amendment. In DuVal, the Court held that summoning a witness with foreknowledge that the witness would invoke the privilege against self-incrimination constitutes prejudicial error in itself, regardless of whether the prosecutor believed the privilege claim would be legally invalid. The DuVal Court explained that the proper procedure is for the prosecution to test the witness’s willingness to testify in advance, outside the jury’s presence, and obtain a ruling before bringing the witness before the jury.

The Superior Court had distinguished Terenda and DuVal on a narrow basis: in those cases, the witnesses expressly invoked the Fifth Amendment in front of the jury, while Baizar simply refused to answer without specifically mentioning the Fifth Amendment. The Superior Court relied on the separate case of Commonwealth v. Todaro, 569 A.2d 333 (Pa. 1990), where this Court found no error when a witness quietly informed the court of his intent to invoke the Fifth Amendment, was excused before the jury, and never appeared again.

The Supreme Court found the analogy to Todaro deeply flawed. In Todaro, the prosecutor did not have advance notice that the witness would refuse to testify, the witness was quickly excused, and no accusatory questions were asked before the jury. In Belgrave, by contrast, everyone knew Baizar would not answer, the prosecutor called him anyway, and then peppered him with leading, accusatory questions designed to plant inculpatory information in the jurors’ minds through the questions themselves.

The Court also rejected the Superior Court’s reasoning that the absence of an express Fifth Amendment invocation before the jury somehow made Baizar’s defiant silence less prejudicial. The Court found that this distinction defied common sense, observing that the prejudicial harm lies in the refusal to deny accusations, which a reasonable juror can treat as an implied admission, and that this harm exists regardless of whether the witness cites a specific legal basis for the refusal.

The Court further held that the error was not harmless beyond a reasonable doubt. The prosecution’s extensive efforts to obtain Baizar’s testimony, including securing immunity directly from the District Attorney, demonstrated how critical the prosecution considered Baizar’s testimony to be. The prosecutor’s repeated emphasis on Baizar’s knowledge and silence, in both opening and closing statements, confirmed this.

The Takeaway

Commonwealth v. Belgrave is a significant decision for criminal defendants in Pennsylvania. It reaffirms and strengthens the rule from DuVal that prosecutors may not call witnesses they know will refuse to answer questions before a jury. The Court made clear that it is the act of summoning the witness, not what happens after the witness takes the stand, that constitutes the misconduct. And it rejected the artificial distinction between an express invocation of the Fifth Amendment and a simple refusal to answer, holding that the prejudice to the defendant is the same either way.

The decision also underscores the obligation of trial courts to resolve these issues before a witness ever appears in front of the jury. As the Court emphasized, citing DuVal and Commonwealth v. Davenport, 308 A.2d 85 (Pa. 1973), the proper procedure is a pre-appearance hearing to assess the witness’s willingness to testify and determine whether the witness’s appearance before the jury would serve any legitimate purpose.

This is a unanimous decision, with all seven justices joining Justice Wecht’s opinion, which gives it particular force as precedent. If you or someone you know is facing criminal charges and believes that the prosecution engaged in misconduct at trial, it is critical to consult with an experienced criminal defense attorney who can evaluate whether the issue warrants appellate relief or a new trial.

Facing Criminal Charges or a Wrongful Conviction?

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 3/27/26 Zak Goldstein 3/27/26

PA Supreme Court Finds Mandatory Life Without Parole for Second Degree Murder Unconstitutional

The Pennsylvania Supreme Court has just issued what may be the most significant criminal sentencing decision in decades. In Commonwealth v. Lee, No. 3 WAP 2024 (Pa. March 26, 2026), the Court held that Pennsylvania’s mandatory sentence of life imprisonment without the possibility of parole for all second-degree murder (felony murder) convictions violates Article I, Section 13 of the Pennsylvania Constitution. The decision means that every person currently serving a mandatory life-without-parole sentence for felony murder may be entitled to resentencing, and going forward, sentencing courts must conduct an individualized assessment of culpability before imposing a life sentence for felony murder. This is a landmark ruling that will affect potentially thousands of inmates across the Commonwealth. The Court, however, did not clearly rule whether the decision is retroactive. It also stayed the decision for 120 days to give the legislature time to respond and decide whether some other lesser mandatory minimum should apply.

The Facts of Commonwealth v. Lee

The case arose from a 2014 home invasion robbery in the Elliott neighborhood of Pittsburgh. Leonard Butler and Tina Chapple shared a residence with their nine-year-old son. On October 14, 2014, two men, later identified as Derek Lee and Paul Durham, entered the home armed with guns and with partially covered faces. They forced Butler and Chapple into the basement, demanded money, and used a taser on Butler. Lee, described by Chapple as “the meaner one,” pistol-whipped Butler in the face and took his watch before running upstairs. Durham remained with the couple. Butler then began to struggle with Durham over the gun, and during that struggle, a shot was fired that killed Butler.

Lee was charged with homicide, burglary, robbery, and criminal conspiracy. At trial, the jury found Lee guilty of second-degree murder (felony murder), robbery, and conspiracy. Critically, the jury found Lee not guilty of first-degree murder. In other words, the jury specifically rejected the idea that Lee had the intent to kill. Lee was not the shooter; according to the Court’s summary, the fatal shot was fired by Durham during a struggle with the victim while Lee was on a different floor of the house.

Despite the jury’s finding that Lee did not intend to kill anyone, the trial court was required by statute to sentence him to life imprisonment without the possibility of parole. Under 18 Pa.C.S. § 1102(b), a conviction for second-degree murder carries a mandatory sentence of life in prison, and under 61 Pa.C.S. § 6137(a)(1), a person serving a life sentence is ineligible for parole. The sentencing judge had no discretion, meaning they had no ability to consider Lee’s individual role in the crime, his lack of intent to kill, or any other mitigating factors.

What Is Felony Murder?

Under Pennsylvania law, second-degree murder, commonly known as felony murder, is defined as a criminal homicide committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S. § 2502(b). The qualifying felonies include robbery, rape, arson, burglary, and kidnapping. 18 Pa.C.S. § 2502(d). Unlike first-degree murder, the Commonwealth does not have to prove that the defendant intended to kill anyone. The only intent required is the intent to commit the underlying felony. The malice necessary to support a murder conviction is constructively inferred from the act of committing the dangerous felony.

This means a person can be convicted of murder and sentenced to die in prison even if they did not pull the trigger, did not intend for anyone to be hurt, and were not even in the same room when the killing occurred. At the time of this decision, only four other states, Iowa, Louisiana, Mississippi, and North Carolina, imposed a similar mandatory life-without-parole sentence for felony murder without exceptions, making Pennsylvania an outlier even among the minority of states that still use the felony murder rule aggressively. This case addressed whether such a sentence would be constitutional under the Pennsylvania Constitution.

The Eighth Amendment Claim

The Court first addressed whether mandatory life without parole for felony murder violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court concluded that it does not, at least under current United States Supreme Court precedent. The majority explained that the high Court’s categorical approach, which has been used to bar the death penalty for non-homicide offenses in Kennedy v. Louisiana, 554 U.S. 407 (2008), and to bar mandatory life without parole for juvenile offenders in Miller v. Alabama, 567 U.S. 460 (2012), has not been extended to adult defendants convicted of felony murder. While the appellant relied on cases like Enmund v. Florida, 458 U.S. 782 (1982) (barring the death penalty for felony murder defendants who did not kill, attempt to kill, or intend to kill), the Court found that this line of cases involved capital punishment specifically and has not been applied to life-without-parole sentences for adults.

The Court also considered whether a national consensus has emerged against mandatory life without parole for felony murder under the categorical approach. Noting that the number of states with similar mandatory sentencing schemes is disputed but at least a handful of states still impose such sentences, the Court concluded that a sufficient national consensus has not yet developed to support an Eighth Amendment categorical bar.

The Article I, Section 13 Claim: A Broader State Constitutional Protection

This is where the decision breaks new and critical ground. The Court conducted an independent analysis under Article I, Section 13 of the Pennsylvania Constitution, applying the four-factor test from Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), which governs when state constitutional provisions provide broader protections than their federal counterparts. And the Court concluded that Section 13 does provide broader protection in this context.

The key textual distinction is significant: the Eighth Amendment prohibits “cruel and unusual punishments,” while Article I, Section 13 prohibits “cruel punishments,” without the word “unusual.” This is not merely a semantic difference. The Court reasoned that under the Eighth Amendment’s framework, a punishment must be both cruel and unusual to be unconstitutional. A punishment that is common or widespread among the states, and therefore not “unusual,” may survive Eighth Amendment scrutiny even if it is harsh. But under the Pennsylvania Constitution, the sole question is whether the punishment is “cruel,” regardless of how many other states impose it.

The Court held that imposing a mandatory sentence of life without parole on all felony murder defendants, without any assessment of individual culpability, constitutes a cruel punishment under Article I, Section 13. The statutory scheme treats the person who planned and carried out a killing identically to the person who served as a lookout during a robbery in which an unplanned death occurred. This one-size-fits-all approach is inconsistent with the Pennsylvania Constitution’s protection against cruel punishments.

In reaching this conclusion, the Court traced the history of both the felony murder doctrine and Pennsylvania’s tradition of proportionate sentencing, going back to Pennsylvania’s landmark 1794 statute, the first in the country to divide murder into degrees, which was rooted in Enlightenment-era principles of proportionality promoted by figures like Cesare Beccaria and Benjamin Rush. The Court found that mandatory life without parole for all felony murder offenders, without any opportunity for an individualized assessment of culpability, is fundamentally at odds with this tradition.

The Remedy

The Court vacated Lee’s judgment of sentence and remanded the case for resentencing. However, the Court also stayed its order for 120 days to give the General Assembly an opportunity to enact remedial legislation establishing a new sentencing framework for second-degree murder. This is the same approach the Court has used in other cases where it has struck down a sentencing scheme, such as the juvenile lifer cases following Miller v. Alabama.

The Concurring and Dissenting Opinions

All seven justices participated in the decision, and while the result was unanimous as to the Pennsylvania constitutional holding, several justices wrote separately to elaborate on various points.

Justice Wecht wrote a concurrence providing extensive scholarly analysis of the differences in culpability between first-degree and second-degree murder, emphasizing that the felony murder rule punishes defendants who lack any intent to kill with the same severity as those who deliberately take a life. Justice Wecht also argued that foreign law should be irrelevant to the Pennsylvania constitutional analysis. This was a point of departure from the majority’s broader survey approach.

Justice Dougherty, joined by Justice McCaffery, wrote a concurrence further developing the textual analysis of why Section 13 provides broader protection than the Eighth Amendment. Justice Dougherty emphasized that because mandatory life without parole for felony murder is not “unusual” in that several states still impose it, it cannot violate the Eighth Amendment under current doctrine. But the absence of the word “unusual” from Section 13 means the Pennsylvania Constitution asks a different and more protective question.

Justice Mundy wrote separately to emphasize the limited scope of the holding: it applies only to defendants who did not kill, did not attempt to kill, and did not intend to kill. The decision does not disturb life-without-parole sentences for second-degree murder defendants who were the actual killer or who intended that someone die.

Justice Brobson concurred in the majority’s Edmunds analysis and the holding that mandatory life without parole for all felony murder offenders is unconstitutional under Section 13. However, he dissented in part from the remedy, expressing reservations about the 120-day stay and arguing that the Court should provide more specific guidance to sentencing courts on remand.

The Takeaway

This decision has enormous practical implications for criminal defendants in Pennsylvania. For those currently serving mandatory life-without-parole sentences for second-degree murder, particularly those who were not the actual killer and did not intend to kill, this decision may open the door to resentencing proceedings. Certainly, defendants will most likely want to file PCRA petitions in 120 days when the decision takes effect. It is not yet clear exactly how many inmates will be affected, but it is likely in the thousands, as Pennsylvania has one of the largest populations of people serving life without parole in the country, and a significant number of those individuals were convicted under the felony murder rule. It is not yet clear, however, whether the decision is retroactive to those whose convictions are already final, and this may be the subject of litigation. The Governor, however, has already commented that he supports the decision.

Going forward, the General Assembly will need to establish a new sentencing framework for second-degree murder that allows for individualized consideration of a defendant’s culpability. If the legislature does not act within 120 days, the courts may begin resentencing felony murder defendants without a new statutory framework in place.

For defendants facing felony murder charges now, this decision is critical. Defense attorneys should be raising the issue of individualized sentencing at every stage and arguing that a mandatory life-without-parole sentence cannot be imposed without consideration of the defendant’s specific role in the offense, intent, and other mitigating factors.

Facing Criminal Charges or Appealing a Criminal Case? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Fraud, and Murder. We have also successfully challenged convictions for murder, firearms charges, rape, and other serious convictions on direct appeal in state and federal court as well as through post-conviction relief act litigation. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. We can also help you navigate your response to the Court’s decision if you have a loved one serving life without parole as a result of a second degree murder conviction. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.